Fordham Undergraduate Law Review: Volume II (Fall 2020)

FORDHAM UNDERGRADUATE LAW REVIEW

R.B.G.

EDITION

ARTICLE & NOTES THE TYRANNY OF THEIR MIRRORS Andrew Millman

FASHION DESIGN PIRACY Vendela Dente

A SHIFT IN ENVIRONMENTAL ACCOUNTABILITY Nicholas Wolf

ASSIMILATION OF CULTURES Kevin James

THE ADVANCEMENT OF INTERNATIONAL LAW Jonathan Katz

INVESTIGATING A MEGA-MERGER Rahul Sukesh

MUSEUM EXHIBITS OR ILL-GOTTEN GAINS? Tyler Raciti Editor-in-Chief

VOL. 2

Anthony Elvis Gambino

THE ASYLUM SEARCH

Reeve Churchill and Wislande Francique

FALL 2020

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FALL 2020

Edited by the Undergraduates of Fordham University

LETTER FROM THE EDITOR-IN-CHIEF VOL. 2

2020-21

NO. 1

November 28, 2020 Dear Reader: As undergraduates in the pursuit of a legal career, we have been tasked to find our way in the midst of a pandemic infused with social upheaval. While this new reality may seem daunting or even derailing, I believe this moment presents an excellent opportunity to become the next attorney of tomorrow. As pre-law students in the year 2020, we are witnessing the world of law take shape: from the life and legacy of the late U.S. Supreme Court Justice Ruth Bader Ginsburg to the invigoration of a second civil rights movement, our institutions are bending before us. These institutions have been steeped in the status quo and are in desperate need for change. I am confident that we will do our part by challenging the carceral archipelago, fighting for equal protections of marginalized individuals, and increasing the number of women practicing, engaging, and shaping our laws. I am also confident that the pre-legal minds presented in this journal will help to push the law forward and impact our society in the very near future.

To that end, I am honored to present to you Volume II of the Fordham Undergraduate Law Review, a careful collection of pressing legal issues as analyzed and discussed by Fordham University’s most distinguished pre-law scholars. This Volume will discuss a wide range of legal issues relating to sexual orientation, environmental issues and climate change, immigration and refuges, and the implications of dual citizenship. There will also be detailed discussions relating to merger and acquisition law, intellectual property law, and international law. Through this diverse cohort of undergraduates with a wide range of legal opinions, the state and future of law will be analyzed.

Thank you to the fantastic Editorial Board for their long days and tireless nights in helping shape this Volume. Additionally, thank you to our Senior Editors who contributed to the editorial process. Lastly, thank you to Dean Mantis, J.D. and Father Horan, S.J. for their institutional support in our Journal.

Sincerely,

Tyler Raciti, Editor-in-Chief

CONTENTS VOL. 2

FALL 2020

NO. 1

“THE TYRANNY OF THEIR MIRRORS”: SOCIAL BACKGROUNDS & VARIATIONS IN CONSERVATIVE JUDICIAL PHILOSOPHIES Andrew Millman.............................................................................................1 FASHION DESIGN PIRACY: AN ISSUE OF INTELLECTUAL PROPERTY OR ECONOMIC IMPACT? Vendela Dente.............................................................................................. 25 A SHIFT IN ENVIRONMENTAL ACCOUNTABILITY Nicholas Wolf............................................................................................... 34 ASSIMILATION OF CULTURES: WHY THE PROTECTION AND RECOGNITION OF DUAL NATIONALITY IS NECESSARY Kevin James..................................................................................................38 THE APPLICATION AND ADVANCEMENT OF INTERNATIONAL LAW: FRANCE’S NEW CYBERSECURITY POLICY Jonathan Katz................................................................................................ 46 INVESTIGATING A MEGA-MERGER: CONTEXTUALIZING THE T-MOBILE MERGER TO THE CONSUMER WELFARE STANDARD AND THE COMPETITION STANDARD Rahul Sukesh................................................................................................ 60 MUSEUM EXHIBITS OR ILL-GOTTEN GAINS: A LEGAL AND PHILOSOPHICAL LOOK AT CULTURAL PROPERTY LAW Anthony Elvis Gambino................................................................................ 78 THE ASYLUM SEARCH: HOW THE SUPREME COURT’S POTENTIAL RULING IN EAST BAY SANCTUARY V. BARR MAY CHANGE OUR INTERPRETATION OF ASYLEE RIGHTS THROUGH THE HONDURAS DEAL Reeve Churchill and Wislande Francisque.................................................. 88

MASTHEAD VOL. 2

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NO. 1

EDITORIAL BOARD TYLER RACITI Editor-in-Chief AIDEN HANNON Co-Managing Editor

JENNIFER RIVERO Co-Managing Editor

REEVE CHURCHILL Executive Articles Editor

ARIANNA CHEN Executive Online Editor

SEAN O’BRIEN Business Administrator

JONATHAN KATZ Business Administrator

SENIOR EDITORS MARY CACEVIC REBECCA HALL JACK QUAGLINO EMILY LIU THOMAS REUTER CHRISTOPHER KERRANE CATHERINE GASSIOT KEVIN JAMES BRIANA AL-OMOUSH

ELIZABETH HARTNETT ELISE MCDONALD FAHIMA HUSSAIN ANIKE TELLA-MARTINS MARGARITA MCCOY GABRIELLA MANGOME JACK QUAGLINO MAGGIE LAVENGOOD SYDNEY BECK

HANNAH PERRY ANTHONY VU GRACE DAVIDSON HANNAH PERRY MAYA BENTOVIM EMILY LIU ASHLEY WRIGHT ROBERTO LEITO NICHOLAS SUIT

STAFF WRITERS KAITLIN ÇAĞINALP WISLANDE FRANCISQUE ELIZABETH REED BRANDON GJONGECAJ DANIEL GOLDSHMID EMILY SEEBERGER OLIVIA FRANTZESKOS ZEKE TWEEDIE

EMILY CERRON APRIL GORE PANTHO SAYED GARRETT LUEG VENDELA DENTE SAMANTHA DAVIS HANI JAWABRAH DANIELLE POOLE

HILLARY MANTIS, J.D. Faculty Advisor

SOH BHATTACHARJEE ANDREW MILLMAN ANNA SCHMITT MIKE RUSSO DANIELLE POOLE ANNA TORPEY ANTHONY GAMBINO MICHAEL BONGIOVANNI

FR. BRENDAN HORAN, S.J. Faculty Mentor

ARTICLE The Fordham Undergraduate Law Review (FULR) is an entirely student-run, scholarly journal at the undergraduate level for the Fordham University and legal community. Our publication includes a wide array of topical and historical legal issues covering both domestic and international affairs in its scope. FULR is a coveted opportunity for high-achieving, exceptional writers examining a range of disciplinary lenses as it relates to the nuances of law. In this pursuit, we have forged a driven, competitive community of students that engage in fruitful discussions on various legal issues. These exceptional attorneys of tomorrow are given opportunities for publication and offered admission to prelaw networking events with distinguished Fordham alumni. Learn more about opportunities to join our team at fulr@fordham.edu.

INSTITUTIONAL PARTNERS ROSE HILL DEAN’S OFFICE, Fordham College at Rose Hill PRE-LAW ADVISING OFFICE, Fordham College at Rose Hill & Lincoln Center OFFICE OF STRATEGIC INITIATIVES, Fordham College at Rose Hill OFFICE OF STUDENT INVOLVEMENT, Fordham College at Rose Hill PRE-LAW SOCIETY OF ROSE HILL & LINCOLN CENTER, Fordham College at Rose Hill & Lincoln Center Thank you to our institutional partners for their supportive mentorship and financial assistance. Without their help, this volume would not have been possible.

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The views expressed by the contributors are not necessarily those of the Editorial Board, the institutional partners of the Fordham Undergraduate Law Review, or Fordham University. While every effort has been made to ensure the accuracy and completeness of information contained in this journal, the Editors cannot accept responsibility for any errors, inaccuracies, omissions, or inconsistencies contained herein.

No part of this journal may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission in writing. The authors who submitted their work to the Fordham Undergraduate Law Review retain all rights to their work.

Citations conform to the Fordham Undergraduate Law Review Style Guide, Second Edition, a slight modification of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION, (Harvard Law Review Association et al. eds., Twentieth edition ed. 2016).

Fordham Undergraduate Law Review Volume II, Issue I, 2020-21 https://research.library.fordham.edu/fulr/

ARTICLE “THE TYRANNY OF THEIR MIRRORS”: SOCIAL BACKGROUNDS AND VARIATIONS IN CONSERVATIVE JUDICIAL PHILOSOPHIES Andrew Millman * 1

This Article seeks to examine and compare the judicial behaviors of the five conservative justices on the Supreme Court, especially John Roberts and Neil Gorsuch, through the lens of their social backgrounds and opinionwriting and -joining patterns. The research for this Article focused on the frequency with which all nine justices on the high court joined each other’s opinions and were joined by each other justice, as well as a control group of three earlier Supreme Court terms for comparison. This is the best indicator of whether justices are in alignment on a case, not just on the outcome but also the reasoning behind the outcome. I will lay out four hypotheses relating to either Roberts or Gorsuch and how their social backgrounds influence their jurisprudence in ways that deviate from the expected and then use this research to confirm or reject those hypotheses. In doing so, this project seeks to shed light on a set of Supreme Court justices, especially among the conservative bloc, whose votes seem increasingly harder to predict. As seen in recent terms, there is no longer a single usual swing vote, as there might have been in the past, but at least two conservative justices who are liable to side with liberals on certain cases. This Article seeks to determine on what issues and in what circumstances those unexpected votes occur.

I. II. III. IV. V. VI.

INTRODUCTION.................................................................. 2 BOSTOCK V. CLAYTON COUNTY AS A FRAME...............4 A. Hypotheses..................................................................9 CLARENCE THOMAS COUNTERARGUMENT............. 10 PRIOR RESEARCH & CONTRIBUTION TO ACADEMIC LITERATURE..................................................................... 12 METHODOLOGY............................................................... 15 RESEARCH FINDINGS......................................................16

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* B.A. Candidate for Political Science (major), English (minor), and American Studies (minor), Fordham College at Rose Hill, Class of 2021. This Article would not be possible without the support of the Editorial Board of the Fordham Undergraduate Law Review, with special thanks to Reeve Churchill (Executive Articles Editor) and Tyler Raciti (Editorin-Chief), who gave direction, guidance, and editing assistance for this Article. I would also like to thank Professor Robert Hume for his advice and mentorship throughout this project. In addition, I must thank CNN Supreme Court reporter Joan Biskupic, whose book, The Chief, provided the initial inspiration for this project.

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A. Opinion-Joining Patterns, October Terms (20062008).........................................................................17 B. Opinion Joining Patterns, October Terms (20172019).........................................................................18 RESEARCH ANALYSIS.....................................................19 A. Neil Gorsuch’s Opinions, by Issue Group................. 21 B. John Roberts’ Opinions, by Issue Group...................22 CONCLUSION.....................................................................22 .

VIII.

I. INTRODUCTION With several recent unexpected outcomes, the Supreme Court has become more difficult than ever to decipher. One method, the Social Background Theory (SBT) of Judicial Behavior states that a judge’s social background characteristics can influence their decisions in ways that cannot be inferred through an assessment of ideology alone (the Attitudinal Model). For example, previous research2 has shown that Black and women judges are more likely to rule in favor of plaintiffs in race and gender discrimination cases, respectively, which can be explained through each group’s lived experiences related to those issues. The theory works best when it is applied to specific circumstances, not broadly. It would be erroneous, for example, to assume that a judge of color is likely liberal in their judicial outlook simply because most Americans of color vote in favor of Democratic candidates over Republicans.

Today, the SBT can offer unique insights into the judicial behavior of conservative justices on the Supreme Court, who are not often the subjects of this theory’s analysis. While decisions at the Supreme Court are often to the right of American society overall, Republican-appointed justices have not uniformly voted for conservative causes as their nominators may have expected. Justice David Souter, an appointee of Republican George H.W. Bush, is perhaps the clearest example of this.3 The court has also traditionally had a so-called “swing vote.”4 For many years, Justice Sandra Day O’Connor, an appointee of Republican Ronald Reagan, occupied this position until her retirement when another Reagan appointee, Anthony Kennedy, took over the “swing vote” position 一 after Samuel Alito joined the Court 一 often deciding some of the most contentious, often 5-4 decisions, as he did in 2 See Susan B. Haire & Laura P. Moyer, Diversity Matters: Judicial Policy Making in the U.S. Court of Appeals (1 ed. 2015).

3 See John Fliter, The Jurisprudential Evolution Of Justice David Souter, 26 Southeastern Political Review, 725-754 (2008).

4 See Peter K. Enns & Patrick C. Wolfarth, The Swing Justice, 75 The Journal of Politics, (2013).

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Planned Parenthood v. Casey (1992)5 and Obergefell v. Hodges (2015).6 Kennedy was not always the deciding vote in 5-4 cases, a notable exception being John Roberts in NFIB v. Sebelius (2012),7 but he occupied this position most of the time and this perception was near-universal during his tenure.

When Justice Kennedy retired in 2018, Brett Kavanaugh was nominated to replace him on the high court. The confirmation was contentious, not only because Kavanaugh’s appointment (like Alito’s before him) represented a shift on the court from a swing vote to a perceived reliable conservative,8 but because of Dr. Christine Blasey Ford’s credible allegations of sexual misconduct against now-Justice Kavanaugh. In the two terms with Kavanaugh on the Court, the fissures in the conservative bloc have been on full display.9 There is no longer a single reliable conservative swing vote to potentially side with liberals. Now, it could be John Roberts10 or Neil Gorsuch11 or maybe even Kavanaugh12 and the determining factor is which issue area each case falls into, not a simple left-right binary. The Social Background is an ideal lens for this situation and can yield some limited but important insights into the dynamics and inner-workings of the nation’s highest court, despite the relative homogeneity of the current bench.

Seven of nine justices are white, six are men, eight were Appeals Court judges, all but one are Catholic or Jewish (and the lone Protestant, Gorsuch, is Catholic educated), all attended Ivy League law schools and seven attended Ivy League schools as undergraduates as well, all are now above the age of fifty (at a time when generational divides are steeper than ever), all but one spent a majority of their pre-SCOTUS lives east of the Mississippi River, and so on.

5

See Planned Parenthood v. Casey, 505 U.S. 833.

See Obergefell v. Hodges, 576 U.S. 644.

7 See National Federation of Independent Businesses v. Sebelius, 567 U.S. 519.

8 See Kevin Cope, Exactly how conservative are the judges on Trump's short list for the Supreme Court? Take a look at this one chart, 2018, The Washington Post, https://www.washingtonpost.com/news/monkey-cage/wp/2018/07/07/exactly-howconservative-are-the-judges-on-trumps-short-list-for-the-supreme-court-take-a-look-at-thisone-chart/.

9 See Mark Sherman, Supreme Court Divided in 1st Big Abortion Case of Trump Era, 2020, AP NEWS, https://apnews.com/719de432f53c9c9f53fc28b7191103ce.

10 See Adam Liptak, John Roberts Was Already Chief Justice. But Now It's His Court, 2020, The New York Times, https://www.nytimes.com/2020/06/30/us/john-robertssupreme-court.html.

11 See Mark Joseph Stern, How Neil Gorsuch Became the Supreme Court's Most Unpredictable Justice, 2020, Slate Magazine, https://slate.com/news-andpolitics/2020/07/neil-gorsuch-supreme-court-swing-vote.html.

12 See Amelia Thomson-DeVeaux, The Supreme Court Might Have Three Swing Justices Now, 2019, FiveThirtyEight, https://fivethirtyeight.com/features/the-supreme-court-mighthave-three-swing-justices-now/.

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Some greater contrasts exist within the ideological blocs. Elena Kagan’s Executive Branch experience (as Solicitor General) sets her apart from her fellow liberals on the bench and she has been characterized as being generally more supportive of executive power than her liberal colleagues.13 Alito is the lone former prosecutor (a U.S. Attorney in New Jersey), which correlates with him being the justice on the court most in favor of the death penalty14 and often the toughest on defendants in criminal procedure cases (the latter will be shown later in this paper). Breyer’s legislative experience as a Senate staffer, unique among the current justices, has also correlated with his favoring of the legislative branch in many inter-branch disputes; he has the lowest rate of overturning Congressional legislation of any justice between 1994 and 2005.15 These are just a few of the examples of how a justice’s social backgrounds can influence their judicial philosophies.

II. BOSTOCK V. CLAYTON COUNTY AS A FRAME Overall, this paper asserts that social background characteristics have a concentrated but limited effect on judicial behavior, not a wholesale extrapolation of a justice’s ideology. This can be seen clearly in the three opinions resulting from the high court’s recent Bostock v. Clayton County decision. The three opinions were Gorsuch’s majority in favor of LGBTQ employment protections, and dissents from Alito and Kavanaugh opposing the expansion of Title VII of the 1965 Civil Rights Act (concerning “sex discrimination”) to non-straight and non-cisgender people. The substance of the two dissents was nearly identical, but in tone, Kavanaugh’s was much more polite and respectful than Alito’s, in regard to the social minority group in question, the LGBTQ community. All three are conservative white cishetero men in their fifties or seventies, which public polling shows means that there is about a fifty-fifty shot they tolerate gays and lesbians but a much smaller possibility that they accept trans folks.16 Alito does not tolerate either group, as evidenced by the language of his dissent (discussed below), while Kavanaugh claims tolerance for the former (while opposing their rights) but not explicitly for the latter. Gorsuch is the anomaly here, because he supports the rights for the entire LGBTQ community, and this, I will argue, can be attributed to his western origins.

13

See Elena Kagan—Executive Power, 2010, SCOTUSblog, https://www.scotusblog.com/wp-content/uploads/2010/06/Kagan-issues_executive-powerJune-27.pdf.

14 See Brianne J. Gorod, Sam Alito: The Court's Most Consistent Conservative, 126 Yale L. J. (2017).

15 See Paul Gerwitz & Chad Golder, So Who Are the Activists?, 2005, The New York Times, https://www.nytimes.com/2005/07/06/opinion/so-who-are-the-activists.html.

16 See polling data cited infra note 33.

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These three opinions in Bostock v. Clayton County17 perhaps offer the best insights into how SBT can explain some of the surprising outcomes of the most recent term and fissures within the conservative bloc, particularly regarding the two dissents. Unlike Alito (New Jersey) and Kavanaugh (Maryland), Gorsuch hails from a state west of the Mississippi River, Colorado, a state within the Mountain West region. These states, while traditionally bedrocks of conservatism, also have a libertarian streak18 that runs through them, which is evident in Gorsuch’s philosophy, particularly in this case. Where a traditional conservative opposes the creation of another protected class in employment law, Gorsuch believes an individual’s right to employment should take precedence over the discriminatory views of their employers.

Perhaps even more fascinating, however, are the differences between Alito and Kavanaugh and how those differences manifest in their tonallydifferent dissents. Alito was born in the year 1950,19 while Kavanaugh came into this world in 1965,20 a full fifteen years later. At the time of Stonewall, Alito was already in college and Kavanaugh was a toddler and, during the AIDS crisis, Alito was already a U.S. Attorney (1987),21 while Kavanaugh was still in school. These varied life experiences result in two very different perceptions of the LGBTQ community, as borne out by social science research and public opinion polling. According to a 2019 Pew Research Center poll,22 in which 61% of Americans responded that they approve of same-sex marriage,23 58% of Gen-Xers,24 such as Kavanaugh and Gorsuch, were supportive, while 51% of Baby Boomers,25 such as Alito, were supportive. Only 37% of all Republicans were supportive.26 Alito’s dissent is a fiery invective against “gender identity”27 (his scare quotes), while Kavanaugh’s dissent is mostly conciliatory and consensusseeking, at least tonally, declaring “the court has previously stated and I fully 17

See Bostock v. Clayton County, 590 U.S. ___.

See Randall J. Stephens, Review: Southern Elites, Western Libertarians and the Conservative Coalition, 2020, The Washington Post, https://www.washingtonpost.com/outlook/southern-elites-western-libertarians-and-theconservative-coalition/2020/04/17/f4352c1c-6d4d-11ea-b148-e4ce3fbd85b5_story.html.

19 See Samuel A. Alito, Jr., Oyez, https://www.oyez.org/justices/samuel_a_alito_jr.

20 See Brett M. Kavanaugh, Oyez, https://www.oyez.org/justices/brett_m_kavanaugh.

21 See Samuel A. Alito, supra note 18.

22 See Majority of Public Favors Same-Sex Marriage, but Divisions Persist, 2019, Pew Research Center, https://www.pewresearch.org/politics/2019/05/14/majority-of-publicfavors-same-sex-marriage-but-divisions-persist/.

23 Id. 24 Id. 25 Id. 26 Id. 27 See Bostock, supra note 17.

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agree, that gay and lesbian American ‘cannot be treated social outcasts or as inferior in dignity and worth,’”28 quoting retired Justice Anthony Kennedy’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission,29 which allowed anti-LGBTQ discrimination based on religious motivations.

Kavanaugh’s principal argument that judges would be acting as legislators to expand Title VII protections on the basis of sexual orientation is tantamount to the dissent Alito makes (“there is only one word for what the Court has done today: legislation”).30 The tone is different, but the underlying arguments are the same. Kavanaugh wants to stress that he himself isn’t discriminatory against gays and lesbians, but the law as written still is; Alito just says the same basic point more directly.

The Kavanaugh dissent is also notable for his omission of trans and gender non-conforming people to a footnote, writing “although this opinion does not separately analyze discrimination on the basis of gender identity, this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way to discrimination on the basis of gender identity.”31 Kavanaugh refrains from Alito’s over-dramatic punctuation around the term gender identity, but still it is hard not to see Kavanaugh’s relegation of transgender discrimination to a literal footnote in his opinions as anything other than an attempt to evade stating his less-conciliatory attitudes towards trans Americans. As CNN legal analyst and Supreme Court biographer Joan Biskupic noted this year, “Kavanaugh, in his writing, appears keenly aware of tenuous public opinion of him and ready to adopt a posture of conciliation with his colleagues as he tries to influence deliberations on cases”32 and that “his writing has suggested he does not want to appear to be a reflexive conservative vote.”33 The word appear is the operative word here. During June Medical Services v. Russo deliberations, Kavanaugh similarly tried to appear conciliatory, according to Biskupic, but in the end “whatever ambivalences he began with, Kavanaugh returned in the end to publicly express his conservative convictions.”34 This has been a consistent theme for Kavanaugh’s nascent tenure. As Biskupic describes Kavanaugh, he desperately wants to give the appearance that he is not a vindictive partisan he came off during his confirmation hearings, but at the same time, consistently reverts to his baseline conservative judicial 28

Id. See Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. __.

30 See Bostock, supra note 17.

31 Id. 32 See Joan Biskupic, EXCLUSIVE: How Brett Kavanaugh tried to sidestep abortion and Trump financial docs cases, 2020, CNN, https://www.cnn.com/2020/07/29/politics/brettkavanaugh-supreme-court-abortion-trump-documents/index.html.

33 Id. 34 Id. 29

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principles. His moderation is on tone, not jurisprudence, the latter of which is consistent with the views of a fifty-something-year-old conservative man.

Public opinion polling has shown a significant difference between how Baby Boomers (such as Alito) and Gen-Xers (such as Kavanaugh) view nonheterosexual people, but they are much more closely aligned in their generally negative attitudes towards people of trans experience. A 2017 public opinion poll from the Pew Research Center found that 55% of Boomers and 57% of Gen-Xers believed that gender was determined by sex assigned at birth,35 while 43% and 41% believed that gender could be different from sex assigned at birth.36 The difference between the two generations is within the margin of error for the poll (2.4%), but it’s interesting to note that Boomers are slightly more accepting of trans people than Gen-Xers, which belies the notion that younger generations are always more accepting marginalized peoples. Comparatively, 49% of Millennials say gender is determine by sex assigned at birth,37 slightly less than the 50% of that generation who say gender can be different than sex assigned at birth38 (as Generation Z was not included in this survey, Millennials were the youngest generation polled). Furthermore, according to a 2019 YouGov poll, 32% of Republicans believe employers should be able to fire someone for being transgender,39 while only 18% of them believe that employers should be able to fire someone for being gay,40 showing that many Republicans separate their views on the LGBTQ and TGNCNB communities.

Gorsuch belongs to the same generation as Kavanaugh (Gen X), but he wrote the majority opinion in Bostock in favor of the expansion of LGBTQ rights, which was especially notable for its inclusion of transgender Americans. The public opinion polling cited above would suggest that someone of Gorsuch’s age, especially a registered Republican, would not hold views that are favorable to trans people.

The explanation for this, like in the case of other individual rights cases, is that Gorsuch’s Mountain Western origins give him a more libertariantinted outlook on such issues than his fellow conservatives, all of whom were born and raised or spent the majority of their lives in the eastern half of the 35

See Anna Brown, Republicans, Democrats have starkly different views on transgender issues, 2017, Pew Research Center, https://www.pewresearch.org/facttank/2017/11/08/transgender-issues-divide-republicans-and-democrats/.

36 Id. 37 Id. 38 Id. 39 See Kathy Frankovic, American views of transgender people: the impact of politics, personal contact, and religion, 2019, YouGov, https://today.yougov.com/topics/politics/articles-reports/2019/10/11/american-viewstransgender-people-poll.

40 Id.

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country. According to a 2006 poll from the Pew Research Center, when identifying Americans by ideological categories, 22% of respondents were from the western region of the country,41 but 32% of Americans who were identified as having libertarian beliefs were from that region,42 the only region to have a higher percentage of libertarians than their share of the overall population. The Northeast, where Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh originated, was 19% of the overall survey, but 15% of the libertarians43 (Breyer was born and educated in the Bay Area, but spent his professional life on the East Coast). The Midwest, where Chief Justice Roberts was born and raised, was 24% of the overall survey, but 22% of the libertarians.44 The South, where Justice Thomas was born and raised, was represented as 35% of the survey’s respondents, but just 31% of its libertarians.45 A Cato Institute report from the same time period declared that “there’s little doubt that the libertarian vote is as strong in the Mountain West as anywhere.”46 In “Man of the West: Goldwater’s Reflection in the Oasis of Frontier Conservatism,” Sean P. Cunningham traces the political history of the American West’s libertarian streak, as identified with longtime Arizona Senator Barry Goldwater.47 The justices themselves appear to have taken note of Gorsuch’s novelty in this respect on the bench. During an April 2017 oral argument, Justice Gorsuch intervened to correct Chief Justice Roberts on which numerical highways run through Montana and Wyoming, respectively.48 Roberts responded, in a joking manner, “There you go. It’s that geographical diversity.”49 This also alludes to the two justices’ frequent disagreements with each other. Despite being the two most likely conservatives to side with the liberal justices, they relatively rarely join each other’s opinions (as demonstrated by the below research). Roberts and Gorsuch’s backgrounds are very similar, it should be noted, except in terms of geographic origin.

A. Hypotheses 41

See Tom Rosintiel, In Search of Ideologues in America, 2006, Pew Research Center, https://www.pewresearch.org/2006/04/10/in-search-of-ideologues-in-america/.

42 Id. 43 Id. 44 Id. 45 Id. 46 See David Boaz & David Kirby, The Libertarian Vote, Policy Analysis, 580 Cato Institute (2006).

47 See Sean P. Cunningham, Man of the West: Goldwater’s Reflection in the Oasis of Frontier Conservatism, 61 Journal of Arizona History 79-88 (2020).

48 See Joan Biskupic, Gorsuch v. Roberts: The rookie takes on the chief, 2017, CNN, https://www.cnn.com/2017/10/08/politics/neil-gorsuch-john-roberts-rivalry/index.html.

49 Id.

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While Bostock provides a framework for this paper, four hypotheses will be tested through empirical research to affirm that social background characteristics have concentrated but limited effects on the judicial behavior of particular justices. These hypotheses will focus on Roberts and Gorsuch, as their behavior has the potential for the biggest impact on the court’s overall jurisprudence as the two most likely swing votes.

I argue that Justice Gorsuch’s distinctly libertarian outlook, compared to the more conventional conservative jurisprudence of the fellow justices in Gorsuch’s ideological block, makes him the Court’s likely swing vote on individual rights cases. When studying the justices' opinion-writing and joining patterns, I categorized cases within three groups: individual rights, economic issues, and government powers. For a libertarian, the latter two issue groups align with standard conservative jurisprudence (both a libertarian and a conservative are in favor of minimal government intervention in the economic sphere and limited government in general), but the former issue group, individual rights, libertarians will often align with the liberal orthodoxy, albeit primarily in final decision and not always in the underlying reasoning.

Cunningham also described how the libertarian and westerner Goldwater “nurtured relationships with Indigenous peoples across the region,”50 a reflection how many white American westerners have had much more direct and consistent contact with Indigenous peoples than those in the country’s other regions and this has led to a sympathy, even among western conservatives and libertarians, that is not as prevalent in those of other regional variations of that same ideology. This tendency can also be found in Neil Gorsuch and it separates him from his conservative colleagues, as demonstrated in the recent McGirt v. Oklahoma case.51 McGirt wasn’t an anomaly for Gorsuch, but typical of his jurisprudence as it relates to Indigenous rights.

Roberts is not a western-reared libertarian like Gorsuch and the two do not often agree with each other, especially for members of the same ideological blocs. Still, Roberts has cast the deciding vote in several important cases with this composition of justices. I am not the first to proffer that Roberts as Chief Justice has made him more concerned with institutionalism and the high court’s reputation than the other justices. This shows itself, during this current administration, in cases that fundamentally come down the government’s exercise of its powers. I argue these are the cases where Roberts is the likely swing vote.

50 51

See Cunningham, supra note 47, at 80.

See McGirt v. Oklahoma, 591 U.S. __.

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An interesting development while researching the opinion patterns of the current Supreme Court justices was just how often John Roberts and Elena Kagan join each other’s opinions, at unusually high levels for justices of opposing ideological blocs. One possible explanation for this is the two justices’ shared “managerial mindset.”52 As Chief Justice, Roberts has had to work to manage many opinionated personalities in his tenure. In much the same way, as dean of Harvard Law School, Kagan had to do much of the same work. These experiences, coupled with their centrist leanings and institutional affinities, dispose both to compromise and coalition-building in a way that other justices simply are not.

III. THE CLARENCE THOMAS COUNTERARGUMENT The obvious counterargument to the SBT, even a limited application, is Associate Justice Clarence Thomas, who frequently votes against expansions of voting and civil rights, but this is in fact the exception that proves the rule.

African Americans, like all demographic groups in the U.S. and globally, are not wholly homogenous in their political thinking,53 although they are frequently treated as such in our politics. Because over 90% of African Americans consistently vote for the Democratic candidates according to exit polling,54 an ideological uniformity is often assumed by mainstream political thought without much further evidence. The two major political parties are flawed avatars of ideology for the citizenry as a whole, but particularly illsuited when discussing people of color, especially Black Americans. It’s almost silly to think that only ten percent of African Americans hold conservative views. There is a much stronger diversity of thought among people of color than can be inferred through simply looking at their electoral patterns.

Black conservatism is a fully-formed political ideology that has existed in this country for as long as there have been black people on this continent. The clearest historical example of this is the debate between the conservative Booker T. Washington and progressive W.E.B. DuBois.55 The key difference

52

See Katy Tynan, Do You Have a Manager's Mindset?, 2015, Harvard Business Review, https://hbr.org/2015/10/do-you-have-a-managers-mindset.

53 See Barnor Hesse & Juliet Hooker, On Black Political Thought inside Global Black Protest, 2017, 116 The South Atlantic Quarterly 443, https://www.researchgate.net/publication/319131447_Introduction_On_Black_Political_Th ought_inside_Global_Black_Protest.

54 See Timothy J. Hoffman, The Civil Rights Realignment: How Race Dominates Presidential Elections, 2015, 17 Political Analysis, https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1006&context=pa.

55 See Ta-Nehisi Coates, We Were Eight Years in Power, 20 (2017).

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between the conservatism of Washington (and Thomas56) and the (white) mainstream conservatism is the acknowledgement of white supremacy. It’s not that Washington didn’t think white supremacy existed (he very much did), but he believed that black people could not rely on a majority-white government to uplift the black community; Washington believed that black people could only rely on themselves and their communities.57 As Ta-Nehisi Coates noted in a profile of Bill Cosby in 2007,58 this intellectual lineage can be traced to the contemporary period as well, particularly with Cosby’s infamous “Pound Cake” speech (I’m not ignorant of the other glaring similarity between Cosby and Thomas). Coates argued later that Cosby was a proponent of “a race-based black conservatism that had no real home in America’s left-right politics, but deep roots in the black community.”59 Even more recently, on the Pusha T song “What would Meek Do,” rapper Kanye West explained this ideology more succinctly, “if you ain’t driving while black, do they stop you? Will MAGA hats let me slide like a drive-thru?”60 West’s embrace of Trumpism follows the intellectual tradition of Thomas and Cosby that Black people are the ones that need to change, not society (in his 2011 song “New Day,” West raps “I might even make [my son] be Republican, so everybody know he loves white people”61). Unlike most white conservatives, each acknowledges the existence of white supremacy, but the difference between them and mainstream black political thought is how they decide to respond to that system. The Black conservative and nationalist tradition, which Thomas follows, “assumes that racism and white supremacy is ineradicable in America”62 and this, coupled with a “belief in black selfdetermination,”63 “pushed Thomas down the road to ultra-conservatism,”64 according to political theorist Corey Robin. He is not like his fellow conservative justices who oppose government remedies to racial injustice based on faulty assumptions about race relations but he opposes government intervention because he profoundly believes “that it’s impossible to remedy these injustices, he also believes that the acts of paternalism end up

56

See Sean Illing, The Enigma of Supreme Court Justice Clarence Thomas, 2019, Vox, https://www.vox.com/policy-and-politics/2019/10/15/20893737/clarence-thomas-supremecourt-corey-robin.

57 See Mark Bauerlein, Booker T. Washington and W.E.B. Du Bois: The Origins of a Bitter Intellectual Battle, 46 Journal of Blacks in Higher Education, 106-114 (Winter 2004/2005).

58 See Coates, supra note 55, at 13.

59 Id. at 11.

60 See Kanye West, What Would Meek Do?, Ye. Def Jam Recordings, 2018.

61 See Kanye West & Jay-Z., New Day, Watch the Throne, Def Jam Recordings, 2011.

62 See Illing, supra note 56.

63 Id. 64 Id.

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perpetuating the injustices,”65 according to Robin. As Robin notes, Thomas was “very active as a younger man in leftist black nationalist movements”66 during his college years in the late sixties and early seventies, starting student groups and participating in protests. Robin asserts that Thomas’s “black nationalist assumptions remain with him as he’s making that right turn”67 during the 1970s and remain with him today. While Black conservatives such as Thomas, Cosby, and West are most certainly in the minority among African Americans, it doesn’t mean they are alone. However, this argument will not be empirically tested through this project because it exists beyond its scope, as no other justice ascribes to Thomas’s thinking on this so it would not show up in opinion-joining patterns.

IV. PRIOR RESEARCH & CONTRIBUTION TO ACADEMIC

LITERATURE This research project originated from a reading of CNN Supreme Court reporter Joan Biskupic’s masterful biography The Chief: The Life and Turbulent Times of Chief Justice John Roberts, which drew a connection between many aspects of Roberts’ personal history and his later jurisprudence.68 Of particular note, Roberts grew up in a homogenouslywhite, red-lined neighborhood in Indiana69 and Biskupic asserts that this would play a large influence on his later thinking when it came to cases involving race, in which he asserted that the United States had moved beyond the need to address race consciously in public policy.70 It was easier for him to believe America is now a post-racial society when for much of his life his interaction with people of color was minimal. In the Shelby v. Holder case, Roberts declared “Our country has changed and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”71 He notably declared “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” in Parents Involved v. Seattle.72 This causation was central in the chapter “Divided by Race” of Joan Biskupic’s biography of the Chief Justice. As Biskupic noted, Long Beach, Indiana 65

See Illing, supra note 56.

Id. 67 Id. 68 See Joan Biskupic, The CHIEF: The Life and Turbulent Times of Chief Justice John Roberts (2019).

69 Id. 70 Id. 71 See Shelby County v. Holder, 570 U.S. 529.

72 See Parents Involved in Community Schools v. Seattle School District no. 1, 551 U.S. 701.

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(Roberts’s childhood home) once advertised that “all residents are Caucasian Gentiles,” albeit this was decades before Roberts’ birth.73 At the time of Roberts’ childhood, Biskupic noted, “the region was one of the most segregated areas of the nation”74 and the schools he attended were also largely homogenous.75 While this connection has already been discussed, it provided the template for the formulation of my own hypotheses.

Aside from his homogenous upbringing, Roberts also grew up in a privileged environment not reflective of America as a whole. His father, Jack, was a senior executive at a steel company.76 As noted in previous studies, Roberts and the Court he leads have had a “pro-business” orientation, even more than previous courts.77 As Biskupic and others have noted, this background could have been instrumental in the later development of Roberts’ jurisprudence.78 This conservative, business-oriented worldview can be seen in his adult life as well. In remarks at a 2013 commencement ceremony for his high school alma mater, Roberts insisted that “the slogan ‘press on’ has solved and will always solve the problems of the human race.”79 As Biskupic notes, it is much easier to believe that to be the case when one is born into the advantages that Roberts was born into and shielded from evidence to the contrary during his formative years. Overlapping both of these experiences, Jack Roberts was an executive at Bethlehem Steel, a company repeatedly embroiled in racial discrimination lawsuits during the future Chief Justice’s adolescence, with some suits involving steel plants the elder Roberts had managed.80 This was probably the first significant, noticeable impact that the federal judiciary had on the Roberts family, from whose perspective it could have easily been seen as unnecessary government interference in private enterprise. These experiences could have cumulatively shaped Roberts’ early opinions during his formative years on the government’s role in the market and the value of racial anti-discrimination legislation.

73

See Biskupic, supra note 68, at 23.

See Biskupic, supra note 68, at 24.

75 Id. 76 See Todd S. Purdum et. al., Court Nominee’s Life is Rooted in Faith and Respect for Law, 2005, The New York Times, https://www.nytimes.com/2005/07/21/politics/courtnominees-life-is-rooted-in-faith-and-respect-for-law.html.

77 See Cornell W. Clayton & J. Mitchell Pickerill, The Roberts Court and Economic Issues in an Era of Polarization, 67 Case Western Reserve L. R. (2017).

78 See Biskupic, supra note 68.

79 See John Roberts, La Lumiere Commencement 2013—Chief Justice John Roberts, 2013 YouTube, https://www.youtube.com/watch?v=KeEofJsH82w.

80 See Biskupic, supra note 68, at 30.

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As Roberts and Neil Gorsuch have emerged as the two most frequent swing votes in the recent term (2019),81 these two are focal points for this Note. Previous academic scholarship has focused on a diverse array of social background characteristics to test for any influence these might have on judicial behavior, such as prior career experience as a prosecutor,82 circuit court judge,83 as well as race and gender (as mentioned above), region of origin84 and birth order have been found to have a concrete effect.85 These previous studies helped to guide this project in its early formation.

This Article in many senses attempts to subvert the original meaning of SBT, which was originally and continues to be used to explain the judicial behavior of judges who do not fit the norm of who we as a society think of judges to be — white, male, Christian, cis, straight, privileged, etc. — but, this project attempts to turn this theory onto the judges who completely embody all or most of the characteristics I just listed, the five Republican appointees currently on the Supreme Court.

As James Baldwin wrote in his 1962 essay, “Letter from a Region in My Mind” (italicization mine): A vast amount of the energy that goes into what we call the Negro problem is produced by the white man’s profound desire not to be judged by those who are not white, not to be seen as he is, and at the same time a vast amount of the white anguish is rooted in the white man’s equally profound need to be seen as he is, to be released from the tyranny of his mirror.86

This Article seeks to take Baldwin’s logic and apply it to those abovementioned justices, all of whom in some way or another are trapped in the tyranny of their mirrors. Simply because a characteristic is the norm does not mean it has no influence on their judicial behaviors; often, it is in fact the complete opposite case.

V. METHODOLOGY

81

See Thomson-DeVeaux, supra note 12.

See Rob Robinson, Does Prosecutorial Experience ‘Balance Out’ a Judge’s Liberal Tendencies?, 32 The Justice System Journal (2011).

83 See Lee Epstein et. al., Circuit Effects: How the Norm of Federal Judicial Experience Biases the Supreme Court, 157 University of Penn. L. R. 833-880 (2009).

84 See Donald R. Songer & Sue Davis, The Impact of Party and Region on Voting Decisions in the United States Courts of Appeals, 1955-1986, 43 The Western Political Quarterly 317 (1990).

85 See Kevin T. McGuire, Birth Order, Preferences, and Norms on the U.S. Supreme Court, 49, 4 Law & Society Review 945-972 (2015).

86 See James Baldwin, Letter from a Region in My Mind, 95 (1963).

82

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An analysis of the opinions written and joined by each Supreme Court justice was determined to be the best way to understand the personal preferences of each justices, much more so than a standard evaluation of their up-or-down votes. In any given case, a justice has several options, writing or joining the majority opinion, writing or joining a concurring opinion, writing or joining a concurrence/dissent, or writing or joining a dissenting opinion.

Typically, this presents justices with a range of options for expressing their personal attitudes in regard to each case, much more so than the binary vote.

For this Article, I gathered data from the three most recent terms (201719), which covers Gorsuch’s three complete terms and Kavanaugh’s two, as well as a control sample of three terms during a stable period earlier in the Roberts Court (2006-08). I collected data on each opinion written by a justice for the period (mentioned above and then looked to see how often each other justice joined them out of available opportunities. I then broke these results down by three issue areas (individual rights, economic issues, and federal powers), based on the previously-existing Supreme Court Database Codebook,87 to give a better understanding of correlation between a justice’s specific social background characteristics and cases belonging to an issue area. To test other hypotheses, I broke them down into more specific categories. The SCDC has some 260 issue classifications, grouped into twelve issues areas. I further combined these into three issue groups: individual rights (criminal procedure, civil rights, 1st Amendment, due process, and privacy), economic issues (attorneys, unions, and economic activity), and government powers (judicial power, federalism, interstate relations, federal taxation, and miscellaneous). I also disincluded when a justice joined another’s opinion, but also wrote their own (for example, writing a concurrence and joining the majority), because the choice to write one’s own opinion indicates a difference of opinion beyond the final result with the other justices.

VI. RESEARCH FINDINGS In Tables 1 and 2, the results of my research are summarized, detailing how often each justice joined and was joined by each other justice, both in terms of raw number of opinions and in percentages out of possible cases (example, in Table 1, Roberts wrote 44 opinions and was joined by John Paul Stevens for 9 of those, or 20.5% of possible cases):

87

See Sarah Benesh et. al., Supreme Court Database Code Book, 2019, The Supreme Court Database, Washington University Law.

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Table 1: Opinion-Joining Patterns, October Terms 2006-200888

Justice

Ops

Roberts

Stevens

Scalia

Kennedy

Souter

Thomas

RBG

Breyer

Alito

Roberts

44

X

9 20.5%

24 54.5%

22 50%

10 22.7%

24 54.5%

9 20.5%

11 25%

27 61.4%

Stevens

92

9 9.8%

X

6 6.5%

16* 17.6%

35 38%

4 4.3%

43 46.7%

25* 27.5%

8 8.7%

Scalia

75

28 37.3%

9 12%

X

22 29.3%

15 20%

45 60%

13 17.3%

12 16%

28 37.3%

Kennedy

40

16 40%

11 27.5%

10 25%

X

12 30%

9 22.5%

15 37.5%

16 40%

18 45%

Souter

54

20 37%

26 48.1%

20 37%

20 37%

X

13 24.1%

32 59.3%

26 48.1%

20 37%

Thomas

69

26 37.7%

11 15.9%

33 47.8%

21 30.4%

13 18.8%

X

15 21.7%

14 20.3%

26 37.7%

Ginsburg

51

17 33.3%

22 43.1%

16 31.4%

21 41.2%

26 51%

16 31.4%

X

22 43.1%

15 29.4%

Breyer

71

21 29.6%

28 39.4%

11 15.5%

21 29.6%

31 43.7%

12 16.9%

30 42.3%

X

19 26.7%

Alito

56

28* 50.9%

15 26.8%

25 44.6%

27 48.2%

16 28.6%

28 50%

15 26.8%

16* 29.1%

X

88

Author’s Research.

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B. Table 2: Opinion Joining Patterns, October Terms 2017-201989 Justice

Ops

Rob.

Kenn.

Thomas

RBG

Breyer

Alito

Soto.

Kagan

Gors.

Kav.

Rob.

32

X

7* 63.6%

8 25%

13 40.6%

13 40.6%

17 53.1%

14 43.8%

16 50%

14 43.8%

11*** 57.9%

Kenn.

13*

5* 38.5%

X

0* 0.0%

4* 30.8%

4* 30.8%

4* 30.8%

3* 23.1%

4* 30.8%

4* 30.8%

X

Thomas

90

15 16.7%

6* 19.4%

X

10 11.1%

12 13.3%

27 30%

7 7.8%

13 14.4%

33 36.7%

12*** 24.5%

RBG

42

17 40.5%

5* 33.3%

11 26.2%

X

24 57.1%

13 31%

28 66.7%

26 61.9%

12 28.6%

9*** 15.3%

Breyer

52

17 32.7%

5* 26.3%

7 13.5%

38 73.1%

X

8 15.4%

29 55.8%

31 59.6%

13** 26%

6*** 18.8%

Alito

59

27 45.8%

8* 53.3%

17 28.8%

6 10.2%

11 18.6%

X

6 10.2%

13 22%

26 44.1%

17*** 28.8%

Soto.

63

19 30.2%

6* 26.1%

13 20.6%

33 52.4%

27 42.9%

11 17.5%

X

27** 43.5%

19 30.2%

11*** 27.5%

Kagan

31

16 51.6%

4* 44.4%

11 35.5%

23 74.2%

22 71%

13 41.9%

17 54.8%

X

12 38.7%

11*** 27.5%

Gors.

52

20 38.5%

7* 41.2%

23 44.2%

15 28.8%

14 26.9%

20 38.5%

14 26.9%

15 28.8%

X

6*** 18.8%

Kav.

28*

13*** 46.4%

X

9*** 32.1%

7*** 25%

7*** 25%

12*** 42.9%

7*** 25%

7*** 25%

11*** 39.3%

X

The findings from Table 1 confirm the consensus view of Supreme Court observers that Justice Kennedy functioned as the “swing vote” for most cases.90 The findings from Table 2 are a bit murkier, but two conservative justices and one liberal justice standout. Chief Justice Roberts was joined more frequently by each liberal justice than he was by Justice Thomas.

89

Author’s Research.

See Colin Dwyer, A Brief History Of Anthony Kennedy's Swing Vote - And The Landmark Cases It Swayed, 2018, NPR, https://www.npr.org/2018/06/27/623943443/abrief-history-of-anthony-kennedys-swing-vote-and-the-landmark-cases-it-swayed.

90

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Roberts also joined Kagan more than any other justice, including all the conservatives on the bench. He also joined Justice Ginsburg, Breyer, and Sotomayor more frequently than Thomas and Ginsburg more frequently than Gorsuch. It should also be noted that Roberts and Gorsuch are not frequent joiners of each other’s opinions, relative to the rest of the conservative ideological bloc.

Justice Gorsuch was joined by all four liberals more frequently than he was joined by Justice Kavanaugh, by margins between 8 to 9 cases (8.1% to 10%), although this is a smaller sample size than the rest of the justices, owing to Kavanaugh having only been on the bench for the two most recent terms.

However, Gorsuch also joined three of the four liberal justices more frequently than Kavanaugh (Kagan being the exception).

The average percentages for each conservative justice joining a liberal justice are 38.75% for Roberts, 30.86% for Gorsuch, 28.50% for Kavanaugh, 26.45% for Alito, 23.95% for Thomas. For context, these conservatives join a fellow conservative justice by averages of 41.13% for Alito, 40.98% for Gorsuch, 36.85% for Roberts, 32.53% for Thomas, and 32.50% for Kavanaugh. The differentials between how much a conservative justice joined other conservatives on average and liberals on average -1.90% for Roberts, 4.00% for Kavanaugh, 8.58% for Thomas, 10.12% for Gorsuch, 14.68% for Alito. In this analysis, Roberts stands out as an anomaly among conservatives, as he on average joins liberal justices more than conservatives.

As mentioned previously, Justice Elena Kagan and Chief Justice John Roberts join each other’s opinions with an unusual frequency. Kagan joins Roberts for 50% of his opinions, while the other three liberals on average join Roberts for 41.67% of his opinions. Roberts joins Kagan for 51.6% of her opinions, while the other four conservatives join 42.13% of her opinions. It should be noted that Kavanaugh joined Kagan 52.4% of the time, slightly more than Roberts, but this was only over two terms, not three as was the case with Roberts, and Kagan only joined 25% of Kavanaugh’s opinions, which is in line with the other liberals. Also, Kavanaugh joins Roberts more than any other justice (57.9% of cases), which is more than Alito (53.1%), who was the most-frequent joiner of Roberts during the Early Roberts Court (61.4%). During 2006-2009, Roberts joined Alito 50.9% of the time and was his most-frequent joiner, but in 2017-2020, Roberts’ joining percentage for Alito declined to 45.8%, although this was still the highest of any justice.

Aside from their overall frequencies in joining each other’s opinions, a greater understanding of where justices deviate from their expected behavior can be gleaned from a dissection of their joining frequencies by the issue group. A breakdown of joining frequencies by issue group are discussed below for Chief Justice Roberts and Justice Gorsuch.

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VII. RESEARCH ANALYSIS This research shows that McGirt wasn’t an anomaly. Gorsuch has a consistent record of rulings in favor of Indigenous rights, dating back to his days in the lower rungs of the federal judiciary.91 Once on the high court, Gorsuch continued his support for Indigenous rights. In Washington State Department of Licensing v. Cougar Den (2018), Gorsuch declared that “it is the least we [the U.S. Government] can do”92 to uphold the “modest promises”93 of the government’s historic treaties with Indigenous tribes. Both the tone of Gorsuch’s decision and the judgement itself are remarkably different from the standard conservative views towards Indigenous rights, both in tone and effect. There have been five major indigenous rights cases during Gorsuch’s tenure. He has written the majority in two (Upper Skagit Tribe v. Lundgren and McGirt v. Oklahoma), joined a liberal justice for another two (WA Department of Licensing v. Cougar Den and Herrera v.

Wyoming) and joined a per curiam opinion for a fifth (Washington v. U.S.).

All five times he voted for the expansion of indigenous rights and in three cases his was the pivotal vote in a 5-4 decision. Justice Gorsuch’s affinity for Indigenous rights, unusual among the conservative bloc, is a clear and hyperspecific example of the broader dissimilarities between Gorsuch and the rest of the conservative bloc. When Supreme Court cases are divided into three issue groups (individual rights, economic, and government powers), a libertarian would side mostly with a stereotypical conservative judge, especially on the latter two, but would be more likely to side with the average liberal on individual rights cases. As demonstrated in Tables 4 and 5, Gorsuch is much more likely to defect from the conservative orthodoxy and side with the liberal bloc on cases categorized in Issue Group 1 (individual rights), while much more likely to tow the conservative line on cases categorized as Issue Groups 2 (economic) and 3 (government powers). Of the twenty individual rights cases that Gorsuch penned over the last three terms, the liberal justices joined those opinions on average 30.0% of the time, while the conservatives averaged joining those opinions a mere 25.5% of the time. For the thirty-two Gorsuch opinions not related to individual rights, the liberals joined those opinions 27.35% on average, while the conservatives on average joined 40.3% of those opinions. The liberal justices joined Gorsuch’s opinions relating to economics and government powers slightly less 91 See Rob Capriccioso, Tribes Support Neil Gorsuch Supreme Court Nod as Democrats Plan Filibuster, 2017, National Congress of American Indians, https://indiancountrytoday.com/archive/tribes-support-neil-gorsuch-supreme-court-nod-asdemocrats-plan-filibuster-x1kmrvBna0SgPN_hd_OGWQ. 92 See Washington State Department of Licensing v. Cougar Den, Inc., 586 U.S. __.

93 Id.

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frequently than they did for his opinions relating to individual rights, while conservatives were much less likely (by a factor of 14.8%) to join Gorsuch in individual rights cases than in other cases. This is consistent with a libertarian outlook, which objects to government intervention in the economic sphere and advocates for government powers to be as limited as possible, but also holds individual rights to be paramount. Issue groups 2 and 3 converge with conventional conservative jurisprudence, but with Issue Group 1, Gorsuch has a distinct overlap with the jurisprudence of his liberal colleagues.

A. Tables 3 & 4: Neil Gorsuch’s Opinions, by Issue Group94 Issue Group

Gorsuch

Roberts

Thomas

RBG

Breyer

Alito

Soto.

Kagan

Kav.

1

20

6 30.0%

6 30.0%

6 30.0%

6 30.0%

7 35.0%

6 30.0%

6 30.0%

1* 7.1%

2+3

32

14 43.8%

17 53.1%

9 28.1%

8 25.0%

13 40.6%

8 25.0%

10 31.3%

5* 23.8%

Issue Group

Gorsuch

Average Liberal

Average Conservative

1

20

30.0%

25.5%

2+3

32

27.35%

40.3%

With Chief Justice Roberts, a similar pattern emerges as it relates to cases relating to government powers, the third issue group. There have been several important cases relating to the powers of the government, especially concerning the federal executive branch, during the era of the Trump presidency, from Commerce v. New York (2018) to Trump v. Vance (2020) to DHS v. Regents of U-C (2020). In the cases just mentioned, as well several other notable and landmark cases, the Chief Justice had sided with the liberal bloc against all or most of his conservative colleagues. In Table 6, a liberal justice is more likely to join Roberts on a government powers case than an individual rights or economic case by at least 16%. Half of the conservatives (Alito and Kavanaugh) saw significant decreases in their joining frequencies from issue groups 1 and 2 to issue group 3, while the other two conservatives (Thomas and Gorsuch) recorded only marginal increases of 3.5% and 2.5%, respectively, between the two clusters. When averaged out, as shown in Table 94

Author’s Research.

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7, Roberts is joined by a conservative justice 47.6% of the time for individual rights and economic cases, while joined only 40.3% of the time by the conservative bloc for government powers cases.

B. Tables 5 & 6: John Roberts’ Opinions, by Issue Group95 Area

Roberts

Thomas

RBG

Breyer

Alito

Soto.

Kagan

Gorsuch

Kavan.

1+2

21

5 23.8%

7 33.3%

7 33.3%

12 57.1%

8 38.1%

10 47.6%

9 42.9%

8* 66.7%

3

11

3 27.3%

6 54.5%

6 54.5%

5 45.4%

7 63.6%

7 63.6%

5 45.4%

3* 42.9%

Issue Area

Roberts

Average Liberal

Average Conservative

1+2

21

38.1%

47.6%

3

11

59.1%

40.3%

This pattern can be seen clearly in June Medical Services v. Russo. As Biskupic noted, “four years earlier, Roberts had voted to uphold a nearly identical physician regulation from Texas. In fact, in his 15 years on the high court, Roberts had never cast a vote to invalidate an abortion regulation.”96 The obvious difference between June Medical and Whole Women’s Health v.

Hellerstedt (2016) is that Justice Kennedy, a moderate on abortion rights, was no longer on the court and Roberts’ vote was now consequential. While June Medical would be classified by the code I used as an individual rights case, the three category framework serves as a good stand-in for similar cases more broadly relating to laws or decisions enacted by conservative federal or state officials that are deeply unpopular with the general public, as is the case in the DACA and Trump tax returns cases. There is little evidence in the rest of Roberts’ social background or his judicial record that his sincere policy preferences match his votes in these cases. However, in both his record and public comments, Roberts identifies the institution of the Supreme Court as of paramount importance to him and central to his role as chief justice. With this in mind, it would be unlikely that Roberts would have voted the same way in many of these cases had he been an Associate Justice instead of the Chief Justice. This experience and position gives Roberts an extra consideration in his judicial behavior that has a clear effect on his votes.

95 96

Author’s Research.

See Biskupic, supra note 30.

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VIII. CONCLUSION At the beginning of this paper, I laid out four principal hypotheses. First, Justice Neil Gorsuch’s western origins make his jurisprudence more libertarian in nature than his conservative colleagues. Secondly, I argue that Justice Gorsuch’s libertarian streak would be especially evident as it relates to LGBTQ issues and Indigenous rights. Third, I asserted that Chief Justice John Roberts and Associate Justice Elena Kagan, through their similar “managerial mindsets,” find in each other partners in compromise. Fourth, Roberts’ institutional concerns, as Chief Justice, outweigh his personal policy preferences for certain contentious cases, especially as it relates to government powers. An analysis of the opinion-writing and -joining patterns of Supreme Court justices from the 2017 to 2019 terms, as well as using the 2005-2008 Court as a control group, shows that these hypotheses were largely correct in their assessment of the court as this current juncture.

As demonstrated by the joining frequencies of other justices to Justice Gorsuch’s opinions, Gorsuch is more likely to gain liberal support for his opinions concerning individual rights, while conservatives are more likely to support his opinions relating to economic activity and government powers.

This is consistent with a libertarian, rather than a traditional conservative, jurisprudence. He is especially sympathetic to the plight of indigenous peoples as well. Both of these tendencies in Gorsuch’s jurisprudence have their origin, based on the available evidence, in the justice’s Mountain Western origins.

Roberts, on the other hand, is more conservative on individual rights cases, as well as economic issues, but in recent terms, has often sided with the liberals on government powers cases. There is nothing in Roberts’ preSCOTUS social background or jurisprudence during previous administrations that would indicate he would hold these positions, but his role as a Chief Justice, and that position’s necessary concern with the institution as well as the rulings, makes him more disposed to compromise on these types of cases than the other conservatives. This can be seen clearly in Roberts’ relationship with Justice Elena Kagan. As shown in Table 2, Roberts is joined by Kagan for 50.0% of his opinions, while Kagan is joined by Roberts for 51.6% of her opinions. By significant margins, each is the other justice’s most frequent joiner from the opposing ideological bloc. Kagan even joins Roberts more frequently than two of his fellow conservatives (Thomas and Gorsuch). While Chief Justice Roberts is considered to be on the centerright and Justice Kagan is considered to be on the center-left of the court, such higher joining frequencies must mean that something else is at play. I would posit that that variable is their experiences as managers; their common life experiences have molded each to be more consensus-seeking and

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compromising than their colleagues, from both ideological blocs, who do not share similar managerial experiences.

As shown with the case studies of Neil Gorsuch and John Roberts, the Social Background Theory can show the significant impact on judicial behavior that certain social background characteristics can yield. However, these effects are limited and specific. Gorsuch’s western origins moderate his judicial behavior specifically on individual rights cases, but not even on all individual rights cases (he still sides with the conservatives with high frequency on cases involving religious liberty and abortion). Roberts’ institutional and managerial disposition leads him to moderate on contentious cases, especially those involving government power. Therefore, Roberts and Gorsuch are not uniform swing votes, but each will be likely swing votes in specific circumstances relating to certain issues. Notably, neither can be observed to be a possible swing vote on economic cases (and, according to this research, no other conservative has emerged as a moderate on economic issues), which may take on added importance if the Supreme Court’s current composition, especially its conservative bloc, remains intact during the next Democratic administration as they will likely pursue a progressive economic agenda that would include government intervention in private enterprise that both Gorsuch and Roberts would find objectionable. ***

NOTE FASHION DESIGN PIRACY: AN ISSUE OF INTELLECTUAL PROPERTY OR ECONOMIC IMPACT? Vendela Dente* Currently, United States law offers no fashion design protection against design piracy. The fashion industry profits from pioneering creative content; yet, this content lies outside the domain of intellectual property law. Fashion designs are inevitably undervalued by consumers and the industry due to the lack of protection of original designs for the benefit of the industry's monetary value.

Fashion design can be protected under copyright, trademark and patent law but these laws provide ambiguity and strict requirements for fashion labels.

This Note will discuss the effects of fashion piracy both on innovation and the fashion industry’s bottom line.

I. INTRODUCTION.....................................................................................25 II. DESIGN PIRACY................................................................................... 27 A. Trademark……………………………………………….... 29 B. Design Patent……………………………………………....30 C. Copyright……………………………………………......… 31 III. MONETARY IMPACTS....................................................................... 32 A. Arguments in Favor of Loose Protections……………....…33 B. Arguments Against Loose Protections……………………..34 IV. CONCLUSION...................................................................................... 34 I. INTRODUCTION Clothing is no longer limited to hygienic or protective purposes. Our apparel defines our individual identities and enables our personal expression by highlighting our personality. It is the responsibility of fashion designers across the United States to provide the consumers with original designs to enhance their personal identity. The United States protects musicians, artists, and filmmakers so thoroughly that even a child can be sued for distributing

*

B.A. Candidate for International Political Economy, Anthropology and Business Law and Ethics, Fordham College at Rose Hill, Class of 2021. I am honored to be granted the opportunity to be a part of the Fordham Undergraduate Law Review as a Staff Writer. I look forward to the many years in which other undergraduates at Fordham University with a passion in the legal field get to express and share their ideas amongst their peers. I would like to personally thank the Editorial Board for their support and assistance from start to finish.

25

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music on the internet.97 Yet, the United States does not see the need to provide equal protection for the designs that fashion designers create.

While design piracy does have some beneficial monetary impact, it directly harms fashion designers. The fashion industry in 2017 was valued at $391.7 billion.98 Self-employed fashion designers make up 24 percent of the 25,800 jobs in the industry.99 The median annual income for fashion designers was $72,720 in May 2018.100 The highest 10 percent earned more than $155,470 while the lowest 10 percent earned less than $36,420.101 Smaller fashion label owners and new designers are especially vulnerable to the detrimental effects of design piracy from the lack of protection under the law and the lack of funds to form suits against design piracy.102 Since larger businesses recognize the advantage they have over smaller businesses with regard to design piracy, there is little to deter them from copying the designs of smaller labels. Therefore, a new or smaller designer may face a loss of credibility with customers, a decline in the original design value, and ultimately lose their brand.

Congress has been hesitant to protect fashion design due to its contributions to the economy. They believe that if the designs become protected, it will inevitably stunt the growth of the GDP.103 The more protection a design has the less widespread the design will be throughout the market, especially in popular low-cost brands. Yet, this lack of protection prevents new and smaller designers from gaining proper recognition for their brands. A decrease in innovation amongst the industry will result from this circumstance due to hesitation and weakened motivation of new designers to share their creative content.

Protection under United States law for fashion design would allow for smaller and newer designers to present suits against design piracy because their design rights would be undeniably established. Other countries have become increasingly aware of the detriments to the fashion industry with little 97 See 12-Year-Old Settles Music Swap Lawsuit, CNN.COM, Feb. 18, 2004, at http://www.cnn.com/2003/TECH/internet/09/09/music.swap.settlement 98 See Eric Duncan, Topic. Apparel Market in the U.S. STATISTA.COM https://www.statista.com/topics/965/apparel-market-in-the-us/.

99 BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK: DESIGNERS 120 (2002–03 ed.), http://www.bls.gov/oco/ocos090.htm.

100 Id, at “Pay.” 101 Id. 102 While there is no specified protection for fashion designs, particular elements of the designs can be protectable. 35 U.S.C. § 171 (2000); 17 U.S.C. § 102 (2000). The problems with the said protections are examined infra Part III. The high costs of litigation for these suits are probable for deterring copying by other designers.

103 A Bill to Provide Protection for Fashion Design: Hearing Before the Subcomm. On Courts, the Internet and Intellectual Property, 109 Cong. 2 (2006).

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to no protection. By comparing global intellectual property regimes and fashion designs, it is evident that the United States is falling behind other countries.

While modern French law still offers the most extensive protection to fashion design, Japan, India, and many other countries have incorporated both registered and unregistered design protection into their domestic laws. In addition, E.U. law has since 2002 provided for both three years of unregistered design protection and up to 25 years of registered design protection, measured in five-year terms. The global legal trend toward fashion design protection has rendered the U.S. an outlier among nations that actively support intellectual property protection, a position that is both politically inconsistent and contrary to the economic health of the domestic fashion industry. Congress should take these factors into account when considering a reasonable level of legal protection for fashion design.104

Litigation costs would be reduced correlating to the probability of achieving sound relief. Therefore, a new fashion designer or a small label would have a higher chance of success if their design was truly pirated and they would be able to defend their rights despite lacking the financial advantage that larger designers have. As seen today in the United States, no rights are clearly defined or even exist for the protection of fashion designs.

Fashion designers, big and small, new and old, need explicit protection for their designs. In the striving nation of entrepreneurship and gratifying those for their creative and original ideas, fashion design is an industry in need of a reform. Fashion designers must be innovative and hard working to stay ahead of current in trends, and to maintain or improve their success in the competitive industry. Fashion designers work endlessly on creating innovative designs and content; thus, they should be entitled to the protection of said creations. Although differing opinions on fashion protection have their respective persuading arguments, fashion design should have some legal protection. Art, music, and many other creative industries are protected by the United States law; therefore, the fashion industry should be protected in the same respect.

II. DESIGN PIRACY Fashion designers lose hundreds of millions of dollars per year from design piracy.105 Blatant design copying occurs very often. Design pirates will send their designers to fashion shows to sketch the apparel on the 104

A Bill to Provide Protection for Fashion Design: Hearing Before the Subcomm. On Courts, the Internet and Intellectual Property, 109 Cong. 2 (2006).

105 Samantha L. Hetherington, Fashion Runways Are No Longer the Public Domain: Applying the Common Law Right of Publicity to Haute Couture Fashion Design, 24 HASTINGS COMM. & ENT. L.J. 43, 44 (2001).

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runways and produce them before the original is available in stores.106 The defendant in Johnny Carson Apparel, Inc. v. Zeeman Manufacturing Co.107 purchased a suit the plaintiff designed, disassembled it to make a copy, reassembled it, and attempted to return it to the place of purchase.108 Other companies will send their manufacturers an article of clothing that they intend on reproducing and overtly instruct them to use it as a model to create a copy.109 Others will go directly to the manufacturer of the original design and request that they directly reproduce the design for them.110 A.B.S Clothing Collection, Inc. (ABS) is a fashion design firm that has created an entire business around pirating designs.111 The president of ABS, Allen B. Schwartz, confessed to sketching the dresses of stars during the Academy Awards and then determines which he will “interpret.”112 After ABS produces the design, they name it after the celebrity seen wearing it.113 Many small designers will turn a blind eye to design piracy because of litigation expenses and improbable redress. Larger designer firms take severe precaution to defend their designs. Hermès is represented by a large private New York Law firm whose lawyers seek out knockoffs of the brand’s scarves, handbags, and other accessories on the internet and streets.114 If a knockoff’s shape or style deceives the consumer into thinking it is a genuine Hermès product, then a court will be convinced that the knockoff violates Hermès trade dress or trademark rights.115 To the contrary, many people believe that the original works by fashion designers should be protected under the law. Some have considered that the fashion industry has strategically chosen for creation to remain in the public 106

Bill to Provide Protection for Fashion Design: Hearing Before the Subcomm. On Courts, the Internet and Intellectual Property, 109 Cong. 2 (2006) (Testimony of Jeffrey Banks).

107 Johnny Carson Apparel, Inc. v. Zeeman Mfg. Co., No. C75-544A, 1978 WL 21356 (N.D. Ga. Nov. 4, 1978).

108 Id, at 4.

109 Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 59 (1st Cir. 2000).

110 4 U-Neek, Inc. v. Wal-Mart Stores, Inc., 147 F. Supp. 2d 158, 166 (S.D.N.Y. 2001).

111 Samantha L. Hetherington, Fashion Runways Are No Longer the Public Domain: Applying the Common Law Right of Publicity to Haute Couture Fashion Design, 24 HASTINGS COMM. & ENT. L.J. 45 (2001).

112 Id. 113 Id, at 56 n.90 (ABS named a knock-off Ralph Lauren pink dress worn by Gwyneth Paltrow at 71st Annual Academy Awards “Gwyneth.”).

114 Jen Chung, Purse Gestalt: The Hermes Problem, GOTHAMIST, (Aug. 12, 2003), http://www.gothamist.com/archives/2003/08/12/purse_gestalt_the_hermes_problem.php; Fashion Industry Copes with Designer Knockoffs: With Copyright Protection Elusive, Copies are Common, NPR, Sept. 18, 2003 at http://www.npr.org/display_pages/features/ feature_1434815.html [hereinafter Fashion Industry Copes].

115 S. War Knockoffs and Counterfeit Goods, War IP Law, (2 April 2019), https://wariplaw.com/knockoffs-and-counterfeit-goods/.

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domain.116 David Bollier and Laurie Racine argue that the fashion industry thrives from the lack of protection because the designs are recycled for the public’s benefit.117 This argument relates to the monetary belief that the fashion industry is a publicly profitable sector of the economy. While that is half of the story, the fashion industry is also a creative sector. It is clear that there are differing, persuasive opinions when it comes to design piracy. Yet, fashion design should have some, if any, protection because it is an industry built upon innovation and creativity. Once the fashion industry becomes a copy-cat industry, innovation and creativity will begin to decrease due to the absence of incentives to create new designs by new designers.

A. Trademark A trademark is a symbol, name, word, design or color in any combination used to identify a particular brand.118 Trademarks allow for consumers to instantly distinguish the source of a product. Trademark law protects design logos such as the “LV” on Louis Vuitton products or the red bottoms of Louboutin shoes.119 U.S. trademark registration is granted to the first to use.120 In other words, a company gains the rights to a trademark by being the first to use it in their products.

In 2016, Adidas AG filed a suit against Forever 21 Inc. for selling products that allegedly infringed on the Adidas three striped design.121 This is a clear example of trademark because Adidas stated that: [Adidas] does not use stripes merely as a design element, its three-stripe trademark – which it has used since as early as 1952 – is a source identifier that adidas has carefully cultivated through its investment of hundreds of millions of dollars in advertising and promotions, including its sponsorships of athletes, sports teams, musical artists, and fashion designers.122

Therefore, the three stripes have contributed to brand recognition and the identity of the company.

116

David Bollier & Laurie Racine, Control of Creativity? Fashion’s Secret, CHRISTIAN SCI. MONITOR, Sept. 9, 2003, para. 2, at https://www.csmonitor.com/2003/0909/p09s01coop.html.

117 Id. para 4.

118 15 U.S.C. § 1127 (2000).

119 Louis Vuitton Malletier, S.A. v. i-Fe Apparel, et. al., 1:18-cv-10352 (SDNY); Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., No. 11-3303 (2d Cir. 2013).

120 15 U.S.C. § 1052(a§1(a)(b) registration).

121 Adidas Responds to Forever 21 Counterclaims: We Do “Not Use Stripes Merely as a Design Element” TFL, (Sept 24, 2019), https://www.thefashionlaw.com/home/adidasresponds-to-forever-21-counterclaims-we-do-not-use-stripes-merely-as-a-design-element.

122 Id.

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Since Adidas was unable to achieve further protection beyond trademark, Forever 21 easily recreated their three stripe design. This significantly hurt Adidas, given that the design has contributed to their brand recognition and identity as a company. However, it simultaneously benefitted the fashion sector fiscally by making a more affordable option for consumers to buy.

When a design with such importance is used by someone other than the original creator it drives their value down as a company. With such a volume of designers and brands in the industry, a value of a single company would not completely affect the fashion sector economically. Arguably, if these higher market brands begin to lose their value, there will be a lack of new and creative designs for lower market brands to pirate.

B. Design Patent A design patent is protection on the way a product looks. In order to obtain a design patent a product is required to show novelty, non-obviousness and non-functionality.123 Design patents require expertise beyond that of usual designers.124 This high standard prevents new fashion designs that lack the incorporation of a known design element from acquiring patent protection.125 In addition, many courts have expressed uncertainty that clothing can never qualify for design patent protection.126 There are three major considerations that allow for the difficulties of patent protection of fashion designs in addition to the requirements of obtaining a design patent. First, the process of achieving a patent is difficult and lengthy. It takes the Patent and Trademark Office 26 months to review a patent application and 25 percent of the applications are rejected.127 Second, the length of design patents for fourteen years from the date granted is not needed for the fleeting trends of fashion designs.128 Therefore, the trend will die out before the applicant even receives a response. Lastly, the design patent application can cost anywhere 123

1 DONALD S. CHISUM, CHISUM ON PATENTS § 1.04[2], at 1-301 (2004).

Anne Theodore Briggs, Hung Out to Dry: Clothing Design Protection Pitfalls in United States Law, 24 HASTINGS COMM. & ENT. L.J. 177, (2002).

125 White v. Lombardy Dresses, Inc., 40 F. Supp. 216, 218 (S.D.N.Y. 1941) (holds that dresses copied by the defendant did not meet the novelty and non-obviousness standards, but the dresses did not have neither known dress design elements nor were they combinations of prior known dress designs.).

126 See H.W. Gossard Co. v. Neatform Co., 143 F. Supp. 139, 143 (S.D.N.Y. 1956); White, 40 F. Supp. at 218. (“[U]ntil and unless a higher court decides that a design patent does not require the exercise of the inventive faculty to the extent that patent law now requires in advancing the particular art, the obtaining of a patent on simply a new and attractive dress is a waste of time.”).

127 S. PATENT AND TRADEMARK OFFICE, SUMMARY OF PATENT EXAMINING ACTIVITIES, at http://www.uspto.gov/web/offices/com/annual/2003/060401_table1.html.

128 Safia A. Nurbhai, Style Piracy Revisited, 10 J.L. & POL’Y 489, 502 (2002).

124

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from $1,005 to $3,000.129 This makes it difficult for small labels or individual designers to obtain protection for their collection.

It is because of these various reasons that design patents are unappealing to the fashion industry. Even if fashion designers were granted design patents upon the PTO reviewing their application, designers and small businesses would be unable to beat the monetary and time constraints. Design patents do provide a way for designers to gain greater protection of their designs.

However, if the government were to provide the patents, the brands that survive off of design piracy would fail and currently that is how most affordable brands profit. Therefore, design patents are purposefully unlikely to be granted so that stores like H&M, Zara and Primark can continue fueling the industry.

C. Copyright Copyright is a relatively easy process and registration is not required for protection.130 Copyright law is the protection of the authorship of original works and is “fixed in any tangible medium of expression.”131 Fashion designs, under the Copyright Act, falls under the “pictorial, graphic, and sculptural works” section.132 The use of the Copyright Act to protect fashion designs has the obstacle of the “useful article” doctrine. This limits the copyright protection of products with an aesthetic and functional purpose.

Under the Useful Article Doctrine, the pictorial, sculptural or graphic feature of the work must be conceptually or physically divisible from the utilitarian functional element, but only the separable aspect is provided protection.133 In Galiano v. Harrah’s Operating Co., the court found that Galiano’s artistic design feature of uniforms was not conceptually separated from their utilitarian function.134 Galiano entered a contract with Harrah casinos to provide uniform design for their employees.135 After their contract expired, Galiano received a Certificate of Registration from the U.S. Copyright Office 129

Design Patent Cost: Everything you Need to Know, “How Much Does a Design Patent Cost?” UpCounsel, https://www.upcounsel.com/design-patent-cost.

130 17 U.S.C. §§ 408–409 (2000).

131 17 U.S.C. § 102(a) (2000). The Copyright Act includes works of authorship in the following categories: “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”

132 17 U.S.C. § 102(a)(5).

133 Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2nd Cir. 1980).

134 Galiano v. Harrah’s Operating Co., No. Civ.A. 00-0071, 2004 WL 1057552, at 9. (E.D. La. May 10, 2004).

135 Id, at 1.

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to collect their uniform sketches.136 Galiano then filed a complaint for copyright infringement against Harrah.137 While the court did acknowledge the aesthetic value of the designs identified by Galiano’s expert, they ruled that the uniform’s artistic design features were not conceptually separated from their utilitarian function.138 However, the court found that the silkscreen artwork of the uniforms are subject to copyright protection because of its means of independent existence beyond the clothing.139 Similarly, with design patent protection, copyright protection presents difficulty for fashion design protection. The separability requirement poses an obstacle for fashion design protection. The main aspect in clothing design is establishing the proper fit. This aspect cannot be physically separated from the product itself and is almost impossible to conceptually separate.140 III. MONETARY IMPACTS It could be argued that the protection of fashion designs effectively provides larger labels with a monopoly of the market. Zac Posen launched his fashion line in 2001 with huge support from A-list celebrities, such as Rihanna and Kim Kardashian. Zac Posen saw his luxury brand slipping away due to affordable clothing lines. Therefore, he entered an agreement with Target to sell an affordable fashion collection. Despite Zac’s best efforts, investors and buyers did not want to take part in his business due to the growing interest in affordable fashion companies. Ultimately, Zac Posen had to terminate his brand. With Zac Posen already pushed out of the industry, many other talented young designers may face a greater risk if the fashion industry is monopolized.

With regard to the modern industry, an argument is presented that such a monopoly can no longer exist.141 The globalization of fashion centers has allowed for young designers to challenge the status quo and find their place in the market. Nevertheless, many argue that the lack of intellectual property protection within the fashion industry supports the industry by reducing prices, and increasing the consumption of high-end designers.142 This argument is based on the induced obsolescence theory which states that the mass manufacturing of clothing allows for design to become rapidly vintage 136

Id. Id, at 2.

138 Id, at 10.

139 Id. 140 Briggs, supra note 24, 176-177.

141 Jennifer Mencken, A Design for the Copyright of Fashion, 1997 B.C. INTELL. PROP. & TECH. F. 121201, 121204, (1997).

142 Rau Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1733, (2006).

137

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due to the movement from the elite to the masses.143 The new designs are developed and copied, which, in turn, reduces prices and raises sales. Jennifer Mencken asserts that this threat to the marketplace’s viability rather increases the cost of high-end goods instead of reducing their prices.144 Therefore, fewer consumers are able to purchase the designer goods.

A. Arguments in Favor of Loose Protections Not everyone views design piracy as a problem. America’s GDP for fashion is $350 billion.145 Therefore, Congress believes that the rapid trends of fashion contributes to the American economy, making them hesitant to provide protection for fashion designs. Their argument is that if fashion designs are protected, economic growth might be stunted.

A theory called the “Piracy Paradox,” argues that design copies beneficially affect the innovation of the fashion industry.146 The Piracy Paradox explains how consumers want to buy the latest trends as they are released. This paradox stems from the induced obsolescence theory. The furthering inspiration for Piracy Paradox is that intellectual property theory suggests that copying designs destroys innovation, but the fashion industry has demonstrated to be an exception. The founders of Piracy Paradox state: Copying fails to deter innovation in the fashion industry because, counter-intuitively, copying is not very harmful to originators. Indeed, copying may actually promote innovation and benefit originators.147

Fashion design is a status-conferring good; its value is tied to the perception of its viewers. The lack of intellectual property protection slows for the copying and diminishing of styles to occur so that new designs are created, and the industry is moved forward. There is more rapid turnover and constant increasing sales.148 High-end designers are able to compete with lower-end copycats by creating lower cost lines. For example, Dolce & Gabbana have a lower cost line called D & G. Yet, many high-end designers steer away from this strategy to maintain their exclusivity over competing high-end brands and because of the fear that their trademark could tarnish.

Many contend that there is healthy competition within the fashion industry. If a single item design was granted protection, larger brands with a greater legal budget could constantly file lawsuits and create a hostile 143

Id. Mencken, supra note 24.

145 A Bill To Provide Protection For Fashion Design supra note 7.

146 Raustiala supra note 42.

147 Id. at 1687.

148 Id. at 1687.

144

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environment in which smaller brands will be forced out of business. The healthy competition amongst large and small brands makes a monopoly in the industry nearly impossible.

B. Arguments against Loose Protections To the contrary, many believe that there is an uneven playing field within the industry. Larger companies hire lawyers with or without legal claims to send cease-and-desist letters so companies can stop selling similar pieces to theirs. Smaller brands may splurge on legal fees to only have their claims dismissed by larger companies.149 It is also argued that copycat designs affect the whole industry by cheapening designs and conditioning shoppers to trivialize the creative process that fashion design entails.150 IV. CONCLUSION Fashion design is a major aspect of American culture. Its influence stems from monetary value to consumer expression. When something reaches every aspect of popular culture in the way fashion design does, legislation should not only provide protection but also encourage it. The intellectual property issue that fashion design piracy faces becomes disregarded when analyzing the monetary impact from copycats within the industry.

Consumers are less incentivized to buy higher-end products when replicas are offered at an affordable cost. While the fear of larger labels monopolizing the industry is a major concern for new and smaller designers, the fashion industry is grounded by the creative process and originality. The lack of protection for original designs for the sake of the GDP creates an environment where fashion designs are undervalued by consumers and the industry itself.

Fashion designs change with the times. New and young designers influence the trends in fashion. When their designs are pirated and sold at a cheaper cost, they gain no profit or proper recognition for their designs. This, in turn, provides a lack of incentive to create new content. Thus, more protection should be offered to fashion designers for their creativity and innovation to fuel the industry, not the design piracy of mid-price stores.

*** 149 Gabby Bess, How Fashion Brands Like Zara Can Get Away with Stealing Artists’ Designs, (Jul 21, 2016, 4:35pm), https://www.vice.com/en_us/article/nejwdz/how-fashionbrands-like-zara-can-get-away-with-stealing-artists-designs-tuesday-bassen.

150 Nick Grant, Inside the Anything-Goes World of Instagram Fast Fashion, (Oct 26, 2017), https://www.gq.com/story/fast-fashion-streetwear-brands-of-instagram.

NOTE A SHIFT IN ENVIRONMENTAL ACCOUNTABILITY Nicholas Wolf* When counties and cities across the United States have sought compensation for environmental damages, they have taken legal action against large oil companies and other corporations. The courts have almost exclusively ruled in favor of the defendants. Plaintiffs have often accused the defendants of deliberately spreading inaccurate information regarding climate change. Additionally, plaintiffs have asserted that a variety of infrastructural damages have been directly caused by environmental malpractice151 from energy corporations. The expansive legal power that companies such as BP, Chevron, Exxon Mobil, Shell, and ConocoPhillips possess have allowed them to dodge allegations of primordial environmental conduct. These companies’ extensive utilization of fossil fuels has been the primary contributor to the global climate change, yet they have not been compensated for these damages. Whether these victories of being unaccountable of the damages have been achieved due to lack of direct evidence or exploitation of legal loopholes in federal environmental policy, these corporations have emerged relatively unscathed.

BP P.L.C. v. Mayor and City Council of Baltimore152 has recently changed this narrative. The fourth circuit court of appeals has allowed this case to remain in Maryland state courts, a large victory for the city of Baltimore.

Allowing an environmental case of this magnitude to endure in state court is a drastic swing from traditional environmental proceedings. This decision signifies a shift in how environmental policy can be reviewed in civil law, and how it no longer may be a purely federal and legislative issue. Moreover, this ruling displays the potential for environmental damages to be held with the same legal weight as other forms of property destruction. Thus, this ruling will reshape the legal implications of how energy companies can be held legally accountable for ecological negligence. *

B.A. Candidate for Political Science and Environmental Studies, Fordham College at Rose Hill, Class of 2023. It has been an honor to be a member of the Fordham Undergraduate Law Review as a Staff Writer. I am excited and motivated to encourage the growth and success of this journal. I am grateful for the Editorial Board’s tremendous contributions and support, as well as my friends and family, who have and always will be incredibly loving and supportive.

151 Harper Neidig, Supreme Court allows climate case targeting Big Oil to proceed, The Hill (10/22/19 02:02 PM), https://thehill.com/homenews/news/466937-supreme-courtrejects-oilcompanies-request-to-intervene-in-state-lawsuit-over (Discussing a district court ruling to keep Baltimore’s case in state court).

152 18-2357 - Mayor and City Council of Baltimore v. BP P.L.C., et al.

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I. INTRODUCTION Regarding BP P.L.C. v. Mayor and City Council of Baltimore, the plaintiffs’ allegations concluded that Chevron and a slew of other energy companies deliberately communicated inaccurate information regarding anthropogenic global climate change. Moreover, they stated that by denying the existence of anthropogenic greenhouse gas emissions, imprudent energy companies should be held fiscally responsible for the various damages associated with global warming. As Baltimore witnessed catastrophic levels of flooding in the early summer of 2019,153 the city sought to hold large oil and energy companies fiscally accountable. More specifically, the plaintiff sought compensation for the infrastructure-related costs brought by the aforementioned flooding, which they cite were directly generated by a sharp rise in greenhouse gas emissions triggered by the defendants.154 To achieve this, “Baltimore asserted causes of action for public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, and trespass, as well as a cause of action under Maryland’s Consumer Protection Act.”155 II. THE CITY OF OAKLAND V. BP P.L.C, AND AMERICAN ELECTRIC POWER COMPANY V. CONNECTICUT A variety of other cases, like The City of Oakland v. BP P.L.C,156 have been founded on similar premises, but have yielded less effects for the plaintiffs. This is largely due to federal regulations regarding gas emissions and other environmental restrictions passed by the federal government. Under the federal environmental policy, the EPA and the executive branch delegate punishment for environmental malpractice, as opposed to state or local governments. The aforementioned case, and many others like it, were swiftly ruled in the defendant’s favor in federal court.157 Oakland’s lawsuit was 153

Jason Samenow and Jeff Halverson, How a stalled storm over Baltimore unleashed flooding rain and 70 mph winds Tuesday, The Washington Post (8/7/19) https:// www.washingtonpost.com/weather/2019/08/07/how-stalled-storm-over-baltimoreunleashedflooding-rain-mph-winds/ (Discussing floods in the city of Baltimore in August of 2019).

154 18-2357 - Mayor and City Council of Baltimore v. BP P.L.C., et al.

155 Id. 156 18-16663 - The City of Oakland vs. BP P.L.C., et al.

157 Jack Flynn Mogensen, San Francisco vs. Big Oil: Climate Case Dismissed, Wired (6/27/2018 03:07 PM) https://www.wired.com/story/san-francisco-vs-big-oil-climate-casedismissed/ (Discussing the proceeding leading The City of Oakland vs. BP P.L.C to be dismissed).

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rejected on the grounds that a variety of the defendants’ contracts with the federal government only permitted such issues to be resolved through legislative or executive authority. Similarly, American Electric Power Company v. Connecticut158 was dismissed due to federal restrictions regarding regulations of greenhouse gas emission. Specifically, the Supreme Court of the United States cited The Clean Air Act of 1970159 as proof that Congress had delegated responsibility of greenhouse emission to the EPA, stating, “the Act’s prescribed order of decision making—first by the expert agency, and then by federal judges—is yet another reason to resist setting emissions standards by judicial decree under federal tort law.”160 Whether due to contractual relations or legislation concerning environmental regulations, federal courts have almost exclusively ruled in favor of the defendants in these cases of this nature.

III. A NEW APPROACH TO ENVIRONMENTAL LAW IN BALTIMORE In direct contrast to the two aforementioned cases, Baltimore saw their lawsuit survive federal courts in a fourth circuit ruling,161 allowing the case to remain in Maryland state court. Circumventing the complex relationship between greenhouse gas emissions and the federal government gives testament to a shift in legal outlook regarding the accountability of big oil companies in damages wrought by climate change. While all plaintiffs pressed similar charges, (citing the defendants were guilty of unlawful public nuisance due the effects of their greenhouse emission) Baltimore’s case has seen a vastly different judicial interpretation. Rather than deliberating environmental indemnification to the federal government, this ruling allowed the city of Baltimore to seek compensation through state court. This potentially can allow other courts to hold environmental destruction in the same legal context as other forms of infrastructural and property damage in tort law.

158

10-174 - American Electric Power Company v. Connecticut. § 7401 et seq. (1970) The Clean Air Act. 160 American Electric Power Company v. Connecticut 564 U.S. 3 (2011) 161 David Y. Loh, Fourth Circuit Affirms Remand of Climate Change Lawsuit Back to Maryland State Court, American Bar Association (April 3, 2020), https://www.americanbar.org/groups/litigation/committees/admiralty/practice/2020/mayorand-city-council-of-baltimore-v-bp-plc-etal/ (discussing Federal Fourth Circuit Court of Appeals affirming to keep BP P.L.C. v. Mayor and City Council of Baltimore in state courts).

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IV. CONCLUSION Baltimore’s case dictates a radical shift in judicial interpretation regarding oil companies’ legal liability for climate change damages. While the case remains ongoing, the federal court’s fourth circuit ruling can alter how large oil companies and other corporations are held legally accountable for environmental malpractice. While merely enduring in state court does not guarantee a victory for the plaintiff, it does represent a broader shift in judicial interpretation. By rendering large corporations vulnerable to civil lawsuits for environmental malpractice, other parties may be more inclined to take legal action. ***

NOTE ASSIMILATION OF CULTURES: WHY THE PROTECTION AND RECOGNITION OF DUAL NATIONALITY IS NECESSARY Kevin James*

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Under current United States nationality law regarding citizenship through naturalization, dual nationality is neither inherently protected nor restricted.

Specifically, the United States law does not explicitly mention dual nationality. The law does, however, create a subtle barrier to holding true dual nationality, a federally recognized and protected status of holding two or more nationalities, by requiring those obtaining citizenship through naturalization to participate in a long-standing tradition dating back to 1790: the “Oath of Allegiance” to the United States.163 Reciting the oath declares that one relinquishes all loyalty from “every foreign prince, potentate, state, or sovereignty,” and swears complete allegiance to the United States.164 Although the United States does not require one to formally renounce citizenship with other countries, the language present within the oath essentially requires one to yield their loyalty to their home country. This Note divulges important factors as to why the United States should formally recognize and protect dual nationality in written immigration laws instead of allowing de facto dual nationality by simply not restricting or recognizing it.

I. INTRODUCTION.....................................................................................38 II. NATURALIZATION OATH OF ALLEGIANCE..................................39 III. INTERNATIONAL TRAVEL WITH MULTIPLE PASSPORTS........42 IV. FOREIGN LAWS CONCERNING DUAL NATIONALITY...............43 *

B.A. Candidate for International Political Economy on a pre-law track, Fordham College at Rose Hill, Class of 2023. This Note would not be possible without the support and guidance of the Editorial Board of the Fordham Undergraduate Law Review, with immense gratitude to Tyler Raciti (Editor-in-Chief), who introduced me to the Fordham Undergraduate Law Review and provided constant support, editing assistance, and resources for this Note, as well as Arianna Chen (Executive Online Editor) who provided me with helpful suggestions and feedback in the early stages of forming this Note. In addition, I would like to thank Reeve Churchill (Executive Articles Editor), Aiden Hannon (Co-Managing Editor), and Caroline Morris (Senior Editor) for their support, edits, feedback, and suggestions. I would also like to express my gratitude to Professor Kristina Zupnyk for inspiring my interest in this topic and for her helpful feedback on my writing.

Lastly, I must thank my family who has supported and encouraged me every step of the way.

163 See History of the Oath of Allegiance (2020), U.S. Citizenship and Immigration Services, https://www.uscis.gov/citizenship/learn-about-citizenship/the-naturalizationinterview-and-test/history-of-the-oath-of-allegiance.

164 Id.

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V. CONCLUSION........................................................................................45 I. INTRODUCTION

Many people refer to the United States as a “melting pot of cultures.” It is a land founded by immigrants, and that flourishes because of immigration from countless countries. However, once one comes to this country should they yield the identity of their homeland for “American” values and identity?

Although the United States does not require one to relinquish their citizenship from another country upon obtaining citizenship in the United States, immigration laws create many barriers that essentially accomplish this. The first barrier is the required “Oath of Allegiance,” which requires one to relinquish their loyalty to their homeland and pledge their allegiance only to the United States upon naturalization. The next barrier is passport restrictions on those who hold multiple citizenships; all United States citizens must travel with a United States passport when entering and leaving the United States.165 Meaning, even if one holds a passport from their previous country, they may not use it while traveling in and out of the United States.

Although this may not seem restrictive, it forces dual nationals to get a United States passport and pressures them to use it as their primary passport.

This also pushes dual nationals to yield their passport from other countries in order to avoid the cost of maintaining both, unless they are required to use it while entering or leaving that country. Lastly, there is an abundance of foreign policy laws implemented by other countries that require one to relinquish their prior citizenship upon obtaining new citizenship with another country. Specifically, countries such as Cuba, India, China, Japan, the Bahamas, and many more forbid dual citizenship and either automatically revoke or require that they formally renounce their citizenship upon obtaining citizenship with another country.166 Although the United States is more progressive than these nations with allowing dual nationalities, the United States immigration laws must be further amended to truly allow and formally recognize dual citizenship by repealing these barriers. This is an important 165

See Dual Nationality, U.S Department of State - Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-aboutPossible-Loss-of-US-Nationality-Dual-Nationality/DualNationality.html#:~:text=The%20concept%20of%20dual%20nationality,countries%20at% 20the%20same%20time.&text=U.S.%20law%20does%20not%20mention,his%20or%20he r%20U.S.%20citizenship.

166 See Daniel Wambugu, Countries That Don’t Recognize Dual Citizenship (2019), WorldAtlas, https://www.worldatlas.com/articles/countries-that-don-t-recognize-dualcitizenship.html#:~:text=There%20are%20numerous%20countries%20that,and%20China %20forbid%20dual%20citizenship.

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step toward embracing the United States’ diversity, as well as its multitude of cultures and identities.

II. NATURALIZATION OATH OF ALLEGIANCE Starting in 1790 ─ the year the first naturalization law was introduced ─ applicants applying for United States citizenship through naturalization are required to recite an oath to support and uphold the Constitution of the United States.167 Shortly thereafter, the Naturalization Act of 1795 required applicants to “declare an intention (commitment) to become a U.S. citizen before filing a Petition for Naturalization.”168 This commitment required applicants to state that upon obtaining citizenship, they will renounce all foreign loyalty by reciting the Oath of Allegiance. In addition to this, any “applicants born with a hereditary title also have to renounce their title or order of nobility.”169 These barriers have stripped away immigrants’ identities for centuries and although naturalization laws have been modified, these restrictions of representative culture and identity are still present today.

Prior to 1906, naturalization laws provided vague guidance to the approximately five thousand courts with naturalization jurisdiction. Prior naturalization laws did not provide a verbatim oath for recitation, but rather only stated that one: Shall… declare, on oath… that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty; and, particularly, by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court.170

Due to the lack of guidance and structure provided to naturalization courts, many proceeded with different methods of enforcing this law.171 Some courts would simply document that an applicant recited this oath, while others would print their own version of the oath for applicants to read and recite upon being granted United States citizenship.172 However, Theodore Roosevelt signed an executive order on March 1, 1905 to form a commission to investigate the United States’ naturalization laws and propose a draft for updated laws.173 This commission included Chairman Milton D. Purdy of the 167

See History of the Oath of Allegiance, supra note 1.

Id. 169 Id. 170 Id. 171 Id. 172 Id. 173 See Milton Purdy, Gaillard Hunt, and Richard Campbell, Report to the President of the Commission on Naturalization (1905), http://hdl.handle.net/2027/coo.31924032790044.

168

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Department of Justice; Gaillard Hunt of the Department of State; and Richard K. Campbell of the Department of Commerce and Labor.174 The commission ultimately “recommended classifying and summarizing naturalization laws into a code (re-codification), the creation of a federal agency to oversee naturalization procedures, and standard forms for all U.S. naturalizations, including a form for the oath of allegiance.”175 The recommendations of the commission resulted in the Basic Naturalization Act of 1906, which included many of the commissions’ recommendations but refused to require a “separate form for the oath of allegiance”; the oath remained a requirement at an applicants’ final hearing.176 In addition, the act also “added the section of the oath requiring new citizens to defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; and bear true faith and allegiance to the same.”177 However, the official and standardized text for the oath of allegiance still did not appear in the regulations until 1929.178 The oath of allegiance was yet again amended in the Immigration Act of September 23, 1950 to include language that forced applicants to commit to “bearing arms on behalf of the United States when required by the law; and performing noncombatant service in the armed forces of the United States when required by the law.”179 The only exception to the oath of allegiance occurs when an applicant is opposed to bearing arms or noncombatant service due to religious beliefs.180 The last modification to the oath of allegiance that still remains today was added in the Immigration and Nationality Act of 1952, which requires applicants to swear to perform deemed to be of national importance when required by law.181 The principles outlined in the Oath of Allegiance are “codified in Section 337(a) in the Immigration and Nationality Act (INA)”.182 The full Oath of Allegiance that applicants of immigration through naturalization must recite currently states: I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and 174

Id. See History of the Oath of Allegiance, supra note 1.

176 Id. 177 Id. 178 Id. 179 Id. 180 Id. 181 Id. 182 See Naturalization Oath of Allegiance to the United States of America (2020), USCIS, https://www.uscis.gov/citizenship/learn-about-citizenship/the-naturalization-interview-andtest/naturalization-oath-of-allegiance-to-the-united-states-of-america.

175

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defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.183

The Oath of Allegiance has been restrictive in nature since its 1790 implementation and amendments within the past hundreds of years have ultimately only created more barriers in expressing national identities and culture. Immigration through naturalization remains a controversial topic today, though even within recent generations, most Americans have directly descended from immigrants. However, this required oath has greatly suppressed their national identity. Numerous other restrictions have also been proposed that would create extreme barriers to cultivating, embracing, and encouraging our nation’s cultural diversity.

Specifically, the same commission created by President Theodore Roosevelt in 1905 proposed that “no one be admitted to citizenship who does not know the English language.”184 In the “Report To The President of the Commission on Naturalization” submitted during the 1st Session of the 59th Congress, it claims “no man is a desirable citizen of the United States who does not know the English language.”185 While this specific policy proposed over a century ago was not implemented, the concept of a national language resembles other policies still being debated today that would restrict cultural and national identities. United States immigration laws remain incredibly vague and lack the protection that immigrants and descendants of immigrants need. The Oath of Allegiance has not been updated since 1952; a progressive step would be to repeal the Oath of Allegiance completely or at the minimum, eliminate language that restricts one from embracing their heritage or homeland identity.

III. INTERNATIONAL TRAVEL WITH MULTIPLE PASSPORTS Many dual nationals, including those born as a United States citizen, hold multiple passports; it is common for dual nationals to have a passport for each country in which they have citizenship. However, the United States and other countries implement barriers that restrict the mobility and function of these passports. United States citizens are required to use a government issued

183

Id. See Purdy, Hunt, and Campbell, supra note 11.

185 Id. 184

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passport while leaving and entering the country.186 While this may not seem like a large barrier in expressing national identities, it mandates dual nationals to have a United States passport even if they already own a valid passport from another country.

It also may financially incentivize dual nationals to skip renewing their foreign passport if that country does not also have the exit and entry passport restrictions as per United States passport regulations. If one legally holds a foreign passport that the United States accepts from non- citizens, the government should allow these passports for dual United States citizens to travel as well. Moreover, Kawakita v. U.S. 343 U.S. 717 (1952) ruled that dual nationality is: A status long recognized in the law; and that, a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other.187

Afterall, those who obtain dual nationality through United States naturalization can still hold recognized citizenship in their country of origin, and that person ─ along with others holding dual citizenship through other methods ─ should have the freedom to choose which passport to use as their primary travel document since they hold legal obligations to both nations.

IV. FOREIGN LAWS CONCERNING DUAL NATIONALITY Although the United States has numerous restrictions regarding dual nationality, its naturalization laws are far more protective and progressive than several other countries. Many countries forbid their citizens from holding citizenship in another country. For example, Malaysia and Thailand made a joint-agreement in 2007 to “crack down” on dual-nationality holders by forcing persons with dual citizenship to formally renounce citizenship from one country.188 Malaysian Prime Minister Abdullah bin Ahmad Badawi described this policy as “one of the most positive steps that both countries had taken to solve the issue of dual citizenship.”189 However, dual nationality and diversity should not be considered an “issue,” but rather celebrated, recognized and protected.

186

See Dual Nationality, supra note 3.

See H Ansgar Kelly, Dual Nationality, the Myth of Election, and a Kinder, Gentler State Department, 23-45.

188 See Arul Rajoo, Malaysia, Thailand agree to crackdown on dual citizenship holders, BBC Monitoring Asia Pacific, (Feb. 13, 2007), https://advance-lexiscom.avoserv2.library.fordham.edu/api/document?collection=news&id=urn:contentItem:4N 20-GMX0-TX34-N29B-00000-00&context=1516831.

189 Id. 187

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However, Thailand wishes to restrict dual nationality to ‘battle’ “a Muslim insurgency in its southern provinces.”190 Thailand and Malaysia deliberately enacted this policy to strip Muslim citizens of certain privileges that come with citizenship. To implement and enforce this policy, Prime Minister Abdullah explained that “both countries would present the number of suspected people holding dual citizenship before their respective authorities use biometric technology to make comparisons on their identities and trace those with such status.”191 Similar to Thailand and Malaysia, several other countries have implemented similar policies and extreme measures to forbid dual citizenship.

Botswana also holds one of the strictest policies in regard to holding multiple citizenships; except under rare exemptions, it is illegal for any citizen to have dual citizenship. In 2018, Botswana announced that it would: Cancel citizenship for all persons above the age of 21 who have not renounced citizenship of another country. Currently a child born to a Botswana citizen and a foreigner has dual citizenship or is considered to assume the nationality of both parents until the age of 21.192

Any person under 21 with dual nationality must formally renounce all other citizenship statuses before the age of 21 or face the automatic loss of Botswana citizenship. It is their belief that if a child is born in Botswana with dual citizenship inherited from a parent of a foreign nation, they must choose citizenship from one country. This is why Botswana allows any individual until legal adulthood to make this decision; they believe this permits a better understanding of both countries to choose from. However, renouncing one’s citizenship is a difficult and often emotional decision. Even if they have grown up enjoying the cultures provided by both nations, they must choose one country to receive citizenship privileges for.

Due to restrictive nationality laws such as these that are still forcing citizens to make a choice between two worlds their identity and livelihood, it is apparent that allowing dual nationality is the bare minimum that a nation should commit to within immigration and nationality laws. Especially in comparison to the plethora of countries with these restrictions, some argue that the United States already provides adequate protection for their dual national citizens. However, the United States should lead by example and fully protect dual-national status; current protections are monumental

190

Id. Id. 192 See Omang Kilano, Botswana cancels dual citizenship - The Patriot on Sunday (2018), The Patriot, https://www.thepatriot.co.bw/news/item/5498-botswana-cancels-dualcitizenship.html.

191

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compared to other aforementioned countries, but there is more that should be done to protect and recognize this status for the future.

V. CONCLUSION While noting more lenient than many other countries by simply not prohibiting dual nationality, the United States continues to have restrictive barriers to truly allowing true dual citizenship ─ a federally recognized and protected status of holding two or more nationalities. In particular, the Oath of Allegiance required upon receiving United States naturalization essentially sets the standard that, while you may hold citizenship in your country of origin, you must remain loyal to the United States above all other nationalities. Reciting the oath erases the meaningfulness of having dual citizenship: having the ability to reap the benefits and privileges that come with holding citizenship in countries that make up one’s identity. Current United States policy essentially asserts that an immigrant must hold their American identity as their dominant culture and identity.

While many other immigration laws are constantly modified and remain within popular political discourse, the Oath of Allegiance has not been updated since 1952. In addition to the Oath of Allegiance, passport restrictions create an additional barrier for allowing dual citizens the full benefits of their various citizenships. As a country that prides itself upon a diverse populace ─ a country founded by and built by immigrants ─ it is of the utmost importance to federally recognize, protect, and celebrate dual national status. Anything less than full recognition and legal protection is cultural assimilation and restricts people from expressing and reaping the benefits of their multicultural identities. ***

NOTE THE APPLICATION AND ADVANCEMENT OF INTERNATIONAL LAW: FRANCE’S NEW CYBERSECURITY POLICY Jonathan Katz*

193

The prolific growth of technological advancements has undoubtedly improved the quality of life for many, both directly and indirectly. However, the integral role technology now plays in our society presents a plethora of opportunities for the technologically-savvy to exploit; the consequences of such, many world leaders are incapable of dealing with. The 2016 United States Council of Economic Advisers estimated that pernicious operations resulted in losses upwards of fifty billion dollars.194 Indeed, hackers have intervened in governmental affairs, most notably in the fields of national defense, central infrastructure, and information and communication technologies (ICT). In most cases, these crimes cross international borders.

The need for a form of global governance was recognized in light of these increasingly pervasive cybersecurity attacks. In 2019, the French Ministère des Armées (Ministry of the Armies) released four major reports tackling the issue of cybersecurity in the international sphere. The last report, “Droit International Appliqué aux Opérations dans le Cyberespace” (In English: International Law Applied to Operations in Cyberspace)195 stands out as a watershed document on cybersecurity in international law. Despite its apparent ambiguity, it pushes the global understanding of international law as a powerful tool to mediate crises such as cybersecurity threats. The document has established itself as a precedent and can be expected to influence other countries in the upcoming months.196 * B.A. Candidate for International Political Economy, Fordham College at Rose Hill, Class of 2023. The opportunities provided by the Fordham Undergraduate Law Review and its leadership are both innumerable, and invaluable. Their unwavering selfless support has allowed their members to flourish and set the publication on a path for continued success.

On a more personal note, I would like to thank former Co-Managing Editor Naomi Izett for her continued support, guidance, and oversight throughout the drafting and editing processes. Without her, overcoming the complexities of international law would not have been possible. Lastly, infinite thanks are due to my family whose continued support allows me to engage in such rewarding opportunities.

194 The Cost of Malicious Cyber Activity to the U.S. Economy, The Council of Economic Advisers (February 2018), https://www.whitehouse.gov/wp-content/uploads/2018/03/TheCost-of-Malicious-Cyber-Activity-to-the-U.S.-Economy.pdf.

195 Ministère des Armées, La Fabrique Défense (2017-2019), https://www.defense.gouv.fr.

196 Shortly after publication of France’s newest policy (December 2019), the Group of Government Experts on Developments in the Field of Information and Telecommunications in the Context of International Security was called to discuss the 193

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I. II.

INTRODUCTION...................................................................... 47 THE USAGE OF SOVEREIGNTY IN DROIT INTERNATIONAL APPLIQUÉ AUX OPÉRATIONS DANS LE CYBERESPACE......................................................................... 48 III. THE USAGE OF CUSTOMARY LAW IN DROIT INTERNATIONAL APPLIQUÉ AUX OPÉRATIONS DANS LE CYBERESPACE......................................................................... 49 IV. IS A DOCTRINE CONCERNING INTERNATIONAL CYBERSPACE SECURITY APPLICABLE TO INTERNATIONAL LAW?........................................................50 V. ADDITIONAL INTERPRETATIONS ON CYBERSECURITY, SOVEREIGNTY, AND AMBIGUITY......................................51 A. The United Kingdom of Great Britain and Northern Ireland...................................................................................51 B. The United States of America...............................................51 C. The Russian Federation........................................................52 D. The People’s Republic of China........................................... 52 E. The Republic of France.........................................................52 VI. AN INTRODUCTION TO AMBIGUITY................................. 53 VII. AMBIGUITY: A NECESSARY EVIL......................................54 VIII. THREE IMPORTANT QUESTIONS........................................55 A. How Can a Use of Force Regime Take Into Account All of The Novel Kinds of Effects That States Can Produce Through The Click of a Button?....................................................................... 55 1. Article 2, Paragraph 4..........................................................56 2. Article 51.............................................................................. 56 B. What Do We Do About “Dual-Use Infrastructure” in Cyberspace?............................................................................... 57 C. How Do We Address The Problem of Attribution in Cyberspace?............................................................................... 58 IX. CONCLUSION.......................................................................... 58 .

I. INTRODUCTION The comprehensive policy outlined in the International Law Applied to Operations in Cyberspace draws primarily on two defining characteristics of international law: sovereignty and customary law. While these principles are application of international law to cybersecurity operations. Harriet Moynihan, The Application of International Law to Cyberspace: Sovereignty and Non-Intervention, Just Security, (December 13, 2019), https://www.justsecurity.org/67723/the-application-ofinternational-law-to-cyberspace-sovereignty-and-non-intervention/.

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widely accepted by most states, their inherent ambiguity can sometimes be the cause of disputes.

The principle of sovereignty first arose in 1648 at the end of the Thirty Years’ War which spawned the need for international regulations due to the creation of numerous inclusions of numerous European provinces and states.

The Peace of Westphalia yielded two fundamental characteristics of international law; the right to sovereignty and the right to a national identity.197 The definition adopted at the time was influenced mostly by positivist thought which asserted that a state’s right to govern itself was the supreme law, and no moral authority could exist above it. The idea of sovereign states has faced significant opposition by those who believed in what is known as natural law, which promotes general goodwill between nations based on preexisting philosophical and religious principles.198 Centuries later, the mass atrocities committed during the Second World War would tip the scale in favor of the natural law interpretation.

This, paired with the formation of the United Nations (UN), created a platform for the development of principles to govern globalization in a increasingly interdependent world.199 Customary law is the fabric that holds international principles and treaties together. It developed to fill in the “gray areas” caused by the ambiguity of international laws. It represents the commonly accepted international etiquette of politics. While it is by nature more flexible it is recognized as a unique but powerful tool used by international lawyers. Customary law and Sovereignty are often viewed as important ideas which guide international law. This is undoubtedly why France decided to use these widely recognized principles to support their doctrine.

II. THE USAGE OF SOVEREIGNTY IN DROIT INTERNATIONAL

ALLIQUE AUX OPERATIONS DANS LE The application of international law towards operations conducted in cyberspace is as novel as the development of cyberspace itself. As society develops, it looks to international law to guide the legal precedents that will shape future international politics. But what provides structure to these doctrines? The first is one of the most debated concepts in international law: sovereignty. Presumably, nations would look to the UN, the principal 197 David and Keitner Bederman, Chimene, International Law Frameworks (Concepts and Frameworks, Foundation Press (February 24, 2016).

198 Id. 199 Michael N. Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Introduction and General International Law in Cyberspace, Cambridge University Press (2017).

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international governing body, to define such a term. However, the UN has avoided issuing a concrete definition of sovereignty. Article 2.1 of the UN Charter highlights that “the organization is based on the principle of the sovereign equality of all its Members.”200 Despite ongoing lack of clarification regarding the term, consensus among states finds that sovereignty is viewed as “the principle that each State answers only to its own domestic order and is not answerable to a larger international community, except to the extent it has consented to be.”201 Many UN member states accept these conditions, one of which is being open to external intervention under specific circumstances. The definition purposefully leaves that open to interpretation, as is customary with international law. France, along with other nations before it (See Section V: A,B,C,D,E), have used the ambiguous definition of sovereignty to develop necessary international cyberspace policies that fall within the scope of international law.

III. THE USAGE OF CUSTOMARY IN DROIT INTERNATIONAL ALLIQUE

AUX OPERATIONS DANS LE CYBERSPACE The definition of sovereignty accepted by the international community is an example of customary law at work. The ability for customary law to shape the international political landscape while not necessarily being concrete, has only further emphasized its importance to the international community. The International Court of Justice (ICJ) under Article 38 describe the effectiveness of customary law: Custom is ‘evidence of a general practice accepted as law.’ To show a rule of customary international law, one must prove to the satisfaction of the relevant decisionmaker (whether an international tribunal, a domestic court, or a governmental or inter-governmental actor) that the rule (1) has been followed as a ‘general practice,’ and (2) has been ‘accepted as law.’202

The guiding principles of international law are the only common principles accepted. These general practices have served to advance international law only to the extent that it need be. While, as a whole, international law has proven to be ambiguous, customary law has served to add clarity. A specific example of this can be seen with operations occurring in cyberspace.

200

Charter of the United Nations: Chapter 1, United Nations (2019), https://www.un.org/en/sections/un-charter/chapter-i/index.html.

201 A/C.1/73/L.27, United Nations (October 2018), https://undocs.org/A/C.1/73/L.27.

202 David and Keitner Bederman, Chimene, International Law Frameworks (Concepts and Frameworks, Foundation Press (February 24, 2016).

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IV. IS A DOCTRINE CONCERNING INTERNATIONAL CYBERSPACE SECURITY APPLICABLE TO INTERNATIONAL LAW? International law is vast and complex. However, it can often be guided by the two defining characteristics discussed above: sovereignty and customary law. France’s doctrine is not the first time these characteristics have formulated international policy; they have long been ingrained in international law. Multiple mass atrocity crimes committed within the last century have had rippling effects on politics and policies on a global scale, each greater than the last. It is in support of this precedent that France has constructed its doctrine which questions the role international law should play in cybersecurity operations.

As is often the case with internationally applicable legal documents, sovereignty is the linchpin of the ruling. France derives its perception of proper jurisdiction from the Group of Governmental Experts (GGE) and ICT. France assumes responsibility for its cyberspace, similar to how they would for a municipality within its designated international borders. France assumes total control over it and will carry out whatever means it deems necessary to ensure its sovereignty. Any successful cyberattack that permeates, “State digital systems, affects the military or economic power, security or survival capacity of the Nation, or constitutes interference in France’s internal or external affairs, will entail defensive cyber warfare operations that may include neutralization of the effect.”203 France’s new cyberspace doctrine applies appropriately to the above definition of sovereignty.

In the case of operations occurring in cyberspace operations, like other international relations, ‘general practice’ is difficult to define. The rapid development of technology has made a customary adoption of principles challenging to abide by. However, four of the five members of the UN Security Council have been able to formulate cybersecurity doctrines that are formulated from many of the same principles. France’s doctrine follows a number of these important precedents, the most notable being the customary definition of sovereignty.204 Furthermore, the doctrine draws on the commonly accepted practices of jus in bello (International Humanitarian Law/IHL) when discussing what cyber-attacks may be categorized as an armed conflict, which is also described under customary law to some extent (some portions are defined, but the adaptation for it to fit under cyber-attacks is new). The UN has drawn upon the customary laws followed by many of its member-states. And in the case of cybersecurity, has used the various 203

Michael N. Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Introduction and General International Law in Cyberspace, Cambridge University Press (2017).

204 Ministère des Armées, La Fabrique Défense (2017-2019), https://www.defense.gouv.fr.

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doctrines to formulate international policy.205 Thus, International Law Applicable to Operations in Cyberspace and other doctrines concerning cyberspace are not only applicable to international law but are crucial in order to suit the needs of a technologically advanced global society.

V. ADDITIONAL INTERPRETATIONS ON CYBERSPACE,

SOVEREIGNTY, AND AMBIGUITY Before further exploring the question of ambiguity, it is worth analyzing cybersecurity doctrines released by other nations prior to France's. The document, while not the first of its kind, has set the most influential precedent. France’s fellow members of the United Nations Foreign Security Council have offered their perspectives.

A. The United Kingdom of Great Britain and Northern Ireland (UK) In May of 2018, Attorney General Jeremy Wright made a speech to the public titled “Cyber and International Law in the 21st Century”. Many of his remarks drew on the United States’ Department of Defense Law of War Manual which would later be used to help draft National Cyber Strategy of the United States of America. Wright made aggressive claims that cyber operations merited physical countermeasures. Additionally, they negate the widespread view that countermeasures need to be announced prior. To protect and prevent violations of sovereignty, the speech outlines decisive, yet ambiguous means for such. As is seen in France’s doctrine, certain “gray areas” regarding when a breach of sovereignty merits physical force is prominent throughout.206 B. The United States of America (US) The United States of America (US): In September of 2018, President Donald J. Trump released the National Cyber Strategy of the United States of America. The document stood diametrically opposed to the goals regarding cyberspace laid out by the previous presidential administration. Focus has shifted from strictly defensive to offensive. The document promotes the use of preventionist policies in order to maintain security of the nation’s populous. Such change is affected by partisan differences however, evolving 205

Detlev Wolter, The UN Takes a Big Step Forward on Cybersecurity https://www.armscontrol.org/act/2013-09/un-takes-big-step-forward-cybersecurity.

206 Jeremy Wright, Cyber and International Law in the 21st Century, Attorney General’s Office (May 2018), https://www.gov.uk/government/speeches/cyber-and-international-lawin-the-21st-century.

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global perspectives are observable. The document builds off pre-existing cyber doctrine (such as the United Nations Convention Against TransNational Organized Crime and the G7 24/7 Network Points of Contact).207 Such advancement of prevention is reminiscent of neo-liberal interpretations on the Responsibility to Protect doctrine and its role of intervention. Similar to the UK, while the doctrine is largely decisive, it leaves a great deal of doctrine up for interpretation.

C. The Russian Federation (RU) In October of 2018, RU proposed “A/C.1/73/L.27” which was meant to counter the American doctrine adopted a month prior. Instead of promoting effective countermeasures, they maintain the need for “cyber sovereignty” and a nation's need to take care of their own cyberspace. Additionally, instead of encouraging cooperation from the private sector (as is the case with the US doctrine), it is deemed as unimportant.208 Whether or not one may believe this exclusion due to “unimportance” is debatable, but it seems to discourage the private sector’s participation in cyberspace. In response, the United States proposed “A/C.1/73/L.37” as a means of implementing their national doctrine in the international community.209 D. The People’s Republic of China (CN) Besides expressing support for its fellow Shanghai Cooperation Organization (SCO) member Russia on “A/C.1/73/L.27”, the CN government has remained silent. They have neither confirmed nor denied whether or not international law is applicable in cyberspace.

E. The Republic of France France does not stray far from the perspective of its allies and often builds upon their doctrine. The focal point of each doctrine is sovereignty (as is often the case with policy concerning international law). Furthermore, general cases in which this sovereignty may be violated are detailed. Yet, a problem arises from this generality. Vague doctrine allows for vastly different interpretations and speculation regarding what is, and is not, protected in regard to sovereignty. However, vague doctrine and concrete doctrine both 207

National Cyber Strategy of the United States of America, The White House (September 2018), https://www.whitehouse.gov/wp-content/uploads/2018/09/National-CyberStrategy.pdf.

208 A/C.1/73/L.27, United Nations (October 2018), https://undocs.org/A/C.1/73/L.27.

209 A/C.1/73/L.37, United Nations (October 2018), https://undocs.org/A/C.1/73/L.37.

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suffer from shortfalls. If any country were to develop specific rules, failure would surely follow. The scope that international law covers, in combination with the ever-expanding cyberspace, would make developing concrete doctrine ineffective as it would soon become obsolete.

VI. AN INTRODUCTION TO AMBIGUITY While the seventeenth century gave birth to international law, it would not be until the mid-twentieth century that it would begin to flourish. Due to the rapid development of humanity, international law has always found a need to continually develop. Its horizons are ever-expanding.210 Political developments often out-pace the legislation of laws. Thus, the scope of international law has always been broad and lacking specificity. As noted previously, sovereignty and customary laws are byproducts of this ambiguity.

The definition of sovereignty has never been fully denoted by the UN, or any international governing body that has preceded it. Lack of specificity in situations such as this enhanced the importance of customary law and its role in international politics. General guidelines and principles come to be accepted out of pure necessity in order to seek balance between rapid global changes and slow-moving legislative adaptations. An ambiguous approach to international law has long been contested especially because it is not enforceable. For example, the Responsibility to Protect (R2P) doctrine passed by the UN was designed to eliminate reliance on a system of etiquette and aimed to create concrete rules.211 Just as ambiguity is not without its detractors, the questionable performance of R2P has fostered its own share of controversy. Due to this, these concurrent questions of enforceability and applicability, the debate between ambiguous versus concrete international doctrine has proliferated.

In the case of France, its doctrine neglects to define “effects” in regard to consequences initiated by foreign cyberspace attacks. While this is not the first international law doctrine to be fraught with ambiguity, it only builds upon already ambiguous principles of cybersecurity (which are defined below). How it “affects” and the resulting “effects” are mostly not definitive throughout this section. Section 1.1 repeatedly refers to specific “effects” as constituting retaliation, even on an international scale. They namely apply to cyber operations that somehow manifest tangible results, such as “large scale

210

H. M. Griffioen, Some Philosophical Struggles with an Ambiguous Phenomenon, European Academy of Legal Theory (2001-2002), http://www.dhdi.free.fr/recherches/theoriedroit/memoires/griffioenmemoir.htm.

211 General Assembly resolution 63/308, The Responsibility to Protect, A/RES/63/308, (7 October 2009).

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loss of life or considerable economic damage.”212 However, the availability and capabilities of malicious cyber-attacks range far beyond this. Perhaps one of the most common cyberattacks perpetrated today that is not discussed is a Distributed Denial of Service attack (known as a DDoS attack). The United States Department of Homeland Security states “all organizations that rely on network resources are considered potential targets.”213 France, which relies on network resources, would thus be considered a target. However, such attacks are prone to causing delays and inaccessibility when they are carried out. As to matters about those stated strictly by France, there is not necessarily a correlation. The problem with ‘general practice’ in regard to cybersecurity is that when France chooses to make physical intervention a countermeasure to cyberattacks, it opens a Pandora’s Box of potentially detrimental consequences. As technology develops and cyber threats evolve and change, there can be no customary principle accepted by all nations regarding how to respond to perceived threats.

VII. AMBIGUITY: A NECESSARY EVIL The idea of ambiguity is, in itself flawed, but not nearly as much as establishing concrete doctrine. Ambiguity regarding France’s doctrine is reminiscent of the fight to expand the scope of the Responsibility to protect through the adoption of more liberal doctrine. The French doctrine, along with its predecessors, is admittedly, plagued by ambiguity in regard to countermeasures. However, its description of sovereignty violations is strongly supported with evidence beyond the typical “UN Charter” argument.

Additionally, it sets up guidelines that provide the ability to physically intervene as a response to cyberspace attacks. While both the US and UK have mentioned these ideas, France is the first nation to specifically focus on such in their document making it a direct goal of the report. Yet, its ambiguity regarding countermeasures raises questions.

Perhaps the case arises in which a DDoS (Distributed Denial of Service) attack is carried out and makes government systems inaccessible for a short period of time, but nothing pertinent to national security. Could the use of what the nation considers a “legitimate” attack be skewed to justify an otherwise unjustified intervention? In this case, where France sees physical intervention as a just retaliation to detrimental cyberattacks, such physical 212 Michael N. Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Introduction and General International Law in Cyberspace, Cambridge University Press (2017).

213 Distributed Denial of Service Defense, U.S. Department of Homeland Security, https://www.dhs.gov/science-and-technology/ddosd.

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interventions could occur. Not only does this pose issues concerning France’s response, but additionally it does not take into consideration if retaliation is justifiable in international law. The argument could be made that an intervention (posed as a retaliation) could also qualify as a violation of the target state’s sovereignty. But there is a definite need for ambiguity and open interpretation. France, the United Kingdom, and the United States have all developed similar doctrines regarding operations in cyberspace. They are based upon similar definitions of sovereignty and take similar steps regarding breaches. However, certain parts are ambiguous and for good reason. The most important part of this multilateral process of international law is that these three nations all follow the same thought-process regarding violations of sovereignty and how to respond, regardless of whether or not the latter is ambiguous. This, in turn creates a customary law of ambiguity and interpretation regarding countermeasures to malevolent cyberspace operations against a given state.

France’s move to follow in the footsteps of others has reaffirmed customary law regarding cyber security and physical intervention as a means of retaliation. However, this does not mean it should be left as is. This could possibly lead to rapid escalation of certain crises and presents an extremely delicate balance left up to individual nations. Individual nations are responsible for keeping the doctrine in check. The comprehensive cybersecurity models of these three members of the UN Security Council (backed by a large number of fellow UN members) is pushing the global community towards a more comprehensive cybersecurity model.

VIII. THREE IMPORTANT QUESTIONS The previous sections have discussed France’s doctrine and its application to international law in its current state. The doctrine does draw on preexisting principles and doctrine and is firmly in accordance with international law. However, does it contribute anything new or meaningful to questions concerning international law? The following three questions developed by Harold Hongju Koh, Legal Advisor for the U.S. Department of State have been repeatedly referred to in discussions on cyberspace and its application to international law. Each question will be examined and then the manner in which International Law Applicable to Operations in Cyberspace answers, or fails to answer, will be discussed.

A. How can a use of force regime take into account all of the novel kinds of effects that states can produce through the click of a button?

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The French have established that operations conducted in cyberspace apply to international law. Thus, their approach regarding retaliation is rooted in its governing authority: the UN. Two important sections of the UN Charter are stated which instruct how France may interpret and respond with countermeasures.

1. Article 2, Paragraph 4 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.214 2. Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.215 France has adopted previously accepted principles of international law and applied them to their operations in cyberspace. Through the inclusion of sovereignty and customary law, France proves that its doctrine is built on two pillars of international law. This reflects previously adopted cybersecurity doctrine from both France and its international partners. Their doctrine reinforces the idea cybersecurity doctrine is applicable on an international scale. Furthermore, they reason that since cybersecurity doctrine is applicable under international law, their retaliation procedures are justified as long as they follow pre-existing doctrine regarding such. So, not only is cybersecurity doctrine applicable on an international scale, but France’s specific doctrine is applicable cybersecurity doctrine.

In and of itself, France’s approach is logical and is in agreement with the previously discussed questions. And, in this manner, it is are not alone. The United States has followed a similar path in their adoption of jus ad bellum and its application to cyberwarfare. Both documents aim to apply old 214

Charter of the United Nations: Chapter 1, United Nations (2019), https://www.un.org/en/sections/un-charter/chapter-i/index.html.

215 Id.

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doctrines to new problems. Nevertheless, this presents the adoption of ambiguous principles. Koh states that these ambiguities are nothing new and have existed for many years, especially regarding inter-state diplomacy.216 A history of ambiguity, combined with the adoption of these previous principles, is observable in the French doctrine as well. The need for ambiguity exists solely for the fact that the world rapidly changes and, with a lack of cohesive thought between states, such a concrete consensus is increasingly difficult to achieve. France takes a definitive stance regarding retaliation in accordance with international law precedents, and it is possible that other countries will follow suit. However, for the time being, they do not appear to have inspired any further advancements in international cybersecurity law.

B. What do we do about “dual-use infrastructure” in cyberspace?

Dual-use infrastructure refers to certain cyber systems that employ both a governmental and civilian use. These are lawful targets under international law, according to Groups of Governmental Experts and those rules that have been accepted under international law.217 However, the civilian implications of such targeted attacks raise questions regarding International Humanitarian Law. Interpretations on dual-use infrastructure have presented two major questions, one for the offensive and one for the defensive state: What if an offensive state protected its military infrastructure by surrounding it with civilians? What is a defensive state to do if its military objectives are already in civilian areas?

Is there not a possibility of specifically targeted attacks on these areas to maximize human suffering? France focuses a significant portion of their document on these issues. In Section 2.2.2 “Application of the principles governing the conduct of hostilities,” France sets forth an important precedent. Defining a military environment in cyberspace is an increasingly difficult task for a state, and its civilian implications could be unprecedented.

France elaborates on distinction, specifically between both military and civilian objectives, and the military and civilians themselves. Additionally, they highlight the important distinction between proportionality and precaution especially when attempting to justify military action that may result in civilian casualties.

When defining military targets, “the essential aim of the digital targeting process is to comply with the military objective criterion in terms of 216

Id. Michael N. Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Introduction and General International Law in Cyberspace, Cambridge University Press (2017).

217

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distinction, given the nature of the targets (digital systems and infrastructure)”.218 In regards to targeting of dual-use infrastructure, “the nonlethal nature of cyber weapons and the possibility of limiting their effects to a previously identified system contribute to the obligation to choose the means and methods of attack most likely to avoid, or at least reduce to a minimum, any incidental loss of civilian lives, injury to civilians or damage to civilian objects”.219 France inherently uses slight ambiguities throughout such, but overall compiles a doctrine in accordance with jus in bello that aims to minimize the overall loss of life in regards to operations occurring against, and by, the state. Not only does France comply, but repeatedly refers to minimizing civilian casualties while simultaneously ensuring their sovereignty.

C. How do we address the problem of attribution in cyberspace?

Attribution in cyberspace is left to the responsibility of individual states.

The ability to attribute in cyberspace is subject to the ability of a state to do so. The question does not concern international law directly. International intervention based on attribution is. Again, the topic is characterized by ambiguity through multiple governmental organizations.220 Individual states are responsible for locating the source of an ambiguous attack in order to respond effectively. Cyberspace exacerbates the ability to respond based on plausible deniability as the laws surrounding it are not clearly defined. France aims to adopt a state-focused policy for attribution in Article 1.3. Such attribution includes characterization of the attacks (both technically and their origin), its implications, and what countermeasures may be taken in accordance with IHL and the policy as a whole. By participating in a definitive process of considering attribution, along with encouraging participation from fellow states in doing so, the doctrine has assisted in reducing the chances of an incorrectly attributed attack.

IX. CONCLUSION While sovereignty and customary law are the two shining pillars in international law, the third duller pillar, ambiguity, tends to have just as much importance. Despite criticism, the importance of ambiguity should not be understated. Humanity often develops faster than international lawmakers can pen the next important policy. Thus, the nations of the world are self218

Ministère des Armées, La Fabrique Défense (2017-2019), https://www.defense.gouv.fr.

Id. 220 See Harold H. Koh, International Law in Cyberspace, U.S. Department of State (September 2012), https://2009-2017.state.gov/s/l/releases/remarks/197924.htm.

219

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accountable when the international community has not taken a stance on say, cybersecurity. These nations have no guidelines to follow beyond what other nations have said, if anything at all. National policies drafted at these times must remain ambiguous so that they may not only apply to developments in the present, but for the foreseeable future as well. Yet, nations should not continually develop more and more ambiguous policies as such could lead to detrimental consequences. For example, in Section VI. An Introduction to Ambiguity, the idea that an inconsequential threat could lead to an unequal retaliation is proposed. The ability to retaliate on a scale larger than necessary (due to ambiguity) is not impossible. Luckily, large-scale retaliation of a physical nature is regulated by the UN and often subject to international scrutiny. However, this does not mean that the argument could not be made that if France were to retaliate on a large scale, they would not be justified under their recent doctrine.

France has assuredly aligned themselves with the history of International Law and International Humanitarian Law through the adoption of sovereignty, customary law, and ambiguity. Despite adopting a traditional approach on ambiguity, France has eliminated loopholes caused by previously enacted policies regarding dual-use infrastructure. This, and other new outlooks from France, come together to make the doctrine an important precedent to be followed in coming years. The doctrine is largely flexible regarding technology and cybersecurity, but decisive when it comes to protecting the lives of civilians. ***

NOTE INVESTIGATING A MEGA-MERGER: CONTEXTUALIZING THE T-MOBILE MERGER TO THE CONSUMER WELFARE STANDARD AND THE COMPETITION STANDARD Rahul Sukesh* This Note explores the ruling of the U.S. Judge Victor Marrero in favor of the merger between T-Mobile and Sprint in terms of the specifics of the merger itself, and more broadly, the two dominant schools of antitrust thought: the consumer welfare standard and the competition standard and the specifics of the merger itself. Highlighting issues of antitrust law, this Note will first outline certain background concepts necessary to understand legal precedence around antitrust law. This Note will then trace the merger overtime and focus on how various opposition forces, citing violations of antitrust law, amassed a large body of supporters and later settled their claims. Specifically, the Note will outline why there was opposition to the merger and what was done to alleviate it. Fourthly, this Note will elaborate on the facts used by Judge Marrero that helped him approve the merger. The Note will then explore a hypothetical of what would have happened, had the merger failed, to better contextualize the argument around the merger and understand the merits of its approval. The Note will lastly focus on how this case plays into the larger context of two dominating schools of antitrust policy. Defining both schools, this Note will conclude that it stands apart as satisfying metrics outlined and suggests it, tentatively, satisfies both schools.

I. II. III. IV. V. VI. VII.

INTRODUCTION.................................................................................. 61 OUTLINING ANTITRUST LAW............................................................ 62 THE OPPOSITION AND SUPPORT…………………………….............63 THE VERDICT…………………........................................................ 70 ENDORSING THE HYPOTHETICAL.......................................................72 SCHOOLS OF ANTITRUST THOUGHT...................................................73 CONCLUSION..................................................................................... 76 .

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I. INTRODUCTION On April 29th, 2018 John Legere, CEO of T-Mobile, posted a video on twitter with Marcelo Claure, former CEO of Sprint, announcing the two companies had come to an agreement and were going to merge. Highlighting the fact they would become America’s first “nationwide 5G network,” the two, then, CEOs implied the jump to a 5G network would be even bigger and better than when “America’s early 4G leadership added millions of jobs in this country [United States] and billions that created jobs and added billions in US GDP.”221 Although the “New T-Mobile,” as they coined it, was looking seemingly positive, the merger caught the attention of State Attorney Generals after the two companies filed for a protective order to “limit access to proprietary or confidential information” on June 15th, 2018.222 Almost four months later, on September 4th, 2018, a public notice was released explaining that pursuant to the protective order, the New York State Attorney General had requested information and intended “on sharing those materials with other state attorneys general,” acknowledging the State Attorney General of California.223 A year later, by September of 2019, the lawsuit against TMobile’s majority shareholder Deutsche Telekom AG. and Sprint’s parent company Softbank Group Corp was supported by 18 states, citing the merger would violate antitrust laws and raise prices for consumers.224 However, less than a year after amassing a coalition, in February of 2020, the T-Mobile merger was approved.225 But the questions of why it was 221

Legere, John. “I'm Excited to Announce That @TMobile & @Sprint have Reached an Agreement to Come Together to Form a New Company – a Larger, Stronger Competitor That Will Be a Force for Positive Change for All US Consumers and Businesses! Watch This & Click through for Details.” Twitter, Twitter, 29 Apr. 2018, twitter.com/JohnLegere/status/990622865522348035?s=20.

222 See Applications of T-Mobile US, Inc. and Sprint Corporation: Consolidated Applications for Consent to Transfer Control of Licenses and Authorizations, DA 18-624 (June 15, 2018), https://docs.fcc.gov/public/attachments/DA-18-624A1.pdf.

223 See Notice of Request by Offices of State Attorneys General To Review Submissions in Docket NO. 18-197 that contain NRUF and LNP Data, DA 18-908 (September 4, 2018), https://docs.fcc.gov/public/attachments/DA-18-908A1.pdf.

224 See Deutsche Telekom AG, T-Mobile US, INC., Sprint Corporation v. State of New York (11 June, 2019), https://ag.ny.gov/sites/default/files/6.11.19_new_york_attorney_general_james_moves_to_ block_t-mobile_and_sprint_megamerger.pdf.

225 Laurel Wamsley, Judge Rules In Favor Of T-Mobile Takeover Of Sprint, NPR, (Jan 11, 2020), https://www.npr.org/2020/02/11/804848534/judge-rules-in-favor-of-t-mobiletakeover-of-sprint.

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objected and how the merger passed remains. Looking closer at antitrust laws, what does this merger mean not only for the future of wireless industries in the U.S. but for consumers who will be affected by it? More significantly however, is the question of ethics that should be addressed. Chiefly, is the creation of such a goliath ethical? Who does it benefit and who does it harm?

II. OUTLING ANTITRUST LAW As the basis for the lawsuit and pending concern against the merger between T-Mobile and Sprint cited issues of antitrust law, having a general understanding of antitrust law will shed light on the breath of the issue. In practice today, there are three core antitrust laws: the Sherman Act of 1890, and the more recent Federal Trade Commission Act (FTCA) and Clayton Act both of 1914.226 The Sherman Act and Clayton Act are more significant to the implications of this case. In detail, the Sherman Act outlaws any attempt to restrict or monopolize trade within reasonable measure. Seemingly vague, this act applies to action that would hinder competition. Added to supplement the Sherman Act, the Clayton Act “addresses specific practices… such as mergers… the Sherman Act does not clearly prohibit” that would still hinder competition.”227 With the merger of T-Mobile and Sprint as initially planned, T-Mobile and Sprint would merge with the promise of creating jobs, lowering prices, and providing good service to consumers. However, as is, the consummation would violate the Clayton Act. Outlined in Section 7, the Clayton Act elaborates on “prohibiting mergers and acquisitions where the effect ‘may be substantially to lessen competition, or to tend to create a monopoly.’”228 While the mega merger doesn’t threaten to create a monopoly, through consolidating two of four major companies it most certainly lessens the competition. Although the merger underwent one significant concession making DISH Network Corp., through the process various states picked sides for and against the union of T-Mobile and Sprint.229

226 See “The Antitrust Laws.” Federal Trade Commission, 15 Dec. 2017, www.ftc.gov/tipsadvice/competition-guidance/guide-antitrust-laws/antitrust-laws.

227 Id. 228 Id. 229 See Press Release, The United States Department of Justice, Justice Department Settles with T-Mobile and Sprint in Their Proposed Merger by Requiring a Package of

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Following the legal skirmish between various states and T-Mobile sheds light on how the merger changed to become above board and why states became content. The last bit of legal history pertaining to this note is the Antitrust Procedures and Penalties Act, more commonly referred to as the Tunney Act. Central to any settlement between the United States (including the states and Department of Justice) and any private organization, the Tunney act is more of a formality for the court to “determine that the entry of such judgement [between the two parties] is in the public interest.”230 Keeping the people protected, the court evaluates, and later approves any settlement for antitrust cases.

III. THE OPPOSITION AND SUPPORT From even before the initial lawsuit up until today, despite the recent verdict, the merger between T-Mobile and Spring has been continually challenged and taken up in arms by various State Attorneys Generals. Among the first to support the merger were New Mexico and Utah. Announcing their approval in a joint letter dated July 10, 2018, much earlier than everyone else, Attorney General's Hector Balderas and Sean Reyes, from New Mexico and Utah respectively, didn’t give much attention to whether the merger would violate antitrust.231 The bulk of the letter addressed the benefits the merger would bring to these states citing “nationwide 5G… will greatly improve the lives of underserved Americans in rural areas, stimulate economic growth through investment and job creation, and increase competition in the converging internet market for mobile internet.”232 Following an investigation conducted by the State Attorney General of New York after initially hearing about the merger in September of 2018, the chaos unleashed and over the next year and a half leading to the trial.233 States began picking Divestitures to Dish, (July 26, 2019), www.justice.gov/opa/pr/justice-department-settles-tmobile-and-sprint-their-proposed-merger-requiring-package.

230 See Antitrust Procedures and Penalties Act, 15 U.S.C. 16, § 782 (1974).

231 See Letter from Attorney General of Utah and Attorney General of New México to members of the Subcommittee on Antitrust, Competition July 10, 2018, https://attorneygeneral.utah.gov/wp-content/uploads/2018/08/Joint-AG-Letter-toCommittee-7.10.18.pdf.

232 Id. 233 See Notice of Request by Offices of State Attorneys General To Review Submissions in Docket NO. 18-197 that contain NRUF and LNP Data, DA 18-908 (September 4, 2018), https://docs.fcc.gov/public/attachments/DA-18-908A1.pdf.

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sides either for or against the merger. The initial lawsuit against the merger coming from the collective action of the states led by New York and California included Colorado, Connecticut, Maryland, Michigan, Mississippi, Wisconsin, Virginia, and the District of Columbia and stood as a seemingly strong opposition force to the merger on June 11th, 2019.234 Understanding the four major mobile network operations, Verizon, AT&T, T-Mobile, and Sprint, (MNOs) served “at least 90% of the U.S. population,” the most pressing complaint was that the alleged merger would reduce competition from the four major competitors to three.235 While T-Mobile’s controlling shareholder Deutsche Telekom AG wanted to “earn a greater return on its investment” by merging two of the four MNOs, numerous State Attorneys General cited such a move would “lead to less competition.”236 Already breaking the Clayton Act, the suit noted the merger would, contingent on the merger raising consumer bills, “be particularly harmful to prepaid subscribers” who they defined as typically low-income subscribers who would not be able to pass a credit check making the prepaid service the only mobile wireless telecommunication service they can get.237 The trial was set for December 9th, 2019.

A little over a month later, on July 26th, 2019, five states, Kansas, Nebraska, Oklahoma, Ohio, and South Dakota followed in the footsteps of New York and California and filed a complaint brought a civil antitrust suit to DC.238 Although the actual complaint noted the same issues brought up in the case led by New York and California, the overall proceedings were drastically different. Mainly, instead of establishing a court date for the trial, just four days after, on July 30th, 2019, the five states alongside the Department of Justice (DOJ) filed a Competitive Impact Statement detailing that the five states had reached a settlement and dropped their suit.239 234

See Deutsche Telekom AG, T-Mobile US, INC., Sprint Corporation v. State of New York (11 June, 2019), https://ag.ny.gov/sites/default/files/6.11.19_new_york_attorney_general_james_moves_to_ block_t-mobile_and_sprint_megamerger.pdf.

235 Id. 236 Id. 237 Id. 238 See State of Kansas v. Deutsche Telekom AG, Press Release United States District Court for the District of Columbia (July 26, 2019), https://www.justice.gov/opa/pressrelease/file/1187721/download.

239 See United States of America, et al. v. Deutsche Telekom AG, (July 30, 2019), https://www.justice.gov/opa/press-release/file/1189336/download.

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Addressing the reduction in major telecommunication players from four to three, the settlement called for the new T-Mobile to “divest Sprint’s prepaid business, including Boost Mobile, Virgin Mobile, and Sprint prepaid, to DISH Network Corp.”240 In addition to other concessions, this would, in theory, give DISH support and more stake in the telecommunications industry. With no objections during the court’s review under the Tunney Act, the settlement was deemed worthy in the interest of T-Mobile, and more importantly, the public. The basic idea was to “provide DISH with the assets and transitional services required to become a facilities-based mobile network operator that can provide a full range of mobile wireless services nationwide.”241 In other words, the settlement introduced DISH as a fourth competitor restoring balance to the issue the merger would create. As precedent with any case filed by the DOJ, the proposed settlement With numerous states sticking with their lawsuit and numerous states settling or coming out in favor, other states started getting involved. On September 18th, Pennsylvania’s Attorney General Josh Shapiro became the 18th, and last, to join the lawsuit against the merger.242 In response to the settlement between five states, the DOJ, and T-Mobile and Sprint, Connecticut AG William Tong, speaking on behalf of the then 13 state (and the District of Columbia) lawsuit, commented that the concessions made to grow DISH would still be insufficient to create a fourth competitor, because to them, “DISH [was] simply not a viable or serious alternative for consumers, and this contrived agreement [did] nothing to ensure healthy competition.”243 The following table details a timeline of when states joined the lawsuit, when states dropped the lawsuit or joined the settlement, and when other key 240 See Press Release, The United States Department of Justice, Justice Department Settles with T-Mobile and Sprint in Their Proposed Merger by Requiring a Package of Divestitures to Dish.”, 26 July 2019, www.justice.gov/opa/pr/justice-department-settles-tmobile-and-sprint-their-proposed-merger-requiring-package.

241 Id. 242 See Press Release, NYS Attorney General, AG James: Pennsylvania Addition To TMobile/sprint Lawsuit Keeps States' Momentum Moving Forward, (September 18th 2019), https://ag.ny.gov/press-release/2019/ag-james-pennsylvania-addition-t-mobilesprintlawsuit-keeps-states-momentum.

243 See Press Release, Office of the Attorney General Connecticut, AG Tong: T-Mobile/ Sprint Megamerger Remains A Bad Deal for Consumers, Innovation and Workers (July 26, 2019), https://portal.ct.gov/AG/Press-Releases/2019-Press-Releases/AG-TONGTMOBILE-SPRINT-MEGAMERGER-REMAINS-A-BAD-DEAL-FOR-CONSUMERSINNOVATION-AND-WORKERS.

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actors like the FCC and DOJ came out in support for the merger: Apart of the Multi-State Lawsuit When

244

Who

June 11 2019

New York, California, Colorado, Connecticut, District of Columbia, Maryland, Michigan, Mississippi, Virginia, & Wisconsin initiate lawsuit246

June 21

Hawaii, Massachusetts, Minnesota, & Nevada join lawsuit247

Publicly Supports the Merger OR Settled When

Who

July 2018

Utah & New Mexico show support244

May 20 2019

FCC shows initial support245

See Letter from Attorney General of Utah and Attorney General of New MĂŠxico to members of the Subcommittee on Antitrust, Competition July 10, 2018, https://attorneygeneral.utah.gov/wp-content/uploads/2018/08/Joint-AG-Letter-toCommittee-7.10.18.pdf.

245 See Press Release, FCC, Chairman Pai Statement on T-Mobile/ Sprint Transaction, (May 20, 2019), https://docs.fcc.gov/public/attachments/DOC-357535A1.pdf.

246 See Deutsche Telekom AG, T-Mobile US, INC., Sprint Corporation v. State of New York (11 June, 2019), https://ag.ny.gov/sites/default/files/6.11.19_new_york_attorney_general_james_moves_to_ block_t-mobile_and_sprint_megamerger.pdf.

247 See Stempel, Reuters, Four More U.S. states join lawsuit to stop T-Mobile-Sprint deal (June 21, 2019), https://www.reuters.com/article/us-sprint-corp-t-mobile-us/four-statesjoin-lawsuit-to-stop-t-mobile-sprint-deal-idUSKCN1TM1ZA.

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July 26

Kansas, Nebraska, Oklahoma, Ohio, and South Dakota settle with the Department of Justice248 and Arizona shows support249

August 14

Formal FCC Support251

August 16

Louisiana joins settlement253

Texas joins lawsuit250

August 16

Oregon joins lawsuit252

September 3

Illinois joins lawsuit254

248 See United States of America, et al. v. Deutsche Telekom AG, (July 30, 2019), https://www.justice.gov/opa/press-release/file/1189336/download.

249 See Press Release, Attorney General State of Arizona, Attorney General Brnovich Statement on DOJ-T-Mobile/Sprint Merger Settlement, (July 26, 2019) https://www.azag.gov/press-release/attorney-general-brnovich-statement-doj-tmobilesprint-merger-settlement.

250 See Press Release, NYS Attorney General, Attorney General James Announces Texas Joins Lawsuit To Block T-Mobile and Sprint Megamerger, (August 1, 2019) https://ag.ny.gov/press-release/2019/attorney-general-james-announces-texas-joins-lawsuitblock-t-mobile-and-sprint.

251 See Press Release, FCC, Chairman Pai Formally Recommends Approval of T-Mobile/ Sprint Merger (August 14, 2019) https://docs.fcc.gov/public/attachments/DOC359080A1.docx.

252 See Press Release, NYS Attorney General, General James Announces Oregon Joins Lawsuit to Block T-Mobile and Sprint Megamerger https://ag.ny.gov/pressrelease/2019/attorney-general-james-announces-oregon-joins-lawsuit-block-t-mobile-andsprint.

253 See Alex Wagner, Louisiana comes out in support of T-Mobile and Sprint’s Merger, (August 16, 2018), https://www.tmonews.com/2019/08/louisiana-t-mobile-sprint-mergersupport/.

254 See Press Release, Illinois Attorney General, Attorney General Raoul Announces Lawsuit Blocking T-Mobile/ Sprint Megamerger (September 3, 2019), https://illinoisattorneygeneral.gov/pressroom/2019_09/20190903.html.

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Pennsylvania joins lawsuit255 September 27

Florida joins settlement256

October 9

Mississippi joins settlement257

Oct 28

Colorado joins settlement258

Nov 8

Arkansas joins settlement259

Nov 25

Nevada260 and Texas261 join

See Press Release, NYS State Attorney General, AG James: Pennsylvania Addition to T-Mobile/ Sprint Lawsuit Keeps States’ Momentum Moving Forward, (September 18, 2019) https://ag.ny.gov/press-release/2019/ag-james-pennsylvania-addition-t-mobilesprintlawsuit-keeps-states-momentum.

256 See Press Release, Attorney General State of Florida, T-Mobile and Sprint Pledged Commitments in the State of Florida, (September 27, 2019), http://myfloridalegal.com/webfiles.nsf/WF/GPEY-BGKM5Q/$file/TMobile+agreement.pdf.

257 See David Sheaprdson, Reuters, Mississippi will back Sprint, T-Mobile merger and drop court challenge, (October 9, 2019), https://www.reuters.com/article/us-sprint-corp-m-a-tmobileus/mississippi-will-back-sprint-t-mobile-merger-and-drop-court-challengeidUSKBN1WO2Q3.

258 See Press Release, Department of Justice, Justice Department Welcomes Colorado Joining T-Mobile/Sprint Settlement, (October 28, 2019), https://www.justice.gov/opa/pr/justice-department-welcomes-colorado-joining-tmobilesprint-settlement.

259 See Press Release, Department of Justice, Justice Department Welcomes Arkansas Joining T-Mobile/Sprint Settlement, (November 8, 2019), https://www.justice.gov/opa/pr/justice-department-welcomes-arkansas-joining-tmobilesprint-settlement.

260 See Press Release, Nevada Attorney General, Attorney General Ford Negotiates Settlement for T-Mobile-Sprint Merger Prioritizing Nevada Jobs, (November 25, 2019), https://ag.nv.gov/News/PR/2019/Attorney_General_Ford_Negotiates_Settlement_for_TMobile-Sprint_Merger_Prioritizing_Nevada_Jobs/.

261 See Press Release, Attorney General of Texas, AG Paxton Announces Settlement Agreement with T-Mobile on Sprint Merger, (November 25, 2019),

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settlement March 11 2020

Pennsylvania, Connecticut, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Oregon, Virginia, and California join settlement 262

Almost a year after New México and Utah came out in support of the merger,263 Arizona came out concluding, from their own investigation, that the merger would benefit the people of Arizona.264 Louisiana and Arkansas joined the settlement citing the creation of jobs in rural areas would greatly

https://www.texasattorneygeneral.gov/news/releases/ag-paxton-announces-settlementagreement-t-mobile-sprint-merger.

262 See Press Release, Maryland Office of the Attorney General, Attorney General Frosh Announces Settlement Ending the State’s Challenge to T-Mobile/Sprint Merger, (March 11, 2020), https://www.marylandattorneygeneral.gov/press/2020/031120a.pdf. See also Press Release, The Office of Minnesota Attorney General, AG Ellison Wins Protections for Minnesota consumers and jobs in T-Mobile settlement, (March 11, 2020), https://www.ag.state.mn.us/Office/Communications/2020/03/11_T-Mobile.asp. See also Press Release, Office of Attorney General Commonwealth of Pennsylvania, Attorney General Shapiro Announces T-Mobile, Sprint Merger Settlement, (March 11, 2020), https://www.attorneygeneral.gov/taking-action/press-releases/attorney-general-shapiroannounces-t-mobile-sprint-merger-settlement/. See also Press Release, Office of the Attorney General California Department of Justice, Attorney General Becerra Announces Settlement Ending the State’s Challenge to T-Mobile, Sprint Merger, (March 11, 2020), https://oag.ca.gov/news/press-releases/attorney-general-becerra-announces-settlementending-state’s-challenge-t-mobile.

263 See Letter from Attorney General of Utah and Attorney General of New México to members of the Subcommittee on Antitrust, Competition July 10, 2018, https://attorneygeneral.utah.gov/wp-content/uploads/2018/08/Joint-AG-Letter-toCommittee-7.10.18.pdf.

264 See Press Release, Attorney General State of Arizona, Attorney General Brnovich Statement on DOJ-T-Mobile/Sprint Merger Settlement, (July 26, 2019), https://www.azag.gov/press-release/attorney-general-brnovich-statement-doj-tmobilesprint-merger-settlement.

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benefit them.265 Nevertheless, after five states settled with the DOJ, others joined the settlement. One big factor helping state settle was the FCC formally supporting the merger. Citing the numerous benefits including increased coverage for all Americans, the FCC said “the network benefits of the transaction are particularly important for the nation’s underserved rural areas”266 Dealing directly with the states themselves, as opposed to addressing the multi-state suit, T-Mobile reached out to states promising state specific benefits. In one such case, Nevada was offered 5G coverage for 64% of the state within three years of closing, a “low-price mobile commitment,” jobs for the locals, and “free connectivity and equipment to households with school-age children.”267 Although the promises themselves were essentially the same for each state, each state became more inclined to join the settlement knowing they themselves would be taken care of.

The polarity between the two sides was over the same two points: violation of antitrust laws, and consequently the realistic probability that DISH would become a competitive fourth MNO, and the creation of jobs.

Those who sided with the settlement valued the creation of jobs over any potential violation of the Clayton Act and were more optimistic in the promisingly strong future of DISH whereas those who sided with the lawsuit didn’t.

IV. THE VERDICT With a large opposition group, and an almost equally large support group, any verdict would surely upset someone. Aside from the states’ stake in the game, the biggest parties involved were T-Mobile and Sprint. One cited reason the two telecommunication companies initially sought to merge was 265

See Monica Alleven, Fierce Wireless, Louisiana joins DoJ, backing T-Mobile/Sprint deal, (August 19, 2019), https://www.fiercewireless.com/wireless/louisiana-joins-dojstates-backing-t-mobile-sprint-deal. See also, Press Release, Department of Justice, Justice Department Welcomes Arkansas Joining T-Mobile/Sprint Settlement, (November 8, 2019), https://www.justice.gov/opa/pr/justice-department-welcomes-arkansas-joining-tmobilesprint-settlement.

266 See Applications of T-Mobile US, INC., and SPrint Corporation For Consent to Transfer Control of Licenses and Authorizations, FCC 19-103, (November 5, 2019), https://docs.fcc.gov/public/attachments/FCC-19-103A1.pdf.

267 See Press Release, Nevada Attorney General, Attorney General Ford Negotiates Settlement for T-Mobile-Sprint Merger Prioritizing Nevada Jobs, (November 25, 2019), https://ag.nv.gov/News/PR/2019/Attorney_General_Ford_Negotiates_Settlement_for_TMobile-Sprint_Merger_Prioritizing_Nevada_Jobs/.

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to save Sprint. Despite being the fourth largest MNO, “Sprint’s trajectory over the past decade [had] been largely downward.”268 “Failing to earn net income for eleven straight years,” the company needed something, like the T-Mobile merger, to keep them in the game.269 Although this issue was brought up in both the settlement and the suit against the merger, it wasn’t an issue most, besides Sprint, cared about. Instead, the issue revolved around whether or not the U.S. District Judge Victor Marrero would allow the consumption of two tech goliaths -- as we know, on February 11th, 2020, he did.

In a three-part argument, Judge Marrero rejected the suit to block the merger. First, speaking to the antitrust concerns, the decision stated, “the Court concludes that the proposed merger is not reasonably likely to substantially lessen competition.”270 Second, addressing the future of Sprint, “while Sprint has made… attempts to stay competitive” the decision said, “Sprint is falling short… to remain relevant as a significant competitor.”271 Lastly, introducing DISH as the new fourth NMO, Judge Marrero wrote that, “DISH’s statements at trial persuade the Court that the new firm will take advantage of its opportunity.”272 Knowing the merger would be difficult, if not impossible to appeal, five days later New York’s Attorney General addressed the press saying New York would not pursue an appeal and would instead “work with all the parties to ensure that consumers get the best pricing and service possible.”273 Around a month later, on March 11th, 2020, California and all those remaining in the suit settled with T-Mobile and Sprint.274 In addition to the benefits the states who previously settled had, the merged company would reimburse up to $15 million in litigation fees to all the states, guarantee the creation of jobs and provide free Wi-Fi for low-income households in 268

See State of New York v. Deutsche Telekom AG, (February 11, 2020), https://assets.documentcloud.org/documents/6773582/TMO.pdf.

269 Id. 270 Id. 271 Id. 272 Id. 273 See Press Release, NYS Attorney General, Attorney General James’ Statement on TMobile/Sprint Appeal, (February 16, 2020) https://ag.ny.gov/press-release/2020/attorneygeneral-james-statement-t-mobilesprint-appeal.

274 See Press Release, Maryland Office of the Attorney General, Attorney General Frosh Announces Settlement Ending the State’s Challenge to T-Mobile/Sprint Merger, (March 11, 2020), https://www.marylandattorneygeneral.gov/press/2020/031120a.pdf.

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California.275 What’s concerning is the entire case is about the future, so no matter how many facts or cases either side can cite as opposition, no one will be able to tell how this story unfolds and whether or not antitrust laws will be violated.

V. ENDORSING THE HYPOTHETICAL In the introduction of the case it was noted that the “adjudication of antitrust disputes virtually turns the judge into a fortuneteller” and that remark seems logical.276 The entire basis of the case is on what can happen in the future. It is, at the best, speculative of the current market, historical precedent, and past business mergers and acquisitions. While the verdict Judge Marrero would inevitably upset some people, through reading the facts of the case and conducting research, there is one other factor I wanted to consider that most others ignored: what would the antitrust concerns be if the merger was blocked and Sprint inevitably ran itself into the ground? The number of NMO competitors naturally reduces to three. What then would the various State Attorneys Generals do about their antitrust concerns? Granted a hypothetical case, I only suggest this issue because the entire case itself was a huge “what if.” Before indulging in this, it’s worth noting the suit briefly mentioned this. Chiefly, one of the plaintiff's arguments against the suit was that Sprint “made several attempts to improve its network perception and demonstrate that it could be a disruptive competitor” but even after Claure joined the team in 2014, his plans to reinvigorate Sprint and increase network coverage “failed miserably.”277 The question of Sprint coming back into the game as a realistic competitor was, at this point, out of question. Therefore, what would have happened had Sprint run its course and eventually dissolved? In short, nothing. The number of NMOs would have gone down 275

See Press Release, Office of the Attorney General California Department of Justice, Attorney General Becerra Announces Settlement Ending the State’s Challenge to TMobile, Sprint Merger, (March 11, 2020), https://oag.ca.gov/news/press-releases/attorneygeneral-becerra-announces-settlement-ending-state’s-challenge-t-mobile. See Settlement Agreement and Release of Claims, (March 9, 2020), https://oag.ca.gov/system/files/attachments/pressdocs/CA%20Settlement%20Agreement%20%283.9%20fully%20executed%29.pdf.

276 See State of New York v. Deutsche Telekom AG, (February 11, 2020), https://assets.documentcloud.org/documents/6773582/TMO.pdf.

277 See State of New York v. Deutsche Telekom AG, (February 11, 2020), https://assets.documentcloud.org/documents/6773582/TMO.pdf.

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to three leaving the same antitrust concerns brought up in the suit. The only difference between the three companies in this case and the real world is that now T-Mobile, instead of being third to AT&T and Verizon, can very easily have a hand up on both if they deliver on their promise for nationwide 5G network.

Incorporating the inclusion of DISH Network as a fourth possible NMO, the merger passing seems best for everyone. Albeit the question of DISH’s reliability is a huge question but had the merger been blocked, DISH would not have the resources the settlement with the DOJ mandated, and DISH would have little to no chance to enter this competitive arena. Essentially another way of coming to the same verdict as Judge Marrero, the merger seemingly worked out for the “new” T-Mobile and those in fear of antitrust violations.

VI. SCHOOLS OF ANTITRUST THOUGHT In the case of antitrust policy, there has been considerable debate as to whether or not the status quo of the consumer welfare standard has been adequate in determining whether or not certain trusts were deemed dangerous, and therefore undemocratic. Specifically, there have been two main schools of thought: those supporting, and therefore embodying the consumer welfare standard, and those who don’t think it’s sufficient, following the newly coined competition standard. Understanding these schools of thought, especially in terms of the T-Mobile merger will help understand the concerns all those State Attorney Generals had, and if they were right to drop their concern.

The consumer welfare standard has been “the bedrock of American antitrust law” for a long time.278 What’s interesting about this standard is that it doesn’t necessarily look out for what’s best for the consumer, it just ensures the consumer won’t be harmed. Going further, the consumer welfare standard evaluates trusts based on their economic impact first, and uses that as a metric to see how the consumer will be affected. Notable for being the “most famous defense” of the consumer welfare standard is Robert Bork’s 1978 book The 278

See Joe Kennedy, House of Representatives, Why the Consumer Welfare Standard Should Remain the Bedrock of Antitrust Policy, (October, 2018), https://docs.house.gov/meetings/JU/JU05/20181212/108774/HHRG-115-JU05-20181212SD004.pdf.

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Antitrust Paradox.279 Aside from the importance of the consumer, Bork’s book “instead [stressed] the importance of maximizing overall public welfare and economic efficiency in general” and went so far to extend the term to a ‘total welfare standard.’280 Looking at the bigger picture, while mergers might harm the consumer in the short run, the welfare standard would consider their overall economic value and could possibly allow them to merge. For the consumer, this would be “in the form of higher tax revenues and wages.”281 Using similar terminology, when the verdict came out Free State Federation President Randolph May made a statement about how the new merger was “likely to increase competition and overall consumer welfare.”282 Contrary to the name, the consumer welfare standard, on paper, essentially prioritizes big corporations while also ensuring the consumers aren’t hurt on the side. But it is important to recognize that although proponents of the welfare standard might first look at the economic value of any merger, it doesn’t mean that it is inadequate in protecting the people.

But with an intense focus on economics, others have questioned whether the competition standard can best serve the American people. Looking to encompass a wider variety of issues and target a different problem, the competition standard comes into play. It should be noted the term “competition standard” is not the only name for this school of thought. More widely known as neo-Brandeisians, adapting the thought of Louis Brandeis from the early 20th century,283 the people in this school target the issue of “bigness,” ensuring a focus on maintaining competition; hence the name “competition standard.” By targeting competition, this school suggests the government can promote “a variety of aims, including… open markets, the 279 See Ryan Young and Clyde Wayne Crews, Jr., Competitive Enterprise Institute, (April, 2019), https://cei.org/sites/default/files/Wayne_Crews_and_Ryan_Young__The_Case_against_Antitrust_Law.pdf.

280 See Joe Kennedy, House of Representatives, Why the Consumer Welfare Standard Should Remain the Bedrock of Antitrust Policy, (October, 2018), https://docs.house.gov/meetings/JU/JU05/20181212/108774/HHRG-115-JU05-20181212SD004.pdf.

281 Id. 282 See Bruce Walker, The Center Square, U.S> District Court blocks Nessel, other AGs, allows Sprint/T-Mobile merger to proceed, (February 11, 2020), https://www.thecentersquare.com/national/u-s-district-court-judge-blocks-nessel-other-agsallows/article_55a51f44-4d13-11ea-a984-d7b0d4643751.html.

283 See Ryan Young and Clyde Wayne Crews, Jr., Competitive Enterprise Institute, (April, 2019), https://cei.org/sites/default/files/Wayne_Crews_and_Ryan_Young__The_Case_against_Antitrust_Law.pdf.

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protection of producers and consumers from monopoly abuse, and the dispersion of political and economic control.”284 Among many prominent neo-Brandeisians, Timothy Wu, a professor at Columbia University school of Law, rejects the consumer welfare standard for what it has biome as principally “measuring the harms of price collusion.”285 Wu argues the competition standard is “more realistic and suited to the legal system,” he further contends that the welfare standard has taken a step away from the core issue and, in many ways, become negligent to antitrust.286 Comparing the “wealth,” “health,” and “competitiveness” of the economy to other abstract, and consequently controversial terms when it comes to applying them in legal settings, Wu suggests the consumer welfare is “unmeasurable” suggesting the way we should prevent it is by protecting the competitive process287 Understanding both popular schools, it is interesting to see how the TMobile merger plays into both; especially since it was allowed under the consumer welfare standard. And in accordance with the DOJ settlement and FCC report mandated by the Tunney Act, there doesn’t seem to be any issue with the Welfare Standard.288 But what about the competition standard?

Would the T-Mobile merger satisfy neo-Brandeisians? Understanding their principal concerns as more than economic welfare, I found it interesting how the numerous concessions T-Mobile made satisfied some of the issues the competition standard brings up. Specifically, in propelling DISH as a fourth competitor, the merger didn’t change the number of key players in the telecommunications industry. Although that might be true at face value, when considering the bulk of settlement, in regard to DISH being Sprint’s prepaid business, one could argue that while DISH might be in telecommunications, they aren’t in the same sort of industry as T-Mobile, Verizon, and AT&T. Not to say DISH can’t become a powerful fourth MNO, just that, by analyzing the settlement, DISH isn’t one just yet.

284

See Lina M. Khan, “Amazon’s Antitrust Paradox,” Yale Law Journal, vol. 126 (2017), 743.

285 See Tim Wu, Columbia Law School, The “Protection of the Competitive Process” Standard, (2018), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3293&context=faculty_s cholarship.

286 Id. 287 Id. 288 See Press Release, FCC, Chairman Pai Formally Recommends Approval of T-Mobile/ Sprint Merger (August 14, 2019), https://docs.fcc.gov/public/attachments/DOC359080A1.docx.

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In addition to actually targeting competition, the competition standard also highlights the actual consumer. And looking at the promises T-Mobile made to various states, as they settled alongside the DOJ, it seems fair to assume the American population is being taken care of. Not just in terms of jobs, but in terms of coverage. By providing free connectivity for school-aged children,289 and expanding connections to more rural areas and ensuring more Americans get connections the public seem to be in good shape.290 In addition, T-Mobile’s promise of low prices, for the first few years at least, suggest another area the competition standard wrongfully believed the consumer welfare standard could adequately address.

VII. CONCLUSION Whether or not neo-Brandiesians believe the T-Mobile merger satisfied holes allegedly left by the consumer welfare standard, this merger is interesting to analyze because it is a recent case that sheds light on what the consumer welfare standard can accomplish. In terms of creating artificial competition, noting the difference between the stipulations this merger created and the lack of a fourth MNO, had the merger failed, regardless of its tentative strength, this case alludes to satisfying both parties, and both schools of thought, involved throughout this two-year process. What is especially interesting is that although the consumer welfare standard was chief antitrust policy throughout the last two years, the issues cited by numerous state Attorney Generals were about both the competition standard than the welfare standard. Additionally, knowing that so many states joined the settlement in exchange for state-specific benefits we can further suggest the influence of the competition standard. While the future of the merger will better dictate how successful the decision was, the prevalence in citing both schools cannot be overlooked. *** 289 See Press Release, Nevada Attorney General, Attorney General Ford Negotiates Settlement for T-Mobile-Sprint Merger Prioritizing Nevada Jobs, (November 25, 2019), https://ag.nv.gov/News/PR/2019/Attorney_General_Ford_Negotiates_Settlement_for_TMobile-Sprint_Merger_Prioritizing_Nevada_Jobs/.

290 See Press Release, FCC, Chairman Pai Formally Recommends Approval of T-Mobile/ Sprint Merger (August 14, 2019), https://docs.fcc.gov/public/attachments/DOC359080A1.docx.

NOTE MUSEUM EXHIBITS OR ILL-GOTTEN GAINS: A LEGAL AND PHILOSOPHICAL LOOK AT CULTURAL PROPERTY LAW Anthony Elvis Gambino*

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The foundation of cultural property laws was laid at the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. The convention, which usually revolved around the discussions on former laws of warfare, had to switch gears to respond to the Nazi’s new tactic of intentionally stealing or destroying cultural property as a means to demoralize the enemy. The convention’s focus was inclusivity, which defined cultural property as any “movable or immovable property of great importance to the cultural heritage of every people.” However, that overly simplistic definition that intended to serve as a source of clarification, has been the catalyst of confusion and controversy in regard to who has custody of artifacts -- which many could claim are owned by all of humanity. Various alternate ideologies have emerged in trying to make sense of the ambiguity of who owns cultural property? In addition, a multitude of international efforts have formulated treaties that stem from Nazi Germany’s desire to accumulate wealth and to psychologically dominate and disable the Indigenous people’s culture through the seizure of famous works of art.

What will follow is a discussion on the impact of how cultural repatriation laws, established during the post-Nazi occupation of Europe, encouraged the discovery and return of looted art during Nazi occupation as well as the reopening of cases that are hundreds of years old. However, while noble in nature, many of these laws formed to initially protect artifacts are being used to justify not returning artifacts to their homeland. Some argue "the notion that identity, whether individual or group, must forever remain attached to a particular object is unsettling.” A contemporary case where this idea was tested played out in the courts of the United Kingdom. Here, the UK rejected India's most recent demand to return its priceless artifacts like the "Kohinoor Diamond" and "Sultanganj Buddha" that were stolen, looted, and/or smuggled into England during British colonial rule. * B.A. Candidate for Digital Technology & Emerging Media (major), Arabic (minor), and Marketing (minor), Fordham College at Rose Hill, Class of 2021. Under the invaluable guidance of the Fordham Undergraduate Law Review especially Jennifer Rivero (CoManaging Editor), Thomas Reuter (Senior Editor), and Tyler Raciti (Editor-in-Chief) who pushed me to take a more critical and appreciative look at the museum world while writing this piece. I would also like to acknowledge the Fordham Museum of Greek, Roman, and Etruscan Art whose preservation and diligent approach to researching the provenance of antiquities is inspiring.

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The British government is citing a law (British Museum Act 1963) that “justifies” the reasons for not returning the pieces. Other arguments employ a simpler ideology of whoever owned it originally, still owns it regardless of present circumstances. By using Kant’s Categorical Imperative and Mill’s ethical theory of Utilitarianism this Note will explore the benefits as well as the dangerous implications set within these cases and philosophical doctrines. Leading to the conclusion, that the idea of a ‘universal museum, for all its Enlightenment virtues and educational potential, is still at its core a problematic imperialist perspective. What is needed is the creation of a third impartial council skilled in repatriation law that works in conjunction with museums, indigenous tribes, nations, and the court to ensure a more just and cosmopolitan future of museums.

I. II. III. IV. V. VI.

INTRODUCTION............................................................................ 79 ZUCKERMAN V. METRO. MUSEUM OF ART.......................... 81 THE IMPLICATIONS OF ZUCKERMAN V. METRO. MUSEUM OF ART............................................................................................ 82 THE CASE OF THE TOI MOKO FROM THE COLLECTION OF THE NATIONAL MUSEUM OF ETHNOLOGY.......................... 82 IMPLICATIONS OF THE TOI MOKO’S RETURN TO TE PAPA CONCLUSION................................................................................ 87 I. INTRODUCTION

For years museums throughout the world, primarily in the West, have been dealing with some serious ethical issues in regard to the repatriation of cultural property. Two of the most hotly contested points are: Is it logical to repatriate historical objects to countries that cannot provide the same standard of care as a (Western) museum? Further, is it ethical for museums to acquire work from a country who is now in possession of artwork that was acquired through pillaging during war time? Although much of this “art grab” occurred during the Age of Imperialism (early eighteenth century through the late nineteenth century), and pressure from outside agencies such as the Intergovernmental Committee for Promoting the Return of Cultural Property have forced many museums to do some exhaustive vetting before acquiring a piece of art, it is still a point of contention today with many museums seeking “backdoor” deals to acquire new finds. Both museums and private collectors need to ask themselves, what were the conditions—political, economic, social—under which the piece was collected? By whom was this work acquired, and for what purposes? Can one justify possessing it today, and if not, what should happen to it? Even Fordham University once found itself embroiled in legal wrangling over a funerary relic from Italy that was being displayed in the Walsh library. A deal was reached where Walsh shared

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“ownership” of the piece with the piece being lent back and forth between Walsh and its original home in the Republic of Italy.

By asking (and answering) these questions before acquisitions, one can avoid demands for reparations of cultural relics by native countries whose property was stolen, usually by force during colonization or wartime conflict.

The issue of repatriation will almost inevitably involve conflicting attitudes — legal, moral and ethical. These affairs of repatriation often contain the added incendiary ingredient of emotion; an important aspect that property law must take into account. The law is doing more than just keeping a physical object safe and assigning ownership. This type of property has significant cultural/emotional value, as Vibeke Jensen, Director of the UNESCO Office in New York, stated when commenting on the destruction of 14 religious buildings in Timbuktu,“… this reflects the life of a community, its history and its identity...and its preservation helps to rebuild broken communities, re-establish identities, and link the past with the present and future...in addition, the cultural property of any people contributes to the cultural heritage of humankind.”292 The legal issues revolving around the ownership of cultural property is still a burgeoning area and is continuously evolving. Cultural property law’s groundwork was laid in 1954 at the Hague Convention on the Protection of Cultural Property. The convention which usually revolved around discussion of older laws of war, had to switch gears to respond to the Nazi’s new warfare technique of intentionally stealing or destroying cultural property. The Nazi’s looting campaign has been regarded as one of the “the most coherent attempt by one group of people to loot material on a systematic basis and on a breathtaking (…) scale.”293 The convention’s strong focus was on inclusivity: they defined cultural property as any “movable or immovable property of great importance to the cultural heritage of every people.”294 However, that overly simplistic definition intended to serve as the source of clarification, has been the catalyst of confusion and controversy in regard to who has custody of humanity's artifacts. Despite its controversy, the definition set up the pillars of safeguarding artifacts by outlining that 'the High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures, as they 292

UNESCOPRESS, Re-building Cultural Heritage in Mali, UNESCO, http://www.unesco.org/new/en/media-services/singleview/news/re_building_cultural_heritage_in_mali/.

293 Kowalski, W.W. (2003), Claims for Works of Art and their Legal Nature, in: The International Bureau of the Permanent Court of Arbitration (Ed.) Resolution of Cultural Property Disputes. Papers emanating from the seventh PCA International Law Seminar., 294 Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954.

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consider appropriate.’295 However, many of the laws established post Hague convention largely neglected two key aspects. Firstly, no concrete law preexisted in relation to the restitution of either illegally exported or stolen cultural objects. Second, many of the laws laid out solutions to repatriation that were confusing, unfair, unjust, and completely disregarded the pervasive issue of holding and stealing stolen artifacts on the international market.

II. ZUCKERMAN V. METRO. MUSEUM OF ART An ideal example of how blurred the lines can be in cultural property laws is found with the following case. In January 2017, Laurel Zuckerman as Ancillary Administratrix of the estate of Alice Leffmann (the “Leffmann estate”), submitted a memorandum in opposition to the motion of the Metropolitan Museum of Art (the “Museum” or “Defendant”) to dismiss the Plaintiff’s Amended Complaint (the “Complaint”). The Preliminary statement contests that this is a dispute over the ownership of a masterwork

by Pablo Picasso entitled The Actor (L’Acteur) (the “Painting”), which is currently on display as part of a permanent collection at the MOMA. Through its motion, the Museum falsely depicts the 1938 sale of the painting as a runof-the-mill commercial transaction in which a wealthy individual sold a painting in the open market at fair value to fund his international travels. This transaction, however, did not occur in a normal place, at a normal time, nor under normal circumstances.

Zuckerman alleges that the Picasso masterpiece was sold by his descendant to fund the Leffman’s family’s escape from the Nazis. It was during this dark period for Jews (especially German Jews) in Italy that Paul Leffmann sold The Actor in 1938 under duress, for well below its value, in order to finance his family’s escape from persecution. The Met Museum acquired the piece in 1952 and Paul Leffman made the demand for the return of the painting in 2010.296 That date proves crucial in the court’s decision, stating that the United States Court of Appeals in Manhattan said Laurel Zuckerman, the great-grandniece of Paul Leffmann, waited too long to demand the painting's return.297 The decision read: "It is simply not plausible that the Leffmanns and their heirs would not have been able to seek replevin — a legal term for an action

295

The Hague, op. cit, 3.

Cascone, Sarah (2018), “Was the Met’s Prized Picasso Sold Under Duress Because of the Nazis? A New Appeal Revives an Eight-Year-Old Legal Battle,” (artnet), https://news.artnet.com/art-world/nazi-restitution-case-picasso-actor-metropolitanmuseum-1325951.

297 Id. 296

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involving the return of property — of the painting prior to 2010.”298 The court added that the HEAR Act, a commonly cited law in restitution cases allowing heirs of victims of Nazi persecution to reclaim art, did not apply because of the lapse in time.299 "This is not a case where the identity of the buyer was unknown to the seller or the lost property was difficult to locate," Judge Katzmann concluded.300 Although the court did recognize that the work was sold under duress by her late relatives, due to the amount of time that had elapsed Chief Judge Robert Katzmann decided it would be unfair for the art museum to relinquish the Picasso masterpiece.301 If this decision employs a time limit on when a claimant can regain the possession of the artwork, even if the artwork in question was noted to be illegally acquired, renders that this decision can be used to argue on behalf of almost all museums as their legal right to retain the artwork since a vast majority of the artwork being argued has been acquired 100s of years ago.

III. THE IMPLICATIONS OF ZUCKERMAN V. METRO. MUSEUM OF ART The decision ruled in this case has the potential to become a default siting that would almost invariably side with that of the museum. With the decision relying heavily upon the fact that the plaintiff was aware of the location for an extended period of time and had ample opportunity to approach this issue years ago, how would such a ruling fair with a piece that has been sitting in a British museum for over 300 years? This precedent, if put into place, would essentially translate that all museums can keep artifacts as long as the statute of limitations has passed.

Employing this as a paradigm for all future cultural property cases is reminiscent of Kant’s Categorical Imperative. Regardless of the potential “dicey” circumstances in which museums might have acquired possession of the artifacts, if a “sufficient” amount of time has passed and the nation had knowledge of the artifacts location but failed to reclaim the piece, then the piece deserves to remain in the possession of the present “owner.” The one aspect it does neglect however is the concept of human dignity. An artifact does not necessarily possess qualities that deem it “human;” as discussed prior, these objects' importance however can transcend their physical nature and can potentially represent an entire race's cultural identity. By following the maxim based on time alone one can clear up any confusion on ownership and take a hard stance on the issue. However, it also poses an issue of potentially violating one’s human dignity, an unethical practice.

298

Zuckerman v. The Metropolitan Museum of Art, No. 18-634 at 15, (2d Cir. 2019).

Id, at 4.

300 Id, at 16.

301 Zuckerman v. The Metropolitan Museum of Art, 23.

299

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IV. THE CASE OF THE TOI MOKO FROM THE COLLECTION OF THE NATIONAL MUSEUM OF ETHNOLOGY Taking a look at an even more delicate museum piece that blends both art and body, it is listed under inventory number RMV 360-5763.302 This innocuous sequence of letters and numbers refers to the preserved head of a Māori individual which was housed at the National Museum of Ethnology in Leiden. The provenance of this specific head was unfortunately lost.

However, these tattooed and preserved Māori heads were and still are a highly personal and sacred part of Māori culture.303 Even more so, the head is considered to be the most sacred body part and the act of tattooing the head further enhances this sacredness.304 The intricate patterning of facial moko produced what can be likened to fingerprints: individuals were identifiable by their moko, even after death.305 The heads of family members or conquered enemies with moko were often preserved, a complex process that involved the smoking of the head and drying it in the sun.306 The resulting preserved skin-covered skull would still display the ornate distinct tattoos that allowed identification of it as an individual and, thus, a revered deceased person could remain a member of his community forever.307 Depending on the circumstance, these Toi Moko would be used in religious ceremonies.308 There is no denying that the public has a deep fascination with death and a desire to possess the exotic which has engendered both a licit and an illicit market for human remains. In this specific case, the museum wrestled with the pros and cons of returning such a rare piece and whether or not the Te Papa (the national museum of New Zealand) qualified as a legitimate stakeholder to claim the remains.309 They surmised three main reasons why they thought the turnover would be unjustified. As one of the most senior objects from the collection, the Toi Moko has “become part of a European museum tradition, the preservation of which also should be recognized as a

302

Lubina, K. (2009). “Contested Cultural Property: the return of Nazi spoliated art and human remains from public collections.” (Datawyse / Universitaire Pers Maastricht).

303 Yates, Donna (2013), “Toi Moko”, (Trafficking Culture).

304 Newell, Jenny and King, Jonathan (2006), ‘Human Remains from New Zealand: Briefing note for Trustees’, (The British Museum).

305 Yates, Donna (2013), “Toi Moko”, (Trafficking Culture).

306 Mulholland, Malcom (2011), “Mokomokai are home where they belong,” (The Timaru Herald).

307 Id. 308 Id. 309 Lubina, K. (2009). “Contested cultural property : the return of nazi spoliated art…” op cite 392.

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highly serious responsibility (…).”310 Furthermore, a return of the Toi Moko would harm the integrity of the collection and thereby would result in a “falsification of the history.”311 Finally, and the most pressing issue was the potential loss of future research on the Toi Moko.312 This reason alone was considered far more important than the loss of the object for exhibition purposes.

Even with those legitimate reasons the SVCN Ethnological Ethics Committee clearly provided that the Toi Moko should be returned unconditionally or remain permanently in the National Museum of Anthology -- it would be unacceptable to have such a contentious piece systematically loaned to its “rightful owner” and then returned to the museum.313 The National Museum of Ethnology, however, did express “it would be extremely helpful support for Te Papa’s repatriation policy. Such a document would be an elegant companion to the New Zealand Government’s mandate.”314 While it does not appear from the available documentation whether an explicit statement by one of the Māori was ever presented, or which other developments might have triggered the decision, by August 2005 the National Museum of Ethnology was ready to return the Toi Moko.315 By letter, the director of the National Museum of Ethnology asked the Secretary of Culture to mandate the return of the Māori head to the Te Papa.316 The Minister of Culture gave the mandate to the director of the museum, Steven Engelsman, to transfer the property of the Toi Moko.317 On November 9th, 2005 the head was returned to representatives of the Te Papa during a small ceremony attended by curators, scientists, academics, and journalists.318 V. IMPLICATIONS OF THE TOI MOKO’S RETURN TO TE PAPA Unlike Zuckerman vs. Metro Museum of Art, the duel was between two museums and was never brought to court. However, the murkiness of legality once again concerned the question of ownership between two parties. The 310

Id, 394.

Id. 312 Id. 313 National Maritime Museum Act 1934 (c.43), London: The Stationery Office, s 2(3)(b).

314 1 Engelsman, S., (2004), Letter to Mrs. Catherine Nesus - Repatriation Project Leader of the Te Papa.

315 Lubina, K. (2009). “Contested cultural property : the return of nazi spoliated art…” op cite 400.

316 Engelsman, S., (2004), Letter to Mrs. Catherine Nesus - Repatriation Project Leader of the Te Papa.

317 Lubina, K. (2009). “Contested Cultural Property: The Return of Nazi Spoliated Art…” op cit 402.

318 Kaam, A.v.,(2005), “ Hoofd van Maori gaat terug,” (Leidsch Dagblad,).

311

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National Museum of Ethnology’s decision to return the piece following the SVCN Ethnological Ethics Committee advice was ultimately born out of their own decision — not any legal framework forcing them. Both sides presented valid arguments on why they should be the final resting place for this piece, and the ultimate return reflected many of the tenets of utilitarianism. Citing the Cultural Heritage Preservation Act (CHP Act), which is reminiscent of the German Cultural Property Protection Act, aims to protect cultural objects deemed irreplaceable and indispensable and of national relevance in private collections, as well as public collections.319 An object is irreplaceable if there are no similar objects present in the Netherlands.320 In the case of the Toi Moko they determined it might have been irreplaceable, but it did not pass muster on being indispensable, they found it lacked any symbolic function.321 Its unknown provenance therefore could not serve as memory of historically important persons or events.322 The Toi Moko, however, might have a “linking function.” This notion of indispensability is described as the “functioning of an object or collection as an essential element in a development that is of great importance for the exercise of scholarly work, including cultural science studies.”323 While one could clearly argue that the Toi Moko is extremely relevant for scientific research and cultural science studies it seems unlikely that the object is of such great importance that it fulfills a ‘linking function’ and is thus indispensable. However, that's looking at solely one object. If the courts are to apply the same rationale that certain sole pieces serve as the key element that link together the importance of the entire collection, then every piece in the Royale Collection of Rarities falls under that premise because many would claim the greater importance of the collection is the sum of all its pieces. Yet a different matter is the status of the Toi Moko as part of the greater collection. This collection clearly satisfies the criteria of

319 Gesetz zum Schutz deutschen Kulturgutes gegen Abwanderung in der Fassung der Bekanntmachung vom 8 Juli 1999 (BGBl. I S. 1754). Another source of inspiration is the Flemish Topstukkendecreet (Decreet van 24 januari 2003 “houdende bescherming van het roerend cultureel erfgoed van uitzonderlijk belang“ (B.S. 14 maart 2003). According to Art. 5 § 1 the decree applies also to objects and collections owned by public authorities.

Cf.: Draye, A.M., 2007, p. 390.

320 Art. 2(2) CHP Act. 321 Lubina, K. (2009). “Contested cultural property: the return of nazi spoliated art…” op cite 402.

322 Art. 2(3)(a) CHP Act. 323 Art. 2(3)(b) CHP Act. See also: Memorie van Toelichting, 27812, nr. 3, p. 8 para. 7. An example of an object listed for its “linking function” is a stone sculpture of a standing triumphing Jesus Christ. The sculpture dates from the Roman period and is one of very few similar sculptures that are present in the Netherlands. The sculpture is thus important for the studying of stone sculptures in the Maas area. Cf.: Raad voor Cultuur, 2001.

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irreplaceability and indispensability.324 Not only can the collection serve as memory of King William (1772-1843) as founder of the collection, which suggests a symbolic function, even more relevant is the collection’s “linking function” and “reference function”: the foundation of the collection is typical for the emergence of public collections out of private collections at the end of the 18th century within Europe.

While the loss of the Toi Moko cannot diminish the meaning and significance of the collection as a whole, it is important to note that the loss for the collection would be felt. To soften the blow, so to speak, the museum requested from Te Papa precise documentation to compensate for its loss for the Royal Collection of Rarities and thus to further ensure the collection’s integrity.325 Looking at this through a Utilitarian lens, a moral theory propagated — that everyone’s purpose is to make life better by increasing the amount of good things (such as pleasure and happiness) in the world and decreasing the amount of bad things (such as pain and unhappiness).326 By the Museum of Ethnology sacrificing the Toi Moko back to the Te Papa it can be said that it did suffer pain, but returning the sacred ceremonial head to an institution that qualified as a more appropriate stakeholder and place of origin the overall happiness of the Maori race was increased. This case can be used as a good model of reparation on multiple fronts; not only did the Te Papa provide a symbolic relief to the Museum of Ethnology, but the Toi Moko was also returned to another well respected institution where the head would be preserved safely and looked after.

One of the main core principles that comes under scrutiny in restitution of human remains cases is proof of being the appropriate stakeholder. What happens in a case that deals with something as sensitive as human remains, and an appropriate stakeholder who doesn't have the proper faculties to care for a precious potentially “irreplaceable and indispensable?” A potential solution that should always be employed is following the two principles established in the above case. The first one being, “Any decision-making process involving human remains should take due account of the views of all stakeholders, including those from the country of origin.”327 Even if the country of origin claiming the human remains is deemed appropriate, the holding institution does not sacrifice its autonomy in the decision-making process completely. The second tenet being, “the holding institution must share with the claimant the criteria that were decisive in the decision-making 324

Art. 2(3)(a) CHP Act. Lubina, K. (2009). “Contested cultural property: the return of nazi spoliated art…” op cit. 402.

326 Mill, John Stuart (1861), Utilitarianism.

327 Lubina, K. (2009). “Contested cultural property: the return of nazi spoliated art…” op cit. 402.

325

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process.”328 Once again applying this makes sure that both parties’ authority is recognized appropriately in the claim. Implementing these two principles beyond cultural property in terms of human rains can potentially ensure a more Utilitarian approach to repatriation. This approach ensures that the appropriate stakeholder wins while also preventing the museum in possession of the item from being defamed, and the integrity of the collection is not harmed. This utilitarian approach might even encourage more institutions to forgo certain objects seeing that they retain some say and are not defamed.

VI. CONCLUSION Despite these deliberations of ownership having the potential to be highly influenced by moral, ethical and emotional factors, the absolute legal decisions must be made via a series of existing and to-be established laws and criteria that although take into account the sensitive nature of the arguments, is able to defer to a clear and well defined series of principles. As we can see the laws already established can be applied in both effective and nefarious ways due to their wide range of interpretation and implementation afforded.

Creating a third impartial council reminiscent of the SVCN Ethnological Ethics Committee that operates on international level is crucial. Looking at these cases through the lens of Kant’s Categorical Imperative and Mill’s Utilitarianism, one comes to the conclusion that while many of these “cosmopolitan” museums still house “grey area” exhibits (depriving some rightful nations of their nation’s history), we can’t forgo the other perspective in these matters completely. Favoring one side and maligning the other can only perpetuate this cycle further and drive many deals further “underground.” ***

328

Lubina, K. (2009). “Contested Cultural Property: The Return of Nazi Spoliated Art…” op cit.

NOTE THE ASYLUM SEARCH: HOW THE SUPREME COURT’S POTENTIAL RULING IN THE EAST BAY SANCTUARY V. BARR CASE MAY CHANGE OUR INTERPRETATION OF ASYLEE RIGHTS THROUGH THE HONDURAS DEAL Reeve Churchill* and Wislande Francisque** 329

330

In this Note, the authors Reeve Churchill and Wislande Francique will examine the changing interpretation of asylee rights by analyzing the Honduras Deal, the 9th District Court case East Bay Sanctuary v. Barr (2020), and Trump v. Hawaii. The Honduras Deal is evidence of the Trump Administration’s harsh restrictions towards asylum seekers. This note will contextualize the Honduras Deal through the examination of two court cases: East Bay Sanctuary v. Barr and Trump v. Hawaii. In the latter case, the Supreme Court ruled that the President has the power to bar entry to any group of immigrants that he feels are dangerous to American interests.331 In East Bay Sanctuary v. Barr, the East Bay Sanctuary Covenant argued that the travel ban ignored U.S. Code § 1158, and violated the Immigrant and Naturalization Act as well as the Administrative Procedure Act.332 Though the East Bay Sanctuary won the case in this Court, the decision was appealed and will possibly be argued before the Supreme Court. This note will argue that if this case reaches the Supreme Court, it is likely that the justices will overturn the decision of the Ninth Circuit Court based on the precedent set in Trump v. Hawaii. The effects of such a decision will impact the ability of asylum seekers to receive asylum in the United States, establishing a clear precedent for the future of asylum seekers in the United States.

I. INTRODUCTION.................................................................................... 89 A. The Honduras Deal.............................................................. 89 B. Precent in East Bay Sanctuary v. Barr..................................89 * B.A. Candidate for International Studies and French Language & Literature, Fordham College at Rose Hill, Class of 2022. It has been an honor to write as a Senior Editor for the Fordham Undergraduate Law Review. This Note would not have been possible without the immense support of all past and present Editorial Board members of FULR, especially Naomi Izett, David Rossman, and Tyler Raciti. Additional thanks are due to Wislande Francisque, my co-author. Without her hard work and support, this Note would never have come to fruition. ** Staff writer for the Fordham Undergraduate Law Review, Fordham University, Class of 2022.

331 1182(f) of the Immigrant and Naturalization Act. 332 East Bay Sanctuary Covenant v. Barr, CCRJUSTICE.ORG, (2019), https://ccrjustice.org/home/what-we-do/our-cases/east-bay-sanctuary-covenant-v-barr.

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II. IMMIGRANT RIGHTS IN THE ERA OF AMERICA-FIRST POLICIES.....................................................................................................91 III. HOW PRECENT SET IN TRUMP V. HAWAII WILL AFFECT THE HONDURAS DEAL AND EAST BAY SANCTUARY V. BARR.................. 93 IV. THE POSSIBLE IMPACT.....................................................................94 V. A NEW PRECENT FOR THE HONDURAS DEAL............................. 96 VI. CONCLUSION...................................................................................... 98 I. INTRODUCTION A. The Honduras Deal On Wednesday September 25, 2019, the Trump Administration signed the Honduras Deal. This deal reflected the changing notion of immigrant rights in the era of Donald Trump.333 The deal specifically focuses on asylum seekers at the US-Mexican border who seek asylum in the United States without first having applied for asylum in a third country. Those who seek asylum in the United States would be sent to Honduras if they failed to apply for asylum in a third country first. Similar deals have been struck with Guatemala and El Salvador in the past.334 These countries have abnormally high rates of murder,335 drug trafficking,336 and civil unrest.337 Mara Salvatrucha, or MS-13 is a “criminal-economic-military-political power” with ties to cartels in Mexico338 and is especially prominent in Honduras, El Salvador, and Guatemala.339 The Overseas Security Advisory Council, OSAC, reported that “there are an estimated 7,000 [to] 10,000 gang members in [Honduras,] a country with an approximate population of eight million

333 U.S. Announces Asylum Deal With Honduras, Could Send Migrants to One of World’s Most Violent Nations, THE WASHINGTON POST, (2019), https://www.washingtonpost.com/immigration/us-announces-asylum-deal-with-hondurascould-send-migrants-to-one-of-worlds-most-violent-nations/2019/09/25/cca94a86-dfb611e9-8fd3-d943b4ed57e0_story.html.

334 Id. 335 Douglas Farah & Kathryn Babineau, The Evolution of MS 13 in El Salvador and Honduras, 7 PRISM 58 (2017), https://www.jstor.org/stable/pdf/26470498.pdf?ab_segments=0%252Fbasic_SYC4802%252Ftest1&refreqid=excelsior%3Ac3682078e7bcadf288f9ec250e4b42d3.

336 Id. 337 Id. 338 Id, at 59.

339 Id.

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people.”340 Under the Honduras Deal, asylum seekers, regardless of their country of origin, who fled persecution and civil wars in their home countries may again experience extreme violence if they are deported from the United States to Honduras, El Salvador, and Guatemala.

B. Precedent in East Bay Sanctuary v. Barr On October 1, 2019, the East Bay Sanctuary argued that the issuing of an executive order banning any sort of immigration to the United States was an overstep of President Trump’s executive power.341 This case, known as East Bay Sanctuary v. Barr, was argued as a response to the two Executive Orders signed by President Trump which, in tandem, barred Central American immigrants from applying for asylum if they entered the United States outside of a designated point of entry.342 According to the East Bay Sanctuary, “the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress.”343 Since the series of travel bans were issued by executive order, Congress was left out of any decision making, Congress was unable to take part in decisionmaking, which the East Bay Sanctuary argued was unlawful.344 Furthermore, East Bay argued that the series of travel bans were unlawful because the Trump administration largely ignored the standing definition of “asylum seeker” under US Code § 1158. It states that an alien may apply for asylum when they are within United States borders and may be granted asylum by the Attorney General.345 In East Bay Sanctuary v. Barr, attention was called to US Code § 1158, where a set of exceptions that prevent immigrants from seeking asylum already exists.346 In the Immigration and Naturalization Act, Congress laid out exceptions to individuals who cannot seek asylum in the United States. These exceptions include the presence of a third safe country where an individual’s “life or freedom would not be 340 Country Security Report, Overseas Security Advisory Council, Honduras 2019 Crime & Safety Report (2019), https://www.osac.gov/Content/Report/ff459385-017d-4ff2-8a0215f4aec15a69.

341 Order Granting Preliminary Injunction, Case No. 19-cv-04073-JST, Sept. 19, 2019, https://ccrjustice.org/sites/default/files/attach/2019/07/Preliminary%20Injunction%20Decis ion.pdf.

342 Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding, No. 18-17274, Feb. 28, 2020, https://cases.justia.com/federal/appellate-courts/ca9/18-17274/18-17274-2020-0228.pdf?ts=1582912966.

343 Id. 344 Id. 345 8 U.S.C. § 1158 (1980).

346 Id.

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threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum.”347 In East Bay Sanctuary v. Barr, the plaintiff argues that the Trump travel ban was an additional exception not covered by the Immigration and Naturalization Act, and was an exception that that ignored whether the asylum seeker was safely resettled.348 Furthermore, the East Bay Sanctuary argues that this policy vilifies asylum seekers of color at the Southern border, since a large majority of the affected immigrants are people of color.

Although the District Court overturned the case,349 Attorney General William Barr submitted a stay pending appeal to the Supreme Court of the United States.350 By September 11, 2019, Justice Kagan granted the application for stay. If a writ of certiorari is sought and denied, the stay pending appeal terminates automatically and the decision of the lower court stands. If the Court grants the writ of certiorari, the order will terminate when the Court enters its judgment. Justice Ginsburg joined Justice Sotomayor in dissenting from the stay pending appeal.351 Justice Sotomayor wrote that “once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution.”352 She further claims that the Trump administration kept this ban from the public for too long.353 The federal government is required by law to receive public input before making decisions on laws. For these reasons, Justices Sotomayor and Ginsburg felt that the application for stay was “an extraordinary request” of which the government was undeserving.354 II. IMMIGRANT RIGHTS IN THE ERA OF AMERICA-FIRST POLICIES

347

Id. East Bay Sanctuary Covenant v. Barr, supra note 2.

349 Order, Case No. 19-18487, Aug. 16, 2019, https://www.scotusblog.com/wpcontent/uploads/2019/09/19-16487o.pdf.

350 Stay Pending Appeal Law and Legal Definition, USLEGAL, (2019), https://definitions.uslegal.com/s/stay-pending-appeal/.

351 588 U.S. ___ (2019), https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf.

352 Id. 353 Id. 354 Supreme Court Update: The Court says US can implement rule that bans most asylum applications at the Southern Border, AMERICAN BAR ASSOCIATION, (Sept. 19, 2019), https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washi ngtonletter/sept_2019_washington_letter/sc_outside_gao_0919/.

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The U.S. Code § 1158 is meant to protect asylum seekers,355 however, the Honduras Deal reflects the Trump administration’s criminalization of them.356 According to the U.S. Code § 1158, “any alien who is physically present in the United States or who arrives in the United States… irrespective of such [an] alien's status, may apply for asylum in accordance with this section…”357 Few exceptions exist in which the U.S. Attorney General may determine that an immigrant is not qualified to apply for asylum, all of which are laid out in this section of the Code.358 Within the context of the Honduras Deal, the most important exception is that asylum “shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country… in which the alien's life or freedom would not be threatened....”359 According to these exceptions, the Honduras Deal directly violates the rights of asylum seekers, as the Trump administration is sending refugees to dangerous third-world countries, wherein the likelihood of their death is statistically higher than it would be in the United States.

The Honduras Deal additionally ignores precedent set by the District Court case East Bay Sanctuary v. Barr. This case was brought to the U.S. District Court in San Francisco in July of 2019 after an executive order barred immigrants from seeking asylum if they didn’t seek refuge in a third country first. The Deputy Assistant Attorney General, Scott G. Stewart, argued that the ban was necessary to quell the overwhelming number of migrants entering the country through Mexico.360 According to the United States Justice Department, asylum filings have quadrupled since 2014 yet fewer than twenty percent of Central American applicants are granted asylum.361 Neal Katyal, the attorney for the East Bay Sanctuary, argued that the ban “radically rewrites” asylum law and violates both the Immigration and

355

8 U.S.C. § 1158 (1980).

Chiara Galli, No Country for Immigrant Children: From Obama’s “Humanitarian Crisis” to Trump’s Criminalization of Central American Unaccompanied Minors, 6 CALIFORNIA IMMIGRATION RESEARCH INITIATIVE: RESEARCH BRIEF SERIES, (2018), https://www.researchgate.net/publication/326877028_No_Country_for_Immigrant_Childre n_From_Obama's_Humanitarian_Crisis_to_Trump's_Criminalization_of_Central_America n_Unaccompanied_Minors.

357 Id. 358 Id. 359 8 U.S. Code § 115, 2A. 360 Id. 361 Emergency Motion Under Circuit Rule 27-3 For Administrative Stay and Motion for Stay Pending Appeal, No. 19-16487 (Aug. 2 2019), https://www.politico.com/f/?id=0000016c-543b-da83-a96c-d6fb9acb0000.

356

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Naturalization Act and the Administrative Procedure Act.362 According to the East Bay Sanctuary, the Honduras Deal was not an exclusion set forth in US Code § 1158, rendering it invalid.363 Despite these violations, the Honduras Deal is unlikely to face any legal action as a result of the precedent set by Trump v. Hawaii. If the Honduras Deal does not face any legal action, then it will continue to violate asylee rights and invalidate the U.S. Code. The Honduras Deal reveals that the perceived rights of asylum seekers are vastly different from their practiced rights.

III. HOW PRECEDENT SET IN TRUMP V. HAWAII WILL AFFECT THE HONDURAS DEAL AND EAST BAY SANCTUARY V. BARR Although the Honduras Deal clearly violates the Immigration and Naturalization Act and ignores the precedent set in the California District Court case East Bay Sanctuary v. Barr, this Note argues that the precedent set in the Supreme Court case Trump v. Hawaii will protect the Honduras Deal from any legal action. While it is still uncertain if the Supreme Court will hear arguments in the East Bay Sanctuary v. Barr, it is likely that the decision of the District Court will be overturned if the justices accept the case.

In a similar case, Trump v. Hawaii, the legality of Executive Order No. 13,769, more commonly referred to as the “Muslim ban,” was argued before the Supreme Court of the United States.364 This Executive Order limits immigrants from seen Muslim-majority countries from entering the United States. Many believed that President Trump’s decision was ideologically rooted in xenophobia and islamophobia,365 similar to the Honduras Deal. The Trump administration stated that the ban was a protective measure which was necessary to “establish adequate standards to prevent infiltration by foreign terrorists.”366 Ultimately, the court ruled in favor of the Trump administration with a vote of 5-4.367 Chief Justice John Roberts wrote the majority opinion which stated that the executive order did not exceed President Trump’s 362

U.S. District Court Denies Request for Temporary Restraining Order Halting Trump Administration’s New Rule Curbing Asylum Applicants, JUSTIA, (July 24, 2019), https://news.justia.com/u-s-district-court-denies-request-for-temporary-restraining-orderhalting-trump-administrations-new-rule-curbing-asylum-applicants/.

363 East Bay Sanctuary Covenant v. Barr, supra note 2.

364 Trump v. Hawaii, OYEZ, (2017), https://www.oyez.org/cases/2017/17-965.

365 Supreme Court Update: The Court says US can implement rule that bans most asylum applications at the Southern Border, supra note 25.

366 Id. 367 Id.

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authority as the president has “the power to suspend the inflow of immigrants to the United States in the Immigration and Nationality Act § 1182(f).”368 Justices Neil Gorsuch and Samuel Alito joined the majority opinion, while Justices Anthony Kennedy and Clarence Thomas concurred.369 Since the East Bay Sanctuary is making a similar argument, it is highly unlikely that the Supreme Court will break precedent in an abundantly similar case.

Furthermore, the majority found that the ban did not discriminate against Muslim individuals, but instead reflected "a sufficient national security justification."370 This is especially important because the East Bay Sanctuary similarly argues that the Honduras Deal is an act of discrimination, too. As of December 2, 2019, East Bay moved closer to the Supreme Court when oral arguments were made in the Ninth Circuit Court of Appeals.371 The case is still pending.372 In Trump v. Hawaii, four justices refused to join the majority opinion and two separate dissents were filed. These dissenting opinions could provide crucial assistance to the outcome of East Bay. Firstly, Justice Stephen Breyer filed a dissent which Justice Elena Kagan joined. In this dissent, Justice Breyer examined evidence which suggested that the government was not actually applying promised exemption and waiver programs for asylum seekers; he felt that the case should be handed over to District Court.373 In this case, the plaintiff in East Bay could use this dissent to argue that the travel bans are best argued in District Courts. Furthermore, the dissent written

by Justice Sotomayor, joined by Justice Ginsberg, argued that the travel ban should fail because it was introduced by President Trump as a “total and complete shutdown of Muslims entering the United States.”374 This could prove useful to East Bay because of the harmful rhetoric with which the Trump administration described asylum seekers from Central America.375 The rhetoric suggests that the Honduras Deal was created out of the 368

Id. Hilary Hurd & Yishai Schwartz, The Supreme Court Travel Ban Ruling: A Summary, LAWFARE, (June 26, 2018), https://www.lawfareblog.com/supreme-court-travel-banruling-summary.

370 Memorandum Opinion, Civil Action No. TDC-17-0361, (May 2, 2019), https://www.brennancenter.org/sites/default/files/Zakzok%20Opinion_0.pdf.

371 East Bay Sanctuary Covenant v. Barr, supra note 2.

372 Id. 373 Trump v. Hawaii, supra note 36.

374 Jenna Johnson, Trump Calls for Total and Complete Shutdown of Muslim Entering the United States, THE WASHINGTON POST, (Dec. 7, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-callsfor-total-and-complete-shutdown-of-muslims-entering-the-united-states/.

375 Estefania Castañeda Pérez & Blanca Ramirez, The Continuum of Legal Violence Against Central American Migrants, USC DORNSIFE, (July 24, 2019), https://dornsife.usc.edu/csii/blog-continuum-legal-violence-against-central-am-migrants/.

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“vilification of Central American immigrants seeking asylum,” rather than a necessary protective measure.376 However, because the Trump v. Hawaii case was recently decided in favor of Trump, it is highly unlikely that the same Supreme Court who ruled in favor of Trump will rule against him in a similar case only a few years later.

IV. THE POSSIBLE IMPACT A Supreme Court ruling in East Bay v. Barr may significantly affect the entrance of asylum seekers and perhaps be used as a model in future immigration cases. A few additional nonprofit organizations — the Capital Area Immigrants’ Rights Coalition of Washington and the Refugee and Immigrant Center for Education and Legal Services — challenged this new rule of the Honduras Deal in tandem with the East Bay Sanctuary. The nonprofit organizations argued that the “new rule violates the Immigration and Naturalization Act because the immigration act states unequivocally that applicants have a right to appeal for protection after reaching U.S. soil.”377 As stated previously, in the Immigration and Naturalization Act, “any alien who is physically present in the United States or who arrives in the United States irrespective of such alien's status, may apply for asylum.”378 The words “physically present” suggests that any persons are granted these rights, with some necessary restrictions, when they reach U.S soil. Unless, as stated in Section 2A, that such an alien's life is not threatened in their original country.379 However, if the East Bay v. Barr decision does not align with the Immigration and Naturalization Act, the Supreme Court would fail to realize that not only would the new rule contradict standing legislation but also that the entire asylum process would become paradoxical.

To have one law that guarantees the protection of asylees upon arrival on U.S. soil, but yet another that limits these protections is inherently problematic. This process would compound the already challenging process of seeking asylum by forcing asylees to seek help elsewhere before seeking help in the U.S. The majority of asylum seekers are refugees who are fleeing war, persecution, and political upheaval.380 They are in search of protection and consolation in another country to escape the difficult circumstances in 376

Id. U.S. District Court Denies Request for Temporary Restraining Order Halting Trump Administration’s New Rule Curbing Asylum Applicants, supra note 33.

378 8 U.S.C. § 1158 (1980).

379 Id. 380 Refugees in America, INTERNATIONAL RESCUE COMMITTEE, (2019), https://www.rescue.org/topic/refugees-america.

377

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their countries of origin. Persecution may be the cause of religious differences, nationality, political affiliation, and race.381 According to the International Rescue Community (IRC), “the Trump administration confirmed it is proposing an annual admissions ceiling for refugees at 18,000 for fiscal year [of] 2020.”382 A successful appeal of East Bay would certainly be the reinforcement that Trump would need to argue for an annual admission ceiling. One can assume that the number of refugees granted access into the U.S. would be so few that asylum as a system would be highly discouraged, even when the necessary circumstances for international refuge are present. As stated by the IRC, “out of the more than 22 million refugees in the world, less than one percent are considered for resettlement worldwide.”383 The U.S. is on track to decrease the percentage dramatically. If East Bay is appealed by the Supreme Court, there would be a significant decrease in asylum seekers due to the lack of compliance to the law assuming that many seekers who are given asylum in other countries continue to seek asylum in the U.S. V. A NEW PRECEDENT FOR THE HONDURAS DEAL East Bay Sanctuary v. Barr will certainly set precedent for the Honduras Deal, especially if the decision favors the argument presented by the government. To reiterate, the Honduras Deal is already an Executive Order, so it’s legal until a court rules against it.384 This deal states that those who seek asylum in the US would be deported to Honduras, one of the most dangerous countries in Latin America.385 The Trump Administration’s position in East Bay and the Honduras Deal both clearly seek to reduce the flow of immigrants into the country. The East Bay case demands that asylum seekers first be denied asylum in a third country while the Honduras deal deports asylum seekers into another country. To quote the East Bay Sanctuary on the matter: In effect, the rule forbids almost all Central Americans—even unaccompanied children—to apply for asylum in the United States if they enter or seek to enter through the southern border, unless they were first denied asylum in Mexico or another third country.386

381

8 U.S. § 1101.

Refugees in American, supra note 52.

383 Id. 384 U.S. Announces Asylum Deal with Honduras, Could Send Migrants to One of World’s Most Violent Nations, supra note 3.

385 See supra note 5.

386 East Bay Sanctuary Covenant v. Barr, supra note 2.

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To understand what the East Bay case is, it is proper to examine what it entails. The quote above shows which group this rule targets, “the rule forbids all Central Americans...”387 and specifies that there would be no exception whether or not an individual is an unaccompanied child.388 Here’s how the case went: the plaintiff “moved for a preliminary injunction preventing Defendants from moving forward with the Rule’s implementation.”389 A preliminary injunction is “an injunction that may be granted before or during trial, with the goal of preserving the status quo before final judgment.”390 This implies that the government may not proceed to enforce their new ruling on asylum seekers before final judgment is reached. Therefore, the federal government cannot take any further action to execute the rule. This can be seen as a way to stall the impact of the new rule.

The goal was for the preliminary injunction to be warranted nationwide.

However: [the] defendants requested a stay pending an appeal to the Ninth Circuit Court, arguing that the nationwide scope of the injunction was unwarranted and would serve to undermine the constitutional and statutory authority of the Executive Branch.391

There is an element of truth in this. The Executive Branch has the power to execute rules made by Congress as we see in our Constitution, but the motion to take the preliminary injunction nationwide does not undermine the constitutional or statutory authority of the executive branch.

The necessary and proper clause, a possible argument, states that “...all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...”392 is distinctively given to the Legislative Branch.

However, in this case the executive branch is actually the one carrying out that clause through the multiple deals signed with foreign countries. The purpose of the deal is to decrease the flow of immigrants into this country.

To the Trump Administration, this may be a necessary and proper act. The preliminary injunction in East Bay would no longer stand as a legitimate and legal way of stopping the government from continuing to implement the new

387

Id. Id. 389 East Bay Sanctuary Covenant v. Barr, 4:19-cv-04073, (Feb. 26, 2020), https://www.clearinghouse.net/detail.php?id=17245.

390 Preliminary Injunction, LEGAL INFORMATION INSTITUTE, www.law.cornell.edu/wex/preliminary-injunction.

391 East Bay Sanctuary Covenant v. Barr, supra note 61.

392 Necessary and Proper Clause, U.S. CONST. art. I, § 8, cl. 18.

388

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rule. According to Deputy Assistant Attorney General Scott G. Stewart, the goal is to stop the “ongoing crisis” at the US border.393 The Trump administration would be able to take further steps in implementing the rule, perhaps by expanding on the new rule. Along with the Honduras Deal, there are other similar deals to it that were signed with El Salvador394 and Guatemala395 – all prior to when the East Bay Sanctuary v.

Barr case was filed. It is to be expected that many future deals bearing a similarity to the Honduras Deal will be signed with other countries. East Bay v Barr would be the point of reference in order for many deals, such as the Honduras Deal to take into effect. It would strengthen the executive branch’s power by giving it more jurisdiction over foreign affairs when, in the past, such power was given to the legislative branch. As seen above, the Necessary and Proper Clause explicitly grants jurisdiction on foreign affairs to Congress.

VI. CONCLUSION Federal Judicial and Legislative content that decides the fates of millions is worth exploring. The Honduras Deal ensures that those at the U.S.-Mexico border who are seeking asylum in the United States are not granted permission to enter unless they seek asylum in a third country first. If they have failed to do so they would be deported to a dangerous country where they could experience extreme violence. There is some irony in fleeing one’s dangerous native country only to be sent to a dangerous foreign country, however, people are risking their lives to flee violence in their home country only to be met with violence in a new country where they lack familial connections. This issue is not simply a question of ethics and morals: the Trump Administration’s actions violate earlier legal precedent and legislative laws that protect refugees.

The Honduras Deal violates the Immigration and Naturalization Act and ignores lawful precedent that was established in the San Francisco District Court case East Bay Sanctuary v. Barr. The repercussions of the Honduras Deal and the East Bay case include a renewed definition of asylum seekers that contradicts the US Code § 1158, an overstep in the executive power, a costly trip for the asylum seekers, and most importantly an abridgement of rights granted to asylum seekers in the Immigration and Naturalization Act. 393 U.S. District Court Denies Request for Temporary Restraining Order Halting Trump Administration’s New Rule Curbing Asylum Applicants, supra note 33.

394 Mary Louise Kelly, DHS Signs Deal To Send Asylum-Seekers From U.S. Border To Honduras, NPR, (2019), https://www.npr.org/2019/09/30/765834542/dhs-signs-deal-tosend-asylum-seekers-from-u-s-border-to-honduras.

395 Id.

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East Bay Sanctuary v. Barr and the Immigration and Naturalization Act would guarantee two very different rights: the Naturalization Act would give access to the asylum seekers once they reach U.S. soil. However, the ruling would also require that they apply for asylum in a third country despite reaching U.S. soil. This is a contradiction that would aggravate the immigration flow rather than ameliorate it. ***

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