FALL 2024 V4

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‭ HE RUTGERS‬ T ‭UNDERGRADUATE LAW‬ ‭REVIEW‬ ‭IN ASSOCIATION WITH THE RUTGERS PRE-LAW SOCIETY‬

‭Awakhiwe Ndlovu‬ ‭Editor-in-Chief‬ ‭ atalie Tom‬ N ‭Managing Editor

‭Volume V‬

‭ ev Patel‬ D External Editor

‭ nuj Chauhan‬ A ‭Paulina D’Agostino‬ Marketing Director Webmaster‬

‭Fall 2024‬

‭Issue I‬

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‭Introduction‬

‭6‬ ‭Rutgers Undergraduate Law Review‬‭Executive Board‬ ‭8‬ ‭Editorial Team‬ ‭18‬ ‭External Submissions‬ ‭20‬ ‭Mission Statement and Note About‬‭Submissions‬ ‭21‬ ‭Letter from the Editor‬

‭Articles‬

‭23‬‭CHECKS, BALANCES, AND BORROWERS:‬

‭THE UNCONSTITUTIONALITY OF EXECUTIVE-LED‬ ‭STUDENT LOAN FORGIVENESS‬ ‭ZACHARY VASILE‬ ‭ANGELIQUE DINNALL‬ ‭33‬‭DECLINE OF CULTURAL RELATIVISM WITHIN THE U.S‬

‭LEGAL SYSTEM‬ ‭IMPACT ON USAGE OF THE CULTURAL DEFENSE‬ ‭SHREYA VAIDYA‬ ‭ISHA NAGPAUL‬ ‭45‬‭CONSTITUTIONAL VULNERABILITY: HOW AGGRESSIVE‬

‭IMMIGRATION POLICIES FUEL HUMAN TRAFFICKING IN‬ ‭MARGINALIZED COMMUNITIES‬ ‭AARUSHI GAIKWAD‬ ‭SUHAANI JAIN‬ ‭56‬‭THE EVOLUTION OF DEFAMATION LAW‬ ‭LEAH BUSHRA‬ ‭ALEJANDRA AFANADOR‬ ‭65‬‭EVOLUTION OF FREE EXPRESSION CENSORSHIP IN‬

‭AMERICA: HISTORICAL FOUNDATIONS, LEGAL‬ ‭MILESTONES, AND THE FUTURE OF SPEECH IN A‬ ‭DIGITAL AGE‬ ‭ALI SAID‬ ‭ANJALI DARJI‬

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‭76‬ ‭HOW THE CONSTITUTION SHAPES POLICING‬ ‭AVA PALMER‬ ‭MAYA GUENNOUNI‬ ‭94‬‭THE USE OF RAP LYRICS AS EVIDENCE IN CRIMINAL‬

‭TRIALS‬ ‭ALEXANDRA KETTLE‬ ‭AKSHAT YALAMARTY‬ ‭107‬‭VOTER ID LAWS AND THEIR IMPACT TURNOUT‬‭ON‬

‭MARGINALIZED COMMUNITIES‬ ‭MEGHANA JONNALGADA‬ ‭AASHVI PARIKH‬ ‭117‬‭GENOCIDE ALLEGATIONS IN GAZA: THE‬‭LEGAL ROLE‬

‭AND SIGNIFICANCE OF THE INTERNATIONAL COURT OF‬ ‭JUSTICE‬ ‭ALEJANDRA AFANADOR‬ ‭NAVYA TERAPALLI‬ ‭130‬‭THE FOCUS AND FRAMEWORK OF THE CRIMINAL‬

‭JUSTICE SYSTEM IN THE UNITED STATES‬ ‭AKSHRITA BALAJI‬ ‭ANIKA PONNI‬ ‭143‬ ‭THE PSYCHOLOGICAL FACTORS UNDERPINNING‬

‭LEGAL DECISION-MAKING‬ ‭PATRICK CAHILL‬ ‭EMILIA DUL‬ ‭152‬ ‭PROTECTING CONSUMERS’ LONG-TERM‬‭INVESTMENT:‬

‭REVISING ANTITRUST LAW TO COMBAT GLOBAL‬ ‭WARMING‬ ‭EMILY TAYLOR‬ ‭RENEE TITICULA‬

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‭162‬‭PRIVATE PRISONS:THE CONSTITUTIONALITY,‬

‭ETHICALITY, AND IMPLICATIONS‬ ‭SHRUTI NARAYANABHATLA‬ ‭KEVIN MASGUDOV‬ ‭175‬‭THE CONSTITUTIONALITY OF DEFENSIVE‬‭MEDICINE AS‬

‭A MEANS OF AVOIDING MEDICAL MALPRACTICE‬ ‭LAWSUITS‬ ‭SANCHALI DIGHE‬ ‭MAXWEL SINKIEWICZ‬ ‭185‬‭AMERICAN BUSINESS ADVERTISING AND‬‭CONSUMER‬

‭PROTECTION IN A FREE MARKET SOCIETY: A LEGAL‬ ‭AND ETHICAL ANALYSIS, AND THE BALANCING OF‬ ‭INFLUENCE AND ACCOUNTABILITY‬ ‭CHRISTOPHER GODOY‬ ‭JUI KHATAL‬ ‭194‬ ‭CYBERWARFARE AND LEGAL FRAMEWORK‬ ‭SAMAHAL WASEEM‬ ‭DEV PATEL‬ ‭199‬‭EDUCATION AS A CONSTITUTIONAL RIGHT:‬‭A STUDY OF‬

‭SUPREME COURT CASES AND ITS EFFECTS ON‬ ‭EDUCATION‬ ‭GURMEHAR KAUR‬ ‭DEV PATEL‬ ‭209‬‭CORPORATE IMMUNITY OR JUSTICE DEFERRED?:‬

‭LESSONS FROM THE SACKLER FAMILY ON‬ ‭SETTLEMENT‬ ‭NARAYANI ATCHUTUNI‬ ‭DEV PATEL‬ ‭218‬ ‭ENFORCING ACCOUNTABILITY: EVALUATING‬

‭GOVERNMENTAL LAWS TARGETING CORPORATE‬ ‭HUMAN RIGHTS VIOLATIONS‬ ‭KYLIE HONG‬ ‭DEV PATEL‬

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‭223‬‭FROM CIVIL INFRACTION TO CRIMINAL OFFENSE: THE‬

‭ESCALATION OF IMMIGRATION REGULATION IN‬ ‭UNITED STATES LAW POST WORLD WAR II‬ ‭ALICE MEROLLI‬ ‭DEV PATEL‬ ‭228‬‭FAULTY FACIAL RECOGNITION SYSTEMS:‬‭THE‬

‭EMERGENCE OF TECHNO-RACISM‬ ‭MADISON LAW‬ ‭DEV PATEL‬ ‭233‬‭A LEGAL VOID: EXPANDING FRAMEWORKS‬‭TO PROTECT‬

‭CLIMATE-DISPLACED POPULATIONS‬ ‭VERA AHLUWALIA‬ ‭DEV PATEL‬ ‭240‬‭THE REGULATION OF THE TECH INDUSTRY‬‭AND THE‬

‭INABILITY TO DO SO‬ ‭DEV PATEL‬ ‭MEGHANA MADHAV‬ ‭250‬ ‭THE EVOLVING LEGAL FRAMEWORK FOR‬‭INSIDER‬

‭TRADING:‬ ‭EXAMINING THE EXPANSION OF LIABILITY‬ ‭ANUJ H. CHAUHAN‬ ‭DEV PATEL‬ ‭259‬‭HUMAN TRAFFICKING AND INTERNATIONAL‬‭LAW:‬

‭ADVOCACY FOR A VICTIM-CENTERED APPROACH‬ ‭PAULINA D’AGOSTINO‬ ‭SAM KLEPPER‬ ‭271‬‭THE INTELLECTUAL PROPERTY CLAUSE‬‭IN THE‬

‭CONTEXT OF GENERATIVE ARTIFICIAL INTELLIGENCE‬ ‭NATALIE TOM‬ ‭AWAKHIWE NDLOVU‬ ‭280‬ ‭BANNED BOOKS AND THE ECONOMY: EVALUATING‬‭THE‬

‭CONSTITUTION, LAW, AND MARKET‬ ‭AWAKHIWE NDLOVU‬

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‭Editor-In-Chief‬ ‭Awakhiwe Ndlovu‬ ‭ wakhiwe is a junior in the School of Arts and Sciences. She is pursuing double majors in‬ A ‭Economics and English. In addition to being Editor-In Chief she is a member of Phi Alpha Delta‬ ‭and the Pre-Law Society. She serves as a writing tutor for the Rutgers Writing Program and Peer‬ ‭Career Educator for Rutgers Office of Career Exploration and Success. Outside of school she‬ ‭enjoys her time by serving as a “Big Sister” mentor for Big Brother Big Sister of New Jersey.‬ ‭She looks forward to furthering her leadership skills and the success of the law review. She is‬ ‭excited to explore her interests in IP and corporate law.‬

‭Managing Editor‬ ‭Natalie Tom‬ ‭ atalie is a senior in the School of Arts and Sciences at Rutgers University - New Brunswick.‬ N ‭She is pursuing a year-early graduation with a major in Economics and a certificate in Public‬ ‭Policy Economics and a minor in Political Science. In addition to being Managing Editor of the‬ ‭Undergraduate Law Review, she is a member of the Pre-Law Society and Omicron Delta‬ ‭Epsilon, an international honor society for economics. Natalie has held numerous internships‬ ‭spanning legal and regulatory compliance, insurance law, and government affairs, and has a‬ ‭background in neuroscience and psychology research. She plans to explore a career in corporate‬ ‭law after graduation‬‭.‬

‭External Editor‬ ‭Dev Patel‬ ‭Dev Patel is a student at Rutgers University and a member of the School of Arts and Sciences‬ ‭Honors Program. He holds the position of Executive Editor of External Submissions for the‬ ‭Undergraduate Law Review, where he co-writes and edits legal research articles. With a‬ ‭background that spans roles in Trenton and Washington, D.C., Dev brings a strong foundation in‬ ‭public policy and a keen analytical ability to address complex legal and political challenges,‬ ‭primarily on government regulations. Currently, Dev serves as an Advocacy Intern with AARP‬ ‭New Jersey, collaborating with the nation’s largest advocacy organization to tackle critical issues,‬ ‭including Social Security reform, prescription drug pricing, and government transparency. Dev’s‬

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‭previous experiences include contributing to public advocacy research at Vote Smart, supporting‬ ‭legislative initiatives and casework , and as an intern in the New Jersey District Office of‬ ‭Congressman Tom Kean Jr., and conducting climate-focused research as a Resident Summer‬ ‭Researcher at the Innovation Design and Entrepreneurship Academy.‬

‭Marketing Director‬ ‭Anuj Chauhan‬ ‭ nuj is a junior at Rutgers Business School (RBS) and is pursuing a major in Finance with‬ A ‭minors in Political Science and Italian. Outside the undergraduate law review, Anuj is a part of‬ ‭the Rutgers Road to Consulting Program, Scholars of Finance (SOF), and Sigma Chi Fraternity.‬ ‭He has also studied Italian legislation and policy during his time abroad in Italy and has fostered‬ ‭a comprehensive understanding of the Anglo-American judicial system through constitutional‬ ‭competitions. This past summer, Anuj was a finance intern at the U.S. District Court in the‬ ‭Southern District of New York and works during the school year as a Paralegal at The Law‬ ‭Offices of Eric B. Morrell in New Brunswick, NJ. He plans on attending law school and hopes to‬ ‭apply his financial and political background to pursue a career in corporate law‬‭.‬

‭Webmaster‬ ‭Paulina D’Agostino‬ ‭ aulina D'Agostino is a junior at Rutgers University majoring in Cognitive Science and‬ P ‭Linguistics with a minor in Political Science. She serves as the Webmaster for RULR and has a‬ ‭passion for law and legal studies. Paulina has had numerous experiences that have helped her‬ ‭grow as a person and student. She has gained valuable skills from studying abroad in Rome,‬ ‭Italy, to completing an internship with a political campaign. Most recently, she was a summer‬ ‭extern for a non-profit organization in collaboration with PwC Consulting, where she learned‬ ‭many skills she will use throughout her academic and professional career. Beyond her‬ ‭educational and professional pursuits, Paulina is passionate about cooking and exploring the‬ ‭fashion world. In her downtime, she finds peace in jazz and literature. Her goal is a career in the‬ ‭legal realm, particularly entertainment law, where she eagerly pursues her path toward a‬ ‭profession where her passions intersect.‬

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‭Executive Editors‬ ‭Suhaani Jain‬ ‭Suhaani Jain is a junior at Rutgers Business School majoring in Finance and double minoring in‬ ‭Economics and Political Science. In addition to RULR, she is a director at the Institute for Domestic &‬ ‭International Affairs, a Senior Analyst for Rutgers Consulting Group, a member of Women Business‬ ‭Undergraduates in Leadership Development (BUILD), and a part of the Newsletter Committee at‬ ‭Scholars of Finance. Suhaani is also a Scarlet Ambassador, working with Undergraduate Admissions to‬ ‭conduct tours, and a part of the Schools of Arts and Sciences Honors Program. She is planning to work on‬ ‭Wall Street for a few years before pursuing her MBA.‬

‭Isha Nagpaul‬ ‭Ms. Nagpaul is a senior in the School of Arts and Sciences at Rutgers University - New Brunswick,‬ ‭pursuing a major in Political Science and minors in Psychology and Criminology. In addition to editing‬ ‭for the Undergraduate Law Review, she is an inducted member of the Rutgers Women's Pre-Law Society.‬ ‭She is planning a career in the legal field and is looking forward to exploring her interests in personal‬ ‭injury law.‬

‭Meghana Madhav‬ ‭Ms. Madhav is a junior in the School of Arts and Sciences at Rutgers University - New Brunswick,‬ ‭pursuing a double major in Political Science and Cognitive Science. In addition to her work with the‬ ‭Undergraduate Law Review, she has volunteered at a youth group home, gaining firsthand experience‬ ‭with the challenges faced by underserved populations. Meghana also serves as a legal intern at a law firm‬ ‭specializing in prisoners' rights, where she assists in litigating Section 1983 claims to ensure the‬ ‭protection of prisoners' constitutional rights. She is deeply committed to addressing systemic inequities‬ ‭and plans to pursue a career in the legal field, with a focus on using the law as a tool for social justice and‬ ‭empowerment.‬

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‭Maxwel Sinkiewicz‬ ‭Mr. Sinkiewicz is a Sophomore at Rutgers University pursuing a degree in Political Science and‬ ‭Philosophy. Beyond editing for the Undergraduate Law Review, he is a member of the Institute for‬ ‭Domestic and International Affairs and the Pre-Law Society. He is looking forward to a career in law and‬ ‭the opportunities that await in his future.‬

‭Navya Terapalli‬ ‭Navya Terapalli is a student at Rutgers University- New Brunswick's School of Engineering studying‬ ‭Electrical and Computer Engineering with a minor in Political Science. When not contributing to the‬ ‭Undergraduate Law Review, Navya dedicates her time to Rutgers Institute of Electrical and Electronics‬ ‭Engineers and Society of Women Engineers. She has experience working in the tech field, and plans to‬ ‭merge her background in technology with her passion for the law to pursue a career in patent law‬ ‭following graduation.‬

‭Aashvi Parikh‬ ‭Ms. Parikh is a senior in the Schools of Arts and Sciences at Rutgers University, pursuing a double major‬ ‭in Economics and Information Technology and Informatics. In addition to being an executive editor for‬ ‭the Rutgers University Undergraduate Law Review, she is an active member in the Rutgers University‬ ‭Women's Pre-Law Society and the Rutgers University Seeing Eye Puppy Raising Club. With a deep‬ ‭interest in business innovations and emerging technologies, Ms. Parikh plans to explore fields such as‬ ‭corporate law and technology law when she attends law school.‬

‭Emilia Dul‬ ‭Emilia is a senior Honors College student in the School of Arts and Sciences pursuing a double major in‬ ‭Economics and Political Science. In addition to editing for the Undergraduate Law Review, she the‬ ‭outgoing Membership Director of Phi Mu Fraternity. Additionally, Emilia is a Student-Athlete tutor,‬ ‭specializing in a variety of courses that include Microeconomics, Intermediate Macroeconomic Analysis,‬ ‭and Political Science Research Methods. Finally, she is also pursuing a Honors Capstone Project for‬ ‭which she is interning at the Title IX office on campus. With these experiences, she hopes to pursue a‬ ‭career in the legal field, with a special interest in real estate law.‬

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‭Anika Ponni‬ ‭Anika Ponni is pursuing an accelerated graduation and a senior in the Honors Program of Rutgers‬ ‭Business School - New Brunswick, studying Finance and Political Science. In addition to the‬ ‭Undergraduate Law Review, she is a member of the Scarlet Honor Council, Honors Program mentor,‬ ‭Co-founder and President of the Restorative Justice Club, etc. Outside of Rutgers, Anika has interned‬ ‭with the Attorney General’s Office and Barclays. She is planning a career in the legal field and is excited‬ ‭to explore her interests in both criminal and corporate law.‬

‭Akshat Yalamarty‬ ‭Akshat Yalamarty is a junior at the Rutgers Business School, majoring in Finance and Business Analytics.‬ ‭In addition to serving as a writer for the Undergraduate Law Review, he is the president of the Beta‬ ‭Gamma Sigma business honors society and an active member of the Rutgers community. Akshat is‬ ‭planning a career in the business and legal fields and looks forward to exploring his interests further‬ ‭through the Undergraduate Law Review.‬

‭Sam Klepper‬ ‭Mr. Klepper is a Junior in the School of Arts and Sciences at Rutgers University - New Brunswick,‬ ‭pursuing majors in Political Science and Psychology and a minor in Economics. In addition to editing for‬ ‭the Undergraduate Law Review, he is currently a member of the Lloyd C. Gardner Fellowship Program,‬ ‭and a member of the 2025-26 cohort of the Eagleton Undergraduate Associates Program. Sam also served‬ ‭as an Orientation Leader during the Summer of 2024 where he helped to welcome, prepare, and engage‬ ‭the incoming class with Rutgers University. He plans to pursue a career in the legal field where he is‬ ‭eager to learn and practice the ins and outs of tax law.‬

‭Jui Khatal‬ ‭hi everyone! I am a third year student double majoring in philosophy and environmental policy,‬ ‭institutions, and behavior, and minoring in political science and the creative expression and the‬ ‭environment. My interests are environmental, human rights and international law!‬

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‭Anjali Darji‬ ‭Ms. Darji is a sophomore at the Honors College and Business School Rutgers University - New‬ ‭Brunswick, pursuing majors in Finance and Accounting. In addition to writing for the Undergraduate Law‬ ‭Review, she is a treasurer of Stitch for Life (crochet club), Vice President of the Cook Douglass‬ ‭Apartments Hall Government, and a member of Rutgers HerCampus. Anjali is also an avid non-profit‬ ‭contractor, working with multiple non profits on streamlining their processes. She is excited to explore‬ ‭her interests in business law and historical law practices.‬

‭Kevin Masgudov‬ ‭Mr. Masgudov is currently a junior at Rutgers Business School, working towards a degree in Finance with‬ ‭hopes of pursuing a J.D. after graduation. At RUULR, Mr. Masgudov has researched and written about‬ ‭unique legal issues, exploring many facets of the law that interest him, including ethics and criminal‬ ‭justice reform. In addition to his work with RUULR, Mr. Masgudov actively tutors on Knack and serves‬ ‭as a HC Scholars Peer Mentor. In his free time, he enjoys running, weightlifting, and cooking.‬

‭Maya Guennouni‬ ‭Ms. Guennouni is a junior in the School of Arts and Sciences at Rutgers University-New Brunswick,‬ ‭pursuing a B.A. in Political Science with minors in Spanish, Business & Technical Writing. Apart from‬ ‭the Undergraduate Law Review, she serves as President for the Scarlet Knights Chapter of National‬ ‭Residence Hall Honorary (NRHH) and Head of Events for Rutgers UNICEF. Since attending Rutgers, she‬ ‭has become an inducted member of the Pre-Law Society, Phi Sigma Iota, and part of the Corporate‬ ‭Finance Society. Last semester, she served as an Associate Editor for the Rutgers Undergraduate Law‬ ‭Review, where she published her piece on MENA-related disorders of genetic variation and Insurance‬ ‭Fraud in the United States. Post-undergrad, she plans to attend law school to obtain her J.D./M.B.A.,‬ ‭hoping to pursue a career in Intellectual Property, specifically in the music or sports industry's copyright‬ ‭law-related field.‬

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‭Angelique Dinnall‬ ‭Ms. Dinnall is a student in the Schools of Arts and Sciences Honors Program at Rutgers University - New‬ ‭Brunswick, pursuing an Honors B.A. in Political Science with minors in Critical Intelligence Studies,‬ ‭Sociology, and International Global Studies. She is the President of the Honors Artist Collective, where‬ ‭she organizes art events and fosters creative engagement among honors students. Ms. Dinnall also serves‬ ‭as Chair of the Student Affairs Committee for the Rutgers University Student Assembly (RUSA),‬ ‭working on initiatives to increase voter participation, support cultural organizations, and improve student‬ ‭life. This semester, she has been involved with the Frank Pallone for Congress campaign, assisting with‬ ‭voter outreach and research. Ms. Dinnall is passionate about civic engagement and public service, and she‬ ‭plans to pursue a career in international law.‬

‭Alejandra Afanador‬ ‭Ms. Afanador is a sophomore at Rutgers Honors College, pursuing a B.A. in Political Science with a‬ ‭double-minor in Philosophy, Politics, & Economics (PPE) and Psychology. She serves as both an‬ ‭Executive and Associate Editor of the Rutgers Undergraduate Law Review (RULR), contributing to its‬ ‭publication through editing, writing, and academic research. As the Founding President of BridgeRutgers,‬ ‭Alejandra aims to foster civil political discourse. In her role as Political Chair of the Latino Student‬ ‭Council (LSC), she represents the Latino community’s interests on campus in conjunction with the‬ ‭Rutgers University Student Assembly (RUSA). Additionally, she serves as Secretary for the Latin‬ ‭American Student Organization (LASO), maintaining organizational records and event logistics.‬ ‭Alejandra is also a Learning Assistant for the course Law & Politics and an active member of the Latinx‬ ‭Pre-Law Society (LPLS) and Women’s Pre-Law Society (WPLS). Her passion for civic engagement is‬ ‭evident in her work as an RU Voting Ambassador, where she facilitates voter registration and‬ ‭mobilization efforts. On a Pre-Law career track, she finds herself inclined toward the field of International‬ ‭Law.‬

‭Renee Titicula‬ ‭Ms. Titicula is a sophomore at the School of Arts & Sciences at Rutgers University - New Brunswick‬ ‭majoring in Political Science and Economics. As an associate editor in the prior semester, she is eager to‬ ‭return to the Rutgers Undergraduate Law Review as an executive editor. Outside the Law Review, Renee‬ ‭is a Kaplan Test Prep Student Ambassador for Rutgers University, offering semester campaign‬ ‭opportunities to students. She is passionate about a career in the legal field.‬

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‭Associate Editors‬ ‭Aarushi Gaikwad‬ ‭Ms. Gaikwad is a junior in the Schools of Arts and Sciences Honors Program at Rutgers‬ ‭University-New Brunswick, pursuing majors in Political Science and Psychology. In addition to‬ ‭writing for the Undergraduate Law Review, she is a fellow in the Lloyd C. Gardner Fellowship,‬ ‭where she is researching the impact of colonialism on the caste system in India and post-colonial‬ ‭discourse relating to the subject. She is also a fellow in the Racial Justice Fellowship at the‬ ‭Institute for the Study of Global Racial Justice, where she is leading a social action project‬ ‭focused on media literacy. An avid advocate for civic engagement, she participates in the Darien‬ ‭Civic Engagement project, canvasses for various campaigns, and works at election polls.‬ ‭Looking ahead, Aarushi plans to pursue a master's degree in global policy followed by law‬ ‭school, aspiring to build a career as an attorney dedicated to shaping legal frameworks that foster‬ ‭justice and equality.‬

‭Shreya Vaidya‬ ‭Ms. Vaidya is a junior in the School of Arts and Sciences at Rutgers University–New Brunswick,‬ ‭majoring in Political Science with a minor in South Asian Studies. In addition to writing for the‬ ‭Undergraduate Law Review, she is a member of the Phi Sigma Sigma sorority and a fellow in the‬ ‭Lloyd C. Gardner program. Shreya plans to pursue a career in the legal field, with a particular‬ ‭interest in public interest law.‬

‭Emily Taylor‬ ‭Emily is a senior in the School of Arts and Sciences pursuing a major in Political Science and a‬ ‭minor in Environmental Studies. She is interested in a career in the legal field and is looking‬ ‭forward to gaining work experience after graduation.‬

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‭Sanchali Dighe‬ ‭Sanchali Dighe is a sophomore in the Schools of Arts and Sciences in Rutgers University - New‬ ‭Brunswick, pursuing majors in Psychology and Political Science and a minor in Biological‬ ‭Sciences. In addition to writing for the Undergraduate Law Review, she is the Vice President of‬ ‭the Bioethics Journal & Society. She is planning a career in the legal field and is excited to‬ ‭explore her interests in medical malpractice law.‬

‭Meghana Jonnalgada‬ ‭Meghana Jonnalgada is a sophomore in the School of Arts and Sciences and Rutgers Business‬ ‭School, majoring in Political Science and Supply Chain Management. In addition to serving as‬ ‭an Associate Editor for the Rutgers Undergraduate Law Review, she is the Recruitment Chair for‬ ‭Phi Alpha Delta Pre-Law Fraternity and the Professional Development/Marketing Cohort‬ ‭Director for the Rutgers Association of Marketing and Strategy. She has interned with the‬ ‭Middlesex County Family Superior Court and various political campaigns. She plans to pursue a‬ ‭career in corporate law, advocacy, and policy.‬

‭Patrick Cahill‬ ‭Patrick Cahill is a junior in the School of Arts and Sciences at Rutgers, pursuing a major in‬ ‭psychology and a minor in philosophy, politics, & economics. In addition to writing for RULR,‬ ‭he is a member of Phi Alpha Delta fraternity and an assistant on a research project seeking to‬ ‭understand the impact of legislation on democratic participation. Outside of Rutgers, Patrick‬ ‭works as a CPR instructor, an LSAT tutor, and a consultant for a startup dedicated to designing‬ ‭aquatic safety systems for waterparks. He intends to attend law school following graduation.‬

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‭Akshrita Balaji‬ ‭Akshrita Balaji is a sophomore at Rutgers Business School in New Brunswick, majoring in‬ ‭Finance and minoring in Political Science. In addition to writing for the Rutgers Undergraduate‬ ‭Law Review, she is a legal assistant at the Law Office of Craig Rothenberg, where she supports‬ ‭case research, client communications, and evidence preparation. In addition to her academic and‬ ‭professional pursuits, Akshrita serves as the Community, Philanthropy, and Outreach Director for‬ ‭Spoon University and teaches dance on weekends at Talashruti Dance Studio in her hometown.‬ ‭She will join the Eagleton Institute of Politics' Darien Civic Engagement Project in the spring‬ ‭semester, reflecting her dedication to civic and public service. Akshrita aspires for a career in‬ ‭corporate law, where she aims to merge her interests in business and legal practice.‬

‭Alexandra Kettle‬ ‭Ms. Kettle is a sophomore in the Schools of Arts and Sciences of Rutgers University - New‬ ‭Brunswick, pursuing a major in Political Science and a minor in Public Policy on a Pre-Law‬ ‭track. In addition to writing for the Undergraduate Law Review, she is a member of the Rutgers‬ ‭Women’s Political Caucus, Rutgers Women’s Pre-Law Society, and Alpha Chi Omega Sorority.‬ ‭Her academic achievements have earned her recognition from the National Society of Collegiate‬ ‭Scholars, highlighting her commitment to excellence. Alexandra is pursuing an accelerated‬ ‭academic path with plans to graduate a year early. She also served as a vote tabulator for the‬ ‭Associated Press during the 2024 General Election, gaining valuable firsthand experience in the‬ ‭United States electoral process.‬

‭Leah Bushra‬ ‭Ms. Bushra is a sophomore in the School of Arts and Sciences of Rutgers University - New‬ ‭Brunswick, pursuing majors in Political Science and Psychology and a minor in Public Policy. In‬ ‭addition to writing for the Undergraduate Law Review, she is a member of the Women's Pre-Law‬ ‭Society. Following her undergraduate studies, Leah is planning to attend law school and explore‬ ‭careers in criminal and immigration law.‬

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‭Christopher Godoy‬ ‭Mr. Goody is a junior pursuing a political science and economics degree at the School of Arts‬ ‭and Sciences at Rutgers Univerity- New Brunswick. Passionate about the law, he intends to‬ ‭attend law school and pursue a career in the legal field, with a possible focus on corporate or‬ ‭immigration law. In addition to the Undergraduate Law Review, he is an elected University‬ ‭Senator within the Rutgers Univerity Senate, an executive member of the Rutgers Univerity‬ ‭Student Assembly, a Peer Instructor within the Rutgers Career Exploration and Success,‬ ‭Assistant/Researcher for the Eagleton Institute of Politics and New Brusnwick Faculty Council,‬ ‭member of Phi Alpha Delta Pre-Law Fraternity, among other things. In his official capacity, he‬ ‭proudly represents and advocates for over 37,000 undergraduate students with higher‬ ‭administration and at the state/federal levels.‬

‭Ali Said‬ ‭Mr. Said is a sophomore in the Schools of Arts and Sciences of Rutgers University - New‬ ‭Brunswick, pursuing a major in Human Resource Management and a minor in Business and‬ ‭Technical Writing. In addition to writing for the Undergraduate Law Review, he is a member of‬ ‭Phi Alpha Delta and the Rutgers Muslim Student Association. This past summer, he interned for‬ ‭Justice For All, a nonprofit, working on submissions of human rights violations all across the‬ ‭globe to the International Criminal Court. He is planning a career in the law, with specific‬ ‭interests in employment, corporate, and immigration law.‬

‭Zachary Vasile‬ ‭Currently a senior in the School of Arts and Sciences at Rutgers University- New Brunswick,‬ ‭Mr. Vasile is a philosophy and political science double major. A transfer student, Mr. Vasile has‬ ‭excelled since enrolling at Rutgers and is a member of Tau Sigma National Honor Society, an‬ ‭honor society exclusive to the highest performing transfer students. He spends his free time‬ ‭serving his community as a third degree knight in the Knights of Columbus, and as an assistant‬ ‭volunteer wrestling coach for Marlboro High School. Upon graduation, Mr. Vasile aspires to‬ ‭attend law school.‬

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‭Shruti Narayanabhatla‬ ‭Shruti Narayanabhatla is a junior in the Schools of Arts and Sciences of Rutgers University -‬ ‭New Brunswick, pursuing majors in Political Science and Psychology, and a minor in‬ ‭Criminology. In addition to writing for the Undergraduate Law Review, she is an Eagleton‬ ‭Undergraduate, Vice President of Education for the Rutgers University Debate Union and a‬ ‭member of the Rutgers Prelaw Society. Outside of Rutgers, she was an intern at the New Jersey‬ ‭Attorney General’s office where she solidified her passion for public service and the law. This‬ ‭spring, she is excited to work on the New Jersey Clemency project and looks forward to‬ ‭advancing her interests in criminal justice reform and addressing racial disparities within the‬ ‭system.‬

‭Ava Palmer‬ ‭Ms. Palmer is a senior in the Schools of Arts and Sciences Program of Rutgers University - New‬ ‭Brunswick, pursuing a major in Criminal Justice and a minor in Psychology. In addition to‬ ‭writing for the Undergraduate Law Review, she is a member of the Pre-Law Society, the‬ ‭Psychology Alliance, and she served as the Judicial Chairman, Slate Committee Member, and‬ ‭Programming Council Member of the Zeta Tau Alpha Fraternity. Aside from academics she is‬ ‭interested in reading, sewing, piano, sports, and journalism. Ava is currently a legal intern in‬ ‭New York as she is planning a career in the legal field and is excited to explore her interests in‬ ‭malpractice law.‬

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‭External Submissions‬ ‭Samahal Waseem‬ ‭Samahal Waseem is a senior studying Political Science and Psychology graduating in the Class of 2025.‬ ‭She is the president of the Pre Law Society and is involved with the Institute of Domestic and‬ ‭International Affairs as well as with the Institute for Women’s Leadership and the Eagleton Institute of‬ ‭Politics where she is an Undergraduate Associate. Outside of her involvement on campus, Samahal enjoys‬ ‭reading and writing poetry!‬

‭Gurmehar Kaur‬ ‭Ms. Kaur is a senior at the Rutgers Business School of Rutgers University - New Brunswick, majoring in‬ ‭Finance and minoring in Philosophy, Political Science, and Economics. In addition to writing for the‬ ‭Undergraduate Law Review, she is the Vice President of the Rutgers Pre-Law Society, President of‬ ‭Rutgers Women in Information Technology and Informatics, and the Vice President & Treasurer of‬ ‭Rutgers Corporate Finance Society. Gurmehar also interned at the Department of Justice this past summer‬ ‭as a Community Relations Service intern, working with the FBI on hate crime issues. She is planning a‬ ‭career in the legal field, specifically Corporate Law, and is excited to explore her interests in the future.‬

‭Narayani Atchutuni‬ ‭Ms. Atchutuni is a junior in the School of Arts and Sciences and The Edward J. Bloustein School of‬ ‭Planning and Public Policy at Rutgers University-New Brunswick, majoring in Political Science and‬ ‭Public Policy with a minor in Business Administration. In addition to being the Secretary of the Rutgers‬ ‭Pre-Law Society, she is involved with Future Business Leaders of America and she is a student‬ ‭representative on an advisory board at Rutgers University through Career Exploration and Success. This‬ ‭semester, she was a Trial Teams Intern at the Middlesex County Prosecutor’s Office. Narayani is looking‬ ‭forward to pursuing a career in the legal field and is interested in corporate, bankruptcy, real estate, and‬ ‭criminal law.‬

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‭Kylie Hong‬ ‭Kylie Hong is a Junior in the Rutgers School of Arts and Sciences Honors Program, majoring in Business‬ ‭Marketing with a 4.0 GPA. She serves as the Marketing Director for the Rutgers University Pre-Law‬ ‭Society and has honed her communication skills at CUNY Citizenship Now!, an immigration pro se firm.‬ ‭Additionally, Kylie is a certified tutor in Financial Accounting and Logic, Reasoning, Persuasion, and‬ ‭participates in the Rutgers University Figure Skating Club and the Business Mentor Program. Her diverse‬ ‭experiences fuel her interest in the intersection of marketing and legal studies.‬

‭Madison Law‬ ‭Ms. Law is a sophomore at Rutgers University — New Brunswick, pursuing majors in English and‬ ‭Philosophy. Along with writing for the Undergraduate Law Review, she is a member of Rutgers Pre-Law‬ ‭Society and serves as a DJ for 90.3 FM The Core. Having interned in various legal settings, and currently‬ ‭at Rutgers University Ethics and Compliance, she has developed interests in diverse fields of law,‬ ‭including civil rights law, family law, and compliance law‬

‭Vera Ahluwalia‬ ‭Vera Ahluwalia is a freshman in the Schools of Arts and Sciences of Rutgers University - New‬ ‭Brunswick, pursuing a major in economics with a minor in history. Alongside writing for the‬ ‭Undergraduate Law Review, she is a member of the Rutgers Pre-Law Society and writes for the Rutgers‬ ‭Greenprint magazine. In her free time, Vera loves photographing wildlife and is an avid reader. After‬ ‭completing her undergraduate degree, she plans on attending law school and pursuing a career in the legal‬ ‭field.‬

‭Alice Merolli‬ ‭Alice Merolli is currently a sophomore pursuing a double major in Political Science and Sociology with a‬ ‭minor in Philosophy. Within Rutgers, she is involved with Italian Club, Glamour Gals, Moot Court, and is‬ ‭an inducted member of the Pre-law society. Additionally, Ms. Merolli will be a research assistant within‬ ‭the Department of Sociology in the spring semester, conducting data preparation and analysis. Outside of‬ ‭Rutgers, she has furthered her passion for law through legal internships, where she has learned the‬ ‭important skills of communication, leaderships, and writing. After graduation she hopes to attend law‬ ‭school to pursue a career in immigration law.‬

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‭Mission Statement‬ ‭The Rutgers Undergraduate Law Review (RULR) was founded in 2017 to enhance the pre-law‬ ‭network of the University. It is focused on creating a community that promotes analyzing and writing‬ ‭about issues related to law and politics. We aim to make sure that students at Rutgers and at‬ ‭universities across the state have a way to express their thoughts on the developments, events, and‬ ‭history of the legal world through research and argument-based writing.‬

‭Submissions‬ ‭The Rutgers Undergraduate Law Review is registered as an organization with the Rutgers University‬ ‭Student Assembly Allocations Board and the University’s Office of Student Centers and Activities.‬ ‭All funds used to produce and distribute this issue were granted by the Allocations Board.‬ ‭The perspectives expressed by the contributors may not be the same as those expressed by the‬ ‭Rutgers Undergraduate Law Review Executive Board or the Rutgers Pre-Law Society Executive‬ ‭Board. All efforts have been made to guarantee the accuracy of information in this Law Review.‬ ‭No part of this publication may be reproduced or transmitted in any form without the express consent‬ ‭of the Executive Board of the Rutgers Undergraduate Law Review.‬

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‭Letter From the Editor‬ ‭To our readers,‬ ‭ erving as Editor-In-Chief this semester has been a great‬ S ‭opportunity to work with a team of dedicated and intellectual‬ ‭individuals. I am excited to share the quality research and‬ ‭writing that our team has spent the last semester working on.‬ ‭The pages of this publication are filled with quality research‬ ‭and thought-provoking writing from our team of authors and‬ ‭editors who have dedicated countless of hours to curating‬ ‭their best work for this publication. Thank you to everyone‬ ‭who helped create this journal and publish it: our Associate‬ ‭and Executive Editors the Rutgers Pre-Law Society Executive‬ ‭Board. Your support and intellect is greatly appreciated.‬

‭ special thank you to the Undergraduate Law Review Board. Your determination to excel as leaders and‬ A ‭provide guidance to writers has set an incredible standard for years to come.‬ I‭ n this edition of the journal, you will find pieces covering a wide array of topics, including freedom of‬ ‭expression, immigration policy, artificial intelligence, international and constitutional law, evaluation of‬ ‭markets, and more. Our members wrote about a diverse set of subjects that explored their own intellectual‬ ‭thought. While the views reflected by each writer might not reflect all individuals on the law review, it is‬ ‭important to recognize the effort and diligence. Our Editorial and Executive Board have strived to handle‬ ‭these matters with care and sensitivity, and it is through diligence that we hope we have accomplished that‬ ‭goal.‬ I‭ hope you enjoy this publication and learn something new that might make you feel compelled to discuss‬ ‭the legal, social, and political issues present in your life. Knowledge is the greatest tool an individual can‬ ‭hold and the members of this team are equipped with that power. We hope you enjoy our publication!‬

‭ est Regards,‬ B ‭Awakhiwe Ndlovu‬ ‭Editor-in-Chief‬ ‭Rutgers Undergraduate Law Review‬

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‭RUTGERS UNDERGRADUATE LAW REVIEW‬ ‭Fall 2024‬

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‭CHECKS, BALANCES, AND BORROWERS:‬ ‭THE UNCONSTITUTIONALITY OF EXECUTIVE-LED STUDENT LOAN‬ ‭FORGIVENESS‬ ‭WRITTEN BY ZACHARY VASILE | EDITED BY ANGELIQUE DINNALL‬ ‭Introduction‬ ‭i. History of Federal Student Loans‬ ‭The federal student loan system stems from numerous government acts designed to‬ ‭safeguard national security, offer equitable access to education, and, most importantly, prepare‬ ‭Americans for the demands of increasingly specialized modern careers. Its history began in the‬ ‭Eisenhower administration, as they passed the National Defense Education Act (NDEA). The‬ ‭NDEA offered financial aid to students with limited resources studying the sciences, technology‬ ‭studies, or a foreign language.‬‭1‬ ‭By focusing on these fields critical to national security, the‬ ‭NDEA aimed to build a generation of Americans who would solidify the United States’ position‬ ‭as a global technological power.‬ ‭World War II turned America into the production capital of the world, and with that came‬ ‭a drastic makeover of employment. White collar jobs jumped from 31% of total employment in‬ ‭1957 to 37% in 1965,‬‭2‬ ‭requiring new specialized education and training. President Lyndon B.‬ ‭Johnson understood these changes and built upon the NDEA in 1965 when he stood before‬ ‭Congress and stressed that “higher education is no longer a luxury, but a necessity.”‬‭3‬ ‭This speech‬ ‭outlined and inspired the Higher Education Act (HEA), which created the Guaranteed Student‬ ‭Loan Program (GSLP).‬‭4‬ ‭The GSLP ensured that students from all income backgrounds could‬ ‭access the education necessary for the new workforce, preserving the nation’s economy.‬ ‭1‬

‭ opkins, “The Origins of Student Loan Industry in‬‭the United States,” pp. 1‬ H ‭Monthly Labor Review / U.S. Department of Labor,‬‭Bureau of Labor Statistics‬ ‭3‬ ‭Johnson, “Toward Full Educational Opportunity.”‬ ‭4‬ ‭Hopkins, “The Origins of Student Loan Industry in‬‭the United States,” pp.1‬ ‭2‬

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‭ii. Current Student Loan Crisis‬ ‭However, the policy’s success has come at a steep price, leading to a student loan crisis.‬ ‭The Department of Education reports that “forty-three million Americans collectively owe $1.5‬ ‭trillion in outstanding student loan debt,” with about one-fourth of these Americans being over‬ ‭ninety days delinquent or in default.‬‭5‬ ‭Student loans are crippling Americans, as many avoid‬ ‭purchasing homes, and are unable to build a retirement portfolio.‬‭6‬ ‭It is no longer the case that a‬ ‭college degree is a streamlined method to financial security and stable life, as these startling‬ ‭statistics on student debt illustrate.‬ ‭The rising financial burden imposed by federal student loans has sparked calls for student‬ ‭loan forgiveness. This movement reached an all-time peak in 2020, best personified by the‬ ‭campaign and election of the 46th president, Joe Biden. In his campaign, Joe Biden addressed‬ ‭student loan forgiveness as one of his key issues and notably promised to forgive a minimum of‬ ‭$10,000 of federal student loans per borrower.‬‭7‬ ‭However, his administration’s push for‬ ‭executive-led student loan forgiveness raises significant constitutional concerns.‬ ‭Article I, Section 8, Clause 1 of the Constitution vests Congress the power to levy taxes‬ ‭and to spend for general Welfare.‬‭8‬ ‭Similarly, Article I, Section 9, Clause 7 of the Constitution‬ ‭vests Congress's sole authority to manage federal funds, and the duty to create a timely national‬ ‭budget.‬‭9‬ ‭These powers are levied to the legislative branch, not the executive branch. The‬ ‭Supreme Court also raises concerns in decisions such as‬‭Biden v. Nebraska‬‭and‬‭West Virginia v.‬ ‭EPA‬‭. Together, these rulings have questioned and limited‬‭the executive branch’s ability to‬

‭5‬

‭Naimon, Leonhardt, Meehan, “School of Hard Knocks: Federal Student Loan Servicing and the Looming Federal‬ ‭Student Loan Crisis,” pp. 260-261‬ ‭6‬ ‭Naimon, Leonhardt, Meehan, pp. 261‬ ‭7‬ ‭Biden, Joe. Twitter Post. March 22, 2020, 7:28 PM.‬ ‭8‬ ‭US Constitution, art 1, sec. 8, cl. 1.‬ ‭9‬ ‭US Constitution, art 1, sec. 9, cl. 7.‬

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‭implement substantial student loan forgiveness‬‭10‬ ‭without explicit input from Congress.‬‭11‬ ‭This‬ ‭paper will analyze the concerns raised by the Supreme Court and the Constitution, to show that‬ ‭executive-led student loan forgiveness is unconstitutional.‬ ‭Background‬ ‭iii. Increased Debt‬ ‭In the past fifteen years, federal student loan debt has risen substantially. This‬ ‭phenomenon was investigated by the Education Data Initiative, an organization that collects and‬ ‭organizes data about the United States educational system for students, teachers, reporters, and‬ ‭policymakers to use. They found that the average annual student loan debt has risen from‬ ‭$20,470 in 2009 to $37,850, a 185% increase in only fifteen years.‬‭12‬ ‭This growth is largely due to‬ ‭the monumental college tuition increases in the same period. U.S. News & World Report, a‬ ‭media company specializing in education journalism, investigated tuition costs for in-state, and‬ ‭out-of-state institutions and found shocking results. They discovered that out-of-state tuition rose‬ ‭from $17,487 to $28,217, and in-state tuition rose from $6,891 to $11,970, a 161% and 174%‬ ‭increase, respectively.‬‭13‬ ‭iv. HEROES Act‬ ‭After America was economically and emotionally damaged by the September 11th‬ ‭terrorist attacks, Congress convened to address its effects on federal student loans. The‬ ‭deliberation culminated in the Higher Education Relief Opportunities for Students Act of 2003,‬ ‭the HEROES Act. To ensure students were not placed in a worse financial situation than before,‬ ‭the Act gave the Secretary of Education the power to “waive or modify” student loan debt for‬

‭10‬

‭Biden v. Nebraska‬‭, 600 U.S. (2023)‬ ‭ est Virginia v. EPA‬‭, 597 U.S. (2022)‬ W ‭12‬ ‭Hanson, “Student Loan Debt by Year.”‬ ‭13‬ ‭Wood, “A Look at 20 Years of Tuition Costs at National‬‭Universities.”‬ ‭11‬

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‭those affected by the ramifications of the terrorist attacks.‬‭14‬ ‭Although initially intended for‬ ‭family members of those sent into active duty during the War on Terror and those affected‬ ‭economically, the Secretary of Education was given a second ability to waive or modify student‬ ‭loan debt for those directly affected by a national emergency declared by the President of the‬ ‭United States.‬‭15‬ ‭The Act’s vague language of “waive or modify” during a national emergency‬ ‭became a subject of intense debate, most notably when the Biden administration aimed to utilize‬ ‭its vague terminology for widespread student loan forgiveness. This move was ultimately‬ ‭brought to the Supreme Court in‬‭Biden v. Nebraska.‬ ‭Supreme Court Concerns‬ ‭v. Biden v. Nebraska‬ ‭In this case, Nebraska and five other states challenged the Biden administration’s student‬ ‭loan forgiveness plan, which totaled $430 billion.‬‭16‬ ‭As alluded to, the plan utilized the power‬ ‭granted to the Secretary of Education in the HEROES Act to waive or modify student loan debt‬ ‭during a national emergency, which was COVID-19.‬‭17‬ ‭The majority ruled that the HEROES Act‬ ‭of 2003 does not give the Secretary of Education the authority to cancel this much student debt.‬ ‭In his majority opinion, Chief Justice John Roberts reasserted that the Secretary can “waive or‬ ‭modify” existing loans, but cannot “...rewrite that statute from the ground up.”‬‭18‬ ‭The plan was‬ ‭too extreme and went far beyond the intentions of Congress.‬ ‭Congress wrote the HEROES Act to provide relief within the framework of the current‬ ‭student loan system. They did not give the executive branch the authority to alter the system‬ ‭itself. Chief Justice John Roberts, once again, echoes this perspective. He mentions that in‬ ‭14‬

‭ igher Education Relief Opportunities for Students‬‭Act, H.R. 108-76, 108th Cong. (2003), pp. 2‬ H ‭Higher Education Relief Opportunities for Students‬‭Act, H.R. 108-76, 108th Cong. (2003), pp. 2, 5‬ ‭16‬ ‭Biden v. Nebraska‬‭, 600 U.S. (2023), pp. 1‬ ‭17‬ ‭Biden v. Nebraska‬‭, 600 U.S. (2023), pp. 1‬ ‭18‬ ‭Biden v. Nebraska‬‭, 600 U.S. (2023), pp. 14‬ ‭15‬

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‭typical and legal language, the word “modify” never means fundamentally altering the subject in‬ ‭reference.‬‭19‬ ‭Allowing the executive branch to unilaterally forgive student loan debt without‬ ‭Congressional approval would not only exceed the power granted by the HEROES Act but‬ ‭would undermine the system of checks and balances. The findings in this case, therefore, support‬ ‭a more significant conclusion: executive-led student loan forgiveness is unconstitutional. The‬ ‭executive branch cannot unilaterally offer mass student loan forgiveness without explicit‬ ‭authorization from Congress. This landmark Supreme Court case demonstrates that any such‬ ‭attempt without Congressional approval is unconstitutional.‬ ‭vi. West Virginia v. EPA‬ ‭In 2022, the Supreme Court heard West‬‭Virginia v.‬‭EPA‬‭. The case centered on whether the‬ ‭Environmental Protection Agency, otherwise known as the EPA, had the authority to place‬ ‭emission caps on power plants under Section 111(d) in the Clean Air Act of 2015, potentially‬ ‭causing drastic economic effects.‬‭20‬ ‭The Supreme Court ruled that the EPA did not have the‬ ‭authority to impose emission caps under the Clean Air Act.‬‭21‬ ‭The Supreme Court reached its decision by using the Major Questions Doctrine, which‬ ‭asserts that explicit authorization from Congress must be found by the Court when the executive‬ ‭branch seeks to make decisions that have broad economic and political implications.‬‭22‬ ‭Using this‬ ‭doctrine, the Court found that the EPA’s proposed regulations were not authorized by Congress in‬ ‭Section 111(d) in the Clean Air Act, making the regulations null.‬ ‭Similar to how the Supreme Court in‬‭West Virginia‬‭v. EPA‬‭found that the EPA lacked‬ ‭explicit authority from Congress, the Court in‬‭Biden‬‭v. Nebraska‬‭ruled that the executive branch‬

‭19‬

‭Biden v. Nebraska‬‭, 600 U.S. (2023), pp. 13‬ ‭ est Virginia v. EPA,‬‭597 U.S. (2022), pp. 6‬ W ‭21‬ ‭West Virginia v. EPA,‬‭597 U.S. (2022), pp. 4‬ ‭22‬ ‭West Virginia v. EPA,‬‭597 U.S. (2022), pp. 34‬ ‭20‬

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‭did not have the authority to forgive substantial student loan debt. In both rulings,‬‭West Virginia‬ ‭v. EPA‬‭and‬‭Biden v. Nebraska‬‭, the Court reaffirmed‬‭the principle that the executive branch cannot‬ ‭unilaterally make fundamental changes without explicit Congressional approval. These rulings‬ ‭emphasize the importance of the separation of powers and the system of checks and balances.‬ ‭Although very different in context,‬‭West Virginia‬‭v. EPA‬‭’s usage of the Major Questions Doctrine‬ ‭offers itself to conclude that executive-led student loan forgiveness is unconstitutional, as using‬ ‭the doctrine shows that the executive branch is not given explicit authorization to forgive loans‬ ‭by Congress.‬ ‭Constitutional Violations‬ ‭The unconstitutionality of executive-led student loan forgiveness goes beyond just‬ ‭Supreme Court decisions; its illegitimate nature is evident in how it violates the separation of‬ ‭powers in both the Taxing and Appropriations Clauses of the U.S. Constitution.‬ ‭vii. The Taxing Clause‬ ‭Found in Article I, Section 8, Clause 1, the Taxing Clause introduces Congress’s powers‬ ‭about taxation. It states “The Congress shall have the Power to lay and collect Taxes, Duties,‬ ‭Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare‬ ‭of the United States.”‬‭23‬ ‭The Clause allows Congress to tax and spend for the general Welfare of‬ ‭the United States. The abilities in the Clause are not a responsibility of the President or any other‬ ‭person/body in the executive branch; rather, it is a responsibility assigned to Congress. Now‬ ‭consider student loan forgiveness. At its core, student loan forgiveness is a concept motivated by‬ ‭promoting general Welfare. Allowing for executive-led student loan forgiveness disregards this‬ ‭concept, violating the Clause. While the idea may seem trivial, adhering to the clearly defined‬

‭23‬

‭US Constitution, art 1, sec. 8, cl. 1.‬

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‭division of powers and responsibilities in the Constitution is essential, even for clauses that are‬ ‭easy to overlook, such as the Taxing Clause.‬ ‭viii. The Appropriations Clause‬ ‭The Appropriations Clause is found in Article I, Section 9, Clause 7 of the U.S.‬ ‭Constitution and grants Congress sole authority to manage federal funds, and the duty to create a‬ ‭timely national budget. The Clause states, “No Money shall be drawn from the Treasury, but in‬ ‭Consequence of Appropriations made by Law; and a regular Statement and Account of the‬ ‭Receipts and Expenditures of all public Money shall be published from time to time.”‬‭24‬ ‭This‬ ‭Clause ensures that solely the legislative branch is responsible for the nation’s finances and its‬ ‭financial records. However, executive-led student loan forgiveness threatens this sole power of‬ ‭Congress.‬ ‭Consider an accountant preparing a balance sheet for their company. The accountant’s‬ ‭balance sheet reflects the company’s financial state, ensuring each transaction is accounted for‬ ‭down to the penny. Now, imagine a coworker from a different company department, someone not‬ ‭allowed to work on the company’s financial records. They cancel a significant asset, a loan owed‬ ‭to the company, claiming it is unnecessary. The coworker broke the company’s rules regarding‬ ‭who can work on financial records, disrupting the company’s system of accountability, and‬ ‭decided to remove a significant asset without seeking explicit approval from the accountant. This‬ ‭asset happened to be what allowed the company to pay off debts of its own, creating a‬ ‭shockwave across the entire balance sheet.‬ ‭Executive-led student loan forgiveness operates much in the same way. The legislative‬ ‭branch is the accountant, and the executive branch is the coworker. Similar to how the coworker‬ ‭disrupts the company’s system of accountability, the executive branch violates the system of‬ ‭24‬

‭US Constitution, art 1, sec. 9, cl. 7.‬

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‭checks and balances by overstepping Congress’s role. This violation of the Appropriations‬ ‭Clause threatens the legislative branch’s exclusive power to manage national finances. By‬ ‭pursuing executive-led student loan forgiveness, the executive branch violates the Appropriations‬ ‭Clause, damaging the budget and America’s finances.‬ ‭Counterargument and Rebuttal‬ ‭ix. Student Loan Forgiveness is not a General Welfare‬ ‭One might argue that executive-led student loan forgiveness does not violate the Tax‬ ‭Clause because it is not general Welfare. Forgiving student loans does not benefit the general‬ ‭Welfare; it only benefits the indebted students. Moreover, general Welfare is typically a public‬ ‭good, not a debt-based system. The National Interstate and Defense Highways Act of 1956 is a‬ ‭prime example. The policy created 41,000 miles of interstate highways, strategically built to‬ ‭connect all of America, whether rural or suburban, to metropolitan areas.‬‭25‬ ‭The system connected‬ ‭the industries of the United States and its people, creating increased economic output and jobs,‬ ‭and it did so without placing debt on the people, as Congress funded the highways with a special‬ ‭tax trust created within the Act.‬‭26‬ ‭While it is true that typical acts of general Welfare are public goods, more recent‬ ‭demonstrations of general Welfare have not been public goods. During the Great Recession of‬ ‭2008, the American automobile industry was at risk of collapse. Companies such as General‬ ‭Motors, Chrysler, and many more were in substantial debt. The United States responded with a‬ ‭loan system, the Automotive Industry Financing Program, otherwise known as AIFP. The‬ ‭treasury loaned an estimated $63.5 billion to General Motors and Chrysler alone.‬‭27‬ ‭This‬ ‭25‬

‭STATUTE-72-Pg885.pdf - govinfo. Accessed November‬‭22, 2024.‬ ‭https://www.govinfo.gov/content/pkg/STATUTE-72/pdf/STATUTE-72-Pg885.pdf.‬ ‭26‬ ‭STATUTE-72-Pg885.pdf - govinfo. 853‬ ‭27‬ ‭“Auto Industry Program Overview.” Auto Industry Program Overview, December 22, 2014.‬ ‭https://home.treasury.gov/data/troubled-assets-relief-program/automotive-programs/overview.‬

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‭intervention was not a typical public good, but rather a debt-based system that stabilized a‬ ‭critical American industry, protecting the overall economy and, thus, the general Welfare.‬ ‭Conclusion‬ ‭The federal student loan system began as a well-intentioned system, aimed at promoting‬ ‭national security, creating a specialized workforce, and offering affordable education. Over time,‬ ‭the system’s financial burden became too much to manage. Indebted students, desperate for a‬ ‭solution, have looked to the executive branch for answers. The promise of student loan‬ ‭forgiveness, most notably championed by President Joe Biden, gained traction during the 2020‬ ‭presidential election. However, this attempt to address student loan forgiveness through‬ ‭executive-led avenues has failed in the Supreme Court and shed light on the unconstitutionality‬ ‭of executive-led student loan forgiveness.‬ ‭The Supreme Court’s ruling in‬‭Biden v. Nebraska‬‭directly criticizes this overreach. In the‬ ‭case, the Court found that the executive branch was overstepping on the permissions to modify‬ ‭student loans given by Congress in the HEROES Act of 2003. This decision, and‬‭West Virginia v.‬ ‭EPA‬‭drew attention to a key concept: the executive‬‭branch cannot achieve student loan‬ ‭forgiveness without explicit authorization from Congress.‬‭West Virginia v. EPA‬‭does so by using‬ ‭the Major Questions Doctrine, which asserts that executive actions with far-reaching national‬ ‭repercussions, must be explicitly permitted by Congress, not unilaterally by the executive‬ ‭branch.‬ ‭Executive-led student loan forgiveness also violates the Constitution’s clear separation of‬ ‭powers, specifically in the Taxing and Appropriations Clause. The Taxing Clause, found in‬ ‭Article I, Section 8, Clause 1, vests Congress exclusive power to spend funds for general‬ ‭Welfare. This responsibility does not belong to the executive branch, making their unilateral‬

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‭decision to forgive student loans, an act of general Welfare, unconstitutional. The Appropriations‬ ‭Clause in Article I, Section 9, Clause 7 grants Congress exclusive control over federal funds and‬ ‭the exclusive requirement to maintain a budget. In attempting to cancel substantial debt‬ ‭unilaterally, the executive branch interferes with Congress’s exclusive responsibility to keep‬ ‭financial records and sole control over funds.‬ ‭Student loans are a pressing issue, but the solution does not lie in executive branch‬ ‭overreach. It instead belongs in Congress. As shown, the executive branch needs explicit‬ ‭authorization from Congress to create student loan forgiveness. By observing the separation of‬ ‭powers that ensures the United States functions most effectively, the United States can address‬ ‭the student loan crisis in a Constitutional and sustainable manner. Ultimately, any meaningful‬ ‭solution to the student loan crisis must be grounded in constitutional principles, ensuring that the‬ ‭power to shape our nation’s financial future rests where it belongs—with the elected‬ ‭representatives of the people.‬‭28‬

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‭This paper was reviewed by Jonathan McFall. Jonathan‬‭McFall is a political science professor at Rutgers‬ ‭ niversity- New Brunswick. He specializes and teaches legal philosophy. In his course, Legal Philosophy, Rights,‬ U ‭and Justice, Professor McFall analyzes and educates students on a multitude of keystone legal philosophy writings,‬ ‭applying them to current events that way the original writers intended them to be used.‬ ‭Professor McFall’s feedback proved critical in writing this article. Using his expertise, he offered revisions and‬ ‭clarifications on numerous elements of my Constitutional and Supreme Court arguments.‬

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‭DECLINE OF CULTURAL RELATIVISM WITHIN THE U.S. LEGAL SYSTEM‬ ‭IMPACT ON USAGE OF THE CULTURAL DEFENSE‬ ‭WRITTEN BY SHREYA VAIDYA | EDITED BY ISHA NAGPAUL‬ ‭Introduction‬ ‭The United States legal system adopted a common law framework during its genesis;‬ ‭however, legal universalism framed by Eurocentrism fails to consider the diversity of culture‬ ‭within the American population it serves. Created in the United Kingdom and implemented‬ ‭throughout the English colonies, common law is rooted in the adherence to stare decisis—the‬ ‭principle that past judicial decisions serve as binding precedents—and legal universalism, which‬ ‭emphasizes consistency in legal interpretation.‬‭29‬ ‭A drawback of a presumably beneficial pillar of‬ ‭the legal system is abiding by precedents and norms developed within the context of European‬ ‭ideals. The introduction of cultural relativism to the legal system allows for the expansion of‬ ‭legal language interpretation and the consideration of the cultural context of behavior from the‬ ‭ethical and social standards from which they are derived.‬‭30‬ ‭This concept deviates from legal‬ ‭universalism as it allows for the recognition and presentation of unique, culturally significant‬ ‭evidence, focusing on the individual as opposed to sentencing based on the collective. A‬ ‭movement towards conservative ideologies within the government and judiciary threatens‬ ‭immigrants and minorities by harshly imposing strict policies and loopholes that reject cultural,‬ ‭economic, and social circumstances impacting immigrants and minorities. This decline in‬ ‭cultural relativism has broader implications beyond strictly immigration law, as it impacts the‬ ‭U.S. legal system through practical implications, such as the admissibility of the cultural defense‬ ‭29‬

‭ABA. “The American Legal System Made Easy.” American Bar Association. Accessed November 9, 2024.‬ ‭https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/131991070/Chapter%202.pdf.‬ ‭30‬ ‭“Cultural Relativism.” Carnegie Council for Ethics in International Affairs, 2024.‬ ‭https://www.carnegiecouncil.org/explore-engage/key-terms/cultural-relativism.‬

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‭in criminal trials. Cultural defense is defined as “a defense that is based on the argument that an‬ ‭offender’s cultural background or beliefs influenced their behavior and should be taken into‬ ‭account in determining their guilt or punishment” and used in conjunction with an affirmative or‬ ‭negative defense.‬‭31‬ ‭Accepting cultural context as a part of the defendants’ defense strategy‬ ‭protects primarily minority and immigrant defendants from being judged solely through a‬ ‭Eurocentric lens grounded in historical precedent. Furthermore, the correct application of the‬ ‭cultural defense may serve as a sentence-mitigating factor; however, political and social factors‬ ‭will influence its admissibility and effectiveness in court. Given the ability of the courts to‬ ‭reinterpret legal language while still abiding by stare decisis, the recent movement towards‬ ‭increasingly conservative opinions that negatively impact immigrants and minority communities‬ ‭results in a decline in cultural relativism and threatens the application of cultural defense in‬ ‭criminal trials.‬ ‭Establishing A Conservative Shift‬ ‭Deferred Action for Childhood Arrivals (DACA) has been highly criticized by‬ ‭conservative Republicans who have attempted to rescind it or deem it unlawful. Recent court‬ ‭decisions have reflected a conservative shift in attitude towards immigrants, effectively‬ ‭diminishing the importance of cultural relativism within the legal system. This decline is evident‬ ‭through cases such as‬‭Texas v. United States‬‭and‬‭Loper‬‭Bright Enterprises v. Raimondo‬‭, which‬ ‭emphasizes alterations in deferred action policies as well as agency autonomy. DACA allows for‬ ‭children brought to the United States unlawfully to receive work authorization and benefits‬ ‭without the risk of deportation if they meet certain criteria, i.e., “they came to the United States‬ ‭under the age of 16, have continuously resided in the United States since June 15, 2007, were‬ ‭31‬

‭McKee, Adam J. “Cultural Defense: Definition.” cultural defense | Definition, May 15, 2023.‬ ‭https://docmckee.com/cj/docs-criminal-justice-glossary/cultural-defense-definition/#google_vignette.‬

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‭under the age of 31 on June 15, 2012, and meet other requirements related to education and lack‬ ‭of criminal history”.‬‭32‬ ‭In the case of‬‭Texas v. United States‬‭, Texas and twenty-six other states‬ ‭filed a formal complaint against an Obama-era DACA expansion initiative: Deferred Action for‬ ‭Parents of Americans and Lawful Permanent Residents (DAPA). In a monumental ruling, Judge‬ ‭Hanen vacated DACA in favor of the states that “seek to end both the forbearance of removal‬ ‭and the conferral of benefits to existing DACA recipients as existing permits expire. The States‬ ‭make clear in their filings and briefing that once the DACA program has ended, former DACA‬ ‭recipients should be removable on the same basis as any other similarly situated illegal alien,”‬ ‭having detrimental effects on pending DACA applications and renewals.‬‭33‬ ‭The case was‬ ‭appealed and escalated to the Supreme Court, which upheld the 5th Circuit Court’s decision in a‬ ‭4-4 ruling. Although the‬‭Texas‬‭decision provides injunctive‬‭relief, it phases out a policy that‬ ‭accounts for cultural context. Repealing deferred action policies indicates a rejection of the‬ ‭humanitarian and cultural circumstances that encourage immigrants to enter the United States,‬ ‭raising concerns over diminishing tolerance and increasingly negative attitudes towards‬ ‭immigrants.‬ ‭Furthermore, in the case of‬‭Loper Bright Enterprises‬‭v. Raimondo‬‭, the Chevron Doctrine‬ ‭was overturned in a 6-3 decision. The Chevron Doctrine is outlined as the judiciary's deference‬ ‭to administrative agencies in clarifying ambiguous statutes, but only if the interpretation is‬ ‭reasonable.‬‭Loper‬‭reassessed this process with the‬‭Supreme Court decision holding the‬ ‭“Administrative Procedure Act requires courts to exercise their independent judgment in‬ ‭deciding whether an agency has acted within its statutory authority, and courts may not defer to‬

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‭Harrington, Ben. “Supreme Court: Daca Rescission Violated the APA.” Supreme Court: DACA Rescission‬ ‭Violated the APA, June 18, 2020. https://crsreports.congress.gov/product/pdf/LSB/LSB10497.‬ ‭33‬ ‭"Loper Bright Enterprises v. Raimondo." Oyez. Accessed November 8, 2024.‬ ‭https://www.oyez.org/cases/2023/22-451.‬

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‭an agency interpretation of the law simply because a statute is ambiguous,” thereby overruling‬ ‭the agency’s autonomy regarding statute interpretation and providing the power to interpret to‬ ‭the courts.‬‭34‬ ‭The ruling will not allow agencies to make culturally nuanced decisions based on‬ ‭industry expertise and instead, will reinforce a reliance strictly on judicial interpretations. The‬ ‭judicial review process of agency statutes can emphasize disparities in decisions as the political‬ ‭ideology that influences such decisions varies across jurisdictions. Given the current 6-3‬ ‭conservative-to-liberal ideological split in the Supreme Court, there have already been‬ ‭indications of movement toward right-wing decisions. This emphasizes the uncertainty regarding‬ ‭cultural contexts and attitudes towards immigrants, as well as minority groups across federal,‬ ‭state, and local courts. Beyond legal cases, societal attitudes towards immigrants have altered,‬ ‭with notable politicians correlating immigration influx to high crime rates, even going so far as‬ ‭to imply that immigrants have a genetic predisposition to committing crime.‬‭35‬ ‭Donald Trump’s‬ ‭most recent presidential win, coupled with a majority Republican composition in both the Senate‬ ‭and the House, allude to a governing trifecta. This structure may streamline the institution of‬ ‭harsher anti-immigration policies and mass deportation, prioritizing strict enforcement as‬ ‭opposed to culturally nuanced humanitarian considerations. Wider ramifications include the‬ ‭expectation that immigrants must be assimilated or show promise of assimilation into traditional‬ ‭American culture, which puts these individuals at an unfair disadvantage when coming into‬ ‭contact with the judicial system.‬ ‭The implications of this new government and a 6-3 conservative court system will result‬ ‭in an alteration in judicial interpretation through stare decisis, affecting rulings made‬ ‭post-Chevron. An emphasis on conservative ideologies which stress the importance of history,‬ ‭34‬

‭"Loper Bright Enterprises v. Raimondo." Oyez. Accessed November 8, 2024.‬ ‭https://www.oyez.org/cases/2023/22-451.‬ ‭35‬ ‭Traylor, Jake, Summer Concepcion, and Alana Satlin. “Trump Suggests Immigrants Have ‘bad Genes’ in Latest‬

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‭tradition, and legal universalism in regards to legal interpretations, rely on a philosophy rooted‬ ‭under the pretext of a predominantly European framework. The result is a decline in cultural‬ ‭consideration with broader implications of a conservative judicial opinion impacting the‬ ‭admissibility of the cultural defense within criminal trials. Overarching legal frameworks have‬ ‭harshly imposed restrictions and rigid interpretations of the law and statutes on immigrants. The‬ ‭byproduct is the development of rhetoric that assumes immigrants must be assimilated once‬ ‭entering the United States, and those who have not are not privy to cultural considerations when‬ ‭analyzing criminal behavior or determining punishments. This foundational belief undermines‬ ‭individualized justice and perpetuates injustices for marginalized communities within the‬ ‭criminal legal system.‬ ‭Admissibility and Importance of the Cultural Defense‬ ‭The blatant ramifications of failing to consider or present cultural context when‬ ‭determining criminal behavior can lead to injustices regarding sentencing and the procedural‬ ‭process of the trial. Due process is guaranteed to all United States citizens, and “aliens physically‬ ‭present in the United States, regardless of their legal status, are recognized as persons guaranteed‬ ‭due process of law by the Fifth and Fourteenth Amendments.”‬‭36‬ ‭The due process clause is‬ ‭founded on the basis that no individual will be deprived of life, liberty, or property without fair‬ ‭procedure and a guarantee of the Fifth, Sixth, Eighth, and Fourteenth Amendments.‬‭Wiggins v.‬ ‭Smith‬‭solidified the role of the defense counsel outlined‬‭in the Sixth Amendment, as the‬‭Wiggins‬ ‭case concerns the defense’s failure to research and present background information on the client‬ ‭that would have served as a mitigating factor in Kevin Wiggins’ capital crime trial. Withholding‬ ‭content about Wiggins’ childhood abuse and mental illness violated his Sixth Amendment right‬ ‭to effective counsel, as these factors would have prevented the death penalty from being imposed‬ ‭36‬

‭U.S. Constitution, Art. I, Sec. 8, Clause 18‬

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‭in his case.‬‭37‬ ‭Ensuring effective counsel includes the exploration of all factors required to‬ ‭formulate the best defense and should include cultural context. Recognition of defenses that‬ ‭eliminate or mitigate culpability, such as diminished capacity, mental illness, or heat of passion,‬ ‭alludes that the criminal justice system already prioritizes individualized justice. It is only natural‬ ‭that cultural information should similarly fit at this phase of adjudication as it tailors the system‬ ‭more closely to the defendant’s culpability, thereby humanizing the defendant on cultural‬ ‭grounds.‬‭38‬ ‭To be less tolerant of cultural consideration would not only limit the defense counsel’s‬ ‭scope of practice but remove “the right to culture, an arguably powerful principle that reinforces‬ ‭the contention that context matters for the evaluation of particular acts.”‬‭39‬ ‭Reducing prejudice‬ ‭and bias will positively serve immigrant criminal defendants, as allowing the presentation of‬ ‭cultural context during the trial can serve as a sentence mitigating factor or provide compelling‬ ‭evidence to entirely vacate convictions.‬ ‭i. State v. Kargar‬ ‭The case of‬‭State of Maine v. Kargar‬‭revolves around‬‭Afghani traditions of showing‬ ‭affection and pseudo-child abuse claims. Mohammad Kargar, an Afghani refugee residing in‬ ‭Maine, was arrested upon a neighbor reporting Kargar “kissing his eighteen-month-old son's‬ ‭penis,” a practice Kargar maintained was common within Afghani culture.‬‭40‬ ‭He was found guilty‬ ‭on two counts of gross sexual misconduct following both a trial and de minimis hearing despite‬ ‭supporting statements made by expert witnesses in academia and within the Afghani community.‬ ‭All testimonies emphasized that the practice was done to show love for the child and there was‬ ‭37‬

‭“Sixth Amendment - Right to Assistance of Counsel‬‭– Annenberg Classroom.” 2019. February 27, 2019.‬ h‭ ttps://www.annenbergclassroom.org/resource/right-assistance-counsel/#:~:text=1984Court%20Defines%20Test%2‬ ‭0For,the%20Sixth%20Amendment%20not%20violated.‬ ‭38‬ ‭Mobley, Lillian. “An Intersectional Approach to the Cultural Defense.” Loyola University Chicago Law Journal,‬ ‭2022. https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2793&context=luclj.‬ ‭39‬ ‭Renteln, Alison Dundes. “What Do We Have to Fear from the Cultural Defense?” OUP Academic, May 15, 2014.‬ ‭https://doi.org/10.1093/acprof:oso/9780199676590.003.0009.‬ ‭40‬ ‭STATE of Maine, v. Mohammad KARGAR 679 A.2d 81 (1996).‬

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‭no alternate sexual intent involved, as to initiate such an act with such feelings was a violation of‬ ‭Islamic law and punishable by death. The case was appealed to the Maine Supreme Court who‬ ‭rebuked the ruling citing improper consideration of all factors in the de minimis hearing, lack of‬ ‭establishment of sexual gratification, and disproportionality of crime and punishment based on‬ ‭intent. The de minimis hearing should have encompassed careful consideration of “the‬ ‭background, experience, and character of the defendant which may indicate whether he knew or‬ ‭ought to have known of the illegality; the knowledge of the defendant of the consequences to be‬ ‭incurred upon violation of the statute; the circumstances concerning the offense; the resulting‬ ‭harm or evil, if any, caused or threatened by the infraction; the probable impact of the violation‬ ‭upon the community; the seriousness of the infraction in terms of punishment, bearing in mind‬ ‭that punishment can be suspended; mitigating circumstances as to the offender; possible‬ ‭improper motives of the complainant or prosecutor; and any other data which may reveal the‬ ‭nature and degree of the culpability in the offense committed by the defendant,” which cultural‬ ‭context falls under.‬‭41‬ ‭The lower court's original failure to acknowledge the cultural testimonies‬ ‭when determining the outcome of the case could have permanently resulted in Kargar facing two‬ ‭convictions, registration as a sex offender, and the possibility of deportation. The Maine Supreme‬ ‭Court’s decision set a precedent that cultural consideration is a necessary factor in creating‬ ‭proportionality between crime and punishment. Without the presentation of such facts,‬ ‭immigrant communities can experience an unethical dissemination of justice.‬ ‭ii. People v. Croy‬ ‭Furthermore, the cultural defense applies to minority communities as seen in the case of‬ ‭People v. Croy‬‭.‬‭People v. Croy‬‭details the story of‬‭Patrick Hooty Croy, a young Native American,‬ ‭from Yreka, California–an area where there had been longstanding conflict between the Anglo‬ ‭41‬

‭STATE of Maine, v. Mohammad KARGAR 679 A.2d 81 (1996).‬

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‭and Native American populations. After a dispute over the amount of change in a liquor store,‬ ‭Croy and two relatives were chased by twenty-seven police officers resulting in Croy killing a‬ ‭police officer in what he claimed was self-defense, ultimately being convicted of murder in 1979‬ ‭and sentenced to death.‬‭42‬ ‭The conviction was appealed as a change of venue was necessary in‬ ‭order to present in front of an impartial jury that did not harbor bias or prejudice towards Native‬ ‭Americans. The defense reformed their original strategy to argue self-defense in conjunction‬ ‭with a cultural defense to explain Croy’s behavior, citing that because “Croy had suffered‬ ‭discrimination and had been conditioned not to trust white authorities (because white settlers had‬ ‭massacred Indians in the nineteenth century), he was predisposed to perceive that his life was in‬ ‭jeopardy,” imploring the jury to reevaluate the previous convictions.‬‭43‬ ‭The presentation of‬ ‭cultural context emphasized the “unofficial and often unrecognized policy of repression and‬ ‭intimidation which affects the day-to-day life of every Indian person in that community‬ ‭[Yreka],” who had suffered at the hands of harsh government institutions. The defense‬ ‭effectively brought forth the complicated history between Native Americans and law‬ ‭enforcement and its inclusion within a self-defense argument proved to be successful in reducing‬ ‭Croy’s charges.‬‭44‬ ‭Cultural relativism serves as an important aspect in establishing and‬ ‭understanding behavior deemed criminal under the confines of American law and allows for‬ ‭sentencing to be formulated based on cultural factors. This allows minority communities the‬ ‭opportunity to reflect upon and cite historical trauma, traditions, and customs that contribute to‬ ‭behavior. The role of the cultural defense serving as a sentence-mitigating factor effectively‬ ‭emphasizes the importance of considering cultural differences and the fair pursuit of justice for‬ ‭42‬

‭Renteln, Alison Dundes. (1993). justification of‬‭the cultural defense as partial excuse.‬‭Southern California‬‭Review‬ ‭of Law and Women's Studies, 2(2),‬‭437-526.‬ ‭43‬ ‭Renteln, Alison Dundes. (1993). justification of‬‭the cultural defense as partial excuse.‬‭Southern California‬‭Review‬ ‭of Law and Women's Studies, 2(2),‬‭437-526.‬ ‭44‬ ‭People v. Croy 41 Cal. 3d 2 (1985).‬

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‭immigrants and minorities, allowing them space within the legal realm to bring forth pertinent‬ ‭context to criminal trials.‬ ‭Implications of the Cultural Defense‬ ‭iii. People v. Chen‬ ‭While the application of the cultural defense serves to ensure fairness in terms of‬ ‭presenting culturally pertinent information during a criminal trial, it can be counterproductive in‬ ‭advancing cultural relativism within the legal realm when used in violent crime cases e.g.,‬ ‭People v. Chen‬‭and‬‭People v. Kimura‬‭,‬‭where the cultural‬‭defense can take on the role of the‬ ‭aggressor enabling harmful behavior and accustoming it to the defendant's culture. In‬‭People v.‬ ‭Chen‬‭, defendant Dong Lu Chen confronted his wife about‬‭their sexual relationship repeatedly,‬ ‭later discovering that she had been engaging in an affair. Chen proceeded to hit her eight times‬ ‭with a claw hammer until she was dead and was charged with second-degree murder. Chen’s‬ ‭defense team presented a cultural testimony that emphasized a perception of traditional Chinese‬ ‭culture which views a wife's infidelity as a byproduct of her husband’s weak character. His‬ ‭attorney's argument targeted divorce as being perceived as dishonorable within the Chinese‬ ‭community, effectively convincing the judge to decrease Chen's charges to second-degree‬ ‭manslaughter and a sentence of five years of probation.‬‭45‬ ‭Although the cultural testimony‬ ‭provided a lesser sentence for Chen, the case has contributed to the overarching rejection of the‬ ‭cultural defense as his actions violate what most individuals believe to be basic human values,‬ ‭and therefore, should not be allowed to claim cultural defense. However, not all cultural practices‬

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‭DePalma, A. R. (2009). I Couldn't Help Myself - My‬‭Culture Made Me Do It: The Use of Cultural Evidence in the‬ ‭ eat of Passion Defense.‬‭Chicanx-Latinx Law Review‬‭,‬‭28(1). http://dx.doi.org/10.5070/C7281021186 Retrieved‬ H ‭from https://escholarship.org/uc/item/2c1506p3‬

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‭are of this nature and the fact that unacceptable cultural practices cannot offer defense does not‬ ‭indicate that no practice can.‬‭46‬ ‭iv. People v. Kimura‬ ‭People v. Kimura‬‭similarly concerns Japanese culture‬‭and the historical practice of‬ ‭oyako-shinju,‬‭which translates to parent-child suicide.‬‭Fumiko Kimura’s forty-year-old husband‬ ‭had kept a Japanese mistress for three years. The couple had been married about eight years and‬ ‭had lived in the States for about six years when the‬‭oyako-shinju‬‭incident occurred in which‬ ‭Kimura attempted to drown both herself and her young children to rid herself of the shame and‬ ‭humiliation of her husband’s adultery.‬‭47‬ ‭Kimura had been largely isolated from American culture‬ ‭despite her time in the United States, and her case drew major criticism as the defense explained‬ ‭her mens rea–criminal intent–to be the direct result of her culture’s conceptions of shame,‬ ‭suicide, and mothering–rendering her choice unavoidable.‬‭48‬ ‭v. Negative Stereotypes‬ ‭In the cases of both‬‭People v. Chen‬‭and‬‭People v.‬‭Kimura‬‭, the underlying inclusion of‬ ‭cultural defense used in conjunction with mental health arguments has deterred the formal‬ ‭acknowledgment of the usage of cultural defense. High-profile cases such as these, coupled with‬ ‭a decline in cultural relativism and understanding of different cultural practices or ideologies, can‬ ‭“reinforce negative stereotypes of ethnic groups that may encourage prejudice and‬ ‭discrimination. In addition, there is concern that defendants and their attorneys will concoct false‬ ‭claims and that the fraud will go undetected,” raising concerns over the legitimacy and ethical‬

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‭Parekh, Bhikhu, 'Cultural Defense and the Criminal Law', in Will Kymlicka, Claes Lernestedt, and Matt‬ ‭ atravers (eds),‬‭Criminal Law and Cultural Diversity‬‭(Oxford, 2014; online edn, Oxford Academic, 19 June 2014),‬ M ‭https://doi.org/10.1093/acprof:oso/9780199676590.003.0006‬‭,‬‭accessed 28 Nov. 2024.‬ ‭47‬ ‭Masami, U. S. U. I. "Creating a Feminist Transnational‬‭Drama: Oyako-Shinju (Parent-Child Suicide) in Velina‬ ‭Hasu Houston’s Kokoro (True Heart)."‬‭アメリカ学会英文ジャーナル‬‭11 (2000): 173-198.‬ ‭48‬ ‭Rashmi Goel, Can I Call Kimura Crazy? Ethical Tensions in Cultural Defense, 3 Seattle J. Soc. Just. (2004).‬

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‭implementation of the cultural defense‬‭49‬‭. However, when determining culpability, the cultural‬ ‭defense is not meant to necessarily expunge charges or exempt immigrants or minorities from‬ ‭being held accountable for violent crimes but rather allow for the opportunity to provide‬ ‭evidence that considers the cultural context that surrounds the actions of a crime and may‬ ‭mitigate an unfair sentence. It would be unjust to prosecute an individual under strictly the‬ ‭Eurocentric standards set forth by a U.S. legal system without considering the circumstances of‬ ‭the individual and the level of assimilation experienced by the individual. Justice must be‬ ‭delivered by ruling with an informed perception of immigrants and minority groups, which‬ ‭allows judges to adequately deviate from sentencing solely the crime and focus on sentencing the‬ ‭individual. Critics consider the cases of‬‭People v‬‭Chen‬‭and‬‭People v Kimura‬‭to be undermining‬ ‭the rule of law set forth by the Constitution and model penal code; however, the decision to‬ ‭neglect the cultural motivations in the courtroom in its entirety deprives defendants of the‬ ‭opportunity to be heard as a whole person, and to preserve their cultural dignity and identity‬ ‭outlined in the rights extended to immigrants regardless of their citizenship status.‬‭50‬ ‭Conclusion‬ ‭Cultural defense allows for the humanization of individuals from other cultures that differ‬ ‭in values and customs that are unaligned with Western or European norms. Although the‬ ‭application of cultural defense strategy is not inherently harmful, its usage within Eurocentric‬ ‭legal system is inconsistent and limited due to an overarching decline in cultural relativism‬ ‭throughout the legal system. Cultural competency must be integrated within the legal system‬ ‭without compromising legal principles. Formally recognizing the cultural defense as a‬

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‭Parekh, Bhikhu, 'Cultural Defense and the Criminal Law', in Will Kymlicka, Claes Lernestedt, and Matt‬ ‭ atravers (eds),‬‭Criminal Law and Cultural Diversity‬‭(Oxford, 2014; online edn, Oxford Academic, 19 June 2014),‬ M ‭https://doi.org/10.1093/acprof:oso/9780199676590.003.0006‬‭,‬‭accessed 28 Nov. 2024.‬ ‭50‬ ‭Rashmi Goel, Can I Call Kimura Crazy? Ethical Tensions in Cultural Defense, 3 Seattle J. Soc. Just. (2004).‬

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‭sentence-mitigating factor and consistently accepting its use across jurisdictions upholds the‬ ‭guaranteed rights of due process during criminal trials. Implementing cultural relativism within‬ ‭the legal realm deviates from legal universalism and asserts the notion of individualized justice‬ ‭through cultural considerations as presented through the cultural defense.‬‭51‬

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‭The following paper has been reviewed by distinguished Rutgers professor and pre-law advisor, Milton Heumann.‬ ‭ rofessor Heumann specializes in criminal justice, public law, and policy analysis with a research focus on criminal‬ P ‭justice reforms and rights to privacy. Professor Heumann has helped refine the arguments and content of this law‬ ‭review article and I am deeply grateful for his insightful guidance and support.‬

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‭CONSTITUTIONAL VULNERABILITY: HOW AGGRESSIVE IMMIGRATION‬ ‭POLICIES FUEL HUMAN TRAFFICKING IN MARGINALIZED COMMUNITIES‬ ‭WRITTEN BY AARUSHI GAIKWAD | EDITED BY SUHAANI JAIN‬ ‭Introduction‬ ‭i. What is Human Trafficking?‬ ‭Human trafficking is a severe human rights violation where individuals are exploited‬ ‭through coercion, force, or deception for labor or sex work.‬‭52‬ ‭Referred to as “modern slavery,”‬ ‭human trafficking is an epidemic that has greatly affected the United States, with an estimated‬ ‭27.6 million active victims of human trafficking.‬‭53‬ ‭Despite the prevalence of human trafficking in‬ ‭the United States, its covert‬‭nature often leaves‬‭the general public unaware of the severity of the‬ ‭issue, leaving people uneducated about the vulnerabilities of trafficking.‬‭54‬ ‭Traffickers‬ ‭meticulously pick their targets from socially and economically disadvantaged populations.‬ ‭Among these marginalized groups, immigrants are especially vulnerable due to a lack of legal‬ ‭understanding, financial stability, support systems, and English proficiency. These weaknesses‬ ‭allow traffickers to separate and dominate their victims, frequently using fear to dissuade victims‬ ‭from reaching out to the authorities.‬‭55‬ ‭Immigrant communities face a higher likelihood of being‬ ‭taken advantage of in places like border checkpoints, detention facilities, and industries that rely‬ ‭on their labor. Human trafficking is categorized into two primary forms: sex trafficking and labor‬ ‭trafficking. Sex trafficking involves the coercion or manipulation of people into engaging in‬ ‭commercial sex acts. Victims of sex trafficking are often unaware of the crime being committed‬ ‭52‬

‭“About Human Trafficking - United States Department of State,” United States Department of State, January 18,‬ ‭2023, https://www.state.gov/humantrafficking-about-human-trafficking/#how_many.‬ ‭53‬ ‭Solis, Elizabeth, "Migrant vulnerability to human‬‭trafficking: A legislative decade in review with historical and‬ ‭policy process analysis" (2024).‬‭Senior Honors Theses‬‭and Projects‬‭. 832.‬ ‭54‬ ‭“About Human Trafficking - United States Department of State,” United States Department of State, January 18,‬ ‭2023, https://www.state.gov/humantrafficking-about-human-trafficking/#how_many.‬ ‭55‬ ‭Solis, Elizabeth, "Migrant vulnerability to human‬‭trafficking: A legislative decade in review with historical and‬ ‭policy process analysis" (2024).‬‭Senior Honors Theses‬‭and Projects‬‭. 832.‬

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‭against them as their traffickers groom them into believing that such sex acts are voluntary.‬‭56‬ ‭Labor trafficking involves convincing individuals to work in exploitative conditions through the‬ ‭use of scare tactics and physical violence. Despite their differences, both forms of trafficking‬ ‭usually target the most vulnerable members of society, such as refugees, minors, and‬ ‭immigrants.‬‭57‬ ‭ii. Connection to The Constitution of the United States‬ ‭The Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution provide critical‬ ‭rights that can help protect individuals from exploitation. The Fourth Amendment protects‬ ‭individuals from unjust searches and seizures, preventing law enforcement from invading‬ ‭privacy without a just cause.‬‭58‬ ‭This is particularly important in the context of immigration‬ ‭enforcement, as harsh policies frequently result in the infringement of this right by subjecting‬ ‭individuals to intrusive searches and detentions due to racial profiling or unfounded suspicions of‬ ‭their citizenship status. The Fifth Amendment guarantees individuals’ right to due process,‬ ‭preventing anyone from being deprived of life, liberty, or property without proper legal‬ ‭proceedings.‬‭59‬ ‭Many immigrants, especially victims of trafficking situations, do not receive these‬ ‭rights and instead face immediate deportation due to an unclear line between immigration‬ ‭enforcement and victim protection. The Fourteenth Amendment also ensures equal legal‬ ‭protection for everyone, regardless of their immigration status, which many immigrants are‬ ‭unaware of.‬‭60‬ ‭Aggressive immigration measures frequently oppose this constitutional right,‬

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‭“Understanding Human Trafficking - United States Department of State,” United States Department of State,‬ ‭December 12, 2023,‬‭https://www.state.gov/what-is-trafficking-in-persons/‬‭.‬ ‭57‬ ‭“Understanding Human Trafficking - United States Department of State.”‬ ‭58‬ ‭United States Creator. Bill of Rights. [Place of Publication Not Identified: Publisher Not Identified, -09-25, 1789]‬ ‭Image.‬‭https://www.loc.gov/item/2021667570/‬‭.‬ ‭59‬ ‭United States Creator. Bill of Rights.‬ ‭60‬ ‭United States Creator. Bill of Rights.‬

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‭disproportionately targeting immigrant communities and denying them equal protections that‬ ‭their counterparts are afforded.‬ ‭By examining the intersection of constitutional protections and current immigration‬ ‭policies, it becomes apparent that aggressive immigration policies contribute to an environment‬ ‭in which trafficking thrives. Upon a thorough examination of the constitutional rights outlined in‬ ‭the Fourth, Fifth, and Fourteenth Amendments, it is evident that these policies pursue the‬ ‭detention, deportation, and criminalization of immigrants, violating their constitutional rights and‬ ‭making them more susceptible to trafficking.‬‭61‬ ‭The Role Immigration Policies Play in Creating Vulnerabilities‬ ‭U.S. immigration policies are expected to be grounded in principles of family‬ ‭reunification, replenishing the American labor force, providing asylum, and promoting‬ ‭diversity.‬‭62‬ ‭While current naturalization methods and visa systems attempt to address these goals,‬ ‭they are based on a theory that states that rules for selecting immigrants are fundamentally‬ ‭different from rules regulating immigrants after they enter the United States.‬‭63‬ ‭Pre-entry‬ ‭regulations focus on controlling the “type” of immigrant entering the country based on how they‬ ‭can contribute to the economy or labor force, while post-entry regulations are focused on‬ ‭integration and accommodating but often exclude undocumented individuals.‬‭64‬ ‭Policies that‬ ‭follow this objective end up creating massive vulnerabilities for human trafficking within‬ ‭immigrant communities, especially when these policies intertwine with issues like employment,‬

‭61‬

‭Solis, "Migrant vulnerability to human trafficking,”‬‭832‬ ‭ illiam A. Kandel. How the United States Immigration System Works. Report. Congressional Research Service,‬ W ‭2018. https://fas.org/sgp/crs/homesec/R43145.pdf.‬ ‭63‬ ‭Adam B. Cox, “Immigration Law’s Organizing Principles,” by University of Pennsylvania, University of‬ ‭Pennsylvania Law Review, vol. 157, December 2008.‬ ‭64‬ ‭Levine, Daniel B, Ken Hill, and Robert Warren. Immigration Statistics : A Story of Neglect. 1st ed. Washington,‬ ‭D.C: National Academy Press, 1985.‬ ‭62‬

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‭legal rights, and law enforcement practices. This forces them to seek employment in informal‬ ‭labor markets.‬‭65‬ ‭Informal labor markets are employment arrangements that are not regulated by the‬ ‭government and do not necessarily meet general employment regulations, making them an ideal‬ ‭space for traffickers to force immigrants into.‬‭66‬ ‭This lack of regulation means that workers do not‬ ‭have job security, making them susceptible to wage theft, unsafe working conditions, and‬ ‭discrimination.‬‭67‬ ‭Restrictive immigration policies can stop individuals from accessing legal‬ ‭employment and foster an environment where informal labor markets flourish, and further, the‬ ‭success of the underground economy is perpetuated by the fear many immigrants hold of‬ ‭disclosing their undocumented status.‬‭68‬ ‭The Fourteenth Amendment ensures equal protection‬ ‭under the law, but implementation is frequently inadequate because many immigrants are‬ ‭unaware that Constitutional rights also apply to them.‬‭69‬ ‭The U.S. government hoped to remedy‬ ‭the informal labor market by introducing guest worker initiatives, which offer temporary legal‬ ‭authorization to people from other countries–still, it frequently led to the mistreatment of‬ ‭workers. Guest worker programs such as the H-2A and H-2B visa programs aim to address‬ ‭shortages in the American labor market, specifically in farming and industries with low wages.‬ ‭Employers might use the limited rights of workers under specific visa programs to intimidate‬

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‭ evine, Daniel B, Ken Hill, and Robert Warren.‬‭Immigration‬‭Statistics : A Story of Neglect‬‭. 1985.‬ L ‭Javier Cano-Urbina, “INFORMAL LABOR MARKETS AND ON-THE-JOB TRAINING: EVIDENCE FROM‬ ‭WAGE DATA,” Economic Inquiry, vol. 54–54, January 2016, https://doi.org/10.1111/ecin.12279.‬ ‭67‬ ‭Javier Cano-Urbina, “INFORMAL LABOR MARKETS AND‬‭ON-THE-JOB TRAINING: EVIDENCE FROM‬ ‭WAGE DATA,” January 2016‬ ‭68‬ ‭Chacón, Jennifer M. “Tensions and Trade-Offs: Protecting Trafficking Victims in the Era of Immigration‬ ‭Enforcement.” University of Pennsylvania Law Review 158, no. 6 (May 2010): 1609–53.‬ ‭https://search-ebscohost-com.proxy.libraries.rutgers.edu/login.aspx?direct=true&db=aph&AN=52702856&site=eho‬ ‭st-live.‬ ‭69‬ ‭United States Creator. Bill of Rights. [Place of‬‭Publication Not Identified: Publisher Not Identified, -09-25, 1789]‬ ‭Image. https://www.loc.gov/item/2021667570/.‬ ‭66‬

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‭them with deportation or substandard working conditions.‬‭70‬ ‭Employees frequently feel obligated‬ ‭to their employers and face the threat of deportation if they speak out against mistreatment or‬ ‭misuse, leaving them in a state of extreme vulnerability.‬ ‭Immigration Enforcement Practices‬ ‭iii. Deportation‬ ‭Immigration enforcement practices contribute greatly to the trafficking potential of‬ ‭immigrant communities. Deportation is a common consequence for immigrants who violate‬ ‭immigration law. Deportation rules contribute to a hostile atmosphere for migrant workers,‬ ‭strengthening the susceptibility of trafficking victims.‬‭71‬ ‭The Fifth and Fourteenth Amendments‬ ‭of the Constitution guarantee fair treatment and equal rights in the legal system, providing the‬ ‭framework for protecting individuals’ rights in legal proceedings.‬‭72‬ ‭Cases such as‬‭Perez-Funez v.‬ ‭District Director, INS‬‭show how immigration enforcement‬‭methods do not safeguard at-risk‬ ‭groups and lead to infringements of their constitutional rights.‬‭73‬ ‭This case challenged‬ ‭immigration tactics used on unaccompanied minors into waiving their right to a hearing through‬ ‭coercion.‬‭74‬ ‭It led to the Perez-Fuñez injunction, which required the Department of Homeland‬ ‭Security to adhere to strict guidelines when removing unaccompanied children from the‬ ‭country.‬‭75‬ ‭This incident is just one of many examples of coercion used in current immigration‬ ‭policies that inherently violate the due process clause in the Fourteenth Amendment. Another‬ ‭common enforcement practice in the U.S. is the use of detention centers. Currently, detention‬ ‭70‬

‭Frank, Thomas. “Modern Slavery Comes to Kansas.”‬‭Wall Street Journal - Eastern Edition‬‭, June 17, 2009.‬ h‭ ttps://search-ebscohost-com.proxy.libraries.rutgers.edu/login.aspx?direct=true&db=aph&AN=43252636&site=eho‬ ‭st-live.‬ ‭71‬ ‭Radziwinowiczówna, Agnieszka. “Violence That Builds Sovereignty: The Transnational Violence Continuum in‬ ‭Deportation from the United States.” Journal of Ethnic & Migration Studies 48, no. 5 (March 20, 2022): 1095–1112.‬ ‭doi:10.1080/1369183X.2020.1850244.‬ ‭72‬ ‭Radziwinowiczówna, Agnieszka. “Violence That Builds‬‭Sovereignty” (March 20, 2022)‬ ‭73‬ ‭Perez-Funez v. District Director, INS,‬‭611 F.Supp.‬‭990‬‭(CD-Cali 2009)‬ ‭74‬ ‭Perez-Funez v. District Director‬ ‭75‬ ‭Perez-Funez v. District Director‬

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‭centers are being closely examined for cruel conditions, overcrowding, and poor healthcare, as‬ ‭seen in incidents such as‬‭Ortiz v. United States Immigration and Customs Enforcement‬‭.‭7‬ 6‬ ‭Oritz‬ ‭ruled that ICE detainers, which are requests for local law enforcement to hold people before ICE‬ ‭can take them into custody, do not meet the criteria for “custody," so individuals who are‬ ‭attempting to challenge ICE detainers cannot use habeas corpus to plead their case because it‬ ‭does not impose immediate physical restrictions.‬‭77‬ ‭This ruling limited the use of habeas corpus‬ ‭and added to the uncertainty of immigrants by removing a method for them to advocate for‬ ‭themselves. It violates the Fourth and Fifth Amendments as it undermines protections against‬ ‭unlawful detention and denies due process by preventing individuals from challenging their‬ ‭detainer before being detained.‬‭78‬ ‭iv. Immigration and Customs Enforcement‬ ‭In recent times, there has been a significant increase in Immigration and Customs‬ ‭Enforcement (ICE). This dramatically affects immigrant communities, frequently instilling fear‬ ‭and suspicion toward law enforcement.‬‭79‬ ‭In‬‭Arizona v. United States‬‭, the Supreme Court upheld‬ ‭the delicate equilibrium between state and federal roles in immigration law by declaring some‬ ‭state immigration laws unconstitutional.‬‭80‬ ‭It ruled that S.B. 1070, an anti-immigration bill‬ ‭consisting of four provisions, was unconstitutional under federal law – except for section 2(b),‬ ‭which allows law enforcement to check immigration papers with reasonable suspicion.‬‭81‬ ‭Omar‬ ‭76‬

‭Immigration and Nationality Act, Public Law No. 99-603 (1986)‬ ‭,https://www.congress.gov/bill/99th-congress/senate-bill/1200.‬ ‭77‬ ‭Ortiz v. Immigration & Customs Enforcement, CIVIL‬‭ACTION NO. H-11-3915 (S.D. Tex. Dec. 13, 2011)‬ ‭78‬ ‭Ortiz v. Immigration & Customs Enforcement‬ ‭79‬ ‭Langhout, Regina D., and Ruiz, S. Sylvane Vaccarino. “‘Did I See What I Really Saw?’ Violence, Percepticide,‬ ‭and Dangerous Seeing after an Immigration and Customs Enforcement Raid.” Journal of Community Psychology‬ ‭49, no. 4 (May 2021): 927–46. doi:10.1002/jcop.22336.‬ ‭80‬ ‭Kennedy, Anthony M, and Supreme Court Of The United States. U.S. Reports: Arizona v. United States, 567 U.S.‬ ‭387. 2011. Periodical. https://www.loc.gov/item/usrep567387/.‬ ‭81‬ ‭Selden, David A., Julie A. Pace, and Neidi Nunn-Gilman. “Placing S.B. 1070 and Racial Profiling into Context,‬ ‭and What S.B. 1070 Reveals about the Legislative Process in Arizona.” Arizona State Law Journal 43, no. 1 (Spring‬ ‭2011): 523–61.‬

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‭Qadeer, an immigration lawyer, provided more insight into how many immigration policies don’t‬ ‭necessarily follow constitutional principles, such as the idea of federal preemption as outlined in‬ ‭the Supremacy Clause in Article VI.‬‭82‬ ‭Qadeer pointed out that immigration policies are‬ ‭contradictory, as demonstrated by state-level efforts such as Arizona’s S.B. 1070 challenging‬ ‭federal jurisdiction.‬ ‭v. Bias & Discrimination‬ ‭The presence of bias in law enforcement is present in cases like‬‭Flores-Villar v. United‬ ‭States,‬‭which depicted how biases in immigration enforcement‬‭can result in more severe‬ ‭consequences for marginalized groups. The U.S. Supreme Court scrutinized discrimination based‬ ‭on gender and nationality in immigration law, highlighting biases ingrained in the legal‬ ‭framework itself. To combat this, the government started emphasizing the need for targeted‬ ‭training to remove biases from impacting decisions, as seen in the Department of Justice's‬ ‭guidance on “Implicit Bias Training for Law Enforcement.” Nonetheless, the guidance itself‬ ‭acknowledges that training is inconsistently implemented and inadequately funded, increasing‬ ‭the risks for immigrant trafficking victims who depend on law enforcement for safety but‬ ‭frequently encounter discriminatory treatment instead. The 2016 report from the Government‬ ‭Accountability Office, “Human Trafficking: Agencies Have Taken Steps to Assess Law‬ ‭Enforcement Needs but Could Enhance Data Collection,” emphasizes the criminalization of‬ ‭trafficking victims in marginalized communities, particularly among women and children. This‬ ‭report examines how shortcomings in law enforcement training result in victims being‬ ‭mistakenly identified as offenders, especially when victims do not possess adequate‬ ‭documentation.‬ h‭ ttps://search-ebscohost-com.proxy.libraries.rutgers.edu/login.aspx?direct=true&db=aph&AN=74118471&site=ehos‬ ‭t-live.‬ ‭82‬ ‭United States Creator. Bill of Rights.‬

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‭The Equal Protection Clause of the Fourteenth Amendment, which forbids states from denying‬ ‭any individual equal legal protection, is key to understanding biases in immigration enforcement.‬ ‭In‬‭Yick Wo v. Hopkins‬‭, the U.S. Supreme Court determined‬‭that the discriminatory application of‬ ‭a San Francisco ordinance breached the Equal Protection Clause. It mandated that all wooden‬ ‭building laundries were only applied to Mr. Wo based on his Chinese ancestry. The ordinance‬ ‭was impartial in its wording, but the authorities were only granting permits to white applicants‬ ‭and denying nearly all Chinese applicants. It clearly violated the Equal Protection Clause of the‬ ‭Fourteenth Amendment, as it failed to protect Mr. Wo based on his ethnicity.‬ ‭Governmental Efforts Towards Combating Trafficking‬ ‭vi. T & U Visas‬ ‭To safeguard victims of human trafficking, the U.S. Government passed the Victims of‬ ‭Trafficking and Violence Protection Act (TVPA) of 2000, which created the T Visa.‬‭83‬ ‭This visa‬ ‭offers qualified survivors a route to legal status, enabling them to stay in the U.S. and eventually‬ ‭seek permanent residency. The T Visa grants employment authorization, social services, and‬ ‭various benefits to assist survivors in their recovery and rebuilding efforts.‬‭84‬ ‭As stated in the‬ ‭TVPA, the main objective of the T Visa is to "promote the collaboration of trafficking victims in‬ ‭the inquiry and prosecution of trafficking crimes."‬‭85‬ ‭This highlights a twofold objective: assisting‬ ‭victims while improving law enforcement’s capacity to tackle trafficking. The U Visa, launched‬ ‭with the T Visa, caters to a wider range of crime victims. Established through the Battered‬ ‭Immigrant Women Protection Act of 2000, it aims to safeguard those who have experienced‬ ‭significant physical or emotional abuse and are ready to support law enforcement or government‬ ‭83‬

‭Congress.gov. "H.R.3244 - 106th Congress (1999-2000): Victims of Trafficking and Violence Protection Act of‬ ‭2000." October 28, 2000. https://www.congress.gov/bill/106th-congress/house-bill/3244.‬ ‭84‬ ‭“Victims of Human Trafficking: T Nonimmigrant Status | USCIS,” USCIS, September 11, 2024,‬ ‭https://www.uscis.gov/humanitarian/victims-of-human-trafficking-t-nonimmigrant-status.‬ ‭85‬ ‭Congress.gov. "H.R.3244 - 106th Congress (1999-2000): Victims of Trafficking and Violence Protection Act of‬ ‭2000." October 28, 2000.‬

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‭authorities in investigating criminal offenses.‬‭86‬ ‭Similar to the T Visa, the U Visa provides a route‬ ‭to permanent residency, highlighting the government's goal of fostering trust between immigrant‬ ‭populations and law enforcement. Despite this, loopholes in the T and U Visas lead to the need‬ ‭for reform.‬ ‭vii. Deficits in the T & U Visa System‬ ‭Although they play essential roles, the T and U Visas encounter considerable obstacles to‬ ‭practical implementation. For instance, the yearly limit on U Visas (10,000 each fiscal year) has‬ ‭resulted in significant delays, leaving many applicants waiting years for a resolution. Court‬ ‭rulings and immigration documents show that these delays have made numerous victims‬ ‭susceptible to deportation and hindered their access to jobs or social services, compromising the‬ ‭protective purpose of the visas. Further, U Visa applicants can only work legally once their‬ ‭petitions are approved and they receive employment authorization, which means they only have‬ ‭a legal source of income once their papers are signed and returned. Both visas necessitate‬ ‭certification from law enforcement agencies, which may pose an additional hurdle because‬ ‭certain agencies are reluctant to endorse certifications due to misconceptions regarding the‬ ‭program or concerns about straining their resources. This forces victims into the informal labor‬ ‭market, where exploitation thrives. Advocates like Omar Qadeer, an immigration lawyer, work‬ ‭on U-Visa and deportation cases. Speaking about his firsthand experiences dealing with illegal‬ ‭immigration enforcement, he provided thorough insight into how complex and lengthy the‬ ‭processes can be and affirmed its violation of Constitutional Amendments.‬ ‭Barriers Faced by Immigrants‬ ‭viii. Lack of Awareness, Wait-Times, and Mistrust‬

‭86‬

‭Congress.gov. "H.R.3083 - 106th Congress (1999-2000): Battered Immigrant Women Protection Act of 1999."‬ ‭July 20, 2000. https://www.congress.gov/bill/106th-congress/house-bill/3083.‬

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‭One of the most significant barriers to victims receiving assistance is the insufficient‬ ‭knowledge among immigrants regarding their legal rights under U.S. immigration law,‬ ‭specifically those related to safeguards for victims of trafficking. Many immigrants are‬ ‭uninformed about these protections because of insufficient outreach and a lack of culturally and‬ ‭linguistically suitable resources. Enhanced education campaigns are necessary to give‬ ‭immigrants crucial information about their rights and resources due to their lack of legal‬ ‭awareness. The assurance of safety the TVPA provides is weakened by the lengthy processing‬ ‭period for T-Visas. Data from USCIS shows that T-Visa applications typically require more than‬ ‭a year for processing, leaving survivors of trafficking with uncertain legal status. The delays‬ ‭violate the Due Process Clause of the Fifth Amendment, ensuring fair and timely claims‬ ‭resolution. Victims fear that they may be detained or deported if they report their traffickers,‬ ‭especially if they are still waiting for their petitions. This lack of trust is further perpetuated by‬ ‭the failure of the Fourth Amendment to adequately defend immigrants against unlawful searches‬ ‭under the context of immigration enforcement.‬ ‭Conclusion‬ ‭The relationship between strict immigration enforcement and trafficking emphasizes the‬ ‭critical necessity for legal reform. After reviewing the constitutional principles in the Fourth,‬ ‭Fifth, and Fourteenth Amendments, it is evident that existing immigration policies frequently‬ ‭violate fundamental rights. Immigrant trafficking victims are disproportionately affected by the‬ ‭fear of deportation, unsafe detention conditions, lack of due process during collateral arrests, and‬ ‭implicit biases in enforcement practices. Although U and T Visas were created to address these‬ ‭issues, obstacles like immigrant’s lack of knowledge, lengthy processing times, and distrust of‬ ‭officials impede their success. Educating law enforcement on how to identify trafficking and‬

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‭offer culturally sensitive, victim-focused assistance can enhance efforts to disrupt trafficking‬ ‭operations while protecting civil liberties. By synchronizing immigration policy with‬ ‭constitutional beliefs and focusing on protecting victims, the United States can make a crucial‬ ‭move in the fight against human trafficking and create policies and programs that educate and‬ ‭empower immigrants. Ensuring the constitutional rights and dignity of every person, regardless‬ ‭of their immigration status, is essential in combating human trafficking and building a fairer‬ ‭society.‬

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‭THE EVOLUTION OF DEFAMATION LAW‬ ‭WRITTEN BY LEAH BUSHRA | EDITED BY ALEJANDRA AFANADOR‬ ‭Introduction‬ ‭i. Definition‬ ‭In the United States, defamation law addresses the damages caused by spreading false‬ ‭information about an individual. Cornell Law School’s Legal Information Institute defines‬ ‭defamation as a statement that damages a third party’s character or reputation.‬‭87‬ ‭Defamation‬ ‭manifests in two primary forms: libel and slander. Libel involves the written or graphic‬ ‭publication of false information. Slander involves the verbal statement of false information. With‬ ‭these structured definitions, each state varies in the elements necessary to make a libel or slander‬ ‭claim. In New Jersey, these elements are a false or incorrect statement about the plaintiff, the‬ ‭dissemination of this statement to third parties, proof of the defendant’s negligent acting, and‬ ‭damages or loss to the plaintiff because of the statements.‬‭88‬ ‭Defamation law also differs based on‬ ‭the plaintiff’s status. If the plaintiff is a public figure, they must prove that the defendant acted in‬ ‭actual malice, whereas if the plaintiff is a private individual, the threshold is lower. The plaintiff‬ ‭must only prove that the defendant acted with negligence. The actual malice standard is defined‬ ‭as the defendant's knowledge of the false defamatory statement, such as purposefully spreading a‬ ‭statement to spread false information. However, the standard of negligence is defined as failing‬ ‭to use reasonable care when spreading a defamatory statement, such as not making an effort to‬ ‭fact-check a statement before publishing it.‬‭89‬ ‭Public figures are determined based on whether the‬ ‭individual has held a role of importance in the public affairs of a society, such as a celebrity or‬ ‭87‬

‭“Defamation.” Legal Information Institute, Legal‬‭Information Institute, accessed November 8, 2024,‬ ‭www.law.cornell.edu/wex/defamation‬ ‭88‬ ‭“Defamation.” PBS, Public Broadcasting Service, accessed‬‭November 8, 2024,‬ ‭www.pbs.org/standards/media-law-101/defamation/‬ ‭89‬ ‭“Digital Media Law Project.” New Jersey Defamation‬‭Law | Digital Media Law Project, accessed November 8,‬ ‭2024,‬‭www.dmlp.org/legal-guide/new-jersey-defamation-law‬‭.‬

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‭government official, as established in‬‭Gertz v. Robert Welch Inc. (1974).‬‭90‬ ‭Defamation law was‬ ‭established to protect individuals from harmful misinformation. However, current challenges‬ ‭surrounding online defamation demand a reexamination and revision of these laws.‬ ‭ii. Role of Defamation Law‬ ‭Defamation law protects citizens from harmful misinformation; it protects individuals‬ ‭and their reputations from false statements that may cause further harm. This legal framework‬ ‭allows individuals to take the necessary steps to protect themselves from defamatory statements,‬ ‭which can cause financial and in some cases, physical damage. However, a common debate is‬ ‭the balance between protecting First Amendment rights, specifically freedom of speech, and‬ ‭enforcing defamation laws. Dario Milo, a renowned lawyer, law school professor, and author of‬ ‭Defamation and Freedom of Speech‬‭, argues that defamation‬‭laws must be revised to equally‬ ‭protect public interest speech and the honor of individuals Court’s ruling in‬‭New York Times‬ ‭Company v. Sullivan (1964).‬‭This also emphasizes the‬‭legal standards that allow for a defense‬ ‭regarding the First Amendment, balancing the protection of these free speech rights with the‬ ‭right to protect oneself from defamatory statements. The‬‭New York Times Company v. Sullivan‬ ‭(1964)‬‭ruling was a landmark decision that secured‬‭protections for those who speak on public‬ ‭officials, solidifying the threshold of what is defamation and what is not. Though free speech is a‬ ‭cornerstone of American democracy, it is of equal importance to also ensure that the protection‬ ‭of these constitutional rights does not infringe upon the rights of others. Defamation law‬ ‭establishes a framework that allows individuals to pursue legal action and justice when false‬ ‭information is spread about them. In essence, defamation law helps to maintain order as well as‬ ‭trust and transparency in professional and personal interactions.‬

‭90‬

‭“Public Figure.” Legal Information Institute, accessed November 8, 2024,‬ ‭https://www.law.cornell.edu/wex/public_figure.‬

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‭Historical Context‬ ‭iii. Origins of Defamation Law‬ ‭The United States legal system is over 200 years old. The American legal system began‬ ‭from across the Atlantic, modeling itself after centuries-old English common law. Much of the‬ ‭American legal system maintains English common law roots, such as the concept of precedence‬ ‭and jury trials.‬‭91‬ ‭Common law is defined as a system of law that is based on precedents rather‬ ‭than statutes. However, a major diversion from the blueprint of English common law is the‬ ‭United States’ adoption of defamation law. Throughout the establishment of the United States,‬ ‭the Founding Fathers began to rewrite common law to resemble the values of their newfound‬ ‭nation. For example, in the English Legal System, the burden of proof in defamation law cases is‬ ‭placed on the defendant. This was rejected by the United States because of the contradiction to a‬ ‭fundamental part of the Founding Fathers’ vision for their new nation: the right to the‬ ‭presumption of innocence, meaning that in an American court of law, the defendant is presumed‬ ‭innocent until guilty, and the right to freedom of speech.‬‭92‬ ‭iv. Adaptation into the United States Legal System‬ ‭Though the initial framework of defamation law came from English common law, the‬ ‭United States quickly altered that structure to fit the values of their newfound nation. In the 1735‬ ‭trial of John Peter Zenger, a publisher for the‬‭New‬‭York Weekly Journal‬‭, he was being tried for‬ ‭the publishing of seditious libel regarding the colonial governor, William Cosby. The material‬ ‭that was published included satirical articles that accused Cosby’s administration of tyranny and‬ ‭human rights violations. At the time, under English law standards, the truth of the statements was‬

‭91‬

‭Kim, Jasper.‬‭American law 101: An easy primer on‬‭the U.S. Legal System‬‭. Chicago, IL: American Bar‬ ‭Association, 2015.‬ ‭92‬ ‭Samson, Elizabeth.‬‭The Burden to Prove Libel: A Comparative‬‭Analysis of Traditional English and U.S.‬ ‭Defamation Laws and the Dawn of England's Modern Day‬‭.‬‭Social Science Research Network‬‭,‬‭2012.‬

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‭not to be considered when determining the guilt of the defendant. However, Zenger's attorney,‬ ‭Anthony Hamilton, asked the jury in his closing remarks to consider the truth of the statements‬ ‭published rather than whether Zenger published them. The jury exercised jury nullification,‬‭93‬ ‭a‬ ‭practice where the jury uses their discretion to deliver a “not guilty” verdict because they may‬ ‭feel the charge is unjust or the punishment was unnecessarily harsh. This trial influenced the‬ ‭right to freedom of speech now protected in the United States Bill of Rights. Before this case,‬ ‭there was no established procedure for handling libel cases involving satirical material. However,‬ ‭following the Zenger case, a gateway was opened for writers and publishers to openly critique‬ ‭the government, creating the pathway to freedom of speech.‬‭94‬ ‭Similarly, in the 1804 trial of‬ ‭Harry Croswell, he was convicted of publishing seditious libel about the President at the time,‬ ‭Thomas Jefferson, in his newspaper,‬‭The Wasp‬‭. Citing‬‭the Constitution, Croswell’s attorney,‬ ‭Alexander Hamilton, argued in front of the New York Supreme Court that Croswell was‬ ‭exercising his right to freedom of the press, allowing him to publish true statements. At the time,‬ ‭Croswell’s conviction was maintained because the court upheld the precedent established‬ ‭originally, which disregarded whether or not libelous statements were true. In the Zenger case,‬ ‭the jury performed jury nullification to get around this precedent, though that power was not‬ ‭exercised in this trial. Nonetheless, this case resulted in the establishment of the inclusion of‬ ‭truth in the defense against libel charges. This presumption of truth also later led to the burden of‬ ‭proof lying with the prosecution.‬‭95‬ ‭Though defamation law came from an English legal structure,‬ ‭the development of the United States as a sovereign nation created a framework that upheld the‬ ‭newfound values of America.‬ ‭93‬

‭“Crown v. John Peter Zenger, 1735.” Historical Society‬‭of the New York Courts, October 14,‬ ‭2021,https://history.nycourts.gov/case/crown-v-zenger/.‬ ‭94‬ ‭Olson, Alison‬‭.‬‭“The Zenger Case Revisited: Satire,‬‭Sedition and Political Debate in Eighteenth Century America.”‬ ‭Early American Literature‬‭35, no. 3 (2000): 223-245.‬ ‭95‬ ‭Samson, Elizabeth.‬‭The Burden to Prove Libel: A Comparative‬‭Analysis of Traditional English and U.S.‬ ‭Defamation Laws and the Dawn of England's Modern Day‬‭.‬‭Social Science Research Network‬‭,‬‭2012.‬

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‭Another defining factor of defamation law in the United States is the differing threshold‬ ‭in defamation cases regarding public figures versus private individuals. More specifically,‬‭New‬ ‭York Times Company v. Sullivan‬‭introduced the concept‬‭of actual malice, and‬‭Gertz v. Robert‬ ‭Welch Inc.‬‭established different protections for public‬‭figures and private individuals.‬‭Gertz‬‭also‬ ‭upheld that states can create their standards of fault for defamation laws regarding private‬ ‭individuals, while maintaining that if the state’s standards of fault are lower than the standard of‬ ‭actual malice, then the plaintiff can only be awarded actual damages, which is the direct‬ ‭equivalent to the loss suffered.‬ ‭Key Landmark Cases‬ ‭v. New York Times Company v. Sullivan (1964)‬ ‭In the‬‭New York Times Company v. Sullivan‬‭(1964)‬‭decision,‬‭the Supreme Court ruled‬ ‭that in cases of defamation, the petitioner must prove that the defendant acted with actual malice,‬ ‭defined as the knowledge that the information being spread was false or the recklessness in‬ ‭determining the information's accuracy. The‬‭New York‬‭Times‬‭was sued for allegedly defaming‬ ‭Montgomery police commissioner L.B. Sullivan, who was initially awarded $500,000, as per‬ ‭Alabama state law.‬‭96‬ ‭The Supreme Court overturned this ruling, deciding that only determining‬ ‭the falsity of a statement is not enough to prove that the defendant defamed the plaintiff. This‬ ‭created a precedent that the plaintiff must prove that the defendant acted with “actual malice.”‬‭97‬ ‭vi. Gertz v. Robert Welch Inc. (1974)‬ ‭Ten years later, in the‬‭Gertz v. Robert Welch Inc.‬‭(1974)‬‭decision, the Supreme Court‬ ‭ruled that the actual malice standard established in‬‭New York Times v. Sullivan (1964)‬‭was not‬ ‭relevant because Gertz was a private individual. Elmer Gertz was an attorney who had‬

‭96‬

‭New York Times Company v. Sullivan, 376 U.S. 254‬‭(1964). https://www.oyez.org/cases/1963/39‬ ‭ ew York Times Company v. Sullivan, 376 U.S. 254‬‭(1964). https://www.oyez.org/cases/1963/39‬ N

‭97‬

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‭defamatory statements published against him in a magazine because of his clientele choice. A‬ ‭jury ruled in Gertz’s favor and awarded him $50,000. Soon after, the trial judge ruled that The‬ ‭New York Times did not violate the actual malice standard established in‬‭New York Times v.‬ ‭Sullivan (1964).‬‭After the circuit courts upheld this‬‭ruling, the Supreme Court overturned the‬ ‭lower court’s decision by concluding that in defamation cases regarding private individuals only‬ ‭proof of recklessness is necessary to successfully make a claim. Recklessness is defined as the‬ ‭lack of care in researching the accuracy of statements before they are made. The Court‬ ‭established that private citizens are granted more protection from defamatory statements than‬ ‭public officials and figures, recognizing that private individuals have less capability to defend‬ ‭themselves against libel and slander than public individuals. In this same ruling, the Court‬ ‭established that individual states may create their standards of fault for defamation against‬ ‭private individuals, as long as the state’s laws do not infringe upon the right the press possesses.‬‭98‬ ‭These landmark cases outlined the standards for which defamation is determined by protecting‬ ‭the rights of private individuals while also maintaining the right to the freedom of the press.‬ ‭Modern Developments‬ ‭The emergence of social media has made it difficult to navigate the protection of the‬ ‭rights of private individuals and First Amendment rights. Social media platforms such as‬ ‭Facebook and Instagram allow for rapid dissemination of information with minor fact-checking.‬ ‭This causes major implications for individuals who feel the force of defamatory statements‬ ‭because damage control is difficult when the internet is forever.‬ ‭vii. Impact of Social Media‬ ‭The main issue social media poses to the protection of individuals from defamation is the‬ ‭ability for any individual in any place at any time to post anything they want. This detrimental‬ ‭98‬

‭Gertz v. Robert Welch Inc, 418 U.S. 323 (1974). https://www.oyez.org/cases/1973/72-617‬

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‭feature of social media has caused immense harm to those who are on the receiving end of‬ ‭defamation. Two major cases that were escalated by the presence of social media are‬‭E. Jean‬ ‭Carroll v. Donald J. Trump (2023)‬‭and‬‭Freeman v. Giuliani‬‭(2023)‬‭. In the‬‭Carroll v. Trump‬ ‭(2023)‬‭case, Carroll accused Trump of sexual assault‬‭in her book, and Trump followed with‬ ‭statements about Carroll’s character and claimed all of her accusations were false during his‬ ‭presidency. In a related case, named‬‭Carroll II,‬‭Trump‬‭was found liable for sexual abuse and‬ ‭defamation using Twitter. Trump’s use of social media and his social platform to spread these‬ ‭claims damaged Carroll’s reputation, career, and emotional well-being.‬‭99‬ ‭In‬‭Freeman v. Giuliani‬ ‭(2023)‬‭, Georgia election worker Ruby Freeman and her‬‭mother, Wandrea Moss, became the‬ ‭subjects of Rudy Giuliani’s defamatory statements attempting to undermine the 2020 election.‬ ‭Giuliani’s defamatory statements threatened the lives of Freeman and Moss, who faced racist‬ ‭remarks and harassment.‬‭100‬ ‭The impact on the plaintiffs surged because of the accessibility of‬ ‭social media, making it easier for people to harass others from the comfort of their own homes.‬ ‭viii. Cyber Defamation‬ ‭Social media has also exacerbated the issue of online‬‭defamation because of the blurred‬ ‭lines between who is a public figure. Individuals who have no prior public platforms can‬ ‭suddenly develop an audience. This new development in culture introduces the implication of‬ ‭anonymous and pseudonymous defamatory speech. Anonymous speech is protected under the‬ ‭First Amendment, such as in cases of whistleblowers. However, this protection of anonymous‬ ‭speakers poses issues when addressing the protection of individuals’ rights against being‬ ‭defamed. CNN Legal Counsel Frank LoMonte stated in an interview that “the courts seem to be‬ ‭saying that if a person comes forward and shows that they have all the ingredients for a‬

‭99‬

‭Carroll v. Trump, 20-cv-7311‬ ‭Freeman v Giuliani, 21-3354‬

‭100‬

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‭successful libel claim, and they have exhausted every other possibility for locating the speaker,‬ ‭then the online platform posting the speech can be compelled to turn over the identifying‬ ‭information.” Though this is a solution, there are also jurisdictional restrictions that will prevent‬ ‭a plaintiff from receiving damages. When the speaker is unmasked if they live outside of the‬ ‭United States, it is unrealistic that the speaker will be brought to an American court, so there is‬ ‭little a plaintiff and their attorney can do to try and receive damages within the United States.‬ ‭Cyber defamation produces many new issues that call on lawmakers to adapt the law to‬ ‭accommodate these new dangers.‬ ‭Future Trends in Defamation Law‬ ‭ix. Potential Legal Reforms‬ ‭With these newfound issues arising because of the social media revolution, lawmakers‬ ‭have been searching for ways to adapt the law to attack these issues. One such adaptation is the‬ ‭effort to reinterpret Section 230 of the Communications Decency Act. Section 230 of the‬ ‭Communications Decency Act establishes protections for the platforms where defamatory‬ ‭statements may be published. This section protects these platforms from any fault of the‬ ‭statement being published in the first place or the lack of efforts to remove it from the‬ ‭platform.‬‭101‬ ‭CNN Legal Counsel Frank LoMonte comments that there are efforts to repeal or‬ ‭reform Section 230, and those efforts are made under the argument that these platforms are‬ ‭benefitting from the engagement with these statements, so they should be held legally‬ ‭accountable for what users on their platform say. A legislative proposal under the House Energy‬ ‭and Commerce Congressional Committee to “sunset” Section 230 of the Communications‬ ‭Decency Act has been recently put forward. The proposal suggests that Section 230 must be‬ ‭reformed to include the context of generative artificial intelligence (AI) as well as eliminating‬ ‭101‬

‭47 U.S.C. § 230.‬

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‭Section 230 protections for platforms that exploit children.‬‭102‬ ‭If Section 230 is reformed or‬ ‭relaxed, this will mean that platforms where defamatory statements are published may be held‬ ‭legally accountable for the statements their users publish.‬ ‭Conclusion‬ ‭Defamation law has gone through a significant transformation in the United States, from‬ ‭its common law origins to its current interpretation in a social media age, where the spread of‬ ‭misinformation at newfound speeds poses new challenges. Though landmark Supreme Court‬ ‭cases, such as‬‭New York Times v. Sullivan (1964)‬‭and‬‭Gertz v. Robert Welch, Inc. (1974),‬‭having‬ ‭initially shaped the framework for the balance of First Amendment protections and individual‬ ‭reputation protections, lawmakers and the judiciary must continue to navigate the intricacies of‬ ‭public and private speech.‬ ‭As cyber defamation and the impact of anonymous and pseudonymous speech continue‬ ‭to grow, it is clear that current defamation laws must be reevaluated and adapted to meet the new‬ ‭demands of this digital age. The balance between protecting individuals from false statements‬ ‭and protecting the right to free speech will remain a critical challenge for lawmakers, courts, and‬ ‭the public for years to come.‬

‭102‬

‭Congress.gov. "Legislative Proposal to Sunset Section 230 of the Communications Decency Act." November 22,‬ ‭2024. https://www.congress.gov/event/118th-congress/house-event/117342.‬

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‭EVOLUTION OF FREE EXPRESSION CENSORSHIP IN AMERICA: HISTORICAL‬ ‭FOUNDATIONS, LEGAL MILESTONES, AND THE FUTURE OF SPEECH IN A‬ ‭DIGITAL AGE‬ ‭WRITTEN BY ALI SAID | EDITED BY ANJALI DARJI‬ ‭Introduction‬ ‭Free expression is one of the central tenets of American democracy. Its essence has been‬ ‭dissected since before the founding of the United States of America and has seen many changes‬ ‭in its perception throughout history. The context surrounding the historical perception of free‬ ‭expression is necessary to promote a complete understanding of its importance. Free speech is‬ ‭the most debated constitutional right and will continue to see alterations to its application.‬ ‭Foundations of the First Amendment‬ ‭i. Beginnings of the Bill of Rights‬ ‭While the rights to freedom of expression in America were codified with the Bill of‬ ‭Rights, smaller governmental bodies had planted the First Amendment’s beginnings even before‬ ‭the Declaration of Independence. In 1663 and 1689, the colonies of Rhode Island and‬ ‭Connecticut, respectively, passed acts allowing for religious freedom.‬‭103‬ ‭The colonies' early‬ ‭liberty grants sowed the seeds of the Constitution and Bill of Rights.‬ ‭Amid the Revolutionary War, the Continental Congress urged the states to create their‬ ‭Constitutions. June 1776 marked the establishment of Virginia’s Constitution, drafted by George‬ ‭Mason, James Madison, and others, which was particularly important in establishing other‬ ‭important documents.‬‭104‬ ‭Virginia’s Constitution included in it a declaration of rights that asserted‬ ‭that freedom of the press and freedom of religion were non-negotiable rights, which was‬ ‭103‬

‭First Amendment timeline‬‭. The Free Speech Center.‬‭(2024, June 19).‬ ‭https://firstamendment.mtsu.edu/first-amendment-timeline/‬ ‭104‬ ‭First Amendment timeline‬‭. The Free Speech Center.‬‭(2024, June 19).‬

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‭paramount in that it led to the establishment of free expression on a federal level. It was used not‬ ‭only in the writing of other state Constitutions, but Thomas Jefferson drew inspiration from it‬ ‭when drafting the Declaration of Independence, and James Madison drew ideas from it when‬ ‭drafting the Bill of Rights.‬‭105‬ ‭The Virginia Constitution laid the foundation for granting many‬ ‭rights that determine the entire structure of our society and government.‬ ‭In 1776, America declared its independence from the British. The declaration embodied‬ ‭the ideals of free speech, attacking King George III for failing to give his people a voice. It‬ ‭served as a symbolic warning to all of those in power of the possible consequences of censoring‬ ‭the expression of their people’s ideas. The Articles of Confederation were then ratified in 1781‬ ‭and did not include a provision for federally guaranteed freedom of expression or speech, as they‬ ‭left this up to the states. These Articles were cast aside in 1987 when the Constitution was‬ ‭ratified. This Constitution was amended in 1791, with the first amendment that, “Congress shall‬ ‭make no law respecting an establishment of religion or prohibiting the free exercise thereof; or‬ ‭abridging the freedom of speech, or of the press; or the right of the people peaceably to‬ ‭assemble, and to petition the government for a redress of grievance.”‬‭106‬ ‭The vague wording of‬ ‭the First Amendment has caused many interpretations over which exact behaviors it protects and‬ ‭is predicted to cause more in the future.‬ ‭The Evolution of Free Speech Censorship‬ ‭ii. Gitlow V. New York‬ ‭Freedom of Speech has been the topic of landmark‬‭cases, executive acts, and federal and‬ ‭state legislation. One of the most consequential rulings protecting the right of free speech was the‬ ‭105‬

‭The Virginia Declaration of Rights. National Constitution Center – constitutioncenter.org. (n.d.-b).‬ ‭https://constitutioncenter.org/museum/historic-document-library/detail/the-virginia-declaration-of-rights‬ ‭106‬ ‭U.S. Constitution - First Amendment | Resources | Constitution Annotated | congress.gov | Library of Congress.‬ ‭(n.d.). https://constitution.congress.gov/constitution/amendment-1/‬

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‭1925 case of‬‭Gitlow v. New York‬‭. Benjamin Gitlow was a socialist American politician who‬ ‭published a left-wing manifesto in the state of New York, in which he advocated for socialist‬ ‭ideas.‬‭5‬ ‭This manifesto gained traction but did not‬‭cause any violence. Gitlow was arrested for‬ ‭publishing the piece because he violated a law in New York at the time called the Anarchy Law,‬ ‭which prohibited the advocacy of a forceful overthrow of the government. In this case, the Court‬ ‭faced the issue of what precisely the Anarchy law stood for and if it violated the First‬ ‭Amendment by prohibiting speech calling for the overthrow of the government. The majority‬ ‭opinion from Justice Edward Sanford ruled that while the First Amendment protected critical‬ ‭speech of state and local governments, he believed the Anarchy law was not in violation of the‬ ‭Constitution because the law only prohibited overthrows.‬‭5‬ ‭He thought the manifesto was an‬ ‭incitement of violence and that the state had the responsibility and ability to squash it. Justice‬ ‭Oliver Wendell Holmes Jr. dissented, arguing that Gitlow’s manifesto was a collection of ideas‬ ‭and theories. In his mind, any idea is an “incitement”; it is up to the people whether they want to‬ ‭internalize and act on these ideas. He argued there was no “clear and present danger” sparked by‬ ‭the manifesto, and because of this, it was a lawful expression.‬‭107‬ ‭He further claimed that the‬ ‭manifesto was not advocating for the forceful overthrow of the government on a specific date but‬ ‭simply offering up political ideas for consideration to the public, which the First Amendment‬ ‭entirely protects. Without the ability for the people to criticize the states, the states were‬ ‭effectively barred from any responsibility to their residents, as they could act negligently towards‬ ‭their people and face no consequences. Until this case, the protections of the First Amendment in‬ ‭terms of criticizing government activity applied to acts carried out by the federal government. In‬ ‭Gitlow‬‭, the First Amendment protections of freedom‬‭of speech–specifically its clause allowing‬ ‭107‬

‭Gitlow v. New York (1925)‬‭. National Constitution‬‭Center – constitutioncenter.org. (n.d.-a).‬ ‭https://constitutioncenter.org/the-constitution/supreme-court-case-library/gitlow-v-new-york‬

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‭for the questioning of government–were extended to the conduct of state governments. In this‬ ‭incorporation process, the Court applied a broad federal constitutional principle on a‬ ‭state-to-state basis, the first of its kind for the right to free speech.‬ ‭iii. National Socialist Party of America v. Village of Skokie‬ ‭A similar landmark case for free speech took place in 1977, titled‬‭National Socialist‬ ‭Party of America v. Village of Skokie‬‭. This case dealt‬‭with the First Amendment's view of what‬ ‭constitutes hate speech and whether an assembly of people advocating for what some would call‬ ‭hate speech is protected. The National Socialist Party of America, or the NSPA, was a Neo-Nazi‬ ‭group headquartered in Chicago, Illinois. The NSPA initially regularly marched in Chicago, but‬ ‭when the city of Chicago began to charge a public insurance fee of $350,000, the NSPA started‬ ‭to look elsewhere.‬‭6‬ ‭They sent letters to surrounding‬‭suburbs requesting the ability to‬ ‭demonstrate, and the mayor of Skokie accepted, with the idea the town would ignore the‬ ‭demonstrations and mitigate their publicity. Skokie housed a considerably sizable Jewish‬ ‭population, many of which were Holocaust survivors, who relentlessly vocalized their opposition‬ ‭to this decision. The town of Skokie then passed ordinances that indirectly limited the ability of‬ ‭the NSPA to demonstrate, such as banning the wearing of military uniforms during‬ ‭demonstrations and banning the display of hateful symbols at demonstrations. Like the city of‬ ‭Chicago, they also began to require a $350,000 fee for large, organized public demonstrations.‬‭108‬ ‭The NSPA took action against the city, arguing that Skokie violated their First Amendment rights‬ ‭and did not allow them to demonstrate publicly. They believed they were entitled to speak and‬ ‭assemble peacefully in public regardless of their views. State appellate Courts ruled in favor of‬ ‭the city, banning the parading of swastikas irrespective of how peaceful their protests were. The‬ ‭108‬

‭Nazis now plan July 4 demonstration in Skokie‬‭. Omeka‬‭RSS. (n.d.).‬ ‭https://skokiehistory.omeka.net/items/show/155‬

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‭case eventually reached the Supreme Court, where the Court reversed. It remanded the lower‬ ‭courts’ decision, stating that for a state to restrict First Amendment rights, it must provide “strict‬ ‭procedural safeguards, including appellate review…absent such review, the state must instead‬ ‭allow a stay.”‬‭109‬ ‭Once again, the Supreme Court took measures to limit the ability of the states to‬ ‭regulate the First Amendment rights of its residents. At its core, the Supreme Court’s decision‬ ‭reaffirmed that the First Amendment even protects speech considered hateful or offensive by the‬ ‭majority. They effectively allowed the NSPA to demonstrate by reversing and remanding this‬ ‭decision. The Court emphasized that restrictions on free speech, especially by the states, must be‬ ‭met with “strict procedural safeguards.”‬‭6‬ ‭This requirement‬‭ensures that any attempt to limit‬ ‭speech must go through immediate judicial review or allow for a stay, underscoring the Court’s‬ ‭dedication to preventing undue government interference with free expression. By affirming these‬ ‭principles, the Supreme Court reinforced the “content neutrality” doctrine, which mandates that‬ ‭laws restricting speech cannot discriminate based on the ideas or messages the speaker is‬ ‭conveying.‬‭110‬ ‭This case demonstrated that protecting speech, even hate speech, is necessary to‬ ‭prevent a slippery slope where governments might stifle any expression seen as disagreeable or‬ ‭disruptive, thus posing a risk to all forms of dissent against the government. For residents of‬ ‭Skokie, many of whom were Holocaust survivors, the NSPA’s planned demonstration was not an‬ ‭abstract legal issue but a profoundly personal threat, sparking strong opposition. Allowing the‬ ‭NSPA to march, even without the swastika, could be percieved as an endorsement of messages‬ ‭that contradict shared societal values, like equality and dignity. Yet, by granting this speech‬ ‭109‬

‭National Socialist Party of America v. village of‬‭Skokie, 432 U.S. 43 (1977)‬‭. Justia Law. (n.d.).‬ ‭https://supreme.justia.com/cases/federal/us/432/43/‬ ‭110‬ ‭Content neutral‬‭. The Free Speech Center. (2024a,‬‭July 2).‬ ‭https://firstamendment.mtsu.edu/article/content-neutral/#:~:text=the%20Associated%20Press)-,Content%20neutral‬ ‭%20refers%20to%20laws%20that%20apply%20to%20all%20expression,with%20the%20message%20it%20convey‬ ‭s.%E2%80%9D‬

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‭protection, the case highlighted the uncomfortable but critical aspect of free expression: it‬ ‭protects both the valued and the detested, forcing communities to tolerate unpopular speech to‬ ‭uphold broader freedoms.‬ ‭iv. Citizens United v. FEC‬ ‭The case of‬‭Citizens United v. FEC‬‭is a landmark case‬‭in the realm of political speech.‬ ‭Fundamental questions about digital communications and political speech were at the heart of‬ ‭this case, both have implications bound to stretch far into today's increasingly polarized digital‬ ‭age. Citizens United, a nonprofit organization, was in the process of airing a film called‬‭Hillary:‬ ‭The Movie‬‭, which contained many critiques of then-presidential‬‭candidate Clinton. Because of its‬ ‭critiques of Clinton, the movie fell under the BCRA, or the Bipartisan Campaign Reform Act,‬ ‭which aimed to limit the influence of corporations on federal elections. The film was deemed as‬ ‭an electioneering communication, which the BCRA said could not be released within 30 days of‬ ‭a primary nor 60 days of a federal election.‬‭111‬ ‭Citizens United challenged this, stating that this‬ ‭was a limit on the free speech of corporations, as courts have generally ruled since the 1800s that‬ ‭organizations, because they are simply groups of people, are also entitled to the freedom of‬ ‭speech. The Supreme Court ruled in favor of Citizens United, agreeing that limitations on‬ ‭organizations to promote political candidates are indeed restrictions of their free speech and that‬ ‭this is not different from the government censoring the free speech of individuals.‬‭112‬ ‭In this case,‬ ‭a conflict arises between fair promotion of ideas and freedom of speech. Money is a medium of‬ ‭speech in politics, and the ruling of this case, in essence, allows for the people with the most‬ ‭money to have the most prominent speech. Because the wealthiest people can promote their‬ ‭111‬

‭Citizens United v. Federal Election Commission (2010)‬‭.‬‭The Free Speech Center. (2024a, July 2).‬ ‭https://firstamendment.mtsu.edu/article/citizens-united-v-federal-election-commission/‬ ‭112‬

‭"Citizens United v. Federal Election Commission."‬‭Oyez. Accessed November 8, 2024.‬ ‭https://www.oyez.org/cases/2008/08-205.‬

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‭ideas further, they effectively can have their voices heard by a larger audience. Limiting the‬ ‭amount of money that could be spent, or the amount of time in which this money could be‬ ‭earned, would effectively limit the organization’s speech. Thus, the portion of the BCRA that‬ ‭limits the time the movie can be aired was shot down.‬ ‭The Future of Free Speech Censorship‬ ‭v. Free Speech and Social Media‬ ‭In this increasingly digital world, new points of conflict with the idea of free speech are‬ ‭bound to arise. The rise of social media platforms like Facebook, Instagram, and X has allowed‬ ‭for unprecedented opportunities for individuals to express opinions, share information, and‬ ‭engage in public discourse. Due to the amount of expression, these platforms have implemented‬ ‭comprehensive content moderation policies, raising concerns about the regulation of speech and‬ ‭the potential for bias or censorship. The lines between protected and unprotected speech have‬ ‭been blurred even more extensively because of this, and many corporations are now at the helm‬ ‭of deciding between the two. For example, in the 2024 case of‬‭Murthy v. Missouri‬‭, the Court‬ ‭addressed the boundaries of government involvement concerning social media content‬ ‭moderation. The case arose from the states of Missouri and Louisiana and several other‬ ‭plaintiffs, who alleged that several government agencies, such as the Center for Disease Control,‬ ‭pressured social media platforms like Facebook and Twitter to remove content containing‬ ‭conspiratory rhetoric relating to COVID-19 and the 2020 presidential election.‬‭113‬ ‭This case‬ ‭addressed whether government entities pressuring private entities to censor speech violates the‬ ‭First Amendment, and the court ruled there was insufficient evidence to support the plaintiffs. In‬ ‭the majority opinion, Amy Coney Barrett wrote that it was impossible, in this case, to distinguish‬

‭113‬

‭"Murthy v. Missouri." Oyez. Accessed November 20, 2024. https://www.oyez.org/cases/2023/23-411.‬

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‭what the social media companies might have done on their own versus what they had done with‬ ‭government suggestions.‬‭12‬ ‭In her eyes, social media‬‭companies often censor speech like this on‬ ‭their own, and it is unreasonable to pin their actions on the government, who simply made‬ ‭suggestions in the wake of a global pandemic. This point is disagreeable, as government‬ ‭pressure, regardless of how outright or subtle, still comes from the government, which has‬ ‭immense power over corporations. Also, the government threatened to bring antitrust actions‬ ‭against these companies. Justice Alito, in his dissenting opinion, disagreed with Barrett and the‬ ‭others on these same grounds, as Vile writes, “[Alito] further noted how the government had‬ ‭leveled a $5 billion civil penalty in a case against Facebook in a data-privacy case and how‬ ‭Facebook had depended on the government to negotiate an agreement to maintain its‬ ‭trans-Atlantic operations.”‬‭114‬ ‭Regardless of its subtle threats, the government has the power and‬ ‭ability to knock down any corporation it desires. So, any suggestion that companies should‬ ‭censor their speech is indeed coercion. Even with the Center for Disease Control, while it is not‬ ‭directly the government, it is a government-funded entity. So, any censorship it attempts to enact‬ ‭by threatening corporations is also unconstitutional.‬ ‭vi. Boundaries of Online Censorship‬ ‭One pivotal issue with censoring speech like this is blurring lines between dangerous‬ ‭misinformation and simple dissent with government actions. With the COVID-19 pandemic,‬ ‭regardless of its undeniably consequential impacts, the First Amendment protects the right for‬ ‭people to voice their opinions on how the government handles the matter, whether agreement or‬ ‭criticism. It is not the duty of the government to censor simple conspiracy theories on the‬ ‭internet. Still, it is its job to enable healthy conversation and discourse about these topics and to‬ ‭114‬

‭Murthy v. Missouri (2024)‬‭. The Free Speech Center.‬‭(2024d, October 21).‬ ‭https://firstamendment.mtsu.edu/article/murthy-v-missouri-2024/‬

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‭encourage private companies to act as they see fit. Social media platforms have become the‬ ‭"town squares" of the modern age, where political discourse, activism, and public debate thrive.‬ ‭The First Amendment pledges to foster speech, regardless of how disagreeable, if it poses no‬ ‭clear and present danger to anybody.‬ ‭vii. Artificial Intelligence and Free Speech‬ ‭The rise of artificial intelligence-generated content and deepfake technology presents‬ ‭unprecedented challenges to free speech. Before getting into this intersection of technology and‬ ‭ideas, it is necessary to define the term deepfake. Blitz writes, “‬‭A computer program can quickly‬ ‭teach itself to recreate a person’s image or voice, manipulate it—like a puppeteer controlling a‬ ‭puppet—and blend it seamlessly into an environment the person never inhabited.”‬‭115‬ ‭A deepfake‬ ‭is an artificial video or photo rendition of a person, place, or thing, which can be programmed to‬ ‭do anything the image producer chooses. With this idea of fabricated information, the 2012 case‬ ‭of‬‭United States v. Alvarez‬‭holds relevance, as in‬‭this case, the Supreme Court ruled that people’s‬ ‭speech is protected even when they deceive others by making false statements. In this case,‬ ‭Xavier Alvarez lied about earning a Congressional Medal of Honor when he had never even‬ ‭served in battle. He faced prosecution under the Stolen Valor Act, which is a federal law that‬ ‭prohibits people from falsely claiming their reception of military medals or awards.‬‭116‬ ‭Still, the Supreme Court found this law unconstitutional, as his speech, regardless of its‬ ‭falsity, was protected under the First Amendment unless it could be proven that his statements‬ ‭had caused anyone harm. While this case dealt with false statements, deepfake technology allows‬ ‭115‬

‭Blitz, Marc Jonathan. “Deepfakes and Other Non-Testimonial Falsehoods: When Is Belief Manipulation (Not)‬ ‭ irst Amendment Speech?” Deepfakes and Other Non-Testimonial Falsehoods: When is Belief Manipulation (Not)‬ F ‭First Amendment Speech? | Yale Journal of Law & Technology. Accessed November 20, 2024.‬ ‭https://yjolt.org/deepfakes-and-other-non-testimonial-falsehoods-when-belief-manipulation-not-first-amendment-spe‬ ‭ech.‬ ‭116‬ ‭Congress.gov. "S.1998 - 109th Congress (2005-2006): Stolen Valor Act of 2005." December 20, 2006.‬ ‭https://www.congress.gov/bill/109th-congress/senate-bill/1998.‬

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‭for the creation of realistic, false visual evidence, which has been impossible throughout history.‬ ‭Until now, photo and video evidence have been undeniably concrete in courtrooms. In today's‬ ‭world, however, the authenticity of these visual forms of evidence can now be questioned, a new‬ ‭complication to free speech with dire consequences. In the event of war, a civilian could make a‬ ‭deepfake video sh‬‭owing missiles striking New York‬‭City. This is where a provision of Justice‬ ‭Kennedy’s opinion in Alvarez comes in. He writes, “Even when considering some instances of‬ ‭defamation and fraud, the Court has been careful to instruct that falsity alone may not suffice to‬ ‭bring the speech outside the First Amendment. The statement must be a knowing or reckless‬ ‭falsehood.”‬‭117‬ ‭In essence, a statement that is just false is not enough to violate the First‬ ‭Amendment, but this lie must create an intentional, clear, and present danger. This video, while‬ ‭false, intentionally creates a clear and present danger, so it would not be protected speech.‬ ‭Conclusion‬ ‭The evolution of free speech in America reflects an ongoing struggle to balance‬ ‭individual liberties with collective security. From cases like‬‭Gitlow v. New York‬‭in 1925 to‬ ‭Murthy v. Missouri‬‭in 2024, the government has continued‬‭to wrestle with how exactly to‬ ‭regulate the speech of its citizens. The boundaries of free speech have needed various revisions‬ ‭through case law to ensure an environment that allows for the balance between an open sharing‬ ‭of ideas and the confinement of sharing harmful ideologies. Today, the rapid growth of social‬ ‭media and artificial intelligence technologies amplify these challenges, forcing courts and‬ ‭policymakers to grapple with new questions about misinformation, corporate influence, and the‬ ‭authenticity of digital content. For example, courts have never had to debate whether an image‬

‭117‬

‭“United States v. Alvarez, 567 U.S. 709 (2012).” Justia Law. Accessed November 20, 2024.‬ ‭https://supreme.justia.com/cases/federal/us/567/709/.‬

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‭was actual, but heading into the future, this will be a real problem they will face. While the First‬ ‭Amendment itself has its place enshrined in American political philosophy, the future will‬ ‭present even more difficulties with determining what to censor. These topics are bound to spark‬ ‭fierce debate in this nation, and solving these problems will require a blend of an understanding‬ ‭of the framers' intentions and a consideration of how to accurately apply these principles to a‬ ‭society experiencing rapid technological advances.‬‭118‬

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‭This paper has been reviewed by Sabrina Mirza. Mirza‬‭is a lawyer who works for an organization called Justice‬ f‭ or All. She specializes in international law and has been at the head of various multimedia campaigns highlighting‬ ‭the importance of the Freedom of Expression for marginalized populations all around the world, notably human‬ ‭rights crises occurring in Kashmir and Gaza.‬

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‭HOW THE CONSTITUTION SHAPES POLICING‬ ‭WRITTEN BY AVA PALMER | EDITED BY MAYA GUENNOUNI‬ ‭Introduction‬ ‭i. Constitutional Protections Overview‬ ‭In a democratic society, effective policing balances public safety and individual‬ ‭freedoms. The U.S. Constitution is the foundation for these protections that are pivotal in‬ ‭deterring police conduct by safeguarding individual liberties against the potential misuse of the‬ ‭law. Although the U.S. Constitution offers important safeguards against government overreach,‬ ‭this paper contends that its interpretation frequently leads to conflict between preserving civil‬ ‭liberties and meeting the pragmatic requirements of law enforcement. The Fourth, Fifth, and‬ ‭Sixth Amendments, which influence modern policing techniques and the ongoing conversation‬ ‭on civil rights, are where these dynamics are most noticeable. The Fourth Amendment protects‬ ‭citizens against unreasonable searches and seizures, as demonstrated by law enforcement’s‬ ‭requirement to obtain a warrant issued by probable cause for searches that would violate‬ ‭reasonable expectations of privacy.‬‭This expectation‬‭of privacy, as established in‬‭Katz v. United‬ ‭States, 389 U.S. 347 (1967),‬‭plays an important role‬‭in Fourth Amendment interpretations. It‬ ‭protects individuals from warrantless searches or seizures of their person or property in situations‬ ‭where they have that expectation of privacy that society recognizes as reasonable. This‬ ‭safeguards citizens by serving as a check on law enforcement, as it helps determine whether‬ ‭government action has infringed on someone’s privacy rights.‬‭119‬ ‭The Fifth Amendment protects‬ ‭against double jeopardy and self-incrimination, ensuring that individuals in the United States are‬ ‭not unfairly prosecuted or forced to testify against themselves.‬‭120‬ ‭The Sixth Amendment‬

‭119‬

‭ ourth Amendment, LII / Legal Information Institute, n.d.‬ F ‭Constitution Annotated,‬‭Amdt 5.1 Overview ofFifth‬‭Amendment, Rights of Persons‬‭(CA, 2024)‬

‭120‬

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‭guarantees citizens the right to a “fair and speedy public trial” with an unbiased jury.‬‭121‬ ‭This‬ ‭constitutional framework is essential to limiting governmental power while upholding justice.‬ ‭This paper will argue that while constitutional protections are crucial for protecting individual‬ ‭rights, they can sometimes create tension with the demands of effective policing, requiring‬ ‭careful explication and application to maintain security and liberty.‬ ‭Constitutional Conflicts in Policing‬ ‭Maintaining order and ensuring public safety are the foremost responsibilities of the law‬ ‭enforcement, but this responsibility frequently conflicts with an individual’s right to privacy. Due‬ ‭to their legal power to uphold the law, prevent crime, and protect the public, law enforcement‬ ‭officers must occasionally take actions that infringe on individual rights. When necessary to‬ ‭ensure public safety, law enforcement officers may temporarily detain individuals to perform‬ ‭searches, provided their actions align with constitutional protections. The Plain View doctrine,‬ ‭established in‬‭Harris v. United States (1968),‬‭permits‬‭law enforcement officials to confiscate‬ ‭evidence without a warrant if it can be immediately identified as contraband or evidence of a‬ ‭crime while the officer is lawfully present in the location.‬‭122‬ ‭In addition, the U.S. The Supreme‬ ‭Court has established exceptions to the warrant requirement, such as consent searches, searches‬ ‭related to legitimate arrests, and difficult circumstances. To stop imminent harm, evidence‬ ‭destruction, or a suspect’s escape, for instance, officers may enter a property without a warrant in‬ ‭an emergency.‬‭123‬ ‭These exceptions show how flexible policing can be but highlight the ongoing‬ ‭conflict between law enforcement discretion and constitutional protection.‬ ‭ii. Pennsylvania v. Mimms, 434 U.S. 106 (1977)‬

‭121‬

‭Constitution Annotated,‬‭Constitution of the United‬‭States, Sixth Amendment‬‭(CA, 2024)‬ “‭ Plain View Doctrine,” Legal Information Institute, accessed April 2021.‬ ‭123‬ ‭“Exceptions to the Warrant Requirement: Overview.”‬‭Legal Information Institute. Accessed November 22, 2024.‬ ‭122‬

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‭Argued in 1977, Supreme Court justices ruled unanimously in‬‭Pennsylvania v. Mimms,‬ ‭434 U.S. 106 (1977)‬‭that it was constitutionally permissible for an officer to ask a driver to step‬ ‭out of their vehicle during a routine traffic stop, even without suspicion that the driver is armed‬ ‭or engaging in criminal activity. In this case, the officer stopped the defendant, Mimms, for‬ ‭driving with an expired license plate and requested that he step out of the car. As Mimms‬ ‭complied, the officer noticed a bulge in his jacket and conducted a frisk, finding a revolver. The‬ ‭Supreme Court held that the safety of police officers during traffic stops outweighed the slight‬ ‭inconvenience imposed on the driver.‬‭124‬ ‭Although this ruling reaffirmed the importance of officer‬ ‭safety, it has raised concerns about possible overreach, particularly in situations where an‬ ‭officer’s decision to intensify a traffic stop may be influenced by race or other biases.‬ ‭iii. Terry v. Ohio, 392 U.S. 1 (1968)‬ ‭Additionally, in‬‭Terry v. Ohio, 392 U.S. 1 (1968),‬‭the Justices‬‭ruled that the search‬ ‭conducted by Officer McFadden was lawful under the Fourth Amendment since it was based on‬ ‭reasonable suspicion. In this case, Officer McFadden observed two men, John W. Terry and‬ ‭Richard Chilton, acting suspiciously near a store. Thinking that they were “casing a job, a‬ ‭stick-up,” McFadden approached them, identified himself as law enforcement, and performed a‬ ‭quick pat-down (or “frisk”) to check for weapons. During the frisk, McFadden discovered that‬ ‭Terry was carrying a concealed firearm.‬‭125‬ ‭The Supreme Court held that an officer may stop and‬ ‭frisk a suspect without a warrant if they have reasonable suspicion that the person is armed and‬ ‭dangerous. This precedent lowers the standard from probable cause to reasonable suspicion,‬ ‭which has important policing implications, such as allowing officers to react quickly to possible‬ ‭threats, but also creates the possibility of racial profiling and discretionary abuse. This ruling‬

‭124‬

‭ ennsylvania V. Mimms 434 U.S. 107 (1977)‬ P ‭Terry V. Ohio 392 U.S. 1 (1968).‬

‭125‬

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‭established the principle of “stop-and-frisk,” which allows law enforcement officers to conduct‬ ‭limited searches for weapons in situations where they reasonably suspect criminal activity. The‬ ‭Court found that this practice did not violate the Fourth Amendment as the search was limited‬ ‭and carried out for the safety of the officer and the public. While law enforcement may‬ ‭occasionally need to restrict individual freedoms to maintain safety, these actions must always be‬ ‭balanced with constitutional rights to ensure they do not overstep legal and ethical boundaries.‬ ‭Impact of the Fourth Amendment on Policing‬ ‭iv. Fourth Amendment Background‬ ‭Since its ratification in 1787, the U.S. Constitution has had a substantial influence‬ ‭on policing procedures. Along with defining the function of law enforcement, various‬ ‭constitutional amendments have also set precise guidelines for police conduct. For example, the‬ ‭Fourth Amendment emerged in response to British “writs of assistance,”‬‭126‬ ‭which allowed the‬ ‭King’s officials to enter the homes of any citizen at random to search for stolen goods or the‬ ‭authors of critical pamphlets about the King without a warrant or probable cause.‬‭127‬ ‭This‬ ‭arbitrary abuse of power led to the creation of the Fourth Amendment, which protects individuals‬ ‭against overreach by requiring law enforcement to obtain a warrant based on probable cause.‬ ‭v. Fifth Amendment Background‬ ‭Furthermore, the protection of self-incrimination set forth by the Fifth Amendment has‬ ‭largely impacted police interrogations. One of the most significant developments in this area is‬ ‭the Supreme Court’s ruling in‬‭Miranda v. Arizona,‬‭384 U.S. 436 (1966)‬‭, which requires that‬ ‭individuals taken into police custody be informed of their rights, including the right to remain‬ ‭silent and legal counsel. Ernesto Miranda, the defendant, confessed to crimes after being‬ ‭126‬

‭“Against Writs of Assistance (1761).” National Constitution‬‭Center – constitutioncenter.org. Accessed November‬ ‭22, 2024.‬ ‭127‬ ‭The National Constitution Center,‬‭The Fourth Amendment‬‭(TNCC, 2024)‬

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‭detained and questioned without being informed of his rights, sparking a challenge in terms of‬ ‭the Fifth Amendment. These Miranda warnings are designed to make sure individuals‬ ‭understand their constitutional rights and can make informed decisions about interacting with‬ ‭law enforcement.‬‭128‬ ‭Therefore, it establishes that citizens are Mirandized, which allows them to‬ ‭obtain counsel in the presence of questioning. Before this ruling, law enforcement was given‬ ‭broader discretion when interrogating suspects, which often led to coerced confessions. In‬ ‭addition to restricting these practices, the ruling in‬‭Miranda v. Arizona, 384 U.S. 436 (1966)‬ ‭upheld the importance of informed consent during questioning. This protects against‬ ‭self-incrimination by guaranteeing that suspects are aware of their rights. As seen in‬‭California v.‬ ‭Stewart, 366 U.S. 1 (1961),‬‭129‬ ‭five years before the SCOTUS ruling‬‭,‬‭Stewart, the appellant, was‬ ‭interrogated nine times over five days without being informed of his constitutional rights to‬ ‭remain silent or right to counsel, ultimately confessing to a robbery and murder under duress.‬ ‭These instances exemplify a‬‭few of the many ways in‬‭which the Constitution has structured the‬ ‭status quo of police practices.‬ ‭Constitutional Procedure‬ ‭Adhering to constitutional principles is crucial for protecting individual rights and‬ ‭ensuring police action remains within legal boundaries. The Fourth, Fifth, and Sixth‬ ‭Amendments lay out key protections that shape how law enforcement operates and engages with‬ ‭citizens. These amendments work together to uphold justice and preserve the line separating the‬ ‭protection of individual freedoms from ensuring public safety.‬ ‭vi. Fourth Amendment - Search & Seizure‬ ‭The Fourth Amendment provides critical protections against unlawful searches and‬

‭128‬

‭ iranda v. Arizona, 384 U.S. 436 (1966). Justia Law. Accessed October 27, 2024.‬ M ‭Facts and Case Summary - Miranda V. Arizona, n.d.‬

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‭seizures emphasizing the constitutionally ingrained fundamentals of protecting an individual's‬ ‭privacy rights. As noted in the U.S. Constitution, the Fourth Amendment legally mandates that‬ ‭law enforcement obtain a warrant backed by probable cause before searching a person or their‬ ‭property.‬‭130‬ ‭As stated earlier, this principle is rooted in historical practices dating back to British‬ ‭rule, where officials had the authority to enter homes freely, resulting in significant abuses of‬ ‭power. A historic Supreme Court case that illustrates the application of the Fourth Amendment in‬ ‭modern policing, as introduced earlier, is‬‭Terry v.‬‭Ohio, 392 U.S. 1 (1968).‬‭In this case, Officer‬ ‭McFadden observed two individuals exhibiting, as he perceived, suspicious behavior, which led‬ ‭him to suspect an upcoming robbery. With no warrant, McFadden approached the men and‬ ‭performed a limited pat-down search for weapons and discovered a handgun. Upon Writ of‬ ‭Certiorari, the Supreme Court determined that the search was justified under the Fourth‬ ‭Amendment, establishing one of law enforcement's most controversial and highly debated‬ ‭practices, the “stop-and-frisk” policy. Authorized under‬‭Terry v. Ohio, 392 U.S. 1 (1968)‬‭, this‬ ‭decision enabled police officers to undertake limited searches, or “frisks,” on reasonable‬ ‭suspicion rather than probable cause.‬‭131‬ ‭The ruling is meant to increase public safety by allowing‬ ‭law enforcement to stop those with reason they believe may be armed or engaged in criminal‬ ‭activity. This practice has opened Pandora's box of criticism surrounding racial profiling and‬ ‭abuse of power by law enforcement. A stop and frisk refers to a limited search when officers‬ ‭reasonably suspect any individual is involved in criminal activity and may be armed. This ruling‬ ‭emphasizes the need to balance protecting an individual’s rights and allowing law enforcement to‬ ‭respond to urgent threats by ensuring that searches are limited to specific circumstances and‬ ‭justified by reasonable suspicion rather than permitting unchecked discretion. However, it also‬

‭130‬ ‭131‬

‭ anabria, Linda. “The Fourth Amendment and Probable‬‭Cause - Findlaw.” FindLaw, August 2024.‬ S ‭Terry v. Ohio, 392 U.S. 1 (1968).‬

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‭raises concerns about the potential misuse of power and racial profiling, as the threshold for‬ ‭reasonable suspicion is less thorough than that for probable cause. Some individuals contend that‬ ‭this ruling could result in an increase in stops of minority individuals based on profiling rather‬ ‭than concrete evidence, emphasizing the ongoing conflict between effective policing and the‬ ‭protection of civil liberties, which involves ensuring that law enforcement practices do not‬ ‭infringe upon individual rights to privacy.‬‭132‬ ‭Proponents counter that studies show proactive‬ ‭policing can lower crime rates in some areas‬‭133‬ ‭and that such rulings are necessary to allow‬ ‭officers to make decisions in complex situations. In response, critics point to statistical data, such‬ ‭as the Stanford Open Policing Project, showing that despite lower hit rates for contraband, Black‬ ‭and Hispanic individuals are disproportionately stopped and searched in comparison to White‬ ‭individuals.‬‭134‬ ‭The 1967 Supreme Court Case of‬‭Katz v. United States,‬‭389 U.S. 347 (1967),‬‭established‬ ‭that government intrusion into areas where individuals have a reasonable expectation of privacy,‬ ‭such as their home, necessitates a warrant. Charles Katz was suspected of transmitting gambling‬ ‭information across state lines. FBI agents installed a recording device on the exterior of a public‬ ‭phone booth that Katz often used without obtaining a warrant. The device recorded his‬ ‭conversations, which were later used to convict him of eight counts of illegal transmission of‬ ‭wagering information.‬‭135‬ ‭The issue before the court was whether the government’s use of‬ ‭electronic surveillance without a warrant constituted a search under the Fourth Amendment. In‬ ‭this decision, the Court held that wiretapping a public phone booth constituted a search under the‬

‭132‬

‭J‬‭ones, Russell L. “Terry v. Ohio: Its Failure, Immoral‬‭Progeny, and Racial ...” Idaho Law Review, September‬ ‭2018.‬ ‭133‬ ‭“Read ‘Proactive Policing: Effects on Crime and Communities’ at Nap.Edu.” Summary | Proactive Policing:‬ ‭Effects on Crime and Communities | The National Academies Press, 2018.‬ ‭134‬ ‭“The Stanford Open Policing Project.” openpolicing.stanford.edu.‬‭Accessed November 22, 2024.‬ ‭135‬ ‭“‬‭Katz v. United States.” Oyez. Accessed November‬‭22, 2024.‬

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‭Fourth Amendment, thereby reinforcing the principle that privacy rights must be upheld.‬‭136‬ ‭This‬ ‭ruling helped clarify the boundaries of privacy protections in the evolving scope of technology,‬ ‭but it shifted the focus from physical intrusion to the expectation of privacy. By emphasizing that‬ ‭the Fourth Amendment protects people, not places,‬‭Katz v. United States‬‭set a critical standard‬ ‭for assessing whether government action infringes upon an individual’s privacy rights. This‬ ‭decision, influenced by previous rulings such as‬‭Olmstead v. United States, 277 U.S. 438‬ ‭(1928),‬‭137‬ ‭which allowed wiretapping without physical intrusion, drove law enforcement‬ ‭practices to evolve in response to technological advancements while safeguarding constitutional‬ ‭rights. As a result,‬‭Katz v. United States‬‭continues to be a foundational case in the balance of law‬ ‭enforcement and individual privacy rights.‬ ‭vii. Fifth Amendment - Protection Against Self-Incrimination - Due Process‬ ‭The Fifth Amendment, ratified in 1791 as part of the Bill of Rights, provides protections‬ ‭against self-incrimination and ensures due process for individuals facing criminal charges. It was‬ ‭codified to address abuses under English common law, which frequently resulted in unfair trials‬ ‭when individuals were forced to testify against themselves.‬‭138‬ ‭The decision in‬‭Miranda v.‬ ‭Arizona, 384 U.S. 436 (1966)‬‭addressed the problem‬‭of forced confessions and emphasized how‬ ‭important it is to guarantee due process when questioning individuals in police custody. This‬ ‭landmark case highlights the importance of protecting due process during police interrogations,‬ ‭preventing coerced confessions, and maintaining the integrity of the justice system.‬ ‭viii. Sixth Amendment - Right to Counsel‬ ‭The Sixth Amendment secures the right to legal representation, ensuring that an‬

‭136‬

‭ atz v. United States, 389 U.S. 347 (1967). Justia Law. Accessed October 27, 2024.‬ K ‭“Olmstead v. United States, 277 U.S. 438 (1928),” Justia Law, June 4, 1928.‬ ‭138‬ ‭“Constitutional Amendments – Amendment 5 – ‘Legal‬‭Rights and Compensation.’” Ronald Reagan. Accessed‬ ‭November 22, 2024.‬ ‭137‬

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‭individual facing criminal charges can obtain counsel, guaranteeing the right to legal‬ ‭representation. This right is essential not only during trial but also while in police custody. In‬ ‭Gideon v. Wainwright, 372 U.S. 335 (1963),‬‭The Supreme‬‭Court addressed whether states are‬ ‭required to provide legal counsel to defendants unable to afford an attorney in criminal cases.‬ ‭The case started when Florida defendant Clarence Earl Gideon, charged with felony burglary,‬ ‭was refused a court-appointed lawyer because the state only permitted such appointments in‬ ‭capital cases. Gideon was convicted and imprisoned after being forced to represent himself. The‬ ‭issue before the Supreme Court was whether denying legal counsel in state courts for‬ ‭impoverished defendants violated the Sixth and Fourteenth Amendments.‬‭139‬ ‭Through the Due‬ ‭Process Clause of the Fourteenth Amendment, the Supreme Court determined that the right to‬ ‭counsel guaranteed by the Sixth Amendment is a fundamental right applied in states. This‬ ‭landmark decision strengthened the idea that fair treatment in the legal system is crucial to‬ ‭justice by extending the right to counsel to state courts. While these constitutional protections are‬ ‭the foundation of equity in the legal system, their application in real-world policing highlights‬ ‭the ever-evolving challenges. Law enforcement practices are primarily meant to balance public‬ ‭safety with the rights of individuals, thus raising key questions of how far constitutional‬ ‭protections extend in policing.‬ ‭Policing and Constitutional Law in Practice‬ ‭ix. Stop and Frisk Criticisms‬ ‭Research from 2005 by Columbia Law School offers significant support for the‬ ‭claim that law enforcement disproportionately targets African American and Hispanic minority‬ ‭communities. Surveys conducted in 1999 and 2002 show that African Americans were far more‬

‭139‬

‭Gideon v. Wainwright, 372 U.S. 335 (1963). Justia Law. Accessed October 27, 2024.‬

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‭likely than other groups to report being pulled over by police on highways, with minorities also‬ ‭more likely to be ticketed, arrested, searched, or handcuffed. Moreover, this study found that‬ ‭during these stop and frisks, there was an increase in physical threats for individuals who were‬ ‭stopped, highlighting the inequalities around racial discrimination and stigmatization within‬ ‭criminal justice procedures.‬‭140‬ ‭Research on suspicious behavior as a reason for both pedestrian‬ ‭and traffic stops has shown the level of “reasonable suspicion usually provides grounds for‬ ‭searches in cases involving low-level offenses. Studies analyzing the effectiveness of these stops,‬ ‭specifically the “hit rates” (the percentage of searches that uncover contraband or illegal‬ ‭activity),‬‭141‬ ‭show that Black and Hispanic motorists were stopped and searched at higher rates‬ ‭than White motorists. However, the searches were less likely to uncover contraband. This‬ ‭suggests a potential bias in police decision-making, if not necessarily intentional, leading to a‬ ‭disproportionate impact on minority communities. These findings point to reform efforts that‬ ‭guarantee policing practices are fair and justified by crime rates rather than racial disparities.‬ ‭Stop-and-frisk proponents contend that enabling officers to take proactive measures to deter‬ ‭crime, especially in high-crime areas, can improve public safety.‬ ‭x. Reasonable Expectations of Privacy in the Digital Age‬ ‭The Fourth Amendment was created to safeguard an individual from unlawful search and‬ ‭seizures by law enforcement. However, in this new age of technology, we experience new‬ ‭challenges in the digital age that the founding fathers had not accounted for. In the ever-evolving‬ ‭world of social media and technology, law enforcement’s capacity to search digital devices, such‬ ‭as smartphones, computers, and other electronics, has raised complex legal questions regarding‬ ‭privacy. The concept of reasonable expectation of privacy, established in‬‭Katz v. United States,‬ ‭140‬

‭Gelman, Kiss, and Fagan, “An Analysis of the NYPD’s‬‭Stop-and-Frisk Policy in the Context of Claims of Racial‬ ‭Bias.”‬ ‭141‬ ‭“Stops (Sensible Traffic Ordinances for Public Safety).”‬‭Vera Institute of Justice, September 2023.‬

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‭389 U.S. 347 (1967),‬‭must now be reinterpreted to account for unaccounted digital data when the‬ ‭amendment was drafted.‬ ‭Decided in 2014,‬‭Riley v. California, 573 U.S. 373‬‭(2014)‬‭addresses the issue of “whether‬ ‭the evidence admitted during trial from Riley’s cell phone, discovered through a search that‬ ‭violates his Fourth Amendment right to be free from unreasonable searches.”‬‭142‬ ‭The Supreme‬ ‭Court held that law enforcement generally needs a warrant to search a suspect’s cell phone‬ ‭during an arrest, acknowledging the extensive personal information in modern devices. This‬ ‭decision reaffirmed privacy rights in an era where digital footprints are increasingly accessible.‬‭143‬ ‭Despite this, debates continue about balancing individual privacy with law enforcement’s need to‬ ‭obtain digital evidence, prevalent in cases involving terrorism, cybercrime, or national security‬ ‭threats. Modern-day technology such as GPS tracking, body cameras, and smartphone data‬ ‭retrieval has become more prevalent in our society, where the boundaries of what constitutes a‬ ‭“search” under the Fourth Amendment have become more blurred. Courts continue to struggle‬ ‭with applying traditional legal doctrines to contemporary technologies while ensuring an‬ ‭individual's privacy rights are upheld.‬ ‭xi. Miranda Rights in Police Custody‬ ‭Despite the 1966 SCOTUS ruling of‬‭Miranda v. Arizona,‬‭384 U.S. 436 (1966)‬‭mandating‬ ‭that individuals in custody must be informed of their rights upon arrest; there have been recent‬ ‭cases where one’s Miranda Rights have been violated. Such violations raise serious questions‬ ‭about the integrity of the legal process and whether or not suspects are receiving fair treatment as‬ ‭guaranteed by the U.S. Constitution. One controversial case was‬‭Missouri v. Seibert, 542 U.S. 60‬ ‭(2004)‬‭, in which the Supreme Court addressed the “question‬‭first” tactic used by some police‬

‭142‬ ‭143‬

“‭ ‬‭Riley v. California.” Oyez. Accessed November 22,‬‭2024.‬ ‭Riley v. California, 573 U.S. 373 (2014).‬

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‭officers. Officers would intentionally question suspects without reading their Miranda rights,‬ ‭obtain a confession, and then Mirandize them, hoping the repeated confessions would be‬ ‭admissible in court. The Court ruled this practice as unconstitutional, highlighting how law‬ ‭enforcement can undermine the protections Miranda was meant to guarantee.‬‭144‬ ‭Similarly, in‬ ‭United States v. Patane, 542 U.S. 630 (2004),‬‭the‬‭Court found that evidence obtained during an‬ ‭arrest was admissible even after the defendant was not Mirandized. In this case, the defendant,‬ ‭Patane, made a statement to law enforcement about the location of a firearm. Still, he had not‬ ‭been fully Mirandized at the time. The Court determined that while the statement itself could not‬ ‭be used against him, the physical evidence that the firearm provided could still be admitted under‬ ‭the “fruit of the poisonous tree” doctrine. This‬‭decision‬‭highlighted a crucial distinction: verbal‬ ‭statements obtained in violation of Miranda are inadmissible, yet physical evidence derived from‬ ‭those statements might still be admissible during a criminal proceeding.‬‭145‬ ‭This ruling raised‬ ‭concerns about the strength of Miranda protections in practice, especially regarding evidence‬ ‭obtained outside of a direct confession. It further emphasizes the complexities surrounding the‬ ‭enforcement of Miranda rights in law enforcement procedures.‬ ‭Balance of Individual Rights and Public Safety‬ ‭A key component of constitutional policing is balancing public safety‬ ‭and individual rights, but this frequently reveals underlying tensions. These issues raise serious‬ ‭concerns surrounding the application of legal frameworks and constitutional protections, which‬ ‭are especially noticeable in areas of racial profiling, qualified immunity, and the use of force.‬ ‭xx. Use of Force & Abuse of Power - Eighth Amendment‬ ‭Constitutional principles, specifically the Fourth and Eighth Amendments, which address‬

‭144‬ ‭145‬

‭ issouri V. Seibert, 542 U.S. 600 (2004).‬ M ‭United States V. Patane, 542 U.S. 630 (2004).‬

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‭unreasonable actions and cruel or unusual punishments, govern the use of force by law‬ ‭enforcement. Although the Constitution limits police abuse of power, contentious cases‬ ‭frequently draw attention to the inconsistencies of these protections.‬ ‭In‬‭Tennessee v. Garner, 471 U.S. 1 (1985),‬‭Memphis‬‭police officers were dispatched to a‬ ‭suspected burglary and encountered Edward Garner, a teenager fleeing the scene. Assuming that‬ ‭Garner might escape, one of the officers fatally shot him. However, the Tennessee Statute allows‬ ‭for the use of deadly force to prevent the escape of a fleeing suspect, even though the defendant‬ ‭was unarmed. Garner, who later succumbed to his injuries, had a wrongful death lawsuit brought‬ ‭by his father, who argued that the Tennessee statute violated his son’s Fourth, Fifth, Sixth,‬ ‭Eighth, and Fourteenth Amendments guaranteed by the US Constitution. The issue before the‬ ‭Court was whether a statute authorizing the use of deadly force to prevent any fleeing suspected‬ ‭felon from escaping violates the Fourth Amendment.‬‭146‬ ‭The Supreme Court found that it is‬ ‭unconstitutional for law enforcement to use deadly force to prevent the escape of a fleeing‬ ‭suspect unless the officer has probable cause to believe that the individual posed significant‬ ‭threats of death or severe injury. The Court’s reasoning underscored the Fourth Amendment’s‬ ‭requirement for proportionality in law enforcement actions and protection from excessive use of‬ ‭force. By upholding the value of life and restricting situations in which deadly force may be‬ ‭used, the ruling changed police practices nationwide.‬ ‭The Eighth Amendment emphasizes that law enforcement actions should not‬ ‭lead to arbitrary or cruel treatment despite it typically being used in sentencing and prison‬ ‭conditions. It also influences more general debates regarding the proportionality of punishment.‬

‭146‬

‭Tennessee v. Garner, 471 U.S. 1 (1985).‬

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‭Cases involving excessive use of force still prove difficulties exist for the legal system to‬ ‭preserve these constitutional rights while dealing with the difficulties of actual policing.‬‭147‬ ‭xxx. Qualified Immunity‬ ‭According to the judicially established theory of qualified immunity, state and local‬ ‭officials, including law enforcement officers, are immune from civil damages lawsuits unless‬ ‭their actions infringe upon an established constitutional right. This doctrine, developed after 42‬ ‭U.S.C. § 1983 was passed in 1871, was used sparingly at first but solidified in the 1960s. The‬ ‭Supreme Court established the current qualified immunity standard in 1982, allowing it to be‬ ‭used in cases where the law broken by an official was not established at the time of the act.‬‭148‬ ‭Under this framework, if there is no previous court ruling that establishes the‬ ‭the illegality of an officer’s actions in a nearly identical case, qualified immunity may shield‬ ‭them from personal liability even if their actions violate constitutional rights. Because of this‬ ‭high bar for plaintiffs, victims of constitutional violations – such as excessive force – frequently‬ ‭have no other options. Critics contend that by allowing misconduct and undermining public‬ ‭confidence in policing, this standard unfairly protects law enforcement. They argue that officers‬ ‭can act without fear of accountability because of qualified immunity, particularly in cases where‬ ‭prior decisions may not have addressed constitutional violations. Proponents of qualified‬ ‭immunity contend that shielding officers from the ongoing threat of lawsuits is crucial because it‬ ‭enables them to make quick, tough decisions under pressure without worrying about being held‬ ‭personally liable. Without this protection, they argue, officers might be paralyzed by the‬ ‭possibility of lawsuits, which could compromise effective law enforcement and jeopardize public‬ ‭and officer safety.‬‭149‬ ‭147‬

“‭ The Eighth Amendment.” National Constitution Center‬‭– constitutioncenter.org. Accessed November 22, 2024.‬ ‭“Qualified Immunity.” National Conference of State‬‭Legislatures , January 12, 2021.‬ ‭149‬ ‭Anderson v. Creighton, 483 U.S. 635 (1987).‬ ‭148‬

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‭The U.S. Supreme Court argues that qualified immunity enables officers to act swiftly‬ ‭without worrying about lawsuits for actions that were not previously considered unconstitutional.‬ ‭Though immunity is granted in cases of excessive force unless it is clearly established that the‬ ‭force was excessive, this protection frequently undermines accountability. In‬‭Plumhoff v.‬ ‭Rickard, 572 U.S. 765, (2014)‬‭, for instance, officers‬‭who fatally shot a fleeing driver were‬ ‭granted qualified immunity because it was not yet established that the force was excessive.‬‭150‬ ‭Some states have responded by limiting qualified immunity. Setting a precedent for other‬ ‭states, Colorado’s SB 217 (2020) permits victims of misconduct by law enforcement to seek civil‬ ‭damages without relying on qualified immunity.‬‭151‬ ‭Although differing slightly from Colorado’s‬ ‭strategy, Connecticut also passed legislation (HB 6004) to address police liability by removing‬ ‭governmental immunity in certain misconduct cases.‬‭152‬ ‭Growing awareness of the need for‬ ‭increased accountability in law enforcement is reflected in these state reforms.‬ ‭xl. Racial Profiling‬ ‭Discriminatory treatment under the law is forbidden by the Equal Protection Clause of‬ ‭the Fourteenth Amendment.‬‭153‬ ‭When law enforcement targets people based on their race rather‬ ‭than a reasonable suspicion, it is known as racial profiling and is frequently connected to Fourth‬ ‭and Fourteenth Amendment violations. Despite comparable or lower rates of criminal activity,‬ ‭additional findings by Stanford’s Open Policing Project show that in the overwhelming majority‬ ‭of jurisdictions, Black and Hispanic individuals who were stopped while driving were being‬ ‭searched more often than White drivers. However, they introduce the idea that if minorities also‬

‭150‬

‭ lumhoff v. Rickard, 572 U.S. 765 (2014).‬ P ‭“Enhance Law Enforcement Integrity.” Enhance Law Enforcement Integrity | Colorado General Assembly, June‬ ‭13, 2020.‬ ‭152‬ ‭“Bill No. 6004 - Connecticut General Assembly.” Connecticut General Assembly, July 2020.‬ ‭153‬ ‭“The Equal Protection Clause.” National Constitution Center – constitutioncenter.org. Accessed November 21,‬ ‭2024.‬ ‭151‬

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‭happen to carry contraband at higher rates, these higher search rates may naturally come from‬ ‭appropriate police work.‬‭154‬ ‭To incorporate a similar ideology, Professor Lisa Miller, specializing in American‬ ‭politics, race and ethnic politics, and public law at Rutgers University shares similar insight as‬ ‭spoken from experience in her studies. Miller states, “Research is clear that non-white‬ ‭individuals have a disproportionate number of encounters with police. Frank Baumgartner, for‬ ‭example, has conducted research based on a few million traffic stops in North Carolina, and like‬ ‭others, they find that there are racial disproportionalities. It is important to highlight what gets‬ ‭missed sometimes in racial profiling literature, and that is there are a handful of factors that are‬ ‭taken into account o with police encounters and the public. Race is sometimes one of them, but‬ ‭rarely the only one, and very often not the most significant one. A friend of mine, Robbin Engel,‬ ‭at Ohio State University, found after researching on the state police in Pennsylvania and state‬ ‭highways that you actually cannot see people well at all when they are flying by, in terms of‬ ‭traffic stops.”‬‭155‬ ‭Professor Miller’s observations highlight the more significant systemic issues associated‬ ‭with racial profiling, even though she acknowledges the complexity of factors influencing police‬ ‭encounters, including but not limited to race. Although race is an important factor, this nuanced‬ ‭viewpoint emphasizes that it frequently interacts with other factors, making efforts to address‬ ‭disparities more difficult. These intricacies highlight the necessity of law enforcement‬ ‭procedures that support fair treatment for all communities while consistent with constitutional‬ ‭protections. Beyond just the statistics, racial profiling has ethical and legal ramifications that‬ ‭affect minority communities’ views of justice and public trust. Critics point to how these tactics‬

‭154‬

“‭ The Stanford Open Policing Project.” openpolicing.stanford.edu. Accessed November 22, 2024.‬ ‭Lisa Miller, oral interview with the author, November 20, 2024.‬

‭155‬

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‭can reinforce systemic bias and alienate communities of color, even though some research‬ ‭suggests that increased search rates may be a sign of effective policing when contraband is‬ ‭disproportionality discovered.‬‭156‬ ‭In this context, the ruling in‬‭Whren v. United States, 517 U.S.‬ ‭806 (1996),‬‭maintaining the constitutionality of pretextual‬‭stops, has been crucial because it‬ ‭gives officers broad discretion when conducting traffic stops, potentially permitting racially‬ ‭motivated actions to be carried out in the name of lawful policing.‬‭157‬ ‭Addressing racial profiling requires creating a balance between Equal Protection.‬ ‭Clause of the Constitution, and the requirement for efficient law enforcement. To reduce bias and‬ ‭guarantee accountability, police procedures must be transparent, independent oversight must be‬ ‭maintained, and stop-and-search data must be continuously analyzed.‬ ‭Conclusion‬ ‭A recurring theme in American legal discourse is the conflict between effective policing‬ ‭and constitutional protections. Landmark cases like‬‭Riley v. California, 573 U.S. 373 (2014),‬ ‭Miranda‬‭vs‬‭.Arizona, 384 U.S. 436 (1966), and Terry‬‭v. Ohio, 392 U.S. 1 (1968)‬‭demonstrate how‬ ‭the Fourth, Fifth, and Sixth Amendments have been interpreted over time. These decisions‬ ‭highlight inherent conflicts when addressing the pragmatic needs of law enforcement, even as‬ ‭they create important protections for individual rights. The arguments over the warrant‬ ‭requirement, racial profiling, and stop-and-frisk procedures show how these issues can‬ ‭disproportionately affect minority communities and decrease public confidence in law‬ ‭enforcement. Maintaining a balance that respects both civil liberties and public safety is‬ ‭becoming more important as society struggles with new security issues and technological‬

‭156‬

‭“The Equal Protection Clause.” National Constitution‬‭Center – constitutioncenter.org. Accessed November 22,‬ ‭2024.‬ ‭157‬

‭Whren v. United States, 517 U.S. 806 (1996).‬

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‭advancements. To maintain the strength of constitutional protections and allow law enforcement‬ ‭to effectively deal with serious threats, judicial decisions must continue to adjust to‬ ‭contemporary circumstances. Ultimately, it is essential to encourage accountability, openness,‬ ‭and fair application of the law to balance public safety with the individual freedoms and‬ ‭foundations of justice that are constitutionally guaranteed.‬‭158‬

‭158‬

‭ his paper has been reviewed by Lisa Miller, a professor in the department of political science at Rutgers‬ T ‭University, New Brunswick. Professor Miller specializes in‬‭crime and punishment, mass incarceration, racial‬ ‭inequality, constitutionalism, and American political institutions, and has written and published‬‭The Politics‬‭of‬ ‭Community and Crime Prevention,‬‭and is currently working‬‭on her book‬‭U.S. Constitutional Myths.‬

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‭THE USE OF RAP LYRICS AS EVIDENCE IN CRIMINAL TRIALS‬ ‭WRITTEN BY ALEXANDRA KETTLE | EDITED BY AKSHAT YALAMARTY‬ ‭Introduction‬ ‭i. First Amendment Rights‬ ‭The First Amendment, one of the most well-known rights in the U.S. Constitution‬‭159‬‭, is‬ ‭also among the most debated and nuanced, particularly regarding artistic expression. The‬ ‭Supreme Court has interpreted the First Amendment as the protection of artistic expression in‬ ‭works such as books, theatrics, paintings, posters, television, music videos, and comic books.‬‭160‬ ‭Yet, a fine line stands as to when and where those protections are granted.‬ ‭The case of‬ ‭State of Florida v. Jamell Demons,‬‭161‬ ‭commonly known as YMW Melly’s‬ ‭murder trial, focuses on this fine line. The case highlights this gray area of uncertainty and‬ ‭significance. It questions the impact of using one's art and expression as evidence. It challenges‬ ‭the notion that one's First Amendment rights protect them under any and all circumstances.‬ ‭YMW Melly currently sits waiting for a retrial for his two counts of first-degree murder. YMW‬ ‭Melly, however, is not the only rapper to have their lyrics used against them. Many other rappers,‬ ‭like Young Thug, experienced a similar encounter in a courtroom, with their lyrics being used‬ ‭both as a confession and portrayal of their character in gang, murder, and drug-related cases.‬ ‭Evidentiary standards are just one way of justifying these lyrics and using them against their‬ ‭creators. They are guidelines that lawyers must follow to have legal, relevant, and reliable‬ ‭evidence. However, their significance proves to be more than just an argument in a courtroom.‬

‭159‬

‭(U.S. Const., art. I, § 1)‬ “‭ First Amendment.” Legal Information Institute. https://www.law.cornell.edu/wex/first_amendment.‬ ‭161‬ ‭“State of Florida vs Jamell Demons.” Justia Law.‬ ‭https://law.justia.com/cases/florida/fourth-district-court-of-appeal/2022/22-1874.html.‬ ‭160‬

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‭The future of rap, art, and expression are on the line as lyrics continue to be used as‬ ‭evidence. Treading upon established First Amendment rights is similar to walking on a tightrope.‬ ‭While lyrics may meet the evidentiary standards, the culture of rap and the music industry is on‬ ‭the line. The recording studio will no longer be a place of free expression but rather become an‬ ‭interrogation room.‬ ‭ii. Rap’s Relevancy‬ ‭The involvement of rap lyrics as evidence during criminal court trials has been a subject‬ ‭of ongoing scrutiny. It's been a topic that TikTok, Instagram, Facebook, Twitter, and other media‬ ‭platforms have brought to light. Whether that was through excerpts of the‬‭State of Florida v.‬ ‭Jamell Demons‬‭or memes later created on the absurdity‬‭of using humorous and vulgar lyrics‬ ‭within a courtroom, it is clear to the public that something was amiss.‬ ‭Rap was created to create a sense of camaraderie within the black community and to‬ ‭inspire people. Erik Nielson, a professor at the University of Richmond who is an expert in the‬ ‭area of evidentiary standards, says in his book‬‭Rap‬‭on Trial: Race, Lyrics, and Guilt in America‬ ‭that “​​it serves as a safe space where we can celebrate our blackness and each other- and be‬ ‭comfortable in our own skin while we do it. It has also offered us a kind of therapy, a place to‬ ‭express even our rawest feelings. And it has given us a way to say just things in unjust times.”‬‭162‬ ‭However, the tides have turned into much rougher waters, with judges and prosecutors‬ ‭disregarding the importance of music history when murder or drug-related charges are on the‬ ‭table. While this may seem controversial, there are many reasons why the use of rap lyrics as‬ ‭evidence within trials is admissible.‬

‭162‬

‭Kubrin, Charis E., and Erik Nielson. "Rap on trial."‬‭Race and Justice‬‭, vol. 4, no. 3, 2014, pp. 185-211,‬ ‭https://rb.gy/z1ps88.‬

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‭First Amendment Rights‬ ‭iii. Protections from the First Amendment‬ ‭In the article‬‭When Music Takes the Stand: A Content‬‭Analysis of How Courts Use and‬ ‭Misuse Rap Lyrics in Criminal Cases‬‭written by Ms.‬‭Lutes, Mr. Purdon, and Dr. Fradella, all‬ ‭professionals on judicial action as well as evidentiary standards, thoughtfully argued that “just as‬ ‭First Amendment protections do not apply to obscenity, true threats also lie beyond the limits of‬ ‭constitutionally protected speech and expression. Thus, a series of cases have upheld criminal‬ ‭convictions against rappers who threatened violence against specific targets in their song‬ ‭lyrics.”‬‭163‬ ‭This exclusion of obscenity, however, does not come directly from the First‬ ‭Amendment but rather from the Supreme Court's interpretation of it.‬ ‭iv. Roth v. United States.‬ ‭In the landmark case‬‭Roth v. United States,‬‭164‬ ‭The Supreme Court upheld the conviction‬ ‭of Samuel Roth, a publisher and bookseller in New York, who was convicted under federal‬ ‭obscenity laws for publishing obscenity through books and magazines. Roth’s work was‬ ‭considered to have limited social importance and thereby served no benefits to society. This case‬ ‭raised the consequential legal question of whether the federal law prohibiting the issuance of‬ ‭obscene materials violates the First Amendment's guarantee of freedom of speech and press. In a‬ ‭6-3 decision, the Supreme Court upheld Roth’s conviction and ruled that the First Amendment‬ ‭does not protect obscenity. Therefore, this case established the limitations to the free speech‬ ‭clause, highlighting that while the First Amendment does not specifically exclude obscenity, the‬ ‭courts can and have interpreted it that way.‬

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‭Lutes, Erin, James Purdon, and Henry F. Fradella. "When music takes the stand: A content analysis of how courts‬ u‭ se and misuse rap lyrics in criminal cases."‬‭American‬‭Journal of Criminal Law‬‭, vol. 46, 2019,‬ ‭https://heinonline.org/HOL/Page?handle=hein.journals/ajcl46&div=7&g_sent=1&casa_token=&collection=journals‬ ‭164‬ ‭“Roth v. United States.” Oyez. Accessed November‬‭7, 2024. https://www.oyez.org/cases/1956/582.‬

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‭v. Obscenity within Rap‬ ‭Given that rap is generally known to be the genre that contains profanity, violence, and‬ ‭vulgarity, rappers are at a severe disadvantage, specifically regarding the ability of courts to‬ ‭restrict and regulate free speech if they possess clear and present danger, obscenity, incitement,‬ ‭defamation, and hate speech. However, this challenges the truthful notion that art is protected,‬ ‭being that it excludes major industries. The American Civil Liberties Union wrote that “the‬ ‭relatively narrow obscenity exception serves as a vehicle for abuse by government authorities as‬ ‭well as pressure groups who want to impose their personal moral views on other people.”‬‭165‬ ‭Therefore, the future of rap and the validity of our First Amendment rights are under severe‬ ‭dubiety.‬ ‭Rap is considered to be artistic expression, which is a protected matter under the First‬ ‭Amendment; however, the specific art form of music seems to be separated and put into a‬ ‭different context. For example, if someone were to paint a murder scene that closely depicts a‬ ‭recent and local homicide, a court would not approach it with the same amount of vigilance and‬ ‭stress that the lyrics are. If someone were to write a play about a murder or drug and gang-related‬ ‭experiences, that also would be treated with a grain of salt due to the culture, art form, and‬ ‭expression medium. However, a double standard lies within this nuanced definition of art and‬ ‭confession. One could go so far as to argue that blood, drugs, needles, and gang images etched‬ ‭into a canvas do not depict obscenity in the same way that a song would. These questions are‬ ‭what's at hand regarding how artistic expression may be tainted and how rap lyrics are facing a‬ ‭double standard. For example, if one takes YMW Melly's song “Murder on My Mind”‬‭166‬ ‭and‬ ‭165‬

‭“Freedom of Expression in the Arts and Entertainment.” American Civil Liberties Union, February 27, 2002.‬ ‭https://www.aclu.org/documents/freedom-expression-arts-and-entertainment.‬ ‭166‬ ‭“‬‭Murder on My Mind,” by YNW Melly, track 3 on‬‭I Am‬‭You‬‭, 300 Entertainment, 2017.‬

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‭removes the beat, track, bass, and tempo, one will be left with a formal testimonial if‬ ‭supplementary evidence is provided. Trouble also arises as one removes all aspects of musical‬ ‭incorporation and looks specifically and individually at lyrics on a page. As one reads the lyrics‬ ‭of “Murder on My Mind,” the lyrics “I reloaded my pistol, cocked it back, and shot him twice”‬ ‭are present. The fine line occurs once more as we question, is this related to a case or just a song?‬ ‭It also raises the question of whether words on a page still count as art even if there is no beat,‬ ‭singer, bass, or if lyrics can be looked at as a full-blown journal confession. Ultimately, rap is‬ ‭vulnerable.‬ ‭Evidentiary Standards‬ ‭vi. Regulations on Evidence‬ ‭While some individuals may believe that protections granted by the First Amendment are‬ ‭a universal guarantee of defense, it is quite the opposite. In a court of law, it is standard‬ ‭procedure for your words to be used against you, especially given the many specific rules‬ ‭governing speech. But, when trials occur, anything can be used as evidence if it fits within the‬ ‭evidentiary standards. These standards are a necessary hurdle to jump through concerning what‬ ‭attorneys can and cannot use as evidence. This is often described as rules of evidence and are‬ ‭specific guidelines that lawyers must follow to have legal, relevant, and reliable evidence. These‬ ‭standards include relevance, admissibility, hearsay, character evidence, expert testimony,‬ ‭authentication, best evidence rule, privilege, and probative value. Specifically, when dealing with‬ ‭rap on trial, relevancy, character evidence, and probative value are the most important factors.‬ ‭There are a few ways in which lyrics have been used in court cases, these being: “ (1) to‬ ‭prove gang affiliation for sentencing enhancement purposes; (2) as circumstantial evidence of the‬ ‭commission of a crime; (3) as direct evidence of having communicated a threat; (4) to prove‬

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‭motive, knowledge, intent, identity, or character; or (5) to establish what incited the commission‬ ‭of a crime.”‬‭167‬ ‭When lyrics of vulgarity are presented to a court that discusses murder, drug use,‬ ‭gang affiliation, rape, and many other illegal acts, they are made to suggest the plaintiff's artistic‬ ‭expression and occupation in a negative light depicting malicious thoughts and a state of mind‬ ‭that potentially suggests illegal actions.‬ ‭vii. Murder on My Mind‬ ‭However, while certain lyrics may be obscene to some, that doesn't mean they are‬ ‭incriminating. Lyrics that may contain metaphorical or fictional elements can be misconstrued as‬ ‭admissions of criminal behavior, especially when there is a racial bias present. The music often‬ ‭stereotypes people as criminals, drug users, gang members, or in this case, a murderer, whether‬ ‭truthful or not. Take, for example,‬‭State of Florida‬‭v. Jamell Demons,‬‭which used a snippet of‬ ‭Jamell Demon's (YMW Melly) lyrics to put him behind bars for homicide.‬ ‭“Yellow tape around his body, it's a f**king homicide‬ ‭His face is on a T-shirt and his family traumatized‬ ‭I didn't even mean to shoot him, he just caught me by surprise‬ ‭I reloaded my pistol, cocked it back, and shot him twice‬ ‭His body dropped down to the floor, and he got teardrops in his eyes‬ ‭He grabbed me by my hands and said he was afraid to die‬ ‭I told him, “It's too late, my friend, it's time to say goodbye”‬ ‭And he died inside my arms, blood all over my shirt”‬‭168‬

‭167‬

‭168‬

‭“First Amendment.” Legal Information Institute. https://www.law.cornell.edu/wex/first_amendment.‬

‭Kubrin, Charis E., and Erik Nielson. "Rap on trial."‬‭Race and Justice‬‭, vol. 4, no. 3, 2014, pp. 185-211,‬ ‭https://rb.gy/z1ps88.‬

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‭Additional evidence such as previous arrests for aggravated assault, DNA evidence,‬ ‭testimony, and the timeline of the song being written one year after the murder happened did‬ ‭presumably persuade the jury and present hard evidence.‬ ‭Rule 403 & Assembly Bill 2799‬ ‭vii. Rule 403‬ ‭“Rap Lyrics and Evidence of Guilt: The Racial Impact Of The Weaponization Of‬ ‭Evidence Rules,” written by Brooke Hodgins from Cardozo Law‬‭169‬ ‭discusses the direct‬ ‭involvement and probative value of using rap as evidence in criminal trials. Hodgins argues that‬ ‭prosecutors frequently employ the use of rap lyrics in the court as a “confession” or character‬ ‭portrayal intended to demonstrate their emotions and ties to a specific crime. However, she also‬ ‭addresses how rap lyrics are not intended to be an admittance of a crime but rather a fictional‬ ‭story that cannot and should not be admitted as evidence. Additionally, she brings to the table a‬ ‭valuable and weighty rule that could disturb the possible precedent of using lyrics as evidence.‬ ‭Rule 403‬‭170‬ ‭states that a court may exclude relevant evidence if its probative value–‬‭171‬ ‭or the‬ ‭significance that evidence provides in proving a relevant fact in a court of law‬‭–‬‭is substantially‬ ‭outweighed by potential prejudice, misleading the jury, or creating a delay.‬ ‭This rule opens the door for discourse around the exclusion of lyrics such as YMW‬ ‭Melly’s. It pushes back against the courts to minimize biases and potential threats to the artist or‬ ‭society. Rule 403 minimizes the effects that violent or criminal themes incorporated into rap‬ ‭songs could have, which don’t necessarily reflect real-life actions or intentions. Additionally, it‬ ‭169‬

‭Hodgins, Brooke. “Rap Lyrics and Evidence of Guilt: The Racial Impact of the Weaponization of Evidence‬ ‭ ules.” Cardozo ERSJ, November 30, 2021.‬ R ‭https://www.cardozoersj.com/post/rap-lyrics-and-evidence-of-guilt-the-racial-impact-of-the-weaponization-of-evide‬ ‭nce-rules.‬ ‭170‬ ‭“Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.” Legal‬ ‭Information Institute. Accessed November 7, 2024. https://www.law.cornell.edu/rules/fre/rule_403.‬ ‭171‬ ‭“Probative Value.” Legal Information Institute. Accessed November 7, 2024.‬ ‭https://www.law.cornell.edu/wex/probative_value.‬

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‭plays a crucial role in safeguarding lyrics, which are often crafted for artistic effect,‬ ‭representation, or storytelling. In implementing Rule 403, jurors would be prohibited from‬ ‭forming unfair assumptions about a rapper’s character or predisposition. Thus, it is essential to‬ ‭ensure that artistic expression is not misinterpreted as admissions or evidence of criminal‬ ‭behavior. Through the power of Rule 403, judges can limit the admissibility of lyrics as‬ ‭evidence, ensuring that only relevant evidence that does not violate probative value is presented,‬ ‭which creates a more just system when it comes to rap songs on trial.‬ ‭viii. Assembly Bill 2799‬ ‭Much like Rule 403, Assembly Bill 2799‬‭172‬ ‭California and New York upheld the‬ ‭prevention of rap lyrics in a trial because “artists of all kinds should be able to create without the‬ ‭fear of unfair and prejudicial prosecution,” according to California’s Governor Gavin Newsom.‬ ‭The bill specifically mandates courts to “consider “specified factors” and “the substantial danger‬ ‭of undue prejudice” when determining whether to admit forms of creative expression as‬ ‭evidence. Courts must now consider the context of a genre of creative expression and any‬ ‭testimony or research that “introduces racial bias into the proceedings.”‬‭173‬ ‭In addition to‬ ‭minimizing room for bias or negative effects on artistic expression, AB 2799 requires that‬ ‭prosecutors demonstrate a link between the lyrics and the alleged crime to use it as relevant‬ ‭evidence. This regulation and check on the courts helps to ensure that only legitimate‬ ‭connections are made rather than prejudicial interpretations of songs. Furthermore, this bill helps‬ ‭to conquer the substantial issue surrounding First Amendment infringements by mandating that‬ ‭song lyrics are not literal confessions but art.‬ ‭172‬

‭“Assembly Bill No. 2799.” Bill Text - AB-2799 Evidence:‬‭admissibility of creative expressions., September 30,‬ ‭2022. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2799.‬ ‭173‬ ‭Mizelle, Shawna. “California Gov. Gavin Newsom Signs‬‭Bill Limiting the Use of Rap Lyrics as Evidence in‬ ‭Criminal Proceedings | CNN Politics.” CNN, October 1, 2022.‬ ‭https://www.cnn.com/2022/10/01/politics/rap-lyrics-in-court-california-gavin-newsom/index.html.‬

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‭The repercussions of the bill proved to be substantial; in fact, large-scale rappers and‬ ‭artists such as Meek Mill, Too $hort, E-40, Killer Mike, YG, Ty Dolla $ign, and Tyga joined‬ ‭Newsom on a call as he signed this substantial bill into law.‬‭174‬ ‭This not only has a major impact‬ ‭on the current hasty and criminalizing society surrounding rap, but it also creates a large impact‬ ‭on the understanding and precedent that rap lyrics will have in potential criminal trials. With‬ ‭modern-day rappers who have millions of followers advocating on behalf of this bill, society will‬ ‭become much more vigilant of the judicial system's actions. In turn, this is one step closer to‬ ‭rappers taking a sigh of relief as they can step into the recording studio without a criminal trial‬ ‭waiting to occur.‬ ‭Relevant Impacts of Lyrics on Trial‬ ‭ix. The People of the State of Texas v. Taymor McIntyre.‬ ‭In April of 2017, the rapper Tay-K, whose legal name is Taymor Travon McIntyre,‬ ‭experienced a run-in with the law when he cut off his ankle monitor and fled to New Jersey from‬ ‭Texas while under house arrest and awaiting trial for capital murder. In the trial,‬‭The People of‬ ‭the State of Texas v. Taymor McIntyre‬‭175‬‭The‬‭rapper’s music was used as evidence to suggest his‬ ‭state of mind, criminality, and violent emotions. “The Race”, a song about being a fugitive, was‬ ‭used as evidence, even though lyrics were not a necessary form of evidence given the sheer‬ ‭amount of evidence collected through both convictions. During sentencing of the trial,‬ ‭prosecutors used the music video as well as the lyrics for “The Race,” along with the cover,‬ ‭which shows Tay-K holding a gun.‬‭176‬ ‭In the end, it becomes apparent that the goal of‬ ‭174‬

‭’23, Prepared by Jacob Sowers. “California Law Restricts the Use of Rap Lyrics as Evidence in Criminal‬ ‭ rosecutions.” The Free Speech Project, December 13, 2022.‬ P ‭https://freespeechproject.georgetown.edu/tracker-entries/california-law-restricts-the-use-of-rap-lyrics-as-evidence-i‬ ‭n-criminal-prosecutions/.‬ ‭175‬ ‭McIntyre v. State, No. 05-18-00774-CR, 2020 WL 353573 (Tex. App. Jan. 21, 2020).‬ ‭https://caselaw.findlaw.com/court/tx-court-of-appeals/2108580.html.‬ ‭176‬ ‭Matthew Strauss, Sam Sodomsky. “Tay-K Found Guilty‬‭of Murder: Report.” Pitchfork, July 19, 2019.‬ ‭https://pitchfork.com/news/tay-k-found-guilty-of-murder-report/.‬

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‭introducing his artistic expression into the trial was to “dehumanize the rapper in the eyes of a‬ ‭jury through the use of his music.”‬‭177‬ ‭Ultimately, the State ended up charging McIntyre with one‬ ‭count of capital murder and three counts of aggravated robbery. This trial is just one of many that‬ ‭holds the sad reality of misuse and violation of First Amendment rights.‬ ‭x. The People of the State of California v. Darrell Caldwell‬ ‭Major scrutiny over the use of lyrics in a courtroom is exactly what happened in the case‬ ‭of‬‭The People of the State of California v. Darrell Caldwell‬‭178‬‭, also known as Drakeo the Ruler.‬ ‭In December 2016, he was charged with the murder of a man outside of a party in California. It‬ ‭was later found out that Drakeo was not the gunman. However, prosecutors still attempted to tie‬ ‭Drakeo to the crime in association with gang-related conflicts. These attempts ended up falling‬ ‭short as no evidence of that account occurred related to the murder. This is then when‬ ‭prosecutors searched Drake's music for relations to crimes, drugs, weapons, gangs, and signs of‬ ‭menacing behavior. The Fader reported on the trial stating that the use of Drake's music was used‬ ‭to “terrify the jury into believing that there is no difference between real life and rap videos.”‬‭179‬ ‭In the end, Drakeo was exonerated of the charges, yet prosecutors attempted to refile charges of‬ ‭gang conspiracy and shooting from a moving vehicle.‬‭180‬ ‭xi. The State of Georgia v. Jeffery Lamar Williams‬ ‭One of the largest cases that involves lyrics that took the internet and social media by‬ ‭storm is the Young Thug criminal trial. Formally titled‬‭The State of Georgia v. Jeffery Lamar‬ ‭177‬

‭Garcia, José A. "The Controversial Use of Rap Lyrics as Evidence." The New Yorker, November 11, 2022.‬ ‭https://www.newyorker.com/culture/culture-desk/the-controversial-use-of-rap-lyrics-as-evidence.‬ ‭178‬ ‭Carroll, R. (2019, October 1). Drakeo the Ruler: The LA rapper whose lyrics could put him in jail for life. The‬ ‭Guardian.‬ ‭https://www.theguardian.com/us-news/2019/oct/01/drakeo-the-ruler-los-angeles-rapper-songs#:~:text=In%20July%‬ ‭2C%20a%20jury%20acquitted,and%20shooting%20from%20a%20vehicle.‬ ‭179‬ ‭"Drakeo the Ruler Found Not Guilty of Murder, Faces‬‭Retrial for Criminal Gang Conspiracy." The Fader, July‬ ‭11, 2019. https://www.thefader.com/2019/07/11/drakeo-the-ruler-murder-trial-los-angeles-report.‬ ‭180‬ ‭McIntyre v. State, No. 05-18-00774-CR, 2020 WL 353573 (Tex. App. Jan. 21, 2020).‬ ‭https://caselaw.findlaw.com/court/tx-court-of-appeals/2108580.html.‬

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‭Williams,‬‭181‬ ‭Young Thug, a rapper who averages 27 million monthly listeners on Spotify‬‭182‬‭, is‬ ‭facing major Racketeer Influenced and Corrupt Organizations Act (RICO)‬‭183‬ ‭charges in Atlanta.‬ ‭Among these charges are: possession of methamphetamine with intent to distribute, possession‬ ‭of hydrocodone with intent to distribute, possession of marijuana with intent to distribute,‬ ‭possession of amphetamine, possession of alprazolam, two counts of possession of codeine, and‬ ‭possession of a firearm during the commission of a felony. While these charges stand alone in‬ ‭evidence, the prosecution incorporated his incredibly famous songs into this trial to deepen the‬ ‭wounds of his actions. Saying that Young Thug used his music and social media posts to promote‬ ‭the gang Young Slime Life, or YSL, which allegedly was behind many violent crimes, including‬ ‭killings, shootings, and carjackings.‬‭184‬ ‭Prosecutors have pointed to his violent, vulgar, and obscene songs as further evidence of‬ ‭gang activity and criminal involvement. During a hearing, Prosecutor Mike Carlson informed the‬ ‭judge that Young Thug's lyrics “are party admissions, [and] they happen to come in the form of‬ ‭lyrics.” However, Young Thug's defense team argued that his music is artistic and does not imply‬ ‭criminal activity. Viral videos of his defense attorney gained much attention because he‬ ‭explained criminally tainted references in his work. For example, “on day two of the trial, Young‬

‭181‬

‭Williams v. State, No. A19A1893, 2020 WL 1163562 (Ga. Ct. App. Mar. 10, 2020).‬ ‭https://law.justia.com/cases/georgia/court-of-appeals/2020/a19a1893.html.‬ ‭182‬ ‭Spotify. “Young Thug." Spotify, https://open.spotify.com/artist/50co4Is1HCEo8bhOyUWKpn.‬ ‭183‬ ‭U.S. Department of Justice. "Criminal Resource Manual‬‭§ 109: RICO Charges." Justice.gov,‬ ‭https://www.justice.gov/archives/jm/criminal-resource-manual-109-rico-charges.‬ ‭184‬ ‭Gaskins, Brianna. "Young Thug’s Lyrics Used in Trial‬‭for Gang and Racketeering Charges." USA Today,‬ ‭November 10, 2023.‬ ‭https://www.usatoday.com/story/entertainment/celebrities/2023/11/10/young-thug-lyrics-trial-gang-racketeering/715‬ ‭28462007/.‬

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‭Thug's attorney Brian Steel delved into the life story of Young Thug, born Jeffery Lamar‬ ‭Williams, and on Tuesday claimed the rapper's stage name stands for the acronym “Truly‬ ‭Humble Under God.”’‬‭185‬ ‭Additionally, “at one point, Steel insisted that "pushin P" — the‬ ‭Grammy-nominated 2022 track by Atlanta rappers Gunna and Future featuring Young Thug —‬ ‭stands for "Pushing Positivity.”’‬‭186‬ ‭However, despite the defense's efforts to demonstrate that rap‬ ‭lyrics are generally inaccurate and a falsification of the rapper life, Young Thug was released‬ ‭after pleading guilty in Georgia's longest criminal trial.‬‭187‬ ‭xii. Complications Regarding Rap’s Future‬ ‭All of the prior trials present evidence of the extent to which rap is being used regarding‬ ‭criminal trials. Even in light of tangible evidence, such as drug possession, lyrics are still used in‬ ‭court to depict the “villainous nature” of the defendant. While lyrics can be used in a court if‬ ‭they meet evidentiary and probative standards, they should not be excessively incorporated nor‬ ‭used in an extractive manner when more relevant evidence is present. If rap lyrics continue to be‬ ‭used in the courtroom as evidence in criminal trials, then the future of the industry is left‬ ‭questionable. “The admissibility of rap lyrics and videos as evidence is often framed as a legal‬ ‭matter, but it is really about race. By introducing the work of a rapper into the courtroom,‬ ‭185‬

‭Gaskins, Brianna. "Young Thug's Name Is Truly Humble Under God, His Lawyer Says." USA Today, November‬ 2‭ 9, 2023.‬ ‭https://www.usatoday.com/story/entertainment/celebrities/2023/11/29/young-thugs-name-truly-humble-under-god/7‬ ‭1738866007/.‬ ‭186‬ ‭U.S. Department of Justice. "Criminal Resource Manual‬‭§ 109: RICO Charges." Justice.gov,‬ ‭https://www.justice.gov/archives/jm/criminal-resource-manual-109-rico-charges.‬ ‭187‬ ‭Tatum, Sophie. "Young Thug Changes Plea to Guilty‬‭in Georgia’s Longest-Running Criminal Trial." NBC News,‬ ‭December 14, 2023.‬ ‭https://www.nbcnews.com/news/us-news/young-thug-changes-plea-guilty-georgias-longest-running-criminal-trial-rc‬ ‭na177873.‬

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‭prosecutors are relying on racism to do its job—insisting that those in the courtroom accept, as‬ ‭fact, the worst kinds of stereotypes about this music and the people who make it.‬‭188‬ ‭If rap lyrics‬ ‭continue to be used in criminal trials, they could memorialize racial and industry-wide‬ ‭stereotypes, all while undermining the legal process.‬ ‭Conclusion‬ ‭As the use of rap lyrics in court cases becomes more prevalent, a critical question arises:‬ ‭are courts unintentionally infringing on rappers' First Amendment rights? While notable strides‬ ‭have been made to limit the suppression of rap and reduce the number of lyrics admitted into‬ ‭trials, a deeper conversation is needed to prevent further criminalization of rap culture. The‬ ‭knowledge that your lyrics could be used against you in a court of law inherently stifles freedom‬ ‭of expression, forcing artists to self-censor and limiting their ability to speak freely and‬ ‭authentically.‬ ‭If rap continues to be used as evidence within trials, it will inadvertently become a‬ ‭matter of restricted art. As a rapper, one might shy away from their original artistic expressions,‬ ‭which may include vulgarity, to a new type of rap that won't get them in trouble. Therefore,‬ ‭while rappers can use free speech in their music, they and others alike may face the‬ ‭consequences if they get in trouble with the law. The probative value of using a rapper's lyrical‬ ‭expression, although allowed constitutionally and legally, creates a slippery slope for regulating‬ ‭free speech. Rule 403 and Assembly Bill 2799 help to limit this; however, more legislative work‬ ‭is needed. A recording studio cannot turn into a confession room. The future of rap, free speech,‬ ‭and our Constitutional rights ultimately hinges on this critical issue.‬‭189‬ ‭188‬

‭Hirsch, Afua. "The Controversial Use of Rap Lyrics as Evidence." The New Yorker, August 30, 2021.‬ ‭https://www.newyorker.com/culture/culture-desk/the-controversial-use-of-rap-lyrics-as-evidence.‬ ‭189‬ ‭This paper has been reviewed by John Kettle. He is a clinical professor of law, and director of the Intellectual‬ ‭Property Law Clinic at Rutgers Law School and specializes in copyright, trademarks, entertainment law and‬ ‭advanced intellectual property.‬

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‭VOTER ID LAWS AND THEIR IMPACT TURNOUT ON MARGINALIZED‬ ‭COMMUNITIES‬ ‭WRITTEN BY MEGHANA JONNALGADA | EDITED BY AASHVI PARIKH‬ ‭Introduction‬ ‭i. Defining Voter ID Laws‬ ‭Voter identification laws require citizens to present specific forms of ID before casting‬ ‭their ballot during elections. These regulations are intended to ensure that only eligible voters‬ ‭participate, thus preventing potential voter fraud. While voter ID laws are often advocated as a‬ ‭way to protect election integrity, studies consistently show that instances of in-person voter fraud‬ ‭are extremely rare. Instead, these laws tend to disproportionately affect low-income individuals‬ ‭and minority groups, limiting their ability to vote and raising concerns about voter suppression.‬ ‭Throughout the United States, states have varying voter identification rules: some only accept‬ ‭government-issued photo IDs, while others permit non-photo IDs or have no restrictions at all.‬ ‭States with stricter identification rules frequently put more obstacles in the way of marginalized‬ ‭populations' ability to get valid identity, such as minorities, elderly people, and voters with‬ ‭limited incomes.‬‭190‬ ‭This is due to the lack of resources and help these people receive in order to‬ ‭get their IDs. In states without ID requirements, 48% of voters correctly report that no photo ID‬ ‭is needed, but a surprising 38% of voters in those same states mistakenly believe it is required.‬‭191‬ ‭These disparities may impact election results and lower participation in underprivileged‬ ‭communities by creating gaps in voter access and turnout. Provisional ballots, which are counted‬ ‭when the voter's identity is confirmed, can be cast in several states by voters without the required‬ ‭190‬

‭9907, and 9894. “Impacts of Restrictive Voting Legislation since the 2020 Election.”‬‭Brennan Center for Justice‬‭,‬ 1‭ 9 Nov. 2024,‬ ‭www.brennancenter.org/our-work/research-reports/impacts-restrictive-voting-legislation-2020-election.‬ ‭191‬ ‭Pew Research Center. (2018).‬‭Voter ID Laws and Public‬‭Perception‬‭. Retrieved from‬ ‭https://www.pewresearch.org‬

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‭identification. Elderly or disabled people, as well as those who object to being photographed due‬ ‭to their religious beliefs, may also be exempt. Though there is little evidence of widespread fraud‬ ‭under such systems, these instances raise questions about the integrity of elections if the‬ ‭verification procedure is not rigorous. The voter identification laws we have today do not allow‬ ‭many citizens, especially those in marginalized communities, to voice their opinions and‬ ‭ultimately hinder their ability to vote for the representative of their choosing.‬ ‭ii. Barriers Created by Voter ID Laws‬ ‭Certain groups are disproportionately impacted by voter ID laws, including minorities,‬ ‭low-income individuals, and the elderly. Many people in these groups lack the required‬ ‭identification due to financial limitations, limited access to public services, or mobility issues.‬‭192‬ ‭For example, low-income voters may not have the time or resources to obtain the necessary‬ ‭documents, and elderly voters with mobility challenges often struggle to get updated‬ ‭identification. These regulations can discourage marginalized communities from voting, creating‬ ‭a country that no longer takes into account the opinions of its citizens. Birth certificates, which‬ ‭are sometimes required for voter ID laws, are difficult for marginalized communities to get. Due‬ ‭to past racial discrepancies in hospital access and recordkeeping, many older African Americans,‬ ‭especially those born in the rural South, do not have this documentation.‬‭193‬ ‭Even when records‬ ‭are available, access may be blocked by costly fees or administrative mistakes. Low-income‬ ‭people are disproportionately impacted by these obstacles, which make it more difficult for them‬

‭192‬

‭Brennan Center for Justice. (2017).‬‭The Effects of‬‭Voter ID Laws on Voting and Voter Turnout‬‭. Retrieved‬‭from‬ ‭https://www.brennancenter.org‬ ‭193‬ ‭Facetoface. “Obtaining a Birth Certificate Proves Challenging for Americans.”‬‭Face to Face Germantown‬ ‭Hospitality, Mutuality, Transformation‬‭, 27 Oct. 2021,‬ ‭facetofacegermantown.org/many-americans-obtaining-birth-certificate-proves-challenging-alfred-lubrano-inquirer-st‬ ‭aff-writer/.‬

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‭to get the identification needed to vote and lower voter turnout among underrepresented groups.‬ ‭While several states have attempted to help alleviate the barriers created by voter ID laws, in‬ ‭many cases, these efforts have not led to significant improvements in voter access. For example,‬ ‭while Texas and Wisconsin have offered free identification cards to voters who do not have the‬ ‭required ID, the additional costs associated with travel and time off work are still significant‬ ‭barriers for low-income individuals.‬‭2‬‭These challenges‬‭are seen even more in rural areas where‬ ‭public transportation is unpopular. Furthermore, voter ID requirements may burden younger‬ ‭voters, especially college students, particularly in areas where student IDs are not recognized as‬ ‭legitimate forms of identity. While designed to enhance electoral integrity, voter ID laws often‬ ‭lead to lower voter turnout. This is especially evident in marginalized communities, as such laws‬ ‭impose unnecessary barriers that may be mitigated by increased access to resources.‬ ‭These difficulties were made worse by the 2013 Supreme Court ruling in‬‭Shelby County‬ ‭v. Holder‬‭, which invalidated a crucial clause in the‬‭Voting Rights Act requiring some states and‬ ‭municipalities with a history of discrimination to obtain federal approval before altering their‬ ‭voting laws.‬‭194‬ ‭This decision created further obstacles‬‭for already vulnerable groups by enabling‬ ‭states to enact tougher voter ID laws and other restrictive measures without federal oversight. In‬ ‭the absence of this vital safeguard, some states swiftly passed legislation that disproportionately‬ ‭impacted minorities, solidifying structural injustices and threatening the democratic ideal of‬ ‭equal voting rights.‬

‭194‬

‭“Shelby v Holder.”‬‭Rock the Vote‬‭, 8 June 2023, www.rockthevote.org/explainers/shelby-v-holder/.‬

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‭Legal Background of Voter ID Laws‬ ‭In the United States, voter identification laws emerged as a significant political issue in‬ ‭the early 2000s, with states like Indiana and Georgia leading the charge in implementing strict‬ ‭photo ID requirements for voting.‬‭2‬ ‭While these laws‬‭were created at the state level rather than‬ ‭through federal legislation, they sparked intense nationwide debate about voting rights and‬ ‭election security. Proponents argued that ID requirements would prevent voter fraud, though‬ ‭extensive research has found very few documented cases of in-person voter impersonation. For‬ ‭example, a comprehensive study of elections between 2000 and 2014 found only 31 credible‬ ‭instances of voter fraud out of over one billion ballots cast.‬‭195‬ ‭One of the most significant cases was‬‭Crawford v.‬‭Marion County Election Board‬‭, where‬ ‭the Supreme Court upheld Indiana's voter ID law in a 6-3 decision, setting an important‬ ‭precedent for other states.‬‭196‬ ‭When casting their ballots‬‭at polling stations, voters were legally‬ ‭required to show a valid form of government-issued photo identification, such as a state ID,‬ ‭Indiana driver's license, U.S. passport, or military ID. Those without legal identification may‬ ‭only cast provisional ballots, which would be counted if they presented valid identification at‬ ‭their county clerk's office within ten days. However, the law made limited exceptions for‬ ‭residents of state-licensed care institutions and religious objectors, but not all voter ID laws have‬ ‭survived legal scrutiny.‬

‭195‬

‭Office, U.S. Government Accountability. “Elections: Issues Related to State Voter Identification Laws [Reissued‬ o‭ n February 27, 2015].”‬‭Elections: Issues Related‬‭to State Voter Identification Laws [Reissued on February 27,‬ ‭2015] | U.S. GAO‬‭, www.gao.gov/products/gao-14-634.‬‭Accessed 2 Dec. 2024.‬ ‭196‬ ‭Crawford v. Marion County Election Board.”‬‭Oyez‬‭, www.oyez.org/cases/2007/07-21.‬‭Accessed 22 Dec. 2024‬

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‭In‬‭North Carolina State Conference of the NAACP v. McCror‬‭y‭1‬ 97‬‭, the Fourth Circuit‬ ‭Court of Appeals struck down North Carolina's voter ID law, finding that it targeted African‬ ‭American voters with "almost surgical precision".‬‭198‬ ‭The court reached this conclusion by‬ ‭analyzing evidence that state lawmakers requested and used racial data on voting patterns to craft‬ ‭the law, including information on how African Americans disproportionately relied on early‬ ‭voting, same-day registration, and out-of-precinct voting. The law eliminated or restricted these‬ ‭practices, disproportionately burdening African American voters while preserving methods more‬ ‭commonly used by white voters. As a result of the ruling, voters in North Carolina were no‬ ‭longer required to present a photo ID at the polls and could instead cast their ballots without‬ ‭additional proof of identity. This decision underscored the judicial system's role in mitigating‬ ‭some of the harshest effects of voter ID laws, ensuring more equitable access to the ballot box in‬ ‭the state. It also set a precedent for examining voter laws through the lens of intent and impact,‬ ‭emphasizing that even facially neutral policies can be struck down if they are shown to have‬ ‭discriminatory purposes or effects. This serves as a reminder to lawmakers that voting‬ ‭regulations must prioritize inclusivity and fairness to withstand constitutional scrutiny.‬ ‭As of 2024, 35 states have voter ID laws in effect, with 18 states requiring photo ID and‬ ‭17 states accepting non-photo ID.‬‭199‬ ‭Notable cases include‬‭Texas, where federal courts found the‬ ‭state's voter ID law discriminatory in 2017, leading to a revised version that allowed voters to‬ ‭sign affidavits if they couldn't obtain ID. Wisconsin faced multiple challenges regarding student‬ ‭IDs and documentation difficulties. At the same time, Georgia became a focal point of voter ID‬ ‭197‬

‭“North Carolina NAACP V. McCrory.”‬‭Brennan Center‬‭for Justice‬‭,‬ ‭www.brennancenter.org/our-work/court-cases/north-carolina-naacp-v-mccrory. Accessed 30 Nov. 2024.‬ ‭198‬ ‭American Civil Liberties Union. (2016).‬‭Voter ID Laws and Legal Challenges: ACLU Fact Sheet‬‭. Retrieved from‬ ‭https://www.aclu.org‬ ‭199‬ ‭National Conference of State Legislatures. (2024).‬‭Voter ID: Laws in Effect by State‬‭. Retrieved from‬ ‭https://www.ncsl.org‬

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‭debate with new legislation affecting in-person and absentee voting requirements‬‭2‬‭. If eligible‬ ‭voters are unable to visit their assigned polling location on election day for any reason—such as‬ ‭being out of state, having work commitments, being ill or disabled, or other qualifying‬ ‭circumstances—they can use an absentee ballot, which is a voting method that enables them to‬ ‭cast their ballot by mail or in person before election day. Critics, including civil rights‬ ‭organizations, have consistently challenged many of these laws in court, arguing they‬ ‭disproportionately affect minority voters, elderly citizens, and low-income communities who‬ ‭may face difficulties obtaining proper identification. The legal landscape around voter ID‬ ‭remains complex and varies significantly by state - some require strict photo ID, others accept‬ ‭non-photo ID like utility bills. In contrast, several states have no ID requirement, reflecting the‬ ‭decentralized nature of American elections, where states have considerable autonomy in setting‬ ‭their own voting rules and procedures.‬ ‭Comparing Voter ID Laws by State‬ ‭iii. New Jersey Politics‬ ‭Among states, New Jersey has adopted a more lenient approach to maintaining the‬ ‭integrity of the voting process. In contrast to Georgia or Texas, where voting in person requires a‬ ‭government-issued photo ID, New Jersey adopts a more inclusive strategy that lowers voting‬ ‭obstacles. The state does not require most voters to present a photo ID to vote in person.‬ ‭Presenting identification is only required for first-time voters who registered by mail. This can‬ ‭include non-photo documentation like utility bills, bank statements, paychecks, or any other‬ ‭document issued by the government that contains their name and address.‬‭200‬ ‭Voters who do not‬ ‭200‬

‭“Voter ID in New Jersey.”‬‭Ballotpedia‬‭, ballotpedia.org/Voter_ID_in_New_Jersey.‬‭Accessed 23 Nov. 2024‬‭.‬

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‭have access to conventional means of identification can still participate in elections without‬ ‭experiencing excessive hardship thanks to this adaptable method. Furthermore, New Jersey's‬ ‭strategy demonstrates its larger dedication to electoral accessibility. The state can avoid‬ ‭establishing needless barriers for people who might find it difficult to get government-issued‬ ‭photo IDs because of financial, logistical, or other difficulties by reducing the requirements for‬ ‭in-person voting. This stands in contrast to more stringent states like Georgia and Texas, where‬ ‭voters may be issued provisional ballots if they do not present the appropriate identity at the‬ ‭polling station. These ballots may not always be tallied unless the required documentation is‬ ‭presented promptly. New Jersey is a leader in accessible voting procedures because of its more‬ ‭inclusive rules, which are designed to encourage participation from all eligible voters,‬ ‭irrespective of socioeconomic or demographic characteristics. The state faced significant‬ ‭changes during the COVID-19 pandemic when it implemented universal mail-in voting for the‬ ‭2020 election, demonstrating its adaptable approach to voting accessibility. However, the state‬ ‭has seen some controversy regarding voter verification methods.‬ ‭In 2020, New Jersey expanded its voter ID requirements for mail-in ballots, requiring‬ ‭signature verification to confirm voter identity. This decision sparked debate about the balance‬ ‭between election security and voter access, particularly when according to an analysis of New‬ ‭Jersey's vote-by-mail database, about 66,500 ballots were rejected in the 2020 general election,‬ ‭representing only 1.4% of those cast.‬‭201‬ ‭To guarantee‬‭that their votes would be tallied, voters‬ ‭were given the chance to correct their ballots, which allowed them to address problems like‬ ‭missing or mismatched signatures. The state's approach has generally resulted in higher voter‬ ‭201‬

‭Colleen O’Dea, NJ Spotlight. “Problems with Signatures,‬‭Envelopes Top Reasons NJ Ballots Rejected.”‬‭WHYY‬‭,‬ ‭WHYY, 15 Dec. 2020, whyy.org/articles/problems-with-signatures-envelopes-top-reasons-nj-ballots-rejected/.‬

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‭turnout than states with strict ID laws – in the 2020 election, New Jersey saw a record-breaking‬ ‭78.3%‬‭voter turnout.‬‭202‬ ‭The state continues to focus‬‭on expanding voter access while maintaining‬ ‭election integrity through methods like automatic voter registration at motor vehicle agencies and‬ ‭online voter registration rather than implementing restrictive ID requirements that might create‬ ‭barriers to voting.‬‭203‬ ‭iv. Texas Politics‬ ‭Texas, on the other hand, reported a voter turnout of roughly 66% in the 2020 election.‬ ‭Texas has one of the nation's strongest voter ID laws, requiring government-issued photo‬ ‭identification for in-person voting.‬‭204‬ ‭Despite Texas‬‭having one of the greatest populations of‬ ‭eligible voters, this turnout was much lower than that of New Jersey. Texas's stringent ID laws,‬ ‭limited early voting booths, and other accessibility issues could all be factors in the state's‬ ‭reduced turnout. Opponents contend that these restrictions impede voter turnout, especially‬ ‭among underrepresented groups, while supporters contend that they preserve the integrity of‬ ‭elections. The stark contrast between turnout rates in New Jersey and Texas highlights the‬ ‭potential impact of voter ID laws and access policies on electoral participation, underscoring the‬ ‭importance of balancing security with inclusivity.‬ ‭v. Solution‬ ‭Addressing the obstacles posed by voter ID legislation is essential to guaranteeing an‬ ‭inclusive and fair democratic process. Election security requirements must be balanced to enable‬ ‭202‬

‭“How Many Americans Voted in 2020?”‬‭USAFacts‬‭, USAFacts, 3 Oct. 2024,‬ ‭usafacts.org/articles/how-many-americans-voted-in-2020/.‬ ‭203‬ ‭Eagleton Institute of Politics, Rutgers University. (2021).‬‭New Jersey’s Voter Access Policies and Their‬‭Impact on‬ ‭Turnout‬‭. Retrieved from https://eagleton.rutgers.edu‬ ‭204‬ ‭Najmabadi, Shannon, and Mandi Cai. “Democrats Hoped High Turnout Would Usher in a Blue Wave across‬ ‭Texas. It Didn’t.”‬‭The Texas Tribune‬‭, The Texas Tribune,‬‭5 Nov. 2020,‬ ‭www.texastribune.org/2020/11/04/texas-voter-turnout-democrats/.‬

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‭all eligible individuals to vote. Expanding access to identification is a successful strategy,‬ ‭particularly in jurisdictions with strict voter ID regulations. Offering free IDs and sending mobile‬ ‭ID units to low-income and rural areas might transform the situation. Similar initiatives have‬ ‭been started in states like Wisconsin and Texas,‬‭205‬ ‭but extending these programs and lowering‬ ‭administrative barriers will assist underserved groups in getting the required identification even‬ ‭more.‬ ‭It is equally critical to address the hidden expenses related to acquiring identification.‬ ‭Even when IDs are given away for free, transportation and time away from work can be major‬ ‭challenges. State and federal programs could fund Transportation services designed to assist‬ ‭voters in getting to ID-issuing facilities. For example, free or subsidized transit could reduce the‬ ‭expense burden for older and low-income people, who are more likely to experience mobility‬ ‭issues.‬ ‭Extending the list of approved identification forms is another way to solve the problem.‬ ‭States can prevent residents who struggle to obtain government-issued photo IDs from losing‬ ‭their right to vote by permitting non-photo options such as utility bills or bank accounts. States‬ ‭that allow other kinds of identification, like New Jersey, offer a model that might be used more‬ ‭broadly to lower voting obstacles.‬ ‭Conclusion‬ ‭The tension between maintaining widespread voting access and ensuring election‬ ‭integrity lies at the heart of the debate over voter ID laws. Although statistics show that in-person‬ ‭voter fraud is incredibly rare, supporters of this legislation assert that it prevents fraud.‬ ‭205‬

‭Staff, The Center Square, and The Center Square Staff.‬‭“Wisconsin DMV Provides Free State ID Cards for‬ ‭ oting Purposes.”‬‭Just The News‬‭,‬ V ‭justthenews.com/nation/states/center-square/wisconsin-dmv-provides-free-state-id-cards-voting-purposes. Accessed‬ ‭23 Nov. 2024‬‭.‬

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‭Interestingly, research has not found a strong link between a state's higher voter ID requirements‬ ‭and the number of prior fraud reports, indicating that these regulations may reflect political‬ ‭objectives rather than actual fraud. The justification for these restrictions is questioned because‬ ‭some states with more stringent voter ID laws have not seen higher rates of election fraud in the‬ ‭past.‬ ‭Strict voter ID laws often disproportionately impact underprivileged groups, reducing‬ ‭voter turnout among low-income, elderly, and minority populations. Everyone's right to vote‬ ‭must be protected in a robust democracy, and removing the barriers these rules impose is an‬ ‭essential first step. By increasing the number of approved identity forms, reducing hidden costs,‬ ‭improving access to identification, and making sure that voting regulations are founded on facts‬ ‭rather than conjecture about fraud, states can create a safe and inclusive voting environment. To‬ ‭preserve democratic values and public trust in the political process, access and integrity must be‬ ‭balanced.‬‭206‬

‭206‬

‭Professor‬‭William Field, comments on draft paper,‬‭December 1, 2024 that were taken into account by adding more‬ ‭information from sources‬

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‭GENOCIDE ALLEGATIONS IN GAZA:‬ ‭THE LEGAL ROLE AND SIGNIFICANCE OF THE INTERNATIONAL COURT OF‬ ‭JUSTICE‬ ‭WRITTEN BY ALEJANDRA AFANADOR | EDITED BY NAVYA TERAPALLI‬ ‭Introduction‬ ‭Since its inception, the International Criminal Court‬‭of Justice (ICJ) has acted as a global‬ ‭judicial power, though its failure to mitigate the prolonged Israeli-Palestinian conflict brings its‬ ‭efficacy into question. The Court’s involvement in the events of the Gaza Strip since December‬ ‭2023—particularly following South Africa’s accusations of genocidal acts on Israel’s part against‬ ‭the Palestinian people (i.e. Case 192)—has been a salient point of contention. Such recent news‬ ‭has begged questions about what the ICJ is exactly and whether its rulings have any credibility‬ ‭on the world stage. At the moment, the spotlight of these inquiries shines on the Gaza Strip.‬ ‭i. What is the International Court of Justice?‬ ‭Officially codified into the United Nations Charter in 1945, the International Court of‬ ‭Justice, or ICJ, has been an authority in the realm of international relations since the Second‬ ‭World War.‬‭207‬ ‭More recently, the court has made headlines‬‭regarding its role in the ongoing‬ ‭Israel-Hamas war afflicting the Gaza Strip, with charges of alleged genocide being brought to its‬ ‭attention. Yet, its existence and purpose are unbeknownst to much of the global population. The‬ ‭ICJ is defined as “the principal judicial organ of the UN [...] charged with settling disputes‬ ‭between States and providing advisory opinions”.‬‭208‬ ‭In layman’s terms, the ICJ deals with‬ ‭conflicts that arise between two or more sovereign countries’ official governing bodies or States.‬ ‭This treats each State as its own entity in a criminal case, but it does not try particular individuals‬ ‭207‬

‭“History.”‬‭History | INTERNATIONAL COURT OF JUSTICE‬‭,‬‭International Court of Justice,‬ ‭www.icj-cij.org/history.‬ ‭208‬ ‭“UN Structure.”‬‭United Nations‬‭, United Nations, www.un.org/en/model-united-nations/un-structure.‬

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‭for crimes. However, the ICJ is not the only international judiciary body—there is also the‬ ‭International Criminal Court (ICC). A few distinctions are worth noting between the two. Both‬ ‭judiciary bodies are based in The Hague, Netherlands, where the two diverge primarily in their‬ ‭function, jurisdiction, and affiliation. Firstly, the ICJ’s function is to resolve altercations between‬ ‭nation-states and governments, whereas the ICC tries individuals for criminal acts. The current‬ ‭case concerning Israel presents charges against the state itself, not a particular individual. Hence‬ ‭why, this case is being handled by the ICJ as opposed to the ICC (even though both courts hold‬ ‭trials for crimes against humanity, such as genocide). Secondly, in terms of affiliations, the ICJ‬ ‭is—as previously defined—one of the branches under the system of the United Nations.‬ ‭Contrariwise, the ICC is independent from the UN.‬‭209‬ ‭The distinction between these two global‬ ‭courts is relevant to the case study of the Israeli-Palestinian conflict because the ICC has recently‬ ‭issued arrest warrants for both Israeli and Hamas leaders alike, charging them with war crimes‬ ‭and crimes against humanity.‬‭210‬ ‭ii. Origins of the ICJ‬ ‭As introduced previously, the ICJ was officially codified into the Charter of the United‬ ‭Nations in 1945 as its principal judicial organ.‬‭211‬ ‭The establishment of the ICJ followed the‬ ‭legacy of the Permanent Court of International Justice (PCIJ), which had been created in 1920‬ ‭under the League of Nations but ceased to function after the League's dissolution. As the UN‬ ‭inherited its framework from the League of Nations, so too the ICJ inherited much of the PCIJ’s‬ ‭foundational structure while adapting to the evolving international framework post-World War II.‬ ‭209‬

‭Juliette McIntyre, University of Melbourne and University‬‭of South Australia. “How Does the International Court of Justice‬ ‭ iffer from the International Criminal Court?”‬‭Pursuit‬‭,‬‭The University of Melbourne, 5 Feb. 2024,‬ D ‭pursuit.unimelb.edu.au/articles/how-does-the-international-court-of-justice-differ-from-the-international-criminal-court#:~:text=‬ ‭The%20ICJ%20has%20jurisdiction%20over,ICC%20prosecutes%20individuals%20for%20crimes.‬ ‭210‬ ‭International Criminal Court.‬‭Statement of ICC Prosecutor‬‭Karim A.A. Khan KC on the Issuance of Arrest Warrants in the‬ ‭Situation in the State of Palestine‬‭. November 21,‬‭2024.‬ ‭https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-issuance-arrest-warrants-situation-state-palestine.‬ ‭211‬ ‭United Nations,‬‭Charter of the United Nations and‬‭Statute of the International Court of Justice‬‭, June‬‭26, 1945,‬ ‭https://www.un.org/en/about-us/un-charter.‬

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‭This adaptation was driven by the desire to solidify mechanisms for peaceful dispute resolution‬ ‭in a world scarred by global conflict.‬‭212‬ ‭The ICJ is composed of fifteen judges, who are elected to nine-year terms by the United‬ ‭Nations General Assembly and the Security Council. These judges represent the world's‬ ‭principal legal systems and are tasked with maintaining judicial independence while upholding‬ ‭the rule of law at the international level. The court’s jurisdiction is twofold: it adjudicates‬ ‭contentious cases brought by states and provides advisory opinions on legal questions referred to‬ ‭it by authorized UN organs and specialized agencies. The ICJ began its operations in 1946 in‬ ‭The Hague, Netherlands, and the body has been headquartered there ever since.‬ ‭The foundational statute of the ICJ, which is an integral part of the UN Charter, outlines‬ ‭its operational scope and procedures. Article 38 of the ICJ Statute defines the sources of‬ ‭international law the court applies, including international conventions, customary law, general‬ ‭principles of law, and judicial decisions or scholarly writings as subsidiary means. This‬ ‭framework not only guides the court’s rulings but also ensures consistency with the broader‬ ‭corpus of international law.‬‭213‬ ‭iii. How the ICJ Works‬ ‭Although the judicial nature of the ICJ is analogous to that of national courts, its‬ ‭jurisdiction is unique to the international system. The ICJ has two primary functions: settling‬ ‭legal disputes submitted by states and providing advisory opinions on legal questions referred to‬ ‭it by authorized international organs or agencies. Cases brought to the ICJ must meet stringent‬ ‭criteria, as only states may be parties to contentious cases. Moreover, states must consent to the‬ ‭court's jurisdiction, either through treaties, declarations, or special agreements. This‬ ‭212‬

I‭ nternational Court of Justice,‬‭History and Legacy‬‭of the PCIJ and ICJ‬‭, https://www.icj-cij.org/history.‬ ‭International Court of Justice,‬‭The Composition of‬‭the Court‬‭, accessed November 30, 2024,‬ ‭https://www.icj-cij.org/composition.‬ ‭213‬

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‭consent-based system reflects the principles of state sovereignty but also limits the ICJ’s‬ ‭enforceability, as nations unwilling to subject themselves to its rulings cannot be compelled to do‬ ‭so.‬ ‭iv. Do the ICJ’s Rulings Hold Any Weight in Practice?‬ ‭A prevalent critique of international organizations such as the UN is that as a faction of‬ ‭an international organization with no physical mode of enforcement—no “global police force”,‬ ‭so to speak—they lack the praxis to affect change. The essence of the decisions the court or the‬ ‭UN adopts is founded in rulings, resolutions, or treaties. These international agreements are‬ ‭essential to diplomacy and provide a framework for world order, they have the potential to be‬ ‭perceived as mere suggestions without enforcing power. Legally, the ICJ’s rulings are binding for‬ ‭the parties involved—but are they truly? As with much of international law, the ICJ orders can‬ ‭lack enforceability beyond possible economic ramifications (i.e., sanctions) in practice. At the‬ ‭end of the day, there is no globalforce that resembles a physical corps of officers to enforce the‬ ‭law, as is seen in national militaries. Even so, there is some extent of enforceability from the‬ ‭United Nations, including the Security Council’s power to declare the use of military powers. All‬ ‭states with members on the council are also “obligated to comply with Council decisions”.‬‭214‬ ‭Certain nation-states exert more influence over UN rulings than others, however, potentially‬ ‭propagating bias and granting them larger control in these international systems. This is most‬ ‭evident in the United Nations Security Council, in which five permanent members, referred to as‬ ‭the P5, are allowed to veto any resolution (i.e., the United States, United Kingdom, Russia,‬ ‭China, and France).‬‭215‬ ‭The United States’ ability to‬‭veto previous draft resolutions for a ceasefire‬ ‭in Gaza, for instance, has placed the Security Council’s methods under scrutiny by some. Such‬ ‭214‬

“‭ Security Council | Meetings Coverage and Press Releases.” United Nations, n.d. https://press.un.org/en/security-council.‬ ‭“Security Council Members, Security Council.”‬‭UN.Org‬‭,‬‭United Nations,‬ ‭www.un.org/securitycouncil/content/security-council-members.‬ ‭215‬

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‭criticisms have transited into the spotlight that the ICJ currently finds itself under because of‬ ‭South Africa’s charges against Israel for genocide in the Gaza Strip following the October 7th,‬ ‭2023 Hamas attack. Moreover, the efficacy of the ICJ has been especially scrutinized in this‬ ‭context following continued attacks on the Gaza Strip by the state of Israel after ICJ‬ ‭discouragement following bombings in the area of Rafah.‬ ‭The International Court of Justice‬ ‭v. Significance of Rulings‬ ‭The most controversial point of contention regarding international‬ ‭organizations—especially those with the objective to function as arbiters of justice—is their‬ ‭ambiguous jurisdiction. In a broad sense, when an entity aims to have jurisdiction over the‬ ‭myriad of nations in the world, there are bound to be geo-political disputes between states. From‬ ‭working definitions of international laws and charges to disputes over violations of those laws.‬ ‭But as an entity with the United Nations’ mission to “maintain international peace and security”‬ ‭and the judicial branch of the organization it is their prerogative to reinforce the mission of‬ ‭upholding international law. Furthermore, those international laws include treaties and‬ ‭conventions which establish standards that nations are expected to adhere to.‬ ‭According to the official website of the International Court of Justice: “‬‭Judgments‬ ‭delivered by the Court (or by one of its Chambers) in disputes between States are binding upon‬ ‭the parties concerned. Article 94 of the United Nations Charter provides that ‘[e]ach Member of‬ ‭the United Nations undertakes to comply with the decision of [the Court] in any case to which it‬ ‭is a party’. Judgments are final and without appeal.‬‭If there is a dispute about the meaning or‬ ‭scope of a judgment, the only possibility is for one of the parties to request an interpretation to‬ ‭the Court. [...] As regards advisory opinions,‬‭it‬‭is usually for the United Nations organs and‬

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‭specialized agencies requesting them to give effect to them or not‬‭, by whichever means they see‬ ‭fit.” (emphasis added).‬‭216‬ ‭In‬ ‭terms‬ ‭of‬ ‭formal‬ ‭legality,‬ ‭rulings‬ ‭from‬ ‭the‬ ‭ICJ‬‭are‬‭to‬‭be‬‭taken‬‭as‬‭international‬ ‭law.‬ ‭This‬ ‭is‬ ‭reminiscent‬ ‭of‬ ‭the‬ ‭weight‬ ‭that‬ ‭Supreme‬ ‭Court‬ ‭rulings‬ ‭hold‬ ‭in‬ ‭the‬ ‭United‬ ‭States‬ ‭judicial‬ ‭system.‬‭However,‬‭it‬‭is‬‭evidently‬‭more‬‭complicated‬‭to‬‭enforce‬‭ICJ‬‭rulings‬ ‭due to the vastness of their international jurisdiction.‬ ‭vi. The ICJ’s Role in the Israeli-Palestinian Conflict in Gaza‬ ‭In December of 2023, the nation-state of South Africa instituted proceedings against the‬ ‭state of Israel. The Republic of South Africa accuses Israel of violating its obligations under‬ ‭international law set by the precedent of the “Convention on the Prevention and Punishment of‬ ‭the Crime of Genocide”—commonly referred to as the Genocide Convention. According to‬ ‭South Africa, the state of Israel has not only allowed genocide to occur but has also allegedly‬ ‭incited it. Since the opening of the case in December, the ICJ has applied procedures of‬ ‭provisional measures, rulings, and revisitings of said measures until the present day.‬‭217‬ ‭In May of‬ ‭2024, the ICJ issued additional provisional measures addressing Israel’s military operations in‬ ‭Rafah, a city in the Southern Gaza Strip. The court ordered an immediate halt to the offensive,‬ ‭citing risks of conditions that could amount to genocide under the Genocide Convention. The‬ ‭ruling also called for the reopening of the Rafah crossing for humanitarian aid and access for‬ ‭investigations. Subsequent reports, however, indicated continued military actions.‬‭218‬ ‭This once‬ ‭again highlights the tensions between the ICJ’s legal directives and the practical enforcement of‬ ‭its rulings on the ground.‬ ‭216‬ ‭217‬

‭“FAQs.”‬‭International Court of Justice‬‭, www.icj-cij.org/frequently-asked-questions.‬

‭“Application of the Convention on the Prevention‬‭and Punishment of the Crime of Genocide in the Gaza Strip (South Africa‬ ‭v. Israel)”,‬‭International Court of Justice‬‭, https://www.icj-cij.org/case/192.‬ ‭218‬ ‭JURIST, "ICJ Orders Halt to Israel's Gaza Offensive Over Genocide Fears," May 24, 2024,‬ ‭https://www.jurist.org/features/2024/05/24/explainer-icj-orders-halt-to-israels-gaza-offensive-over-genocide-fears/.‬

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‭As the governing judicial authority on the matter, the court evaluates the legal substance‬ ‭of the charges in question with a comprehensive lens as an objective entity for rectitude. Like‬ ‭any judicial body, the ICJ must exercise a certain degree of judicial independence to reach a just‬ ‭ruling. This entails the consultation of testimony and evidence from the various parties involved.‬ ‭Though the ICJ is primarily the chief actor responsible for the resolution of this legal conflict,‬ ‭each of the six branches (also known as “principal organs”‬‭219‬‭) of the United Nations has been and‬ ‭continues to be involved in the issues surrounding the Gaza Strip. To thoroughly contextualize‬ ‭the ICJ’s role in this conflict, the scope must be broadened to analyze its parent organization, the‬ ‭United Nations (also known as “the UN”). As a multi-faceted conflict, the UN applies its layered‬ ‭jurisdiction to address the complicated perspectives pertinent to the situation. The Security‬ ‭Council has attempted to pass resolutions in favor of a ceasefire in the region twice since‬ ‭December of 2023, with both attempts vetoed by the United States.‬‭220‬ ‭However, on March 25th,‬ ‭2024, the UNSC was able to pass Resolution 2728, as the United States abstained from the vote‬ ‭and the other fourteen nation-states voted in favor of the draft. The resolution had proposed an‬ ‭immediate ceasefire in Gaza for Ramadan, an annual Muslim holiday which spans one month.‬‭221‬ ‭In a statement following the Security Council’s decision, United Nations Secretary-General‬ ‭(UNSG) António Guterres voiced his ardent support for the urgency of the resolution, saying,‬ ‭“this resolution must be implemented. Failure would be unforgivable”.‬‭222‬ ‭The UNSG’s vocal‬ ‭promotion of the resolution stems from the humanitarian concerns surrounding the conflict.‬ ‭219‬

‭“UN Structure.”‬‭United Nations‬‭, United Nations, www.un.org/en/model-united-nations/un-structure.‬ “‭ Security Council Again Fails to Adopt Resolution Demanding Immediate Humanitarian Ceasefire in Gaza on Account of‬ ‭Veto by United States | Meetings Coverage and Press Releases.”‬‭UN.Org‬‭, United Nations,‬ ‭press.un.org/en/2024/sc15595.doc.htm#:~:text=The%20Security%20Council%20today%20failed,text%20since%20early%20Dec‬ ‭ember%202023.‬ ‭221‬ ‭“Security Council Demands Immediate Ceasefire in Gaza for Month of Ramadan, Adopting Resolution 2728 (2024) with 14‬ ‭Members Voting in Favour, United States Abstaining | Meetings Coverage and Press Releases.”‬‭UN.Org‬‭,‬‭United Nations, 25 Mar.‬ ‭2024, press.un.org/en/2024/sc15641.doc.htm.‬ ‭222‬ ‭Reuters, and TOI Staff. “UN Chief: ‘Unforgiveable’‬‭to Not Apply Security Council Gaza Ceasefire Resolution | The Times of‬ ‭Israel.”‬‭Timesofisrael.Com‬‭, The Times of Israel, 25‬‭Mar. 2024,‬ ‭www.timesofisrael.com/un-chief-unforgiveable-to-not-apply-security-council-gaza-ceasefire-resolution/.‬ ‭220‬

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‭Beyond the devastation afflicting Gaza’s land and inhabitants, the release of hostages also poses‬ ‭a humanitarian concern, a matter pertinent to the UN. The State of Israel has especially voiced‬ ‭this concern, though the government has yet to reach an agreement with Hamas in terms of a‬ ‭truce. Subsequent UNSC attempts at a ceasefire have been unsuccessful, however, most recently‬ ‭a November 20th resolution being vetoed by the United States.‬‭223‬ ‭Therein lies the question of‬ ‭implementing the UNSC’s call for an immediate ceasefire in the region and whether its‬ ‭rulings—and those of the ICJ—carry weight in practice.‬ ‭vii. The Role of the United Nations‬ ‭The United Nations plays a multifaceted role in the Israeli-Palestinian conflict, with each‬ ‭of its six principal organs contributing to the situation in Gaza and the ICJ's Case 192. The‬ ‭General Assembly (UNGA) serves as a forum for international dialogue, adopting resolutions‬ ‭that advocate for ceasefires and humanitarian aid. In November 2023, the General Assembly‬ ‭passed Resolution ES-10/19, which called for an immediate ceasefire and emphasized the‬ ‭importance of humanitarian access to Gaza.‬‭224‬ ‭While‬‭these resolutions reflect global consensus,‬ ‭they lack binding authority. The Security Council (UNSC), in contrast, has the power to‬ ‭implement binding measures for peace and security. However, its efforts to enforce ceasefires‬ ‭have been limited by U.S. vetoes, diminishing its effectiveness. Despite these challenges, the‬ ‭UNSC adopted Resolution 2728 in March 2024, which proposed a temporary ceasefire during‬ ‭Ramadan.‬‭225‬ ‭The ICJ, as the UN’s judicial arm, is particularly‬‭pertinent to Case 192, addressing‬ ‭allegations of genocide under the Genocide Convention. This case, brought by South Africa‬ ‭against Israel, underscores the ICJ’s role in interpreting international law and holding states‬

‭223‬

‭“Security Council Fails to Adopt Resolution Demanding Immediate Ceasefire in Gaza, as United States Casts Negative Vote |‬ ‭Meetings Coverage and Press Releases.” United Nations, n.d. https://press.un.org/en/2024/sc15907.doc.htm.‬ ‭224‬ ‭United Nations General Assembly,‬‭Resolution ES-10/19‬‭,‬‭November 15, 2023, https://undocs.org/en/A/RES/ES-10/19.‬ ‭225‬ ‭United Nations Security Council,‬‭Resolution 2728‬‭,‬‭March 25, 2024, https://press.un.org/en/2024/sc15641.doc.htm.‬

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‭accountable for alleged violations.‬‭226‬ ‭Meanwhile, the Economic and Social Council (ECOSOC)‬ ‭oversees humanitarian efforts through agencies like UNRWA and WHO, which provide essential‬ ‭aid to Gaza. ECOSOC’s reports have highlighted the severe socio-economic impact of the‬ ‭conflict, emphasizing the need for continued international support.‬‭227‬ ‭However, in late October of‬ ‭2024, the Israeli government announced a controversial ban on the UNRWA’s operations in‬ ‭Gaza, a decision expected to hinder the delivery of humanitarian aid and essential services.‬‭228‬ ‭The UN Secretariat, led by Secretary-General (UNSG) António Guterres, is an executive arm of‬ ‭the UN that facilitates diplomatic initiatives and supports its operations. Guterres has been a‬ ‭vocal advocate for ceasefires and expanded humanitarian access, emphasizing the importance of‬ ‭adhering to international humanitarian law. While the Trusteeship Council is no longer active, its‬ ‭legacy of promoting self-determination remains relevant, particularly in discussions surrounding‬ ‭Palestinian statehood.‬‭229‬ ‭Collectively, these organs‬‭illustrate the UN’s multifaceted response,‬ ‭with the ICJ focusing on legal accountability while other branches address the political,‬ ‭humanitarian, and diplomatic dimensions of the crisis.‬ ‭Application to Israel & War in Gaza‬ ‭viii. Where the Case Stands Now‬ ‭In regards to the ongoing case ICJ has presented against the state of Israel since‬ ‭December of 2023, multiple nations have elected to join South Africa in their trial. It is worth‬ ‭noting the significance of South Africa bringing forth these charges and the connotations that this‬ ‭carries. The nation of South Africa has a historically held personal history of addressing systemic‬ ‭injustices, particularly in its confrontation with apartheid—a state-sanctioned system of racial‬ ‭226‬

‭International Court of Justice,‬‭Application of the Convention on the Prevention and Punishment of the Crime of Genocide in‬ ‭the Gaza Strip (South Africa v. Israel)‬‭, www.icj-cij.org/case/192.‬ ‭227‬ ‭Economic and Social Council,‬‭Report on the Socioeconomic‬‭Impact of the Conflict in Gaza‬‭, June 2024.‬ ‭228‬ ‭United Nations. "Israeli Knesset Vote to Ban UNRWA Set to Deepen Palestinian Suffering,"‬‭United Nations‬‭in Palestine‬‭,‬ ‭October 9, 2024, https://palestine.un.org/en/282222-israeli-knesset-vote-unrwa-set-deepen-palestinian-suffering.‬ ‭229‬ ‭United Nations,‬‭History and Role of the Trusteeship‬‭Council‬‭, www.un.org/en/trusteeship.‬

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‭segregation and discrimination that drew widespread international condemnation. This historical‬ ‭experience may inform its stance on issues of alleged state-led persecution and violence. Other‬ ‭nation-states have also aligned themselves with South Africa’s position, demonstrating a growing‬ ‭international concern that transcends geographical borders.‬‭230‬ ‭Returning to the proceedings at‬ ‭hand, ICJ Case 192, entitled “Application of the Convention on the Prevention and Punishment‬ ‭of the Crime of Genocide in the Gaza Strip (South Africa v. Israel),” works to determine the‬ ‭verity of the crime of genocide allegedly committed by Israel in Gaza by referring to the‬ ‭Genocide Conventions. The Convention, signed by one-hundred and fifty-two nation-states in‬ ‭1948, establishes that, under international law, for an act to constitute genocide, it must have‬ ‭“the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group”.‬‭231‬ ‭Academics have also long scrutinized legal definitions and measures of genocide, including the‬ ‭President of Genocide Watch Dr. George Stanton’s Ten Stages of Genocide as an attempt to‬ ‭operationalize the term. Given the gravity and severity of such accusations—especially given its‬ ‭particular history with the genocidal horrors of the Holocaust—Israel currently finds itself on the‬ ‭offensive. The Israeli government has cited Hamas’ October 7th attacks as the ammunition that‬ ‭has loaded the gun of the present military campaign in Gaza. The attack on October 7th left‬ ‭one-thousand two-hundred individuals dead, with over 200 taken hostage.‬‭232‬ ‭The nation's‬ ‭subsequent actions have been defended by the Israeli government as retaliation against Hamas,‬ ‭with Prime Minister Benjamin Netanyahu stating, “Israel is at war. We will destroy Hamas'‬ ‭capabilities to ensure the safety of our citizens and our homeland.”‬‭233‬ ‭230‬

‭“Application of the Convention on the Prevention‬‭and Punishment of the Crime of Genocide in the Gaza Strip‬ ‭(South Africa v. Israel)”,‬‭International Court of‬‭Justice‬‭, https://www.icj-cij.org/case/192.‬ ‭231‬

‭United Nations,‬‭Convention on the Prevention and‬‭Punishment of the Crime of Genocide‬‭, December 9, 1948,‬ ‭ ttps://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Preventio‬ h ‭n%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf.‬ ‭232‬ ‭Dan Williams, "Israel Revises Death Toll from Oct. 7 Hamas Attack to Around 1,200,"‬‭Reuters‬‭, November‬‭10, 2023,‬ ‭https://www.reuters.com/world/middle-east/israel-revises-death-toll-oct-7-hamas-attack-around-1200-2023-11-10/.‬ ‭233‬ ‭Ruth Levush, "Israel: Government Declares War and Special Situation on Home Front Following October 7 Hamas Attacks,"‬ ‭Global Legal Monitor‬‭, Library of Congress, December‬‭12, 2023,‬

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‭ix.‬‭ICJ’s Present Ruling‬ ‭The progress of the ICJ’s rulings at the time of this publication includes provisional‬ ‭measures aimed at mitigating the alleged violations of the Genocide Convention by Israel in‬ ‭Gaza. These measures, central to Case 192, reflect the ICJ’s judicial intervention in one of the‬ ‭most contentious and legally complex conflicts of modern times. The case, titled‬‭Application of‬ ‭the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip‬ ‭(South Africa v. Israel)‬‭, builds on the Convention’s‬‭foundational principles, which obligate state‬ ‭parties to prevent acts of genocide and hold perpetrators accountable.‬ ‭In response to South Africa’s application in December 2023, the ICJ issued provisional‬ ‭measures in January 2024. These measures instructed Israel to "take all necessary steps within its‬ ‭power to prevent actions that could constitute genocide." This included obligations to facilitate‬ ‭humanitarian aid and avoid actions that might lead to the destruction, in whole or in part, of the‬ ‭Palestinian population as a protected group under the Genocide Convention. Following further‬ ‭escalations, the ICJ expanded its orders in March and May 2024, underscoring the need for Israel‬ ‭to halt military operations in key areas such as Rafah and to ensure unimpeded access for‬ ‭international fact-finding missions. These rulings were adopted by a majority vote of 13–2,‬ ‭highlighting a significant level of consensus among the judges on the urgency of the situation.‬‭234‬ ‭The ICJ’s provisional measures reflect its adherence to established jurisprudence‬ ‭concerning genocide. For instance, in the landmark‬‭Bosnia and Herzegovina v. Serbia and‬ ‭Montenegro‬‭(2007) case, the ICJ outlined the criteria‬‭for attributing state responsibility for‬ ‭genocide, emphasizing the necessity of proving both "specific intent" (dolus specialis) and state‬

‭ ttps://www.loc.gov/item/global-legal-monitor/2023-12-11/israel-government-declares-war-and-special-situation-on-home-front-‬ h ‭following-october-7-hamas-attacks/.‬ ‭234‬ ‭International Court of Justice,‬‭Application of the‬‭Convention on the Prevention and Punishment of the Crime of Genocide in‬ ‭the Gaza Strip (South Africa v. Israel)‬‭, Case No.‬‭192, Provisional Measures, January 2024, https://www.icj-cij.org/case/192.‬

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‭control over actors committing genocidal acts.‬‭235‬ ‭Similarly, in‬‭The Gambia v. Myanmar‬‭(2020),‬ ‭the ICJ demonstrated its willingness to impose provisional measures under the Genocide‬ ‭Convention to prevent further harm while legal proceedings are ongoing.‬‭236‬ ‭These precedents are‬ ‭instructive for the current case, as the ICJ must navigate the challenges of distinguishing between‬ ‭lawful acts of self-defense and measures that may result in disproportionate harm to civilians or‬ ‭violate international law. Despite these measures, the ICJ’s ability to enforce its rulings remains‬ ‭limited. Israel has disputed the applicability of the Genocide Convention to its military actions in‬ ‭Gaza, framing its operations as a legitimate response to Hamas’ October 7, 2023, attacks. This‬ ‭contention raises complex legal questions about the intersection of international humanitarian‬ ‭law and the obligations imposed by the Genocide Convention. As of now, compliance with the‬ ‭ICJ’s rulings has been uneven, with reports indicating ongoing military operations that‬ ‭exacerbate the humanitarian crisis in Gaza.‬ ‭Case 192, therefore, represents a critical test for the ICJ’s capacity to uphold international‬ ‭legal norms in the context of entrenched geopolitical conflicts. Its rulings underscore the‬ ‭importance of balancing state sovereignty with the imperative to protect vulnerable populations,‬ ‭a principle enshrined in the Genocide Convention and reinforced through the ICJ’s‬ ‭jurisprudence.‬ ‭Conclusion‬ ‭The continuously developing case at hand in the Gaza Strip warrants an inquiry into the‬ ‭efficacy of international entities, including the ICJ and other principal organs of the United‬ ‭Nations. The war waged on the Gaza Strip is a timely indication of the challenges inherent in‬ ‭maintaining global order through existing international legal frameworks. Analyzing this conflict‬ ‭235‬

‭International Court of Justice,‬‭Bosnia and Herzegovina v. Serbia and Montenegro‬‭, Judgment, February 26, 2007,‬ ‭https://www.icj-cij.org/case/91/judgments.‬ ‭236‬ ‭International Court of Justice,‬‭The Gambia v. Myanmar‬‭,‬‭Provisional Measures, January 23, 2020,‬ ‭https://www.icj-cij.org/case/178.‬

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‭via the lens of international law underscores the difficulty of balancing state sovereignty with‬ ‭obligations under humanitarian and human rights conventions. Within the context of the‬ ‭principal organs of the United Nations—such as the ICC and the UNSC—engaged in diplomatic‬ ‭deliberations surrounding the Gaza Strip, the responsibility borne by the state of Israel in ICJ‬ ‭Case 192 highlights the legal questions surrounding state conduct in armed conflict.‬ ‭Simultaneously, the proceedings emphasize the broader responsibility of all parties to adhere to‬ ‭international legal norms, including the protection of civilian populations and the prevention of‬ ‭acts that may constitute violations of the Genocide Convention. The ongoing legal proceedings‬ ‭in Case 192 highlight these complexities of applying international law to such grave and urgent‬ ‭conflicts.‬ ‭While the ICJ's rulings establish important legal precedents, their enforceability and‬ ‭impact on the ground remain uncertain. The intersection of international legal principles, state‬ ‭sovereignty, and politics continues to shape the application of such international judicial‬ ‭institutions. Ultimately, the resolution of such conflicts may require not only legal adjudication‬ ‭but also concerted diplomatic efforts and political will from the international community. The‬ ‭extent to which these efforts can influence lasting peace in the Gaza Strip remains to be seen, as‬ ‭the efficacy of these institutions hinges on their ability to navigate the complex interplay of legal‬ ‭principles and political realities with impartiality and consistency.‬‭237‬

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‭This paper has been reviewed by Dr. J.D. Bowers. Bowers is the Dean of Rutgers Honors College who also‬ s‭ erves as a Professor of the Practice in Africana Studies and History, specializing in genocide studies, human rights,‬ ‭and honors education.‬

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‭THE FOCUS AND FRAMEWORK OF THE CRIMINAL JUSTICE SYSTEM IN THE‬ ‭UNITED STATES‬ ‭WRITTEN BY AKSHRITA BALAJI | EDITED BY ANIKA PONNI‬ ‭Introduction‬ ‭The United States justice system has consistently focused on the detention and‬ ‭punishment of criminals and offenders, often cementing the nation’s commitment to retributive‬ ‭justice. Through the lens of retributive justice, offenders are frequently stripped of their humanity‬ ‭and treated like objects rather than individuals. Such treatment promotes desensitization, fueling‬ ‭anger and frustration rather than encouraging offenders to reflect on their actions or understand‬ ‭the harm they have caused. By failing to address the root causes of criminal behavior or offering‬ ‭pathways for rehabilitation, the current justice system perpetuates a cycle of resentment and‬ ‭recidivism. Instead of fostering personal growth, accountability, and reintegration into society, it‬ ‭reinforces negative outcomes. The nation’s archaic justice system requires a transformation—by‬ ‭taking a more restorative approach, the justice system can help offenders and society heal from‬ ‭the consequences of criminal behavior.‬ ‭The United States Justice System‬ ‭i. What is Crime?‬ ‭A crime is defined as the intentional commission of an act usually deemed socially‬ ‭harmful or dangerous. It is an act that is prohibited and punishable under criminal law. Criminal‬ ‭acts can have various motives, which differ greatly depending on the circumstance and‬ ‭individual. Criminal behavior is defined by the laws of respective jurisdictions, and it can vary‬

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‭depending on the particular area. Criminal laws and codes about this behavior also advance and‬ ‭change as time passes.‬‭238‬ ‭ii. Why Does Crime Occur?‬ ‭There is a litany of reasons that lead an individual to commit a criminal act. Necessity, for‬ ‭example, is a primary motivator of crime. The poor are disproportionately affected by crime, as‬ ‭people are more likely to participate in criminal activity when they do not have: a steady source‬ ‭of income, an excessive amount of free time, or when state funding for policing and social‬ ‭services decreases.‬‭239‬ ‭Different justice frameworks‬‭place varying amounts of emphasis on the‬ ‭motivations behind crime. Some scholars believe that intent is irrelevant when determining‬ ‭consequences, but those who advocate for considering disadvantages must now assess the justice‬ ‭system's obligation to provide for its citizens.‬ ‭Understanding why crime occurs allows for a better analysis of the situation and whether‬ ‭the offender should be held wholly accountable. This is not included under the current retributive‬ ‭framework, which focuses solely on the offense committed and therefore fails to consider‬ ‭external factors when determining consequences for perpetrators. However, a restorative‬ ‭approach observes the possible influence of various factors, including an offender's economic‬ ‭status, societal disadvantages, etc.‬ ‭ii. Purpose of the Justice System‬

‭238‬

‭Thomas, David A., and Anthony Nicolas Allot. “Crime.” Encyclopædia Britannica, November 9, 2024.‬ ‭https://www.britannica.com/topic/crime-law.‬ ‭239‬

‭Green, Stuart P. “Retributive Justice for Unjustly Disadvantaged Offenders.” Hard Times, Hard Time: Retributive‬ J‭ ustice for Unjustly Disadvantaged Offenders, 2010.‬ ‭https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1456&context=uclf.‬

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‭According to the United States Department of Justice, our justice system focuses on‬ ‭enforcing and defending the interests of the United States law.‬‭240‬ ‭The current system prioritizes‬ ‭public safety against foreign and domestic threats, provides leadership and authoritative roles to‬ ‭prevent and control crime, ensures those partaking in criminal and unlawful behavior are‬ ‭punished, and requires the administration of impartial justice for every American.‬‭241‬ ‭This thought‬ ‭process is the foundation of the current justice system, thus, implying that inherent punishment is‬ ‭the consequence of unlawful behavior. The framework currently in place emphasizes retribution,‬ ‭deterrence, and public humiliation. This punitive model reflects the belief that enforcing laws‬ ‭and punishing offenders is essential to maintaining order and safeguarding society. However, this‬ ‭archaic view accomplishes little beyond punishing and dehumanizing offenders and is not the‬ ‭most efficient way to deal with criminal activity.‬ ‭The Two Frameworks of the Justice System‬ ‭iii. Retributive Justice‬ ‭The current framework-–retributive justice—focuses on justice and penance. It attempts‬ ‭to prevent re-offenses by emphasizing the consequences offenders will face due to their actions.‬ ‭The perpetrator is held responsible for his/her actions—and is therefore held accountable for any‬ ‭subsequent consequences. The current justice system centers around whether the perpetrator's‬ ‭actions are ethical and moral according to criminal law. Therefore, the system adheres to the‬ ‭ideology that those categorized as immoral by the law do not deserve to be treated with the same‬ ‭care and respect as those considered “moral” under the law. This system operates under the‬ ‭assumption that every offender is inherently unethical and subjects offenders to severe‬ ‭240‬

‭Department of Justice. “Overview- Department of Justice.” Department of Justice, 2014.‬ ‭https://www.justice.gov/sites/default/files/ag/legacy/2014/03/12/apr2013-section1.pdf.‬ ‭241‬ ‭Department of Justice. “Overview- Department of Justice.” Department of Justice, 2014.‬ ‭https://www.justice.gov/sites/default/files/ag/legacy/2014/03/12/apr2013-section1.pdf.‬

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‭punishments.‬‭242‬ ‭Therefore, this framework prioritizes punishment and oversimplifies the diverse‬ ‭motivations behind crime. It concentrates exclusively on the offense at hand and functions within‬ ‭a strict framework determined solely by whether the act violates or complies with criminal law.‬ ‭This illustrates how the approach fails to examine one’s motives or circumstances affiliated with‬ ‭the crime.‬ ‭The current legal system capitalizes on the anger and pain endured by victims. A‬ ‭wrongdoer’s actions inherently always hurt individuals. These individuals then believe the‬ ‭wrongdoer should endure even greater suffering by facing severe punishment. Instead of offering‬ ‭support to reintegrate offenders into society, the current system believes that inflicting‬ ‭subjectively proportional punishment will help reduce the number of repeat offenders. This‬ ‭retributive model normalizes harsh punishment and has led to increased incarceration levels,‬ ‭which has perpetuated a cycle of imprisonment and depravity. For instance, increased‬ ‭incarceration leads to economic harm as well. Approximately 9 out of 10 U.S. employers utilize‬ ‭background checks and offenders have seen an average loss of 52% to their earnings‬‭243‬‭. This has‬ ‭negatively impacted a large portion of American citizens and has further perpetuated the U.S.‬ ‭wage gap. Thus, offenders lose hope of leading a “normal life” and feel as though their only‬ ‭option is to turn back to crime. Retributive justice enables overcriminalization policies that‬ ‭perpetuate economic insecurity and encourage struggling individuals toward a life of crime‬‭244‬‭.‬

‭242‬

‭Walen, Alec. “Retributive Justice.” Stanford Encyclopedia of Philosophy, June 18, 2014.‬ ‭https://plato.stanford.edu/archIves/sum2020/entries/justice-retributive/#Ret.‬ ‭243‬

‭Weller, Christian E., Akua Amaning, and Rebecca Vallas.‬‭“America’s Broken Criminal Legal System Contributes‬ t‭o Wealth Inequality.” Center for American Progress, October 1, 2024.‬ ‭https://www.americanprogress.org/article/americas-broken-criminal-legal-system-contributes-to-wealth-inequality/.‬ ‭244‬

‭Weller, Christian E., Akua Amaning, and Rebecca Vallas. “America’s Broken Criminal Legal System Contributes‬ t‭o Wealth Inequality.” Center for American Progress, October 1, 2024.‬ ‭https://www.americanprogress.org/article/americas-broken-criminal-legal-system-contributes-to-wealth-inequality/.‬

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‭iv. Restorative Justice‬ ‭Briefly introduced above, restorative justice serves as the second framework of justice,‬ ‭building upon a completely different set of ideals and values‬‭.‬‭While it still seeks justice for‬ ‭victims, it does so in a much more progressive manner. Restorative justice ends the‬ ‭dehumanizing cycle by attempting to take a more high-level view. Instead of viewing a crime as‬ ‭simply a violation of the law, restorative justice requires crimes to be viewed as a violation of‬ ‭society, humanity, and relationships, encouraging legal practitioners to take a more humanizing‬ ‭approach. This shifts the focus from the nature of the offense to the motives behind the action‬ ‭and its larger implications on society.‬‭245‬ ‭This system expands the focus past the offender and shines a light on those genuinely‬ ‭affected by the perpetrator’s actions. Victims are empowered by the ability to participate in the‬ ‭process and hold these offenders accountable. Consequences tend to focus on rehabilitation‬ ‭rather than solely on punishment. This approach highlights that no matter the circumstances,‬ ‭every human deserves dignity and respect‬‭,‬‭allowing‬‭the victim and offender to learn and heal‬ ‭from the situation.‬ ‭v. Relationship Between Frameworks‬ ‭The relationship between retributive and restorative justice depends on the context of the‬ ‭crime. Understanding the specific offense for which an individual is charged, any disadvantages‬ ‭the offender faces, such as social, economic, or environmental obstacles, and the socioeconomic‬ ‭status of the offender can influence the level of accountability they should hold. A crime‬ ‭committed by a disadvantaged individual against another of similar status may carry different‬

‭245‬

‭Pointer , Lindsey. “What Is ‘Restorative Justice’ and How Does It Impact Individuals Involved in Crime?”‬ ‭ orking with BJA NTTAC, August 13, 2021.‬ W ‭https://bjatta.bja.ojp.gov/media/blog/what-restorative-justice-and-how-does-it-impact-individuals-involved-crime.‬

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‭implications than one involving a privileged victim.‬‭246‬ ‭Retributive justice places less emphasis on‬ ‭these external factors and utilizes a more standardized approach to assigning blame and holding‬ ‭parties accountable. However, restorative justice takes a more holistic approach by considering‬ ‭the thoughts and circumstances surrounding the offense. Healing within society can only occur‬ ‭through the implementation of restorative justice.‬ ‭Criminal Sentencing‬ ‭v. United States V. Booker‬ ‭Throughout the history of America’s judicial sentencing, there have been several‬ ‭instances where restorative justice may have provided a successful alternative to harsh‬ ‭punishments. For example, in the Supreme Court Case,‬‭United States V. Booker‬‭, the defendant‬ ‭Booker was charged with the possession of at least 50 grams of cocaine base with an intent to‬ ‭distribute. Booker had 92.5 grams in his duffel bag, and the jury found him guilty of violating 21‬ ‭U. S. C. §841(a) (1), which requires a minimum sentence of 10 years in prison and a maximum‬ ‭of a life sentence.‬‭247‬ ‭Due to the amount of drugs in‬‭Booker’s possession, the District Court‬ ‭Judge’s sentencing guidelines required a sentence ranging from 210 to 262 months in prison.‬‭248‬ ‭After receiving new facts to lengthen Booker's sentence, a federal district court judge used U.S.‬ ‭Sentencing Guidelines to calculate a new sentence. This decision was appealed, sparking debate‬ ‭over whether an enhanced sentence, based on a judge's determination of new facts under the U.S.‬ ‭Sentencing Guidelines, violates the Sixth Amendment. This led to the questioning of whether or‬ ‭not these Sentencing Guidelines are unconstitutional in their entirety. It was determined that‬ ‭these guidelines that allow judges to enhance sentences using facts not reviewed by juries‬ ‭246‬

‭Green, Stuart P. “Retributive Justice for Unjustly Disadvantaged Offenders.” Hard Times, Hard Time: Retributive‬ J‭ ustice for Unjustly Disadvantaged Offenders, 2010.‬ ‭https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1456&context=uclf.‬ ‭247‬ ‭Oyez. (n.d). United States v. Booker, 543 U.S.‬‭220 (2005), https://www.oyez.org/cases/2004/04-104.‬ ‭248‬ ‭Justicia. (n.d). United States v. Booker, 543 U.S.‬‭220 (2005),‬ ‭https://supreme.justia.com/cases/federal/us/543/220/.‬

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‭violated the Sixth Amendment right to trial by jury and should therefore be declared‬ ‭unconstitutional‬‭249‬‭. Despite having received a harsh‬‭sentence, Booker later returned to jail after‬ ‭violating the terms of his supervised release.‬‭250‬ ‭This reflects the shortcomings of the current‬ ‭retributive framework and highlights how strict sentencing and punishment alone fail to reduce‬ ‭recidivism rates.‬ ‭Retributive sentencing does not allow offenders to practice introspection and learn from‬ ‭past mistakes. Restorative sentencing focuses on helping participants take accountability for their‬ ‭actions and understand themselves better. This can be illustrated through a program held at‬ ‭Norfolk Prison centered around Armand Coleman and Emmanuel “Noble” Williams.‬‭251‬ ‭This was‬ ‭viewed as a more effective and humane way to resolve crime. This approach first provides‬ ‭incarcerated offenders with a questionnaire walking them through questions outlining how the‬ ‭offender hurt the victim, how the offender was hurt, and how the offender can now heal.‬ ‭Offenders such as Williams had already spent a decade in prison on gang-related charges. Still,‬ ‭he explained how he never had to confront his actions and the guilt, shame, and disappointment‬ ‭surrounding them.‬‭252‬ ‭Williams had been treated like a criminal his entire life, leading him to internalize those‬ ‭beliefs. After this continuous maltreatment, law enforcement and structural oppression led‬ ‭Williams to feel safer on the streets than he did in his own home. This inherently pulled him‬ ‭deeper into criminal activity. As a juvenile, Williams was charged with his first crime of battery‬ ‭and assault against his abusive stepfather. Williams was sent to a juvenile detention center where‬ ‭249‬

‭ yez. (n.d). United States v. Booker, 543 U.S. 220‬‭(2005), https://www.oyez.org/cases/2004/04-104.‬ O ‭Justicia. (n.d). United States v. Booker, 543 U.S.‬‭220 (2005),‬ ‭https://supreme.justia.com/cases/federal/us/543/220/.‬ ‭251‬ ‭Gibson, Lydialyle. "Restorative Justice."‬‭Harvard‬‭Magazine‬‭, July 2021.‬ ‭https://www.harvardmagazine.com/2021/06/features-restorative-justice‬‭.‬ ‭252‬ ‭Gibson, Lydialyle. "Restorative Justice."‬‭Harvard‬‭Magazine‬‭, July 2021.‬ ‭https://www.harvardmagazine.com/2021/06/features-restorative-justice‬‭.‬ ‭250‬

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‭he witnessed expansive abuses of power where prison guards beat up incarcerated minors,‬ ‭subjected minors to excessive strip searches, and overall dehumanizing treatment. Ultimately,‬ ‭Williams pursued a life of crime focused on violence and gang activity, spending significant time‬ ‭in various facilities where he observed recurring patterns of such behavior. This fueled Williams'‬ ‭passion to create a restorative program where offenders are forced to confront their actions and‬ ‭heal. This program was centered around offenders of all degrees who would talk about their‬ ‭actions, take accountability for the harm they caused, and discuss ways to heal and not repeat‬ ‭their mistakes.‬‭253‬ ‭Such a program would have placed less emphasis on Booker’s sentence and more on why‬ ‭Booker committed the crime. During Booker’s time in incarceration, he would have undergone‬ ‭mandated therapy sessions with professionals and with his peers. During these sessions, he‬ ‭would discuss his actions, the impact of his actions, and how he can heal from these actions. This‬ ‭would have compelled Booker to reflect on his unethical actions and examine the underlying‬ ‭reasons for engaging in this illegal behavior. Once this was disclosed, Booker could have been‬ ‭taught other strategies to utilize when similar feelings arise. By confronting his actions, the‬ ‭perpetrator must take complete accountability. This would have equipped Booker with the tools‬ ‭he needed to identify his flaws and prevent a future of re-incarceration.‬ ‭vi. Graham V. Florida‬ ‭The circumstances surrounding a criminal sentence often differentiate the two‬ ‭frameworks of justice. Fair sentencing cannot be achieved if offenders are considered unworthy‬ ‭of receiving the benefit of the doubt. For example, Terrence Graham was convicted of armed‬

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‭Chrisman, Micah. “How Restorative Justice Fosters Societal Restoration: Interview with Noble Williams.”‬ ‭ ocuCourse. Accessed November 22, 2024.‬ D ‭https://docucourse.squarespace.com/how-restorative-justice-fosters-communal-restoration.‬

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‭burglary and attempted armed robbery when he was sixteen and subsequently sentenced to life in‬ ‭prison without parole.‬‭254‬ ‭He appealed this decision‬‭and argued that a life sentence without parole‬ ‭for a juvenile violated the Eighth Amendment by constituting cruel and unusual punishment. The‬ ‭District Court of Appeal of Florida held that Mr. Graham's sentence was neither a violation of the‬ ‭Eighth Amendment nor did it constitute cruel and unusual punishment. However, when appealed‬ ‭to The Supreme Court, SCOTUS held that a juvenile offender cannot be sentenced to life in‬ ‭prison without parole for a non-homicidal crime and that this type of sentencing is‬ ‭unconstitutional.‬‭255‬ ‭This decision suggested that alternative‬‭measures could have been used to‬ ‭rehabilitate 16-year-old Terrance Graham. Harsh sentencing would not have been the necessary‬ ‭course of action for Graham to learn the immorality of his actions. Graham should instead be‬ ‭forced to confront his actions and understand why they are incorrect. This would force him to‬ ‭understand the motivations behind his actions, enabling him to be taught better practices when‬ ‭similar feelings arise. A program such as the one conducted in Norfolk would have given‬ ‭Graham this opportunity and led him to take accountability and learn from his mistakes. This‬ ‭decision would have considered external factors, such as the offender’s age, resulting in a less‬ ‭severe outcome. It would have been the first step to breaking down a cycle of dehumanization.‬ ‭This would have allowed Graham to avoid reincarceration after his release. This, along with a‬ ‭program forcing criminals to confront their actions, further illustrates how listening to offenders‬ ‭and considering external factors can lead to fairer sentencing and encourage genuine learning‬ ‭from past mistakes while preventing recidivism.‬ ‭Recidivism Rates‬

‭254‬

‭Oyez. (n.d). Graham v. Florida, Graham v. Florida, 560 U.S. 48 (2010),‬ ‭https://www.oyez.org/cases/2009/08-7412.‬ ‭255‬ ‭Oyez. (n.d). Graham v. Florida, Graham v. Florida,‬‭560 U.S. 48 (2010),‬ ‭https://www.oyez.org/cases/2009/08-7412.‬

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‭vii. The Importance of Recidivism Rates‬ ‭In regards to high recidivism rates, rising recidivism rates have been a huge area of‬ ‭concern throughout the U.S. justice system. The nation’s justice system aims to reduce‬ ‭recidivism rates but has been unable to do so effectively. Recidivism rates refer to “criminal acts‬ ‭that resulted in rearrest, reconviction, or return to incarceration with or without a new sentence‬ ‭during a specific follow-up period following the person's release.”‬‭256‬ ‭According to the U.S.‬ ‭Department of Justice, 82% of state individuals released from state prisons faced at least one‬ ‭rearrest in the decade following their release‬‭257‬‭. Additionally,‬‭43% of the formerly incarcerated‬ ‭population were rearrested within one year of release‬‭258‬‭.‬‭Such high recidivism rates convey the‬ ‭urgency of the issue and the ineffectiveness of the current justice system. The current system‬ ‭fails to teach offenders the egregiousness of their mistakes and does not promote learning or‬ ‭growth. In contrast, restorative justice focuses on the reflection and understanding of past‬ ‭mistakes while simultaneously repairing harm done to communities and victims. It highlights the‬ ‭counterproductivity in offenders serving their sentences and quickly returning to their immoral‬ ‭behavior without recognizing the unethical values their actions displayed.‬ ‭viii. Initiatives Implemented to Reduce Recidivism Rates‬ ‭States have begun to realize the true potential of restorative justice initiatives after failing‬ ‭to see results from past retributive measures. For example, rising recidivism rates have been of‬ ‭concern for several years. Specific states such as Missouri, Alabama, North Carolina, and‬ ‭Nebraska set explicit goals regarding reduced recidivism rates and better reentry outcomes by‬ ‭256‬

‭Department of Justice. “Overview- Department of Justice.” Department of Justice, 2014.‬ ‭https://www.justice.gov/sites/default/files/ag/legacy/2014/03/12/apr2013-section1.pdf.‬ ‭257‬ ‭Department of Justice. “Overview- Department of‬‭Justice.” Department of Justice, 2014.‬ ‭https://www.justice.gov/sites/default/files/ag/legacy/2014/03/12/apr2013-section1.pdf.‬ ‭258‬

‭Department of Justice. “Overview- Department of Justice.” Department of Justice, 2014.‬ ‭https://www.justice.gov/sites/default/files/ag/legacy/2014/03/12/apr2013-section1.pdf.‬

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‭2030.‬‭259‬ ‭The aims include broadening access to treatment, mental health support, and healthcare.‬ ‭It also intends to strengthen economic independence by improving job preparedness and‬ ‭employment opportunities and increasing access to secure housing. These initiatives take a more‬ ‭restorative approach towards the criminal justice system, allowing offenders and those‬ ‭surrounding them to heal and progress from any crime committed genuinely.‬ ‭Alongside these state-level efforts, programs such as the Second Chance Act have‬ ‭amplified the focus on restorative justice. The Second Chance Act was passed in 2008 and has‬ ‭invested $1.2 billion to combine state and local efforts to assist those leaving jail and prison with‬ ‭unprecedented resources and energy.‬‭260‬ ‭This act focuses‬‭on the reintegration of offenders by‬ ‭taking a restorative approach and helping these offenders learn and grow from their mistakes‬ ‭rather than solely resorting to punishment. The Bureau of Justice Assistance and the Office of‬ ‭Juvenile Justice and Delinquency Prevention awarded funding to 1,123 Second Chance Act‬ ‭grantees to help reentry outcomes, and the Second Chance Act-funded National Reentry‬ ‭Resource Center has built a comprehensive network across local, state, Tribal, and federal‬ ‭reentry initiatives‬‭261‬‭. This enables diverse stakeholders‬‭who contribute to successful reentry into‬ ‭society to be brought together. Reentry success became a primary goal throughout the states.‬ ‭After release, organizations focused on these individuals’ lives and created programs to help‬ ‭them with housing, jobs, and education. The Act’s success inspired private corporations‬ ‭previously reluctant to prioritize second-chance employment as a business and moral directive.‬ ‭259‬

‭The Council of State Governments. “50 States, 1 Goal: Examining State-Level Recidivism ...” Examining‬ ‭ tate-Level Recidivism Trends in the Second Chance Act Era. Accessed November 11, 2024.‬ S ‭https://csgjusticecenter.org/wp-content/uploads/2024/04/50-States-1-Goal_For-PDF_with508report.pdf.‬ ‭260‬ ‭The Council of State Governments. “50 States, 1 Goal: Examining State-Level Recidivism ...” Examining‬ ‭State-Level Recidivism Trends in the Second Chance Act Era. Accessed November 11, 2024.‬ ‭https://csgjusticecenter.org/wp-content/uploads/2024/04/50-States-1-Goal_For-PDF_with508report.pdf.‬ ‭261‬ ‭The Council of State Governments. “50 States, 1 Goal: Examining State-Level Recidivism ...” Examining‬ ‭State-Level Recidivism Trends in the Second Chance Act Era. Accessed November 11, 2024.‬ ‭https://csgjusticecenter.org/wp-content/uploads/2024/04/50-States-1-Goal_For-PDF_with508report.pdf.‬

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‭Recidivism rates have decreased, neighborhoods are safer, and people can lead moral,‬ ‭ethical, enriched lives and contribute positively to their community. The Second Chance Act‬ ‭spearheaded efforts to prioritize the reduction of recidivism rates and has displayed results.‬ ‭Three-year reincarceration rates have decreased by 23 percent as a whole, and there was an eight‬ ‭percent decrease in people who were released from prison and reincarcerated within three years‬ ‭between 2008 and 2019. Before this act, three-year incarceration rates were above 45 percent.‬ ‭Recidivism rates dropped by double digits in nine states after this act: California, Colorado,‬ ‭Connecticut, Delaware, Illinois, Maryland, Massachusetts, Missouri, and South Carolina.‬‭262‬ ‭ix. The Impact Of The Frameworks on Recidivism Rates‬ ‭Restructuring the justice system requires further investigation of recidivism rates and‬ ‭demands an understanding of the contrast between restorative and retributive justice. Both‬ ‭systems create different environments, greatly impacting how offenders think, feel, and act.‬ ‭Retributive justice focuses heavily on when one engages in a crime against society. It is believed‬ ‭that these offenders deserve equal if not more suffering than the individual suffering inflicted‬ ‭upon them. Judges focus on punishing offenders and making them uncomfortable, whether that‬ ‭is in the way of incarceration or community service. This norm is viewed as “morally correct.”‬ ‭This fosters an environment where offenders often only gain anger and resentment, enabling‬ ‭them to act out again.‬ ‭Offenders often view punishment as merely a consequence of being caught rather than an‬ ‭opportunity for growth or reflection. This mindset contributes to repeat offenses, driving up‬ ‭recidivism rates. Many crimes are motivated by fundamental human needs, such as safety,‬

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‭The Council of State Governments. “50 States, 1 Goal: Examining State-Level Recidivism ...” Examining‬ ‭ tate-Level Recidivism Trends in the Second Chance Act Era. Accessed November 11, 2024.‬ S ‭https://csgjusticecenter.org/wp-content/uploads/2024/04/50-States-1-Goal_For-PDF_with508report.pdf.‬

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‭understanding, validation, information, apology, or repair. Restorative justice emphasizes‬ ‭understanding these underlying motivations and helping offenders discover healthier,‬ ‭non-harmful ways to address their struggles. This approach reduces immoral behavior and‬ ‭lowers recidivism rates by fostering accountability, guiding the morally misguided, and offering‬ ‭constructive alternatives.‬ ‭Conclusion‬ ‭The United States justice system's heavy reliance on retributive justice has perpetuated‬ ‭cycles of resentment, recidivism, and societal harm. By prioritizing punishment over‬ ‭rehabilitation, the current framework dehumanizes offenders and overlooks the underlying‬ ‭causes of criminal behavior. Restorative justice offers a promising alternative by focusing on‬ ‭accountability, healing, and reintegration into society. It shifts the narrative from inflicting‬ ‭suffering to fostering understanding and personal growth and addressing the needs of both‬ ‭victims and offenders. The U.S. justice system currently operates under a punitive model and‬ ‭equates consequences with evolving from past mistakes. However, true evolution will only occur‬ ‭when offenders are listened to, understood, and taught alternative coping strategies regarding the‬ ‭intent of their crime. Highlighting this approach also allows for a reduction in recidivism rates‬ ‭and a decrease in incarceration levels, as already displayed through initiatives such as the Second‬ ‭Chance Act. Transitioning to a more restorative framework not only reduces repeat offenses but‬ ‭also creates a justice system rooted in fairness, empathy, and human dignity.‬‭263‬

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‭This paper has been reviewed by Harold Rubenstein, a Lecturer and professor specializing in ethics at‬ ‭Political Science Department at Rutgers University.‬

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‭THE PSYCHOLOGICAL FACTORS UNDERPINNING LEGAL DECISION-MAKING‬ ‭WRITTEN BY PATRICK CAHILL | EDITED BY EMILIA DUL‬ ‭Introduction‬ ‭The American justice system is based on the principles of rationality and impartiality;‬ ‭however, it fundamentally relies on subjective judgments made by different people throughout a‬ ‭trial. Jurors and judges are tasked with making daily decisions that impact the outcomes of cases‬ ‭based on objective facts. In the trial process, Jurors are asked to determine the reliability of‬ ‭evidence, deliberate amongst themselves, and eventually come to a verdict. Judges preside over‬ ‭the trial, determine the admissibility of evidence, provide the jury with instructions, and have‬ ‭control over sentencing when a verdict is reached. This system creates a space for rational‬ ‭judgments to be weighed to get a fair verdict. However, modern developments in cognitive‬ ‭science clash with this view of rationality within the legal system, as the mental processes by‬ ‭which we make decisions are not as rational as individuals commonly believe.‬ ‭i. Emotion & Decision-Making‬ ‭Research on the brain has revealed that decision-making is primarily emotional.‬‭264‬ ‭Dr.‬ ‭Lyra Stein is a Professor of Psychology at Rutgers University, with a research focus on‬ ‭personality psychology and the psychological differences between individuals. Dr. Stein goes as‬ ‭far as to say that “there is no decision-making without emotion.” The primary source of practical‬ ‭information surrounding what regions of the brain are involved in specific processes comes from‬ ‭research on people with brain damage in particular areas. Studies on people who have sustained‬ ‭damage to the amygdala, which is heavily involved in emotion, show that these subjects struggle‬

‭264‬

‭Naqvi, Nausheen, Baba Shiv, and Antoine Bechara. 2006. "The Role of Emotion in Decision Making: A‬ ‭Cognitive Neuroscience Perspective." Current Directions in Psychological Science 15 (5): 260–64.‬

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‭to make decisions, even about simple tasks. The neurons related to decision-making are tied to‬ ‭those responsible for emotional states. For judges and juries, this can lead to decisions divorced‬ ‭from reason when emotion is involved, as it often is in criminal cases.‬ ‭Furthermore, the role of emotions in decision-making has a massive effect on one's‬ ‭confidence in their decisions, and people are more confident in decisions that are based heavily‬ ‭on emotion. Cognitive bias is a term for the many assumptions tying our mental processes and‬ ‭decision-making. It is often subconscious, meaning that even when people make decisions purely‬ ‭out of emotion, they can rationalize those decisions and are unlikely to recognize or‬ ‭acknowledge the role that emotions play in those decisions. People cannot only justify irrational‬ ‭choices but this process is fundamentally baked into the structure and function of the human‬ ‭mind.‬ ‭ii. Memory‬ ‭Memory is also tied to emotion, creating problems regarding practices such as eyewitness‬ ‭testimony. Modern research on memory shows that memories are stored with emotional tags.‬‭265‬ ‭Memories are formed most easily when the brain's emotional centers are aroused. The release of‬ ‭stress hormones activates parts of the brain responsible for storing memories. Strong emotions‬ ‭often lead to memories of specific details but can also lead people to misremember certain events‬ ‭when asked to provide details later.‬‭266‬ ‭iii.‬‭The Hungry Judge Effect‬

‭265‬

‭Anderson, Lisa, and Arthur P. Shimamura. "Influences‬‭of emotion on context memory while viewing film clips."‬ ‭The American journal of psychology‬‭118, no. 3 (2005):‬‭323-337.‬ ‭266‬ ‭Kensinger, Elizabeth A. "Negative emotion enhances‬‭memory accuracy: Behavioral and neuroimaging‬ ‭evidence."‬‭Current Directions in Psychological Science‬‭16, no. 4 (2007): 213-218.‬

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‭These factors, among others, can lead to notable disparities in the legal system. One‬ ‭well-documented case of the effect of mental state on sentencing is the hungry judge effect. The‬ ‭hungry judge effect is a phenomenon where judges tend to deliver light sentences early in the‬ ‭day and then become increasingly harsh in sentencing until the middle of the day when they have‬ ‭their lunch break. Following their lunch break, they resume giving lighter sentences. This‬ ‭suggests that mental fatigue following decisions can lead to increasingly irrational behavior by‬ ‭judges‬‭267‬‭.‬ ‭The implication of these findings creates issues with the assumption of rationality in the‬ ‭legal system. By understanding cognition's role in memory and decision-making and becoming‬ ‭more informed on our cognitive biases, we open the door to mitigating the effects of cognitive‬ ‭bias in legal decision-making. The question of which cognitive biases affect judgment and how‬ ‭they do this is not purely academic. It is a fundamental part of understanding and repairing the‬ ‭American legal system.‬ ‭Rationality, Fairness, & Justice‬ ‭iv. Principles of Justice‬ ‭Central to this conversation is the role of rationality in the legal system. The American‬ ‭legal system depends on the idea that its many actors can make decisions based on logical‬ ‭reasoning rather than emotional bias. Rationality ties into various aspects of the legal system.‬ ‭Without rationality, there is no way to determine whether decisions have been made fairly and‬ ‭equitably. It is our ability to trace each decision back to evidence that maintains public‬ ‭267‬

‭Danziger, Shai, Jonathan Levav, and Liora Avnaim-Pesso.‬‭"Extraneous Factors in Judicial Decisions."‬ ‭ roceedings of the National Academy of Sciences of the United States of America‬‭108, no. 17 (April 26,‬ P ‭2011):6889–92.‬

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‭confidence in the legal system. Ideally, the evidence presented to two courts should lead to‬ ‭similar sentences. This predictability is a good indicator of the legitimacy of any legal system.‬ ‭Due process is designed to create a platform that places rationality, fairness, and‬ ‭objectivity above all else. All parties involved in a legal conflict are invited to provide evidence‬ ‭in a fair hearing, and each party is allowed to make their case. Due process only provides a‬ ‭rational solution to disputes if the people involved in the system are making their decisions‬ ‭according to reason. Allowing emotion or individual preference to taint one’s decisions‬ ‭undermines those decisions. Cognitive bias may create a roadblock in this ideal.‬ ‭Relevant Findings in Cognitive Science‬ ‭v.‬‭Cognition & Bias‬ ‭Cognitive science is the interdisciplinary study of the mind. The field recognizes that the‬ ‭mind is a complex system that can be understood through insights from various fields.‬ ‭Philosophy, psychology, linguistics, anthropology, computer science, and neurology are the six‬ ‭major fields that seek to answer questions posed by cognitive scientists. Through research into‬ ‭these fields, we can form an idea of where rationality comes from and the fallibility of the human‬ ‭mind when it comes to making rational decisions.‬ ‭Cognitive bias is the unconscious and systematic errors in thinking that occur when‬ ‭people process and interpret information in their surroundings and influence their decisions and‬ ‭judgments.‬‭268‬ ‭Cognitive bias can undermine rationality,‬‭as conclusions reached through cognitive‬ ‭bias can be indistinguishable from those reached through reason by the individual. It can taint‬

‭268‬

‭Da Silva, Sergio, et al. "Editorial: Highlights in‬‭Psychology: Cognitive Bias."‬‭Frontiers in Psychology‬‭14 (July 3,‬ ‭2023): 1242809.‬

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‭every part of a trial. From the collection of evidence to sentencing, as long as humans are‬ ‭involved, cognitive bias plays a role in the process and outcome of a trial. It also applies to‬ ‭various characteristics that impact perception, including dialect. For instance, research performed‬ ‭by linguists at the University of Chicago shows that people with foreign accents are perceived as‬ ‭less trustworthy, as difficulty understanding speech is subconsciously linked to difficulty‬ ‭believing speech.‬‭269‬ ‭This has implications for testimony‬‭in the courtroom, as a witness perceived‬ ‭as untrustworthy will not persuade a jury as much as one perceived as trustworthy. The effects of‬ ‭cognitive bias in the courtroom go beyond testimony and into sentencing, a study of criminal‬ ‭trials in Florida over a 10-year time span found that all-white juries were 16 percent more likely‬ ‭to convict a defendant if said the defendant was black. This increase in sentencing disappeared‬ ‭when at least one jury member was black.‬‭270‬ ‭These examples of cognitive bias tie into the concept of “in-group-out-group” preference‬ ‭from psychology. People tend to favorably treat members of a real or perceived group or shared‬ ‭identity. They are more willing to believe people from similar backgrounds and more likely to‬ ‭empathize with members of their group. This preference is not always conscious or malicious, as‬ ‭people are often unaware they have it.‬ ‭Neurology‬ ‭vi.‬‭Brain Structure‬

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‭https://doi.org/10.3389/fpsyg.2023.1242809.Lev-Ari,‬‭Shiri, and Boaz Keysar. "Why don't we believe non-native‬ s‭ peakers? The influence of accent on credibility."‬‭Journal of experimental social psychology‬‭46, no.‬‭6 (2010):‬ ‭1093-1096.‬ ‭270‬ ‭Anwar, Shamena, Patrick Bayer, and Randi Hjalmarsson.‬‭"The impact of jury race in criminal trials."‬‭The‬ ‭Quarterly Journal of Economics‬‭127, no. 2 (2012):‬‭1017-1055.‬

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‭The limits of rationality go far beyond cognitive bias and into the brain's structure.‬ ‭Neurology offers some insights to suggest that decision-making is, more often than not,‬ ‭irrational. The primary source of knowledge about the brain's influence on behavior comes from‬ ‭lesion research.‬‭271‬ ‭When a specific part of the brain‬‭is damaged, behavior and abilities often‬ ‭change. A famous example is Broca’s aphasia, a condition in which damage to a structure known‬ ‭as Broca’s area leads to the inability to produce coherent language while comprehension stays‬ ‭intact. A less-famous case study is that of a man named Elliot, whose condition was studied by‬ ‭UCLA neuroscientist Dr. Antonia Damasio.‬‭272‬ ‭Elliot faced‬‭trouble making even simple decisions‬ ‭following the removal of a brain tumor. It was discovered that the part of his brain impacted by‬ ‭the surgery was responsible for generating emotional responses to events. Following this‬ ‭discovery, more research was done on the connection between emotions and decision-making. It‬ ‭was discovered that people who experienced emotional numbness following trauma to the brain‬ ‭demonstrated similar deficits in decision-making ability. The connection between emotional‬ ‭states and decision-making has grown stronger amid new research. Economists have run into‬ ‭similar findings in studies on the real-life application of game theory, finding that people actively‬ ‭go against their interests when given strong enough emotional incentives.‬ ‭While emotional decisions are not necessarily irrational, emotion as a driving force‬ ‭makes it easy to arrive at conclusions that do not align with reason. In a courtroom setting, a‬ ‭competent attorney can use emotions to influence the jury’s perception of events. Prosecutors do‬ ‭271‬

‭Vaidya, Avinash R., et al. "Lesion Studies in Contemporary Neuroscience."‬‭Trends in Cognitive Sciences‬‭23, no.‬ ‭8 (2019): 653–671. https://doi.org/10.1016/j.tics.2019.05.009.‬ ‭272‬ ‭Whitener, Svetlana. "Total Decision Making and Feeling‬‭Good, Bad and Indifferent."‬‭Forbes‬‭,‬ ‭June11,201‬‭8.‬‭https://www.forbes.com/sites/forbescoachescouncil/2018/06/11/total-decision-making-and-feeling-goo‬ ‭d-bad-and-indifferent/‬‭.‬

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‭this routinely by showing particularly gruesome crime scene photos. Defendants are instructed‬ ‭on what to wear, what facial expressions to avoid, and how to deliver testimony to garner as‬ ‭much sympathy as possible from the jury. None of these things makes any difference in the fact‬ ‭of guilt, and in a world where jurors are completely rational creatures, these tactics would be‬ ‭useless.‬ ‭Psychological Insights‬ ‭vii. The Framing Effect‬ ‭There is a strong psychological basis behind the use of tactics to move juries, called the‬ ‭framing effect. The framing effect is where people react differently to information depending on‬ ‭how it is presented. The framing effect can lead people to choose a less advantageous option‬ ‭because certain elements have been overemphasized.‬‭273‬ ‭While it is a major decision-making‬ ‭component, it can lead trials in a direction that overemphasizes delivery and underemphasized‬ ‭facts. The first implication of the framing effect in the courtroom is clear: a competent attorney‬ ‭can frame information in such a way that it appears advantageous to their client, they can dull the‬ ‭impact of information weakening their case, and they can move the jury to consider facts in the‬ ‭way that they want them to. One study showed that when a video of a car accident was shown‬ ‭and follow-up questions about perceived speed were asked, the words used in the question‬ ‭significantly impacted the perception of speed.‬‭274‬ ‭Using‬‭“smashed” to describe the accident led to‬

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‭Kahneman, Daniel, and Amos Tversky. "Choices, values,‬‭and frames."‬‭American psychologist‬‭39, no. 4 (1984):‬ ‭341.‬ ‭274‬ ‭Loftus, Elizabeth F., and John C. Palmer. "Reconstruction‬‭of Automobile Destruction: An Example of the‬ ‭Interaction Between Language and Memory."‬‭Journal‬‭of Verbal Learning & Verbal Behavior‬‭13, no. 5 (1974):‬ ‭585–5‬‭89.‬‭https://doi.org/10.1016/S0022-5371(74)80011-3‬

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‭a higher perception of speed than words like “bumped.” This can significantly impact how a jury‬ ‭perceives actions taken by the parties in a civil or criminal case.‬ ‭viii. Plea Bargaining‬ ‭A second implication of the framing effect is its impact on plea bargaining. Over ninety‬ ‭percent of convictions come from guilty pleas, and a growing body of research has investigated‬ ‭how the framing effect is used to arrive at those guilty pleas. One study showed that when asked‬ ‭to choose between pleading guilty or innocent, a major motivating factor in whether participants‬ ‭took the guilty plea was whether it was framed as a win or a loss. Even when participants knew‬ ‭they were innocent and factored that into their decision-making, it was common for them to‬ ‭accept the deal anyway when it was presented as a win.‬‭275‬ ‭The framing effect perfectly exemplifies individual human psychology competing with‬ ‭rationality. A skilled attorney who masters the use of the framing effect has the ability to amplify‬ ‭the consideration of certain facts or misrepresent facts entirely. In a legal system built on‬ ‭rationality, the harmful impact of the framing effect cannot be overstated.‬ ‭Conclusion‬ ‭While the ideals the American justice system is built upon are admirable, cognitive‬ ‭science has provided numerous insights into how the people involved are not mentally equipped‬ ‭to uphold them. The American legal system calls on individuals to make decisions throughout‬ ‭the course of a trial, and those decisions can drastically alter the outcome. We now know that our‬ ‭decision-making ability is inherently flawed, from the brain's physical structure to the corruption‬ ‭275‬

‭Garnier-Dykstra, Laura M., and Theodore Wilson. 2019.‬‭“Behavioral Economics and Framing Effects in Guilty‬ ‭ leas: A Defendant Decision Making Experiment.”‬‭Justice‬‭Quarterly‬‭38 (2): 224–48.‬ P ‭doi:10.1080/07418825.2019.1614208‬

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‭of social influences and the framing effect. The pursuit of justice calls us to consider new‬ ‭research in search of solutions or, at a minimum, ways to mitigate the shortcomings of human‬ ‭cognition in decision-making in the justice system. The first step in solving a problem is‬ ‭identifying it. There is much work to be done to reform the American justice system, but by‬ ‭addressing these issues, we can work towards a more rational justice system.‬‭276‬

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‭This paper has been reviewed by Dr. Lyra Stein.‬‭Dr. Stein is a professor in psychology at Rutgers University, and‬ ‭specializes in research surrounding personality psychology and differences between individuals.‬

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‭PROTECTING CONSUMERS’ LONG-TERM INVESTMENT: REVISING ANTITRUST‬ ‭LAW TO COMBAT GLOBAL WARMING‬ ‭WRITTEN BY EMILY TAYLOR‬‭|‬‭EDITED BY RENEE TITICULA‬

‭Introduction‬ ‭The extreme effects of climate change and global warming highlight the insufficiency of‬ ‭current antitrust law. However, with the cooperation and collaboration of governments,‬ ‭corporations, and people –through joint climate initiatives and ventures across different sectors –‬ ‭it is possible to slow and even reverse global warming.‬‭277‬ ‭Antitrust law protects the consumer‬ ‭from an anti-competitive market but has a history of also serving to dissuade corporations from‬ ‭taking meaningful action on climate change. This ultimately fails to protect consumers’‬ ‭long-term economic interests and requires revision.‬ ‭i. Antitrust Law Introduction‬ ‭The Sherman Act was the first piece of legislation‬‭in the United States to address the‬ ‭formation of monopolies and to acknowledge that an entirely unregulated market may lead to‬ ‭undesirable economic outcomes. Along with the Sherman Act, the Clayton Act of 1914 is‬ ‭another early piece of legislation that pertained to the regulation of trusts. It was intended to‬ ‭strengthen antitrust law following the Sherman Act and ban anticompetitive mergers and‬ ‭acquisitions.‬‭278‬ ‭The Sherman and Clayton Acts were designed‬‭to serve consumers financially in‬ ‭the short-term and long-term by safeguarding competitive practices in the market.‬ ‭ii. Global Warming and the Economy‬

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J‭ oy, Richard.‬‭Unsustainable: the urgent need to transform‬‭society and reverse climate change‬‭. Policy Press,‬‭2021.‬ ‭15 U.S.C §§ 12-17‬

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‭Primarily, since the mid-twentieth century, humans have had a negative environmental‬ ‭impact on the planet.‬‭279‬ ‭The burning of fossil fuels‬‭to generate energy for a multitude of everyday‬ ‭activities, such as driving vehicles and heating homes, has led to an increase in greenhouse‬ ‭gasses in the Earth’s atmosphere.‬‭280‬ ‭The planet's warming‬‭guarantees negative outcomes for both‬ ‭ecosystems and the economy. An increase in climate change events due to global warming will‬ ‭be detrimental to supply chains and valuable infrastructure. This has increased the cost of‬ ‭insurance for businesses and homeowners in states that are heavily affected by climate change.‬ ‭iii. Antitrust Law and Climate Change‬ ‭Businesses and corporations, when not prohibited by antitrust regulation, can work‬ ‭collaboratively on climate change-focused initiatives. These initiatives or joint ventures are‬ ‭occasionally dismantled by various aspects of antitrust law, such as areas that curb collaboration‬ ‭out of fear of restricting the market. While sector-wide cohesion and collaboration regarding‬ ‭limiting greenhouse gas emissions, sustainable supply chains, and technological innovations are‬ ‭desirable, many corporations fear potentially breaking antitrust law and avoid getting involved‬ ‭with their peers. In the twenty-first century, slight revisions to current antitrust law would allow‬ ‭for climate change-related collaborations to take place more easily and efficiently across sectors.‬ ‭iv. Origins of Antitrust and Modern-Day Implications‬ ‭Antitrust law originates in the late 1800s after an economic boom following the Civil‬ ‭War. The economic prosperity in the decades after the war led to the creation of multiple trusts or‬ ‭corporations banded together, which heavily and unequally affected the market by placing‬ ‭economic control in the hands of a few powerful corporations instead of fostering economic‬ ‭279‬

‭Intergovernmental Panel on Climate Change (IPCC),‬‭Climate Change 2021: The Physical Science Basis‬‭,‬ ‭ ontribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change‬ C ‭(Cambridge: Cambridge University Press, 2021)‬ ‭280‬ ‭Intergovernmental Panel on Climate Change (IPCC),‬‭Climate Change 2021: The Physical Science Basis‬‭,‬ ‭Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change‬ ‭(Cambridge: Cambridge University Press, 2021)‬

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‭diversity. Two opposing viewpoints led to the creation of the Sherman Act in 1890, and, the‬ ‭Clayton Act in 1914. These two viewpoints, evolutionary and intentional, fell on opposite sides‬ ‭regarding government intervention in the market.‬‭The Sherman Act was a major compromise‬ ‭between those who supported the evolutionary vision that competition was salient to a successful‬ ‭market and those who supported the intentional vision that monopolies will inevitably develop‬ ‭without government intervention.‬‭281‬ ‭Later, the Clayton‬‭Act was designed to go beyond the reach‬ ‭of the Sherman Act and specifically outlawed mergers and acquisitions of companies if a‬ ‭reduction in competition would result.‬‭282‬ ‭Putting the‬‭Sherman Act to the test,‬‭Standard Oil Co. of‬ ‭New Jersey v. United States‬‭, a landmark Supreme Court‬‭case in 1911, ruled that the major oil‬ ‭corporation had violated the Act and must be broken down into smaller corporations.‬‭283‬ ‭This first‬ ‭major antitrust case has been important in setting a precedent for all future antitrust cases and‬ ‭highlights the importance of setting limitations on corporate actions in the economy. Today,‬ ‭antitrust law continues to serve its original purpose of outlawing monopolies that hinder‬ ‭competition.‬ ‭However, there is value in allowing collaboration between businesses. A recent example‬ ‭of economically beneficial collaboration is the recent work done between Pfizer and BioNTech‬ ‭during the COVID-19 pandemic. The two companies held different research, technology, and‬ ‭outreach capabilities that, when combined, would ultimately create the COVID-19 vaccine that‬ ‭would go on to save lives and shorten the length of the pandemic that required most businesses‬ ‭to stop operations.‬‭284‬ ‭Extended closures of business‬‭practices are financially detrimental for the‬ ‭business owners and the consumers who benefit from their products. In the case of Pfizer and‬ ‭281‬

‭William H. Page, ISSUES IN COMPETITION LAW AND POLICY,‬‭Vol. 1, No. 1, ABA Section of Antitrust‬ ‭Law, 2008‬ ‭282‬ ‭15 U.S.C §§ 12-17‬ ‭283‬ ‭Standard Oil Co. v. United States,‬‭221 U.S. 1 (1911)‬ ‭284‬ ‭How Pfizer delivered a Covid vaccine in record time:‬‭Crazy Deadlines, a pushy CEO - WSJ. Accessed‬ ‭November 9, 2024.‬

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‭BioNTech, a swift collaboration meant that businesses spent less time closed to customers during‬ ‭the pandemic creating a financial benefit as business was able to resume in a timely manner.‬ ‭While the Sherman Act and Clayton Act do serve as cornerstones of American antitrust law,‬ ‭there are instances where collaboration should be championed and may prove to be economically‬ ‭beneficial.‬ ‭Global Warming and its Economic Effects‬ ‭v. Linking Global Warming and Economic Turbulence‬ ‭Global warming refers to the increase in the average temperature of the Earth. Since the‬ ‭Second Industrial Revolution in the late 1800s, human activity, especially burning fossil fuels,‬ ‭has dramatically increased greenhouse gases. Greenhouse gases, primarily carbon dioxide and‬ ‭methane, trap heat within the atmosphere, which has led to a one-degree Celsius increase in the‬ ‭global average temperature since the Second Industrial Revolution. While one degree Celsius‬ ‭may appear negligible, a rise in the global average temperature to one and a half degrees Celsius‬ ‭will lead to rising sea levels, more frequent and deadly heat waves, loss of wildlife, and many‬ ‭other undesirable environmental outcomes.‬‭285‬ ‭The time‬‭to limit the warming of the planet is‬ ‭quickly running out. Countries would need to drastically cut back on their carbon emissions by‬ ‭2030, less than 6 years away, and be on a net-zero emissions track by 2050 to limit global‬ ‭warming to one and a half degrees Celsius.‬‭286‬ ‭Even warming‬‭to one and a half degrees Celsius‬ ‭will prove to have negative effects on the planet. However, without any effort to reduce‬ ‭emissions, we risk a two or three-degree Celsius increase in the global average temperature,‬ ‭ultimately facing a far worse fate than if warming had been better controlled.‬‭287‬ ‭285‬

‭Joy, Richard.‬‭Unsustainable: the urgent need to transform‬‭society and reverse climate change‬‭. Policy Press,‬ ‭2021.‬ ‭286‬ ‭Joy, Richard.‬‭Unsustainable: the urgent need to transform‬‭society and reverse climate change‬‭. Policy Press,‬ ‭2021.‬ ‭287‬ ‭Joy, Richard.‬‭Unsustainable: the urgent need to transform‬‭society and reverse climate change‬‭. Policy Press,‬ ‭2021.‬

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‭Without immediate action from governments and polluting corporations, we face not only‬ ‭the environmental disturbances stated above but economic disturbances as well.‬ ‭Insurance‬ ‭companies are rapidly leaving states such as California and Florida. They are known to be‬ ‭heavily affected by hurricanes, flooding, and wildfires, all effects of global warming. These‬ ‭weather events destroy homes, infrastructure, and important businesses, which are costly and‬ ‭time-consuming to repair. New businesses may refrain from opening in states with high‬ ‭insurance premiums as they would make less of a profit while also having the added burden of‬ ‭worrying about property damage from weather events. The lack of new businesses or business‬ ‭expansions in the states most affected by increasingly severe and frequent weather events can‬ ‭have a negative economic impact on the state and its residents. States that are less likely to see‬ ‭intense weather events in the coming decades will have lower insurance premiums and will‬ ‭entice businesses to expand or open in their state.‬ ‭The few insurance companies who do stay in high-risk states often demand that‬ ‭homeowners and business owners meet stringent requirements that are often expensive to‬ ‭comply with.‬‭288‬ ‭These demands place a financial strain‬‭on average Americans and small business‬ ‭owners. These climate-related fears and incidents strain the entire insurance industry. Much of‬ ‭the United States’s coastal areas are at risk of flooding due to the continuing rise in sea level‬ ‭caused by global warming.‬‭289‬‭For coastal regions, a‬‭sea level rise could potentially mean a loss in‬ ‭invaluable infrastructure such as hospitals, highways, homes, businesses, and airports, which will‬ ‭result in an incredible financial and personal cost to businesses, governments, and individuals‬

‭288‬

‭Mills, Evan, and Eugene Lecomte.‬‭Availability and‬‭affordability of insurance under climate change: A growing‬ ‭challenge for the US‬‭. Boston: Ceres, 2005.‬ ‭289‬ ‭Lindsey, Rebecca. “Climate Change: Global Sea Level.” NOAA Climate.gov, August 22, 2023.‬ ‭https://www.climate.gov/news-features/understanding-climate/climate-change-global-sea-level#:~:text=In%20many‬ ‭%20locations%20along%20the,it%20was%2050%20years%20ago.‬

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‭who will be left to recover the costs.‬‭290‬ ‭Revisions in antitrust law that would allow for more‬ ‭clarity in corporate collaboration can help reduce corporate America’s contribution to global‬ ‭warming, primarily in the form of substantial greenhouse gas emissions. In turn, these financially‬ ‭disastrous outcomes, such as increased statewide insurance costs, the subsequent loss of business‬ ‭and work in a state, and the repairs of vital and expensive infrastructure, can significantly reduce‬ ‭or be averted.‬ ‭vi. Long-Term Consumer Protection Amid Global Warming‬ ‭As the planet continues to warm and the environment becomes increasingly unstable,‬ ‭consumers will need increased legal protection regarding their long-term financial interests. This‬ ‭may require changes in antitrust law to allow for room for environmental exceptions. While the‬ ‭role of antitrust law is to keep prices of goods competitive for the consumer today is important, if‬ ‭these competitively priced goods are unsustainably sourced or produced by environmentally‬ ‭unfriendly businesses, then the long-term costs of causing damage to the environment can‬ ‭outweigh the short-term cost benefits. After witnessing damage to the environment due to‬ ‭unsustainable business practices, consumers and shareholders are urging corporations to make‬ ‭long-term focused decisions regarding their business operations. In the 2024 case of‬‭ExxonMobil‬ ‭v. Arjuna Capital‬‭, Exxonmobil shareholder Arjuna Capital‬‭proposed that the oil giant accelerate‬ ‭their reduction of carbon dioxide emissions.‬‭291‬ ‭Exxonmobil‬‭responded by suing Arjuna Capital to‬ ‭prevent this proposal from being presented at their next shareholder meeting. Similarly, in the‬ ‭case‬‭California v. BP et al‬‭., the state of California‬‭sued BP and other major oil companies for‬ ‭their part in causing a rise in carbon dioxide levels that ultimately led to flooding in Oakland and‬

‭290‬

‭How climate change impacts the economy‬‭. State of the Planet. (n.d.).‬ ‭https://news.climate.columbia.edu/2019/06/20/climate-change-economy-impacts/‬ ‭291‬ ‭Exxon Mobil Corporation v. Arjuna Capital‬‭, No. 4:24-cv-00069-P,‬‭U.S. District Court, N.D. Texas, Fort Worth‬ ‭Division. (June 17, 2024)‬

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‭San Francisco.‬‭292‬ ‭These two cases demonstrate that shareholders and governments are taking‬ ‭legal action to protect themselves and their citizens from the negative effects corporations have‬ ‭on the environment through their high output of greenhouse gases.‬ ‭Allowing corporations to participate in climate-focused initiatives without the fear of‬ ‭retaliatory investigations for suspected antitrust law violations could decrease the unfortunate‬ ‭environmental and legal situations stated above. A climate-centered coalition, the Net-Zero‬ ‭Insurance Alliance, saw financial institutions, specifically insurance corporations, collaborate to‬ ‭reduce their individual corporations’ negative environmental impacts by requiring all companies‬ ‭to commit to reducing greenhouse gas emissions and be on a net-zero track by 2050. This‬ ‭initiative was disbanded following accusations by Republican lawmakers of several state and‬ ‭federal antitrust law violations.‬‭293‬ ‭To make tackling‬‭global warming easier, antitrust law must be‬ ‭altered to recognize the long-term consumer benefit of allowing corporations to set industry‬ ‭standards, share research and sustainable technologies, and create climate-focused initiatives and‬ ‭alliances.‬ ‭Future of Antitrust Law‬ ‭vii. Antitrust Modifications in the Face of Global Warming‬ ‭Corporations avoid joining climate initiatives and alliances due to fear of breaking‬ ‭antitrust laws, but that fear can be eased with alterations to existing antitrust laws, specifically to‬ ‭the guidelines about collaboration between corporations.‬‭294‬ ‭The damage that global warming is‬ ‭causing to the economy and consumers is only growing each year. Collaboration between‬ ‭corporations is where the bulk of industry standard-setting, climate-focused innovation, and the‬ ‭292‬

‭ alifornia v. BP P.L.C.‬‭, No. C 17-06011 WHA (N.D.‬‭Cal. Feb. 27, 2018)‬ C ‭Insurers flee climate alliance after ESG Backlash in the U.S. | reuters. (n.d.-b).‬ ‭https://www.reuters.com/business/allianz-decides-leave-net-zero-insurance-alliance-2023-05-25/‬ ‭294‬ ‭Democratic Staff Report Committee on the Judiciary‬‭U.S. House of Representatives, “Unsustainable and‬ ‭Unoriginal: How the Republicans Borrowed a Bogus Antitrust Theory to Protect Big Oil,”‬ ‭https://democrats-judiciary.house.gov/uploadedfiles/2024.06.11_final_esg_report.pdf‬ ‭293‬

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‭formation of joint ventures and climate coalitions will occur. In 1991, economist Michael Porter‬ ‭created what is now known as the “Porter Hypothesis.” His hypothesis argues that despite‬ ‭popular beliefs, strict environmental protections and corporate regulations will not harm the‬ ‭economy but will increase efficiency and competitiveness.‬‭295‬ ‭As the planet continues to warm,‬ ‭natural disasters will increase. This will make the economy increasingly unstable as many key‬ ‭pieces of infrastructure and individuals will be affected by these events.‬ ‭With this hypothesis in mind, there is room to uphold the Sherman and Clayton Acts‬ ‭while also allowing corporations to collaborate in a climate- and future-focused manner. The‬ ‭current antitrust law guidelines, “Antitrust Guidelines for Collaborations Among Competitors”,‬ ‭written jointly by the Federal Trade Commission and the Department of Justice, were written in‬ ‭2000 and have not been updated since.‬‭296‬ ‭Updates to‬‭the existing guidelines surrounding‬ ‭collaborations between corporations can include clarity specifically on joint ventures and‬ ‭collaborations, as this is where corporations will make the bulk of long-term and widespread‬ ‭climate-related progress. As mentioned previously, this is an area that has faced heavy scrutiny‬ ‭as several United States Republican lawmakers investigated several climate coalitions for‬ ‭breaking antitrust laws.‬‭297‬ ‭Despite several coalitions‬‭being accused and investigated, no court‬ ‭was able to rule definitively that there was a violation of antitrust law from the coalitions.‬‭298‬ ‭Financial institutions, such as the institutions that joined the Net Zero Insurance Alliance, have‬ ‭more of an impact on the environment than individuals or households and therefore bear a‬ ‭295‬

‭Porter, M. E. "America's Green Strategy." Scientific‬‭American 264, no. 4 (April 1991).‬ ‭ ederal Trade Commission,‬‭Antitrust Guidelines for‬‭Collaborations Among Competitors‬‭(Washington, DC:‬ F ‭Federal Trade Commission, April 2000),‬ ‭https://www.ftc.gov/sites/default/files/documents/public_statements/antitrust-guidelines-collaborations-among-comp‬ ‭etitors/ftc.gov-guidelines-collaborations.pdf.‬ ‭297‬ ‭Insurers flee climate alliance after ESG Backlash‬‭in the U.S. | reuters. (n.d.-b).‬ ‭https://www.reuters.com/business/allianz-decides-leave-net-zero-insurance-alliance-2023-05-25/‬ ‭298‬ ‭Democratic Staff Report Committee on the Judiciary‬‭U.S. House of Representatives, “Unsustainable and‬ ‭Unoriginal: How the Republicans Borrowed a Bogus Antitrust Theory to Protect Big Oil,”‬ ‭https://democrats-judiciary.house.gov/uploadedfiles/2024.06.11_final_esg_report.pdf‬ ‭296‬

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‭significant burden when it comes to slowing or even reversing global warming.‬‭299‬ ‭Antitrust law,‬ ‭specifically surrounding collaborations, can be clarified with current environmental concerns at‬ ‭the forefront to stop baseless investigations into corporations attempting to ease the climate‬ ‭crisis. With more clarity in the language, corporations can form joint climate ventures and‬ ‭coalitions without the fear of being investigated, having their corporation tarnished, and enduring‬ ‭lawsuits, such as the recent lawsuit issued by eleven Republican-led states against BlackRock,‬ ‭Vanguard, and Statestreet, for breaking antitrust laws over climate collaborations.‬‭300‬ ‭Forming‬ ‭coalitions such as the Net Zero Insurance Alliance ensures that major corporations limit their‬ ‭annual carbon emissions, among other sustainability efforts, raises awareness for the climate‬ ‭crisis, and encourages other corporations to do the same.‬ ‭However, other proposals, such as creating incentives or allowing for environmental‬ ‭protection and sustainability protections, should not be included in any updates to antitrust law.‬ ‭This could allow corporations who do not have a genuine interest in protecting the environment‬ ‭and, subsequently, their shareholders and consumers to participate and reap many tax benefits‬ ‭without properly participating in meaningful and impactful change. Increasing clarity‬ ‭surrounding the topic of collaboration will lessen the ambiguity many use to attack corporations‬ ‭participating in climate coalitions and therefore increase participation in joint ventures and‬ ‭coalitions aimed at slowing global warming.‬ ‭Conclusion‬ ‭Antitrust law is a necessary component of a functioning economy to prevent corporations'‬ ‭anti-competitive behavior and protect consumers. However, it can occasionally harm consumers‬ ‭299‬

‭ orten, David C. "When corporations rule the world."‬‭European Business Review‬‭98, no. 1 (1998).‬ K ‭Blackrock, Vanguard, State Street sued by Republican states over climate push | Reuters.‬ ‭https://www.reuters.com/legal/blackrock-state-street-vanguard-sued-by-republican-states-over-climate-accords-2024‬ ‭-11-27/.‬ ‭300‬

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‭when fears of violating ambiguous and outdated guidelines stop corporations from engaging in‬ ‭climate-focused joint ventures and coalitions. Primarily since the Second Industrial Revolution at‬ ‭the end of the nineteenth century, burning fossil fuels has released greenhouse gases into the‬ ‭atmosphere that slowly increase the Earth’s average temperature. Corporations are the largest‬ ‭polluters and, therefore, have the largest weight to carry in slowing or even potentially ceasing‬ ‭the ever-increasing warming of the planet. With only a half-degree increase in global‬ ‭temperature, significant changes to the climate will occur that will harm businesses,‬ ‭governments, and individuals. Rises in sea levels will reduce usable land for businesses and‬ ‭infrastructure, natural disasters such as hurricanes will lead to difficulty obtaining homeowners’‬ ‭insurance in high-risk states, and damage to important infrastructure will only become more‬ ‭costly as these events increase in frequency and severity. Therefore, corporations mustn't feel‬ ‭dissuaded from participating in coalitions and joint ventures that seek to work collaboratively on‬ ‭combating global warming. By updating antitrust law guidelines surrounding corporate‬ ‭collaboration for the first time in twenty-five years, clarity for climate-related collaborations can‬ ‭help end unnecessary investigations into corporations attempting to join coalitions that support‬ ‭environmental protection efforts. Corporations can continue to be competitive while at the same‬ ‭time ensuring economic prosperity for future generations by focusing on climate-related‬ ‭initiatives in the present.‬‭301‬

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‭This paper has been reviewed by Cymie Payne. She‬‭is a professor at Rutgers University in the Department of‬ ‭Human Ecology and the School of Law and specializes in environmental studies and law.‬

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‭PRIVATE PRISONS:‬ ‭THE CONSTITUTIONALITY, ETHICALITY, AND IMPLICATIONS‬ ‭WRITTEN BY SHRUTI NARAYANABHATLA | EDITED BY KEVIN MASGUDOV‬ ‭Introduction‬ ‭i. History of Private Prisons‬ ‭Private prisons are for-profit institutions operated by private companies that house‬ ‭inmates. Born out of an attempt in the 1980s to create a fiscal fix for growing government‬ ‭spending and solve prison overcrowding, these institutions blur the line between profit and‬ ‭justice.‬‭302‬ ‭Spearheaded by the Corrections Corporation‬‭of America (CCA)—the first private‬ ‭prison company to operate for profit—the growth of private prisons paralleled the overcrowding‬ ‭effects of President Reagan's War on Drugs.‬‭303‬ ‭As incarceration‬‭rates soared, especially for‬ ‭drug-related offenses, private prisons proliferated, increasing from five in 1998 to 100 by‬ ‭2008.‬‭304‬ ‭Currently, private prisons house 8.2% of the‬‭US prison population, with states like‬ ‭Montana, New Mexico, and Tennessee housing over 20% of their prison populations in private‬ ‭facilities.‬‭305‬ ‭The CCA experienced a 500% profit increase‬‭over two decades, and it began‬ ‭utilizing electronic surveillance to cut costs.‬‭306‬ ‭Private‬‭prisons offer a quick and appealing‬ ‭promise of cost efficiency, propelled by growing incarceration rates and inefficient state‬ ‭management. But critics contend the real cost of these savings is paid for in human dignity.‬ ‭Reports from the ACLU describe private prisons as “hyper-violent, grotesquely filthy, and‬ ‭dangerous environments.”‬‭307‬ ‭For example, the privately-operated‬‭East Mississippi Correctional‬ ‭302‬

‭“Private Prisons vs. Public Prisons.” Criminal Justice‬‭Programs, May 4, 2021.‬ ‭https://www.criminaljusticeprograms.com/articles/private-prisons-vs-public-prisons/.‬ ‭303‬ ‭Private vs. Public Prisons, 2021.‬ ‭304‬ ‭Private vs. Public Prisons, 2021.‬ ‭305‬ ‭Private vs. Public Prisons, 2021.‬ ‭306‬ ‭Private vs. Public Prisons, 2021.‬ ‭307‬ ‭Anonymous. “I Was Raped at East Mississippi Correctional‬‭Facility: ACLU.” American Civil Liberties Union,‬ ‭February 27, 2023. https://www.aclu.org/news/smart-justice/i-was-raped-east-mississippi-correctional-facility.‬

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‭Facility (EMCF) was described as being in a “perpetual state of crisis,” where prisoners with‬ ‭serious psychiatric disabilities are at “grave risk of death and loss of limbs,” often locked in‬ ‭long-term solitary confinement.‬‭308‬ ‭With widespread reports‬‭of inadequate medical care, forced‬ ‭labor, and overcrowded conditions, private prisons have emerged as a controversial cornerstone‬ ‭in today’s carceral society.‬‭309‬ ‭ii. Overview of Applicable Constitutional Amendments and Precedents‬ ‭The existence and growing prominence of private prisons have sparked concerns about‬ ‭government accountability and the treatment of incarcerated individuals. Constitutional scholars‬ ‭cite the Eighth Amendment’s protection against cruel and unusual punishment and the Thirteenth‬ ‭Amendment’s prohibition of involuntary servitude as the basis of their criticisms of private‬ ‭prisons. These institutions have contributed to the expansion of prison labor, raising critical‬ ‭questions about who is ultimately responsible for human rights violations—private companies,‬ ‭the state, or the federal government. This paper will explore the current legal precedent set by‬ ‭cases such as‬‭Bivens v. Six Unknown Fed. Narcotics‬‭Agents‬‭(1971)‬‭, Correctional Services‬ ‭Corporation v. Malesko‬‭(2001)‬‭,‬‭and‬‭Dockery v. Hall‬‭(2019)‬‭,‬‭and analyze the current legal status‬ ‭of private prisons. Subsequently, it will evaluate the effectiveness of these cases in guiding the‬ ‭actions of both federal and private organizations in protecting the rights of those incarcerated.‬ ‭iii. Growth of the Carceral State‬ ‭Apart from these legal concerns, this paper will explore the broader societal implications‬ ‭of private prisons in perpetuating the prison industrial complex and the ethical issues associated‬

‭308‬

“‭ Dockery v. Hall.” American Civil Liberties Union,‬‭February 3, 2023. https://www.aclu.org/cases/dockery-v-hall.‬ ‭According to the 11th edition of Black’s Law Dictionary,‬‭“carceral” is an adjective describing something of,‬ ‭relating to, or involving jail, prison, or some type of incarceration. Though originally in English and Roman law a‬ ‭“carcer” referred to a prison or jail used only for holding or detention pending sentencing, anything “carceral” is‬ ‭now commonly associated with punishment. Thus, a carceral society is one in which punishment and punitive‬ ‭policies are pervasive.‬ ‭309‬

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‭with commodifying prison labor and crime.‬‭310‬ ‭Private prisons have distorted incentives to‬ ‭enhance public safety and promote rehabilitation for the incarcerated. State governments are‬ ‭compelled to divert funds from public services, education, healthcare, and welfare to cover the‬ ‭expenses of incarceration, hindering efforts to address the underlying causes of crime.‬‭311‬ ‭Privatization has turned mass incarceration into a lucrative opportunity for a select few while‬ ‭becoming a financial burden for the rest of society.‬‭312‬ ‭This dynamic creates a society where‬ ‭liberty and justice are tossed aside for a mere 33 cents per hour of prison labor.‬‭313‬ ‭Balancing Cutting Costs with Inmate Safety‬ ‭There are dramatic disparities between public and private prisons, specifically regarding‬ ‭transparency. Private prisons are notably less forthcoming about crucial details such as inmate‬ ‭populations, staffing numbers, and budget allocations.‬‭314‬ ‭Unlike public facilities, which are‬ ‭accountable to taxpayers, private prisons face fewer regulatory requirements and are less‬ ‭responsible to the public.‬‭315‬ ‭This opacity makes it‬‭more challenging to gather accurate data.‬ ‭Despite this, a trend has emerged, with private prisons being criticized as being more dangerous‬ ‭and less effective than public prisons. A key distinction lies in the prisoner population of each‬ ‭facility. Private prisons are funded through government contracts, many of which are structured‬ ‭around the total number of inmates they house and the average duration of their sentences.‬‭316‬ ‭This financial arrangement ties their profitability directly to maintaining higher inmate numbers‬ ‭310‬

‭According to the Justice Education Project (JEP), Prison Industrial Complex is a term used to describe the‬ c‭ onflicting interests of government and industry that use punitive and surveillance measures as solutions to‬ ‭economic, social, and political problems. It is a conglomerate of systems that ensures the longevity of the current‬ ‭unjust power structure.‬ ‭311‬ ‭Sawyer, Wendy. “How Much Do Incarcerated People Earn‬‭in Each State?” Prison Policy Initiative. Accessed‬ ‭November 23, 2024. https://www.prisonpolicy.org/blog/2017/04/10/wages/.‬ ‭312‬ ‭Stevenson, Bryan.‬‭Just mercy: A story of justice‬‭and redemption‬‭. New York: Random House Audio, 2014.‬ ‭313‬ ‭Sawyer, Wendy. “How Much Do Incarcerated People Earn‬‭in Each State?” Prison Policy Initiative. Accessed‬ ‭November 23, 2024. https://www.prisonpolicy.org/blog/2017/04/10/wages/.‬ ‭314‬ ‭“Private Prisons vs. Public Prisons.” Criminal Justice‬‭Programs, May 4, 2021.‬ ‭https://www.criminaljusticeprograms.com/articles/private-prisons-vs-public-prisons/.‬ ‭315‬ ‭Private vs. Public Prisons, 2021.‬ ‭316‬ ‭Private vs. Public Prisons, 2021.‬

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‭and longer stays, further incentivizing mass incarceration.‬‭317‬ ‭According to the Bureau of Justice‬ ‭Statistics, the average length of time a prisoner served in a public prison is less than half that of‬ ‭average prisoners in private facilities.‬‭318‬ ‭This disparity‬‭is compounded by the fact that private‬ ‭prisons are more likely to host nonviolent drug offenders, as these individuals typically require‬ ‭less intensive security measures compared to violent offenders, making them less expensive to‬ ‭house.‬‭319‬ ‭The interplay between the population type and the profit-driven nature of private‬ ‭prisons sheds light on why prisoners in private facilities serve longer sentences.‬ ‭Another important factor is the relationship between public and private prisons in safety‬ ‭and effectiveness. An estimated 49% more violent incidents and guard assaults are reported in‬ ‭private prisons than in public, and inmate-on-inmate assaults are said to occur 65% more in‬ ‭private facilities.‬‭320‬ ‭Under the Obama Administration,‬‭the Justice Department’s comparative‬ ‭review of both private and public correctional facilities also found that private prisons were more‬ ‭dangerous and less effective, leading to efforts to phase them out.‬‭321‬ ‭The Trump administration‬ ‭reversed these efforts, favoring harsher immigration and drug policies. Private prisons also‬ ‭manage many immigration detention centers, often excluded from standard prison reports.‬‭322‬ ‭Despite these significant drawbacks, proponents of private prisons contend they reduce‬ ‭taxpayer burdens and are an effective solution to rising rates of incarceration. However, initial‬ ‭cost savings are frequently negated by hidden expenses.‬‭323‬ ‭For example, private prisons generally‬ ‭allocate fewer resources to rehabilitation programs, security systems, and mental health services,‬ ‭317‬

‭ rivate vs. Public Prisons, 2021.‬ P ‭Private vs. Public Prisons, 2021.‬ ‭319‬ ‭Israel, Jacob F. For-profit prisons: How lobbying‬‭has affected the way America houses prisoners.‬ ‭https://www.bemidjistate.edu/academics/political-science/wp-content/uploads/sites/40/2022/03/For-Profit-Prisons_-‬ ‭How-Lobbying-Has-Affected-the-Way-America-Houses-Prisoners28865.pdf.‬ ‭320‬ ‭“Private Prisons vs. Public Prisons.” Criminal Justice‬‭Programs, May 4, 2021.‬ ‭https://www.criminaljusticeprograms.com/articles/private-prisons-vs-public-prisons/.‬ ‭321‬ ‭Private vs. Public Prisons, 2021.‬ ‭322‬ ‭Private vs. Public Prisons, 2021.‬ ‭323‬ ‭Private vs. Public Prisons, 2021.‬ ‭318‬

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‭which lead to higher recidivism rates.‬‭324‬ ‭Furthermore, the financial incentive to maintain high‬ ‭inmate populations has resulted in contracts with “lock-up quotas,” obligating governments to‬ ‭pay penalties if the inmate count falls below a set level, ultimately driving up taxpayer costs.‬ ‭Thus, it is no surprise that the average cost of housing a medium-security inmate in a public‬ ‭prison in 2010 was $48.42 compared to $53.02 in a private prison.‬‭325‬ ‭Adding further complexity, Elie Honig, a former federal prosecutor in the Southern‬ ‭District of New York (SDNY) with 14 years of experience, offers a compelling anecdote about‬ ‭inmates preferring private prisons over government facilities.‬‭326‬ ‭He notes that some inmates‬ ‭request transfers to private prisons because they believe these institutions are better equipped,‬ ‭more comfortable, and less dangerous. However, there might be some limitations to this analysis.‬ ‭First, most inmates lack adequate knowledge or firsthand experience across multiple facilities,‬ ‭meaning their views may be shaped by limited information or misconceptions rather than a‬ ‭comprehensive understanding of the prison system. Additionally, Honig himself notes that what‬ ‭a subset of inmates desires cannot reliably represent the broader experiences of the incarcerated‬ ‭population, especially given the immense diversity in individual needs and institutional‬ ‭conditions. Third, there may be significant disparities in the quality of private prisons compared‬ ‭to federal or state facilities, particularly as private prisons often operate under varying contracts‬ ‭and oversight standards. While Honig's insight offers a glimpse into inmate sentiment, this just‬ ‭adds a layer of nuance to an already multifaceted issue. The true case-by-case basis of this‬ ‭problem is something citizens, lawmakers, and inmates should make a conscious effort to‬ ‭understand.‬ ‭324‬

‭ rivate vs. Public Prisons, 2021.‬ P ‭Private vs. Public Prisons, 2021.‬ ‭326‬ ‭The paper was reviewed by Elie Honig, who is currently‬‭the Senior Legal Analyst for CNN, having previously‬ ‭worked over a decade as a federal and state prosecutor. Honig has decades of experience dealing with the criminal‬ ‭justice system, and he has also authored several bestselling books displaying his intricate legal analysis.‬ ‭325‬

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‭Liability and Constitutional Challenges of Private Prisons‬ ‭iv. Difficulty Establishing Standing‬ ‭Critics of private prisons argue that these institutions violate the Eighth and Thirteenth‬ ‭Amendments, particularly regarding cruel and unusual punishment. Several court cases have‬ ‭developed a stringent legal framework that makes it difficult for prisoners to successfully sue for‬ ‭Eighth Amendment violations. In‬‭Rhodes v. Chapman‬‭,‬‭the Court ruled that the Eighth‬ ‭Amendment “does not mandate comfortable prisons,” setting a precedent that prison conditions‬ ‭do not need to be ideal to meet constitutional standards.‬‭327‬ ‭However, in‬‭Farmer v. Brennan‬ ‭(1994), the Court clarified that “the treatment a prisoner receives in prison and the conditions‬ ‭under which he is confined are subject to scrutiny under the Eighth Amendment,” establishing‬ ‭the "deliberate indifference" standard.‬‭328‬ ‭Under the‬‭deliberate indifference standard, to prove an‬ ‭Eighth Amendment violation, a prisoner must show that a prison official knew of a substantial‬ ‭risk of serious harm and disregarded that risk by failing to take reasonable steps to prevent it.‬‭329‬ ‭The Farmer decision set a high bar for proving deliberate indifference, requiring more than mere‬ ‭negligence or oversight. A prison official must have acted with “subjective recklessness” in‬ ‭failing to address the risk, meaning they intentionally ignored a known danger.‬‭330‬ ‭For a‬ ‭successful Section 1983 claim (a federal statute that allows individuals to sue state and local‬ ‭government officials or entities for violations of their constitutional or federal rights), as‬ ‭explained in‬‭Gobert v. Caldwell‬‭(2006), the prisoner‬‭must demonstrate that officials “refused to‬ ‭treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in similar‬ ‭conduct that clearly showed a wanton disregard for serious medical needs.”‬‭331‬ ‭This high‬ ‭327‬

“‭ Dockery v. Hall.” American Civil Liberties Union, February 3, 2023. https://www.aclu.org/cases/dockery-v-hall.‬ ‭Dockery, ACLU, 2023.‬ ‭329‬ ‭Dockery, ACLU, 2023.‬ ‭330‬ ‭Dockery, ACLU, 2023.‬ ‭331‬ ‭Dockery, ACLU, 2023.‬ ‭328‬

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‭threshold makes it particularly challenging for inmates to prove Eighth Amendment violations in‬ ‭both public and private prisons, effectively limiting the ability to hold prison officials or private‬ ‭operators accountable for inadequate conditions or care.‬ ‭v. Determining Liability in Private Prisons‬ ‭Granted a plaintiff painstakingly establishes an Eighth Amendment violation, there‬ ‭remains considerable ambiguity regarding the liability of private prisons, as it is unclear who‬ ‭should be held accountable for the inflicted harm. Consequently, this makes such lawsuits‬ ‭particularly difficult to litigate and adjudicate. This ambiguity is exacerbated by the intertwined‬ ‭roles of the state and the private sector, making it difficult to assign blame for violations. While‬ ‭the government may oversee certain aspects of prison life, such as the use of force, private‬ ‭companies are typically responsible for the day-to-day operations. Nonetheless, certain court‬ ‭cases have set precedents that offer some clarity on navigating these legal questions.‬ ‭In‬‭Bivens v. Six Unknown Fed. Narcotics Agents‬‭(1971),‬‭the Supreme Court ruled that‬ ‭individuals have the right to sue federal officials for constitutional violations of the Fourth‬ ‭Amendment, setting a crucial precedent in holding government actors accountable.‬‭332‬ ‭By the‬ ‭same principle, this right was later extended to violations of the Eighth Amendment through‬ ‭Carlson v. Green‬‭(1980).‬‭333‬ ‭“Furthermore,” in‬‭Correctional‬‭Services Corporation v. Malesko‬ ‭(2001), the Supreme Court was tasked with determining whether the implied private action for‬ ‭damages against federal officers established in‬‭Bivens‬‭should be extended to private corporations‬ ‭that were privately contracted out by the federal government.‬‭334‬ ‭In a 5-4 decision, the court ruled‬ ‭that‬‭Bivens‬‭could not be extended to permit a right‬‭of action for damages against private entities‬

‭332‬

‭“Correctional Services Corp. V. Malesko.” Legal Information‬‭Institute, November 27, 2001.‬ ‭https://www.law.cornell.edu/supct/html/00-860.ZD.html.‬ ‭333‬ ‭Correctional Services Corp. V. Malesko, Legal Information‬‭Institute, November 27, 2001‬ ‭334‬ ‭Correctional Services Corp. V. Malesko, Legal Information‬‭Institute, November 27, 2001‬

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‭acting under the color of federal law, which significantly limits corporate liability.‬‭335‬ ‭Dockery v.‬ ‭Hall (‬‭2019) further nuanced the doctrine by emphasizing‬‭that while private individuals employed‬ ‭by private prisons may face lawsuits, the corporations themselves remain insulated. This ruling is‬ ‭directly contradicted by § 1983, which contends private prisons are an extension of a state and‬ ‭thus should be considered state actors.‬‭336‬ ‭Although‬‭private prison employees are technically‬ ‭employed by contracted entities, they act as state actors under the public function doctrine, and‬ ‭insulating corporations from accountability creates an unjust gap in enforcing constitutional‬ ‭protections. The Supreme Court’s legal inconsistency complicates litigation and creates a system‬ ‭in which egregious human rights violations persist unchecked. Without definitive rulings from‬ ‭the Court, higher-level officials within private prison systems can deflect blame onto subordinate‬ ‭officers, avoiding accountability for the systemic issues they have helped foster. Although the‬ ‭root cause of inhumane conditions in private prisons stems from directives and a culture of‬ ‭negligence set up by these higher-level officials, they remain shielded from legal retribution.‬ ‭Instead, only lower-level guards who interact daily with prisoners are typically held responsible.‬ ‭vi. Issues With Setting Lasting Precedent‬ ‭Once a case is filed and a private prison or government is held liable, significant‬ ‭challenges remain in enforcing penalties and ensuring accountability for human rights violations.‬ ‭While plaintiffs may win their cases and receive monetary compensation, these payments‬ ‭typically come from the federal government, which operates on a vast deficit. Consequently,‬ ‭such financial penalties do little to deter future violations, especially for private prisons that‬ ‭continue to secure government contracts despite these issues. Settlements rarely lead to‬ ‭meaningful reform, as the companies face minimal long-term consequences and remain‬

‭335‬ ‭336‬

‭ orrectional Services Corp. V. Malesko, Legal Information‬‭Institute, November 27, 2001‬ C ‭“Dockery v. Hall.” American Civil Liberties Union,‬‭February 3, 2023. https://www.aclu.org/cases/dockery-v-hall.‬

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‭financially stable. Additionally, plaintiffs from low-income backgrounds are inclined to accept‬ ‭smaller settlements, prioritizing immediate relief over advocating for systemic change. This‬ ‭perpetuates a cycle in which individual lawsuits fail to drive the substantial reforms needed to‬ ‭prevent future abuses, allowing harmful prison conditions to persist. For example, the 2017‬ ‭lawsuit against CoreCivic, one of the largest private prison companies in the country, exemplifies‬ ‭this lack of accountability, even when lawsuits are brought forth. The inmate plaintiffs, all‬ ‭inmates in CoreCivic’s correctional facilities, alleged widespread violence, chronic‬ ‭understaffing, and inadequate medical care. The lawsuit concluded with a financial settlement, a‬ ‭common outcome in cases against private prisons. While settlements may provide some‬ ‭immediate relief to the plaintiffs, they rarely incentivize systemic reforms. Furthermore, while‬ ‭CoreCivic paid for damages, they were not required to admit liability or commit to any‬ ‭operational changes. As seen with the CoreCivic case, systemic problems remain unsolved, and‬ ‭the cycle of abuse continues, emphasizing the need for urgent regulatory frameworks and‬ ‭enforceable oversight mechanisms.‬‭337‬ ‭Ultimately, the legal framework surrounding Eighth Amendment violations in private‬ ‭prisons presents multiple layers of challenges for plaintiffs and advocates seeking accountability.‬ ‭First, the stringent legal standards set a high bar for proving constitutional violations, requiring‬ ‭plaintiffs to demonstrate that prison officials acted with deliberate indifference, which is difficult‬ ‭to establish. Second, the ambiguity between government and private prison liability further‬ ‭complicates litigation, as conflicting interpretations leave open questions about whether the‬ ‭private prison corporation or individual employees should be held accountable. This lack of‬

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‭Mattise, Jonathan, Travis Loller, and Kristin M.‬‭Hall. “Private Prison Giant Has Spent over $4.4m to Settle‬ ‭ istreatment Complaints in 1 State-Including at Least 22 Inmate Deaths.” Fortune, October 14, 2024.‬ M ‭https://fortune.com/2024/10/14/private-prison-corecivic-settle-mistreatment-complaints-tennessee-inmate-deaths/.‬

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‭clarity allows higher-level officials to deflect responsibility onto subordinate staff, effectively‬ ‭insulating those in charge from consequences. Lastly, even when liability is established, the‬ ‭enforcement of penalties remains weak, with financial settlements rarely leading to systemic‬ ‭change. Since plaintiffs often settle for small compensation rather than pushing for broader‬ ‭reforms, the system perpetuates a cycle in which individual lawsuits fail to address the root‬ ‭causes of abusive prison conditions. The fragmented nature of these legal battles, where only one‬ ‭person can typically be prosecuted at a time, allows private prisons to avoid comprehensive‬ ‭accountability, leaving the door open for continued human rights violations. This structural‬ ‭design prevents meaningful reform and reinforces the status quo, in which private prison‬ ‭operators can continue their practices largely unchallenged.‬ ‭Private Prisons, the Prison Industrial Complex, and the Carceral Society‬ ‭vi. Funding and Sustaining Private Prisons‬ ‭The existence and expansion of private prisons in the United States directly perpetuates‬ ‭the prison industrial complex—a structure where incarceration becomes an engine for profit to‬ ‭sustain capitalism and create lucrative opportunities for private companies. Structurally, private‬ ‭prisons contribute to a cycle where profit incentives, political lobbying, and the societal impacts‬ ‭of mass incarceration intersect, sustaining a carceral society where punishment and profit are‬ ‭placed over rehabilitation and equity.‬ ‭Private prisons typically function via government contracts, where they are paid on a‬ ‭per-inmate basis. Prisoners in private prisons get paid an average of $1,679 per inmate in a‬ ‭year.‬‭338‬ ‭The result is a fundamental structural incentive‬‭to maximize incarceration while‬ ‭minimizing operational costs. This profit structure, as elucidated earlier in this paper, enables‬

‭338‬

‭Ludington, Samuel. Publicly Traded Justice, 2021.‬ ‭https://heinonline.org/HOL/LandingPage?handle=hein.journals/umblr29&div=16&id=&page=.‬

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‭compromised inmate safety, lack of essential services, and poor educational programs. The‬ ‭success of private prisons possesses a fundamental antagonism between public interest goals of‬ ‭rehabilitation and private prison incentives of increasing incarceration rates. There are two‬ ‭mechanisms through which private prisons uniquely act in ways that promote higher‬ ‭incarceration rates. One potential concern is that private prisons might indirectly contribute to‬ ‭crime and organized crime due to their interest in maintaining high incarceration rates. Since‬ ‭private prisons are most profitable when their facilities are filled, they may invest in harmful‬ ‭societal activities, such as supporting the gun lobby or other efforts that could lead to an increase‬ ‭in crime.‬‭339‬ ‭The second concern is the method through which these institutions influence‬ ‭policy-making through extensive lobbying efforts. Private prison corporations have powerful‬ ‭lobbying arms and spend millions each year on campaign contributions and advocacy to sway‬ ‭policymakers. Their goal is clear: to promote harsher criminal justice policies that increase‬ ‭inmate populations, thereby ensuring continued profits. This lobbying is evident in efforts to‬ ‭advocate for laws like mandatory minimum sentences, “three strikes” policies, and‬ ‭tough-on-crime rhetoric, which create a legislative environment conducive to mass incarceration.‬ ‭Moreover, private prison companies often back restrictive immigration policies that fill detention‬ ‭centers, securing a steady influx of detainees.‬‭340‬ ‭This‬‭political clout enables private prisons to‬ ‭embed their interests within the very framework of the criminal justice system, steering it away‬ ‭from reformative goals and toward the continuous, profitable cycle of confinement. Since 1989,‬ ‭the two largest for-profit prison companies in the United States—GEO Group and Corrections‬

‭339‬ ‭340‬

‭ udington, Samuel. Publicly Traded Justice, 2021.‬ L ‭Ludington, Samuel. Publicly Traded Justice, 2021.‬

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‭Corporation of America—along with their affiliates, have contributed over $10 million to‬ ‭political candidates and spent nearly $25 million on lobbying efforts.‬‭341‬ ‭vii. Implications for Inmates and Society‬ ‭There are numerous deep-rooted implications of the fundamental shift where punitive‬ ‭measures and high incarceration rates become normalized features of social control. First, by‬ ‭commodifying incarceration, private prisons influence public perception of justice, redefining‬ ‭criminal justice to align with capitalistic ideals of profit. This profit-driven model not only‬ ‭perpetuates mass incarceration but also influences public opinion, fostering greater support for‬ ‭punitive policies and eroding empathy for systemic factors like poverty or racial inequities that‬ ‭drive criminal behavior. Communities of color and marginalized groups are disproportionately‬ ‭affected, as they are the primary targets of stringent policing and sentencing practices. The high‬ ‭incarceration rates in these communities reinforce cycles of poverty, disenfranchisement, and‬ ‭systemic oppression. The second implication of the private prison model is the deprioritization of‬ ‭rehabilitation, where former inmates struggle to reintegrate into society due to limited programs‬ ‭during and after incarceration.‬‭342‬ ‭The emphasis on keeping‬‭prison beds filled over promoting‬ ‭successful reintegration exacerbates social issues such as unemployment, homelessness, and‬ ‭mental health crises. In turn, these factors push people to commit more crimes.‬ ‭Conclusion‬ ‭Private prisons represent a fundamental affront to justice, driven by profit rather than‬ ‭rehabilitation. Although initially introduced under the guise of cutting costs and easing prison‬ ‭341‬

‭Cohen, Michael. “How For-Profit Prisons Have Become the Biggest Lobby No One Is Talking about - the‬ ‭ ashington Post.” Washington Post, April 28, 2015.‬ W ‭https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-become-the-biggest-lo‬ ‭bby-no-one-is-talking-about/.‬ ‭342‬ ‭Chang, Grace, and Ryan Pintado-Vertner. “Moving Stronger: Needs of the Criminal Justice Reform Movement.”‬ ‭CORE, September 2001. https://core.ac.uk/.‬

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‭overcrowding, these institutions fuel violation of the Eighth Amendment’s protections against‬ ‭cruel and unusual punishment and perpetuate the systemic exploitation that conflicts with the‬ ‭Thirteenth Amendment’s prohibition of involuntary servitude.‬ ‭The profit incentives inherent in private prisons create a self-perpetuating cycle of mass‬ ‭incarceration. As these institutions benefit financially from maintaining high inmate populations,‬ ‭they contribute to the legislative and societal shifts that lead to excessive punishment. Through‬ ‭lobbying efforts, private prisons directly influence policies that sustain mass incarceration, such‬ ‭as mandatory minimums and three-strike laws. The consequences of this system ripple beyond‬ ‭prison walls, fostering poverty, disenfranchisement, and systemic inequality, while failing to‬ ‭address the root causes of crime or support meaningful rehabilitation.‬ ‭To combat this cycle, systemic change is imperative. Ending mass incarceration begins‬ ‭with phasing out private prison contracts, implementing robust oversight to hold public and‬ ‭private entities accountable for abuses, and investing in restorative justice practices that address‬ ‭the root causes of crime. Policymakers must reject lobbying efforts that prioritize profit over‬ ‭public safety and instead advocate for reforms that uphold human dignity, equity, and‬ ‭constitutional integrity.‬ ‭The fight against private prisons is part of a broader battle to dismantle the carceral state‬ ‭and replace it with a justice system rooted in fairness, rehabilitation, and community investment.‬ ‭We cannot achieve true justice until we reject the commodification of human lives and commit to‬ ‭transformative reforms. By ending mass incarceration and ensuring that cutting costs does not‬ ‭come at the expense of human rights, we can break the cycle of oppression and build a society‬ ‭where justice is a reality for all.‬

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‭THE CONSTITUTIONALITY OF DEFENSIVE MEDICINE AS A MEANS OF‬ ‭AVOIDING MEDICAL MALPRACTICE LAWSUITS‬ ‭WRITTEN BY SANCHALI DIGHE | EDITED BY MAXWEL SINKIEWICZ‬ ‭Introduction‬ ‭i. Defining Defensive Medicine‬ ‭Defensive medicine is defined as medicine practiced in such a way as to reduce the risk‬ ‭of malpractice litigation, typically by the use of excessive diagnostic testing.‬‭343‬ ‭Over time, it has‬ ‭been incorporated into modern medical practice to limit liability, i.e., physicians will order‬ ‭excessive tests and procedures, inflating healthcare costs for the patients, not out of medical‬ ‭necessity, but out of fear of medical lawsuits. The pervasiveness of this practice is staggering: a‬ ‭2015 Harvard Medical School Study revealed that 92 percent of surveyed physicians practicing‬ ‭in Pennsylvania engaged in defensive medical practices.‬‭344‬ ‭Defensive medicine benefits doctors‬ ‭due to the practice's popularity and its expected outcome of limiting medical malpractice cases.‬ ‭However, defensive medicine distorts the doctor-patient relationship and causes mistrust in the‬ ‭healthcare system, as it prioritizes doctors’ liability over patient care.‬ ‭Defensive medicine presents itself in two forms: positive and negative. Positive defensive‬ ‭medicine refers to instances where the doctor gives a patient unnecessary care–specifically,‬ ‭ordering unnecessary tests, hospitalizations, and referrals. Doctors may choose to over prescribe‬ ‭to prevent a potential future diagnosis or mitigate a medical issue before it occurs. As an‬ ‭example, antibiotics are sometimes overprescribed to treat mild ear and sinus infections, which‬ ‭may have healed without antibiotic treatment. This protects doctors from potential malpractice‬

‭343‬

‭Oxford University Press. "Oxford Languages and Google - English." Accessed November 8, 2024.‬ ‭https://languages.oup.com/google-dictionary-en/.‬ ‭344‬ ‭Manish K. Sethi, Defensive Medicine: “Glowing” with Pain, February 1, 2010,‬ ‭https://psnet.ahrq.gov/web-mm/defensive-medicine-glowing-pain.‬

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‭suits if the medical issue is larger than initially thought, which may result in greater harm to the‬ ‭patient. Contrary to this, negative defensive medicine refers to instances where the doctor refuses‬ ‭to give a patient necessary care. Refusing to treat a patient, while the opposite of positive‬ ‭defensive medicine, is practiced for the same reason. When a doctor takes a patient into their‬ ‭practice, they must be prepared to properly care for the patient. When they accept a patient‬ ‭despite lacking sufficient expertise or confidence in managing their care, the patient faces‬ ‭heightened medical risks and the doctor faces a potential legal dispute. Therefore, doctors may‬ ‭refuse to treat patients with complex medical issues--in other words, high-risk patients–and avoid‬ ‭administering invasive and complicated procedures. Both examples of defensive medicine can‬ ‭lead to an unequal delivery of healthcare depending on the individual and his or her medical‬ ‭situation.‬ ‭ii. The Constitutionality of Defensive Medicine‬ ‭In the complex landscape of medical jurisprudence, the Fourteenth Amendment’s Equal‬ ‭Protection Clause surfaces as a method of determining the constitutionality of defensive‬ ‭medicine. Although defensive medicine is practiced to mitigate potential medical malpractice‬ ‭suits from the physician's point of view, the potential for a constitutional offense is not in the‬ ‭action itself but the method in which it is practiced. The Amendment's robust framework‬ ‭provides a clear thesis: defensive medicine becomes constitutionally problematic when it‬ ‭manifests as a mechanism of direct discrimination—whether targeting patients based on race,‬ ‭sex, disability, or other protected characteristics. When these parameters are met, defensive‬ ‭medicine, practiced to combat potential malpractice lawsuits, violates patients' equal protection‬ ‭rights under the Fourteenth Amendment by subjecting them to unnecessary and disproportionate‬

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‭harm.‬‭345‬ ‭The parameters above will be analyzed through an analysis of the Equal Protection‬ ‭Clause to provide an in-depth discussion of defensive medicine's constitutionality.‬ ‭History Surrounding Defensive Medicine‬ ‭iii. Origins of Defensive Medicine‬ ‭To understand the impact of defensive medicine, it is vital to understand its origins.‬ ‭While there is evidence of defensive medicine being practiced before the late 1960s and early‬ ‭1970s, it became more prevalent through 1975, when there was an increase of malpractice suits‬ ‭filed in state courts by 195 percent.‬‭346‬ ‭This surge‬‭was likely due to a variety of factors, including‬ ‭the development of new testing equipment.‬‭2‬ ‭Doctors‬‭would avoid administering treatments that‬ ‭required this testing equipment to protect themselves from medical malpractice suits.‬‭347‬ ‭In 1974,‬ ‭the General Counsel of the American Medical Association made a public announcement framing‬ ‭defensive medicine as an effective method of avoiding medical malpractice lawsuits.‬‭348‬ ‭The‬ ‭General Counsel also “provocatively [suggested] that his colleagues should do no medical action‬ ‭at all as the only way to avoid malpractice lawsuits,” which was likely in response to the rising‬ ‭number of medical malpractice suits, and the potential anger that healthcare workers felt towards‬ ‭the legal system and patients for attempting to dismiss them from their jobs.‬‭349‬ ‭Now, students and‬ ‭residents who are vying to sustain a position within the field of healthcare are exposed to and‬

‭345‬

‭Oxford University Press. "Oxford Languages and Google‬‭- English." Accessed November 8, 2024.‬ ‭https://languages.oup.com/google-dictionary-en/.‬ ‭346‬ ‭PRATT, HN, and American Hospital Association. "Hearings before the Subcommittee on Health of the‬ ‭Committee on Labor and Public Welfare." United States Senate, S 755: 756.‬ ‭347‬ ‭PRATT, HN, and American Hospital Association. "Hearings before the Subcommittee on Health of the‬ ‭Committee on Labor and Public Welfare." United States Senate, S 755: 756.‬ ‭348‬ ‭Defechereux, Thierry, Michel Paesmans, Didier Jamart, Nathalie Closon, Céline Meurisse, and Jean-Robert‬ ‭Malgrange. "Defensive Medicine as a Response to Medical Malpractice Liability: Evidence from a French Survey."‬ ‭European Journal of Health Economics 21, no. 1 (2019): 89-98. https://doi.org/10.1007/s10198-019-01144-0.‬ ‭349‬ ‭PRATT, HN, and American Hospital Association. "Hearings before the Subcommittee on Health of the‬ ‭Committee on Labor and Public Welfare." United States Senate, S 755: 756.‬

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‭taught how to practice defensive medicine as a means to avoid potential medical malpractice‬ ‭suits.‬ ‭The practice of defensive medicine has changed the method in which healthcare‬ ‭professionals use clinical reasoning, a complex approach that allows physicians to evaluate,‬ ‭diagnose, and properly treat a patient’s condition. At first, defensive medicine was a reactive‬ ‭strategy that was created to mitigate medical malpractice suits. Since its creation, it has evolved‬ ‭into a sophisticated and multifaceted approach that now encompasses two different types of‬ ‭defensive medicine–positive and negative. This transformation marks a shift in the philosophical‬ ‭approach that doctors take when treating patients, as it has become increasingly more dominant‬ ‭as a medical decision-making mechanism.‬ ‭When considering the origins of defensive medicine, it is clear that from the lens of‬ ‭healthcare workers, they are attempting to practice medicine safely to protect their practice.‬ ‭However, from the lens of the patients, doctors are failing to meet the standards of healthcare‬ ‭that patients expect. What initially emerged as a rational response to legal liability has now, in‬ ‭the eyes of the patients, undermined the primary obligation of healthcare workers–to value‬ ‭patient care above all else. The practice of defensive medicine therefore raises a legal question‬ ‭about the intersection of doctors’ protection from legal liability and the constitutional guarantee‬ ‭of equal protection under the Fourteenth Amendment for patients. When defensive medicine is‬ ‭practiced inequitably, it calls for judicial review under the strict scrutiny of the Equal Protection‬ ‭Clause.‬ ‭iv.‬‭History of the Equal Protection Clause‬ ‭The Equal Protection Clause has transformed throughout its history. It has evolved from‬ ‭the narrow scope that it took post-Civil War, to a robust constitutional doctrine that serves as a‬

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‭protector against systemic discrimination. The reading of the Equal Protection Clause has‬ ‭broadened from a literal reading of racial equality to a more expansive framework that‬ ‭scrutinizes different types of inequities based on factors other than race. While its original intent‬ ‭was to curb discrimination against African Americans after the Civil War, the wording was‬ ‭broad, stating that “No State shall make or enforce any law which shall abridge the privileges or‬ ‭immunities of citizens of the United States; nor shall any State deprive any person of life, liberty,‬ ‭or property, without due process of law; nor deny to any person within its jurisdiction the equal‬ ‭protection of the laws.”‬‭350‬ ‭This wording is what led‬‭to the outcome of the case‬‭Plessy v.‬ ‭Ferguson‬‭, which determined that “separate but equal”‬‭facilities and other such Jim Crow laws‬ ‭were considered constitutional.‬‭351‬ ‭This previously established‬‭precedent was later overturned by‬ ‭Brown v. Board of Education‬‭, where the court decided‬‭that such laws truly did violate the Equal‬ ‭Protection Clause,‬‭352‬ ‭setting a precedent for many cases‬‭in the future. Following‬‭Brown‬‭in 1967,‬ ‭Loving v. Virginia‬‭found that the prohibition of interracial‬‭marriages was also considered to be‬ ‭unconstitutional under the Fourteenth Amendment.‬‭353‬ ‭These court cases, while only discussing‬ ‭race, set up the interpretation of the Equal Protection Clause for the future, where it was‬ ‭broadened to combat inequities outside of race, and, eventually, inequities within the field of‬ ‭healthcare.‬ ‭v. Supreme Court Cases Outside of Race‬ ‭The Equal Protection Clause's evolution was fundamentally shaped by landmark‬ ‭Supreme Court cases addressing racial discrimination, which definitively established its‬ ‭constitutional significance. However, the court’s focus shifted, and the interpretation of the‬ ‭350‬

‭ .S. Constitution, amend. XIV, § 1.‬ U ‭Plessy v. Ferguson, 163 U.S. 537 (1896).‬ ‭352‬ ‭Brown v. Board of Education, 347 U.S. 483 (1954).‬ ‭353‬ ‭Fitzpatrick, Brian, and Theodore Shaw. 2015. “Interpretation: The Equal Protection Clause | the National‬ ‭Constitution Center.” National Constitution Center – Constitutioncenter.org. 2015.‬ ‭https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/702.‬ ‭351‬

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‭clause broadened in 1971 with the‬‭Reed v. Reed‬‭decision. The Supreme Court ruled that the‬ ‭Idaho Probate Code that discriminated against women in the administration of estates was‬ ‭unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.‬‭354‬ ‭The Court’s‬ ‭unanimous decision written by Justice Warren E. Burger stated that “the choice” of who was‬ ‭administered an estate in this case “may not lawfully be mandated solely on the basis of sex” due‬ ‭to its violation of the Equal Protection Clause.‬‭355‬‭This Supreme Court decision was the first one‬ ‭in which the Equal Protection Clause was not applied on the account of race, but sex, which‬ ‭marked the beginning of its widening scope.‬‭356‬ ‭The Supreme Court’s 1985 decision in‬‭City of Cleburne,‬‭Texas v. Cleburne Living Center,‬ ‭Inc.‬‭represents a critical moment in the examination‬‭of the Equal Protection Clause, particularly‬ ‭when examining the constitutional vulnerabilities of defensive medicine. The case established‬ ‭explicit protections for individuals with disabilities by ruling that “requiring a special use permit‬ ‭for the [intellectually disabled] deprives respondents of the equal protection of the laws.”‬‭357‬ ‭The‬ ‭Supreme Court decision provides an important lens through which defensive medicine can be‬ ‭analyzed. Its holding that both legislative and administrative actions that target disabled‬ ‭individuals must be held to heightened judicial scrutiny demonstrates how if defensive medicine‬ ‭is practiced in a method that disproportionately impacts patients based on disability status, it may‬ ‭be considered unconstitutional.‬ ‭vi. Health Equity‬

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‭“Reed v. Reed, 404 U.S. 71 (1971).” n.d. Justia Law.‬ ‭https://supreme.justia.com/cases/federal/us/404/71/#tab-opinion-1949535.‬ ‭355‬ ‭“Reed v. Reed, 404 U.S. 71 (1971).” n.d. Justia Law.‬ ‭https://supreme.justia.com/cases/federal/us/404/71/#tab-opinion-1949535.‬ ‭356‬ ‭“The Supreme Court and the 14th Amendment.” n.d. American Civil Liberties Union.‬ ‭https://www.aclu.org/issues/racial-justice/supreme-court-and-14th-amendment.‬ ‭357‬ ‭“City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).” 2024. Justia Law. 2024.‬ ‭https://supreme.justia.com/cases/federal/us/473/432/#tab-opinion-1956273.‬

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‭The judicial evolution of the Fourteenth Amendment, from the narrow ruling regarding‬ ‭explicit discrimination against a specific minority group in‬‭Plessy v. Ferguson‬‭, to the broadened‬ ‭use of the Equal Protection Clause to challenge systemic inequities in‬‭Cleburne‬‭,‬‭constitutes a‬ ‭clear delineation of equity within the field of healthcare as a constitutional right. Each case has‬ ‭incrementally developed a legal standard against discriminatory practices that can be applied to‬ ‭the field of healthcare. The Supreme Court cases amalgamated to create the definition of health‬ ‭equity as it is known today. It has therefore been found that health equity “requires elimination of‬ ‭differentials in access to health services according to race, ethnicity, sex, gender identity,‬ ‭comorbidity, or ability.”‬‭358‬ ‭This definition, with the‬‭backing of a line of Supreme Court cases, has‬ ‭become not a simple idea, but more akin to a constitutional mandate.‬ ‭The definition of health equity is what led to Sections 1557 and 2704 of the Affordable‬ ‭Care Act (ACA). Both sections represent a transformation of equitable healthcare policy from‬ ‭mere regulatory language to concrete healthcare policy using the long history of the Equal‬ ‭Protection Clause and the modern definition of health equity that arose from the Fourteenth‬ ‭Amendment. Section 1557 directly “prohibits discrimination based on race, color, national‬ ‭origin, sex, age, or disability in specified health programs or activities, including those that‬ ‭receive Federal financial assistance,” which codifies the Supreme Court’s interpretation of the‬ ‭Equal Protection Clause and the constitutional protections that it offers.‬‭359‬ ‭Section 2704 outlines‬ ‭the “Prohibition of preexisting condition exclusions or other discrimination based on health‬ ‭status,” which effectively eliminates a systemic mechanism of medical marginalization.‬‭360‬ ‭Both‬ ‭358‬

‭Schweikart, Scott J. “How to Apply the Fourteenth Amendment to the Constitution and the Civil Rights Act to‬ ‭ romote Health Equity in the US.” Journal of Ethics | American Medical Association, March 1, 2021.‬ P ‭https://journalofethics.ama-assn.org/article/how-apply-fourteenth-amendment-constitution-and-civil-rights-act-prom‬ ‭ote-health-equity-us/2021-03.‬ ‭359‬ ‭Nondiscrimination in Health Programs and Activities, 89 § (2024).‬ ‭360‬ ‭“42 U.S. Code § 300gg–3 - Prohibition of Preexisting Condition Exclusions or Other Discrimination Based on‬ ‭Health Status.” Legal Information Institute. Accessed November 30, 2024.‬ ‭https://www.law.cornell.edu/uscode/text/42/300gg-3#:~:text=%C2%A7%20300gg%E2%80%933-,42%20U.S.%20C‬

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‭sections of the ACA expose the constitutional vulnerabilities shown in defensive medicine. The‬ ‭non-discriminatory legal framework that the ACA sets up challenges medical practices that may‬ ‭disproportionately affect specific patient populations. Due to this framework, defensive‬ ‭medicine, when practiced without rigorous scrutiny, has the potential to evolve into a mechanism‬ ‭of institutional discrimination. The provisions in the ACA regarding the Equal Protection Clause‬ ‭are powerful because they not only condemn explicit discrimination but also encourage doctors‬ ‭to take on a nuanced and individualized approach to patient care to promote equity. When‬ ‭considering the practice of defensive medicine using the lens provided by the ACA, it appears‬ ‭that defensive medicine is not fundamentally unconstitutional. If defensive medicine is given in‬ ‭the context of providing the patient proper care within a given situation, such as prescribing‬ ‭medication in a preventative manner, regardless of its immediate necessity, there is no clear‬ ‭constitutional violation. The constitutional issue arises when a doctor practices defensive‬ ‭medicine in a discriminatory manner, such as refusing to care for a patient with a disability‬ ‭merely because he or she has a disability.‬ ‭When interviewing Professor Douglas Cantor, an instructor of Constitutional Law at‬ ‭Rutgers University, he echoed this sentiment by providing an example of when it can be‬ ‭determined that there is discriminatory action taking place. In the example that he provided,‬ ‭“hypothetically, [the patients are both] equal, and the only difference between the two of them is‬ ‭race…and the doctor winds up [practicing positive defensive medicine] with the white patient‬ ‭and [negative defensive medicine] with the black patient. Why wasn’t the black patient being‬ ‭given the same level of access to tests and everything as the white patient was?” In this case, if‬ ‭the reasoning is based on race, the action taken by the doctor is a clear Fourteenth Amendment‬ “‭ 42 U.S. Code § 300gg–3 - Prohibition of Preexisting Condition Exclusions or Other Discrimination Based on‬ ‭Health Status.” Legal Information Institute. Accessed December 21, 2024‬ ‭https://www.law.cornell.edu/uscode/text/42/300gg-3#.‬

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‭violation due to the unequal access to healthcare provided to the patients despite the delineation‬ ‭in the ACA of its unconstitutionality. It is therefore important to see that the general practice of‬ ‭defensive medicine itself is not considered a violation of the Amendment, but rather how it is‬ ‭practiced. Therefore, the parameter for defensive medicine to be considered unconstitutional is‬ ‭when it is practiced in matters of direct discrimination based on race, sex, disability, or another‬ ‭such parameter.‬ ‭vii. Positive Application of Defensive Medicine‬ ‭Some may argue that defensive medicine in its entirety is unconstitutional. However,‬ ‭eliminating the entire method of clinical reasoning results in an expulsion of its positive‬ ‭characteristics. An example of a situation in which defensive medicine is considered to have a‬ ‭positive effect is in the Supreme Court case‬‭Helling‬‭v. Carey‬‭, which delineates a series of‬ ‭positive qualities to justify using defensive medicine. The plaintiff, Carey, was not tested for‬ ‭glaucoma when she first described her symptoms to the respondent, Helling, in 1959. It was not‬ ‭until 1968 that she was tested for glaucoma, but she had already lost her peripheral vision and‬ ‭part of her central vision. Helling's reasoning for the delay in administering the test was that the‬ ‭patient was younger than forty years old, the age at which optometrists would generally test for‬ ‭glaucoma. When this case was brought to the court, it was found that “the reasonable standard‬ ‭that should have been followed under the undisputed facts of this case was the timely giving of‬ ‭this simple, harmless pressure test to this plaintiff and that, in failing to do so, the defendants‬ ‭were negligent.”‬‭361‬ ‭The court's ruling in this case‬‭makes it clear that when doctors practice‬ ‭defensive medicine, there is no clear violation of the Constitution. This case emphasizes the‬ ‭importance of an individualized approach within the healthcare system delineated by the ACA.‬ ‭More importantly, it outlines the constitutionality of defensive medicine when no discriminatory‬ ‭361‬

‭Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981 (1974)‬

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‭measures are being taken, and the practicing physician continues to uphold an equitable‬ ‭healthcare system.‬ ‭Conclusion‬ ‭An analysis of the constitutionality of defensive medicine reveals the complexities‬ ‭surrounding the legal terrain where clinical reasoning, patient rights, and systemic protections‬ ‭intersect. Healthcare providers mainly drive defensive medicine out of fear of medical‬ ‭malpractice lawsuits. However, the Fourteenth Amendment’s Equal Protection Clause,‬ ‭interpreted through various landmark Supreme Court cases and reinforced through federal‬ ‭legislation such as the Affordable Care Act, places defensive medicine at heightened scrutiny‬ ‭when considering its constitutionality. When practicing defensive medicine, physicians must take‬ ‭a nuanced approach and recognize that it is not only a means of mitigating malpractice suits but‬ ‭also has the potential to deviate toward bringing forth systemic inequity. Ultimately, defensive‬ ‭medicine is not inherently an adversarial approach. Still, healthcare workers must reimagine it as‬ ‭a model that prioritizes upholding an equitable healthcare system and preserving the‬ ‭constitutional rights of citizens.‬

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‭AMERICAN BUSINESS ADVERTISING AND CONSUMER PROTECTION IN A FREE‬ ‭MARKET SOCIETY: A LEGAL AND ETHICAL ANALYSIS, AND THE BALANCING‬ ‭OF INFLUENCE AND ACCOUNTABILITY‬ ‭WRITTEN BY CHRISTOPHER GODOY | EDITED BY JUI KHATAL‬

‭Introduction‬ ‭Much of the economic analysis conducted by U.S economists and individuals in the‬ ‭corporate sector revolves around the fundamental economic theory of free markets. A free‬ ‭market society is a market-oriented system by which prices and the supply of goods, services, or‬ ‭corporations rest heavily on individual consumers, and our particular demands. This is often due‬ ‭to our ability and freedom to determine what we consume, how we consume, and how we access‬ ‭our consumption in a highly competitive market. For example, an individual consumer may buy‬ ‭a gallon of milk from their local grocery store rather than any other place that sells milk, not‬ ‭necessarily because of its quality but because of its price. From a business perspective, this‬ ‭challenges them to compete against other businesses in the free markets to attract the most‬ ‭consumers, often through offering better quality items at affordable prices.‬ ‭Although our market-oriented system is built on the premise that better quality and‬ ‭affordable prices of goods and services come from competition, corporations often utilize‬ ‭advertisements to capture the attention and money of everyday consumers. This highly‬ ‭competitive market society has slowly exposed the need for stronger regulatory oversight of‬ ‭consumer protection laws.‬ ‭Despite the public perception of corporations, they are constantly searching for a better‬ ‭reputation and often strive to do that through corporate advertising. Corporate advertising can be‬

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‭viewed as a mechanism for corporations to establish and maintain their identity.‬‭362‬ ‭This makes‬ ‭corporate advertising multi-faceted, as it often includes both the enhancement of support for the‬ ‭goods and services being offered to the public and the overall interests of the corporation.‬‭363‬ ‭Given the economic theory of choice, corporations invest heavily in advertising efforts to‬ ‭build brand loyalty, compete for limited consumer spending, and shape the preferences and‬ ‭behavior of consumers. These efforts are considered rational from a business perspective, as they‬ ‭strive for a positive reputation and, as a result, promote profitability. However, manipulating‬ ‭consumer behavior in a world of asymmetric information has often raised ethical concerns, as‬ ‭some of the tactics used by corporations may be considered predatory, further calling for stricter‬ ‭regulations.‬ ‭Fortunately, within the United States, laws protecting consumers from potential predatory‬ ‭behaviors have been put in place for quite some time. Even before significant pieces of‬ ‭legislation established consumer protection laws, Common law practices often strived to ensure‬ ‭consumers' protection. As American society changed and innovations swarmed our country and‬ ‭economy, several factors contributed to the demand for formal consumer protection laws.‬ ‭Advertising has always played a vital role in shaping the perceptions and behavior of‬ ‭everyday consumers regarding purchasing decisions. Through the use of psychology, economics,‬ ‭and overall strategy, corporations have driven much of the demand for their products and‬ ‭services in a way that often downplays potential drawbacks, as illustrated throughout history.‬ ‭This power to influence consumers' behavior has raised concerns regarding accountability for‬ ‭potential predatory behavior and has significantly pushed for more robust consumer protection‬

‭Schumann, David W., Jan M. Hathcote, and Susan West.‬‭“Corporate Advertising in America: A Review of‬ ‭Published Studies on Use, Measurement, and Effectiveness.”‬‭Journal of Advertising‬‭20, no. 3 (1991): 37‬ ‭363‬ ‭Schumann, David W., Jan M. Hathcote, and Susan West.‬‭“Corporate Advertising in America: A Review of‬ ‭Published Studies on Use, Measurement, and Effectiveness.”‬‭Journal of Advertising‬‭20, no. 3 (1991): 37‬ ‭362‬

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‭measures. These measures must ensure corporations remain accountable to consumers and‬ ‭prevent often slick, deceptive, or harmful practices, especially toward our vulnerable‬ ‭populations. The tension between corporate advertising strategies and consumer protection laws‬ ‭has frequently highlighted the need for annoying oversight to balance corporate interest with‬ ‭public welfare.‬ ‭Corporate Advertising: Impact on everyday consumers‬ ‭Over centuries, as our American society experienced significant transformations, so did‬ ‭the nature of corporate advertising. Before major technological innovations, meaning before the‬ ‭advent of social media, television, and the internet to advertise goods and services, businesses‬ ‭were often confined to attracting consumers through more traditional methods, such as word of‬ ‭mouth and printed materials. The emergence of technological advances and their purpose, like‬ ‭the radio and television, revolutionized advertising, allowing consumers better access to‬ ‭information and giving corporations a new and powerful avenue to attract consumers. This‬ ‭innovation and significant achievements for our American society, especially during the‬ ‭Industrial Revolution, brought uncertainty, as regulatory mechanisms often lacked significantly‬ ‭with these emergencies, but also paved the way for a new era of advertising.‬ ‭In the modern day, most U.S. adults and consumers prefer to get their information‬ ‭digitally, with only 4% still preferring printed publications,‬‭364‬ ‭with roughly 294.1 million out of‬ ‭334 million individuals being social media users.‬‭365‬ ‭In addition to this, through the different‬ ‭media channels that consumers are often subscribed to, they are met with an alarming amount of‬ ‭advertising alerts every week, especially in the thousands.‬‭366‬ ‭Given the increasing number of‬ ‭364‬

‭Pew Research Center. “News Platform Fact Sheet.”‬‭Pew Research Center’s Journalism & Media‬‭, 2023. Accessed‬ ‭November 6, 2024.‬ ‭365‬ ‭Statista. “Number of Social Network Users in the‬‭United States from 2018 to 2028.”‬‭Statista‬‭, 2024.‬‭Accessed‬ ‭November 6, 2024.‬ ‭366‬ ‭Stafford & Pounders, “‬‭The power of advertising in‬‭society: does advertising help or hinder consumer‬ ‭well-being?” (International Journal of Advertising); 488‬

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‭media channels by which consumers get information, businesses and corporations have adapted‬ ‭their marketing strategies based on trends and how consumers demand to receive their‬ ‭information or entertainment.‬ ‭Given the revolutionary nature of advertising over time, many of the theoretical strategies‬ ‭and purposes remain the same from our transition from print to digital media. In a free-market‬ ‭society where consumers can choose their consumption, corporations constantly hunt to attract‬ ‭and maintain new and loyal consumers. That is how they ultimately make profits. To achieve this‬ ‭effectively, corporations, specifically marketers, often use psychological mechanisms to persuade‬ ‭or manipulate consumers.‬ ‭i. Psychology of Advertising‬ ‭The psychology behind advertising has often played a significant role in consumer‬ ‭behavior, especially in the United States. Much of the marketing strategies that corporations‬ ‭curate around a product or service are to invoke emotional appeals, a sense of desire, and‬ ‭sometimes urgency, further pushing consumers to make decisions relatively quickly. According‬ ‭to the University of Southern California - Dornsife, individuals often respond to anything they‬ ‭find enjoyable and noteworthy, which usually causes corporations to tailor their marketing to‬ ‭influence consumers to buy a product or service.‬‭367‬ ‭An example of this can be found within the‬ ‭“You Deserve a Break Today” campaign that McDonald's launched in 1971, which marked a‬ ‭significant shift in how the franchise engaged with consumers, allowing it to be now considered‬ ‭one of the best restaurant chains around the world.‬‭368‬ ‭Instead of focusing mainly on affordability,‬ ‭which the franchise is typically known for, they also appealed to the emotions and desires of‬ ‭367‬

‭USC. “Thinking vs. Feeling: The Psychology of Advertising.”‬‭USC Online Master of Applied Psychology‬‭, April‬ 2‭ 3, 2024. Accessed November 6, 2024.‬ ‭https://appliedpsychologydegree.usc.edu/blog/thinking-vs-feeling-the-psychology-of-advertising‬‭.‬ ‭368‬ ‭Mr. Gaurav Borse, Mrs. Megha M Bhoagwar, “Marketing Strategies Of Mcdonalds.International Journal of‬ ‭Research Publication and Reviews, Vol 5, no 5, pp 6847-6850 May 2024‬

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‭hard-working consumers, especially in comfort and self-care. Through its television‬ ‭advertisements, this campaign led to public perception of the franchise as a place where‬ ‭hard-working people could “take a break” from their busy lives and treat themselves to what the‬ ‭franchise had to offer.‬ ‭With this particular McDonalds campaign being a great driver of high sales and revenue‬ ‭from a business perspective, the actual effects of this campaign are alarming. In 1971, around the‬ ‭start of this campaign, roughly 12% of the American population was living in poverty.‬‭369‬ ‭Considering that these types of fast food restaurants were often found in low-income and‬ ‭minority areas,‬‭370‬ ‭Some could argue that McDonald’s‬‭leveraged the emotional triggers from‬ ‭consumers to further influence them, generating profits from usually hardworking and vulnerable‬ ‭populations to influence consumer behavior. That said, this does not quite consider the‬ ‭significant health concerns the franchise has dealt with over time for its contribution to obesity.‬ ‭Even worse, since 1971, and given the rise of the internet, McDonald's has enhanced its‬ ‭advertising efforts to make the franchise even more appealing while making huge profits. This‬ ‭has raised significant ethical concerns, sparking this debate on whether such tactics and‬ ‭exploitation of emotions, especially within the reach of vulnerable and minority populations,‬ ‭should be allowed under the law. As such corporations become even more sophisticated, given‬ ‭current regulations, the need for robust consumer protection laws that address psychological‬ ‭manipulation has become increasingly apparent as these tactics expand through digital platforms.‬ ‭Consumer Protection: The Evolution of Consumer Protection Laws in Response to‬ ‭Corporate Deception‬

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‭Characteristics of the Low-Income Population: 1971‬‭(Advance data from March 1972 Current Population‬ ‭Survey). U.S Census Bureau (1972)‬ ‭370‬ ‭Fleischhacker, S.E, K.R Evenson, D.A Rodriguez, and‬‭A.S Ammerman. 2011. “Systematic Review of Fast Food‬ ‭Access Studies.”‬‭Obesity Reviews‬‭12 (5): e469‬

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‭As the tactics used by corporations to attract concerns and increase profits have been at‬ ‭the forefront of major ethical concerns and debates, it would serve as a benefit to look into the‬ ‭laws that pertain to the protection of consumers. The foundations of consumer protection laws in‬ ‭the United States have been grounded in federal regulations and legislative actions that have‬ ‭aimed to prevent or reduce deceptive or predatory behavior, but were consumers always‬ ‭protected? The concept of consumer protection laws began to take shape in the 19th century,‬ ‭evolving as a response to the increasing complexities of emerging economic markets. Courts‬ ‭often relied on common law principles, such as fraud and breach of contract, to combat the‬ ‭prevalent deceptive practices at the time. However, these protections were often limited, leading‬ ‭to a growing demand for change.‬ ‭A notable example can be demonstrated in the medicine industry, as many companies,‬ ‭taking advantage of newly founded medical innovation and revolution in the 19th century,‬ ‭marketed products to the general public that often contained harmful, usually deadly substances.‬ ‭As a result of the lack of regulatory pressures in the 19th century, consumers found themselves‬ ‭misled by companies who would ensure them the safety and cure they sought. Unfortunately,‬ ‭several industries within the United States and worldwide during this time could also apply this‬ ‭approach. As the Industrial Revolution swept through the United States, markets and the‬ ‭production of goods continued to expand, necessitating a more comprehensive approach to‬ ‭consumer protection.‬ ‭Over time, as innovative products further developed, safety concerns became prevalent,‬ ‭especially in the food and medicine industry. It was not until 1906 that Americans started to see‬ ‭some of the first consumer protection laws through the Pure Food and Drug Act of 1906, which‬ ‭not only established regulations regarding the sale of adulterated and misbranded foods and‬

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‭drugs but also led to the creation of the Food and Drug Administration (FDA), which still exists‬ ‭today. The enactment of the Federal Trade Commission Act of 1914 established the Federal‬ ‭Trade Commission (FTC), which provides regulation to industries, further expanding consumer‬ ‭protections against unfair competition and deceptive business practices in the overall market‬ ‭society.‬ ‭The establishment of the FDA and the FTC formally established consumer protection‬ ‭beyond common law principles in the United States. Consumer purchases and spending‬ ‭skyrocketed as the country entered into times of war, such as World War I and World War II.‬ ‭With this increase in consumer demand across multiple sectors, such as manufacturing, food‬ ‭production, and pharmaceuticals, and as businesses sought to expand the number of shares they‬ ‭acquire through the capital and competitive markets, aggressive tactics toward consumers‬ ‭became prevalent. These tactics included misleading advertising, false claims, and other‬ ‭deceptive practices, raising concerns over their influence on consumer behavior and ultimate‬ ‭decision-making. As markets grew increasingly complex and consumer protection expanded‬ ‭further, corporate advertising’s role within our free market society, where consumers are often‬ ‭persuaded by the “pitch” of advertisement, has become a key focus of analysis for many‬ ‭economists.‬ ‭Current Challenges and Limitations in Consumer Protection Regulations‬ ‭Since the 19th century, the United States legal system has made significant progress‬ ‭toward protecting consumers from deceptive and predatory advertising from businesses and‬ ‭corporations, notably through the Federal Trade Commission (FTC). With this significance in‬ ‭mind, numerous challenges have emerged over recent decades, especially with the evolutionary‬ ‭nature of technology. For example, since every aspect of the lives of everyday consumers has‬

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‭been impacted by the significant growth of digital technology over recent decades,‬‭371‬ ‭it would be‬ ‭alarming to overlook the impact of technology on corporate advertising and, ultimately, everyday‬ ‭consumers.‬ ‭Over the past couple of decades, one area of significant concern regarding the true nature‬ ‭of advertising in a technological space has been data privacy and whether consumers are safe‬ ‭from having their data used unwillingly for profit. Businesses and corporations must make a‬ ‭profit; that is the only way to survive in this highly competitive environment. To ensure their‬ ‭survival, they constantly strategize ways to maximize their performance in marketing using the‬ ‭information they collect from consumers, which often conveys their specific needs.‬‭372‬ ‭Social‬ ‭media platforms such as Instagram, Facebook, and X have provided these corporations with a‬ ‭platform to gather necessary information on the needs of consumers to better tailor their‬ ‭information, tactics, and ultimate persuasion over consumers. The more a message can “generate‬ ‭a feeling of relevance,” the more it “consequently yields favorable effects in attitude and‬ ‭behavior.”‬‭373‬ ‭This has become quite alarming for consumers,‬‭as it has become “easily possible to‬ ‭take a user data footprint and assemble detailed profiles based upon physical movements, social‬ ‭media communication, device usage, and other data collection.”‬‭374‬ ‭With these concerns, it has‬ ‭become reasonable to question how safe consumers are with their data, as it “may fall into the‬ ‭hands of unethical individuals and organizations.”‬‭375‬ ‭Although the legal system in the United‬ ‭States has taken proactive steps to keep up with the evolution of technology, “Lawmakers and‬ ‭371‬

‭ uffett, Rodney Graeme. 2017. “Influence of Social Media Marketing Communications on Young Consumers’‬ D ‭Attitudes.” Young Consumers 18 (1): 19.‬ ‭372‬ ‭Vikatos, Pantelis, Prokopios Gryllos, and Christos Makris. "Marketing Campaign Targeting using Bridge‬ ‭Extraction in Multiplex Social Network."‬‭The Artificial‬‭Intelligence Review‬‭53, no. 1 (01, 2020): 703‬ ‭373‬ ‭Yoon G, Li C, Choi JJ. In search of time to bring the message on social media: Effects of temporal targeting and‬ ‭weather on digital consumers. Front Psychol. 2022 Nov 16; 01‬ ‭374‬ ‭Lipschultz, Jeremy Harris. 2024.‬‭Social Media Communication :‬‭Concepts, Practices, Data, Law and Ethics‬‭.‬ ‭Fourth edition. New York: Routledge.p.237-257‬ ‭375‬ ‭Lipschultz, Jeremy Harris. 2024.‬‭Social Media Communication :‬‭Concepts, Practices, Data, Law and Ethics‬‭.‬ ‭Fourth edition. New York: Routledge.p.237-257‬

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‭regulators may be fighting a losing battle against technology that collects and uses our most‬ ‭private data”‬‭376‬‭.‬ ‭Conclusion‬ ‭Since the Industrial Revolution and its rapid expansion, the United States has experienced‬ ‭increased complexity within the economic system as new industries have emerged. Combined‬ ‭with the economic theory of free markets and the competitive nature of corporations to attract‬ ‭consumers’ attention, concerns started to arise regarding how consumers would be protected‬ ‭from the predatory behavior of corporations. As these concerns persisted, the federal government‬ ‭took practical actions to protect the consumers better. Despite its significance, the digital age has‬ ‭introduced our society to significant hurdles, including the influence of corporations and‬ ‭algorithm-driven markets. Data privacy concerns have unsettled consumers over the past couple‬ ‭of decades. The future of consumer protection, as it pertains to corporate advertising, remains‬ ‭adequate but unclear. With the further development of technology and digital media, and with‬ ‭claims made by researchers on the “losing battle” lawmakers have to keep up with the‬ ‭evolutionary nature of technology, the need for comprehensive protections has never been‬ ‭greater, especially with the level of influence it has on the most vulnerable population, like‬ ‭children and people of color. By addressing the issues further through more thoughtful research‬ ‭and stricter regulations, as they exist in other fields of study, researchers and lawmakers can‬ ‭create or build upon a system where trust and fairness are fostered within our free market society‬ ‭and information is widely accessible regarding data.‬

‭376‬

‭Lipschultz, Jeremy Harris. 2024.‬‭Social Media Communication : Concepts, Practices, Data, Law and Ethics‬‭.‬ ‭Fourth edition. New York: Routledge. p.259-299‬

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‭ YBERWARFARE AND LEGAL FRAMEWORK‬ C ‭WRITTEN BY SAMAHAL WASEEM | EDITED BY DEV PATEL‬ ‭Introduction‬ ‭Over the past several years, cyber warfare has grown into an increasingly complex and‬ ‭nuanced area that impacts the international community. The threat of cyber warfare continues to‬ ‭grow, but a comprehensive global response that effectively handles its impacts remains to be‬ ‭seen. Cyber warfare is defined as the actions by a nation-state or international organization that‬ ‭attacks and aims to damage the other nation's computers or information networks through means‬ ‭of computer viruses, denial-of-service attacks, and more.‬‭377‬ ‭Cyber warfare and related attacks‬ ‭aim to disrupt, damage, or gain unauthorized access to another state's critical infrastructure and‬ ‭confidential information. As cyberattacks become more advanced, countries across the globe‬ ‭have become more concerned with the risks they pose to national security and the country’s‬ ‭stability as a whole. Member states of the International Telecommunications Union have also‬ ‭expressed interest in further regulating cyber warfare to mitigate the impact that the effects of‬ ‭this type of attacks have on economic stability and public safety.‬‭378‬ ‭While Information and‬ ‭Communication Technologies (ICTs) have had significant benefits, the negative uses of these‬ ‭technologies through cyberattacks, cybercrime, and more have the potential to impact a nation‬ ‭significantly. Furthermore, due to the far-reaching scope of ICTS, they have the potential to‬ ‭affect not only national systems but also individuals, businesses, societies, and a range of other‬ ‭communities. It is becoming increasingly evident that ICTs have the potential to undermine‬ ‭various development goals and multiple levels of government, as well as efforts towards global‬ ‭stability and world peace.‬

‭377‬

“‭ Cyber Warfare.” RAND. https://www.rand.org/topics/cyber-warfare.html.‬ ‭“ITU and the UN Agenda: Peace and Security.” ITU. https://www.itu.int/en/un/Pages/un-agenda4.aspx.‬

‭378‬

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‭Outside of the impact of ICTs on nations, the possibility of surveillance technology and‬ ‭data collection, primarily through ICTs, can negatively impact individuals in multiple ways. With‬ ‭surveillance of individuals' online activity becoming increasingly common, the information‬ ‭collected can severely undermine an individual’s right to privacy. It can also be used to cause‬ ‭harm to those with malicious intent. The use of intrusive hacking tools, including spyware, has‬ ‭grown increasingly common, both by state actors as well as non-state actors, highlighting the‬ ‭far-reaching scope that surveillance technology has.‬‭379‬ ‭To prevent these challenges presented by‬ ‭cyber warfare, the international community needs to develop a cohesive and enforceable‬ ‭framework that reflects the importance of preserving the sovereignty of various nations while‬ ‭also ensuring the collective security of all involved actors.‬‭380‬ ‭Outside of these concerns, the vast‬ ‭scope of these new technological advancements and tools has raised concern among the‬ ‭international community about human rights violations and protecting individuals from various‬ ‭invasive technologies whose impacts remain uncertain. Furthermore, without clear international‬ ‭regulations set for the boundaries of cyber warfare, state actors can engage in activities without‬ ‭significant repercussions.‬ ‭Lack of International Legal Framework‬ ‭The current framework of international norms and laws around cyberwarfare and the lack‬ ‭of a comprehensive guide further exacerbate the challenges posed by cyberwarfare. This has‬ ‭resulted in ambiguity about what qualifies as an act of war or what is a violation of international‬ ‭law. This absence of clear rules creates uncertainty about how nations should respond to‬ ‭cyberattacks and under what conditions. Based on current international humanitarian law,‬ ‭379‬

‭“Spyware and Surveillance: Threats to Privacy and Human Rights Growing, UN Report Warns | Ohchr.” UNHRC,‬ ‭ eptember 16, 2022.‬ S ‭https://www.ohchr.org/en/press-releases/2022/09/spyware-and-surveillance-threats-privacy-and-human-rights-growi‬ ‭ng-un-report.‬ ‭380‬ ‭Hofmann, Stephanie C., and Patryk Pawlak. “Governing Cyberspace: Policy Boundary Politics across‬ ‭Organizations.” Review of International Political Economy. 2023 doi:10.1080/09692290.2023.2249002.‬

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‭situations that are considered armed conflict qualify as requiring compliance with relevant‬ ‭applicable laws. However, due to the use of obsolete definitions for what is regarded as an armed‬ ‭conflict or what isn’t, a critical gray area needs to be considered. Many cyberattacks are often not‬ ‭recognized as severe enough to trigger international humanitarian law, allowing them to bypass‬ ‭traditional frameworks even though they may impact a country’s operations. Due to these‬ ‭loopholes, cyberattacks must be incorporated into the law of armed conflict more explicitly so‬ ‭that conflict is as regulated as possible. While cyberattacks may not have the traditional impact‬ ‭that direct armed conflict may have, these attacks still have a significant effect on civilians and‬ ‭require the same level of regulation.‬‭381‬ ‭While documents like the Tallinn Manual have sought to provide a legal framework for‬ ‭cyber warfare and provide a nonbinding set of rules that would apply to cyber warfare and‬ ‭regulate the space it inhabits, there are still significant challenges that have not been addressed.‬‭382‬ ‭While the manual was comprehensive, its unenforceability made its applicability in cyber‬ ‭warfare challenging to execute. This makes evident that cyberspace requires more dynamic laws‬ ‭that address the complexities of cyberwarfare and the ever-changing nature of the industry and‬ ‭outline how to move forward in this new technological space.‬‭383‬ ‭Sovereignty and Jurisdiction Issues‬ ‭The dynamic nature of cyber warfare also presents significant issues within the context of‬ ‭confusion regarding sovereignty and jurisdiction. Many nations see cyberspace as an extension‬ ‭of their sovereign territory. Still, the global nature of cyberspace makes it difficult to delegate‬ ‭oversight of the internet to one specific nation or group. The discourse over how a country‬ ‭381‬

“‭ Regulating Cyber Warfare: Why International Law Might Need a Refresh,” April 12, 2021.‬ ‭Fann, Sharona. Legal challenges in the realm of cyber warfare, March 2020.‬ ‭https://www.nyujilp.org/wp-content/uploads/2020/03/Mann-Note_Final-Draft_EIC-Approved.pdf.‬ ‭383‬ ‭Hollis, Duncan B. A brief primer on International Law and Cyberspace - Carnegie Endowment for international‬ ‭peace, June 14, 2021.‬ ‭https://carnegieendowment.org/2021/06/14/brief-primer-on-international-law-and-cyberspace-pub-84763.‬ ‭382‬

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‭should regulate cyberspace and relevant infrastructure compared to the global governance of‬ ‭cyberspace has resulted in severe disagreement between different individuals and groups.‬ ‭Applying applicable international law has raised questions about accountability and jurisdiction,‬ ‭an area that requires further deliberation within the definition of sovereignty. There is no specific‬ ‭guidance on cyberspace. With no clear direction for handling these cyberspace-related issues,‬ ‭many states are pushing for their perspectives on international law’s application to cyberspace.‬ ‭Due to these “existential” disagreements, competing claims have been produced that argue the‬ ‭legitimacy of legal rule or regime and if it is entirely included or excluded from cyberspace.‬‭384‬ ‭These disagreements have caused consistent confusion, resulting in many cyberattacks being‬ ‭handled inefficiently.‬ ‭Furthermore, due to the difficulty presented by cyberattacks with no clear responsible party, it‬ ‭can be difficult for nation-states or international groups to regulate specific actions. These‬ ‭competing beliefs on jurisdiction also make prosecution of cyberwarfare and cyber crimes‬ ‭difficult as this activity is transnational.‬‭385‬ ‭Data‬‭transmissions move through different countries‬ ‭rapidly, making it challenging to understand which countries have immediate jurisdiction and‬ ‭which do not.‬ ‭Conclusion‬ ‭The rapidly changing landscape of cyberwarfare presents significant challenges to global‬ ‭security, governance, diplomacy, and individual liberties worldwide. With developments in‬ ‭cyberspace and related technology advances, the complexity of cyber threats continues to grow,‬ ‭providing more opportunities for various avenues of activity. Over the past two decades, it is‬ ‭clear that cyberwarfare and other cyberattacks, ranging from Stuxnet to AI in recent conflicts, are‬ ‭384‬

‭Hollis, Duncan B. A brief primer on International Law and Cyberspace - Carnegie Endowment for international‬ ‭peace, June 14, 2021.‬ ‭385‬ ‭Fann, Sharona. Legal challenges in the realm of cyber warfare, March 2020.‬

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‭a critical part of how nation-states and other actors will interact with one another. The issue of‬ ‭cyber warfare is one that not only nations have a vested interest in, but also groups from the‬ ‭private sector, criminal groups, civil rights organizations, and more. With the issue of‬ ‭cybersecurity, national security, surveillance, and more becoming increasingly nuanced and more‬ ‭controversial as various nations develop differing perspectives on how to handle cyberspace, it's‬ ‭becoming clear that comprehensive action is required urgently. With the challenge of sovereignty‬ ‭issues, the difficulty of attributing cyber attacks, the lack of explicit international norms, and the‬ ‭asymmetric nature of cyber capabilities, navigating cyberwarfare and cyberspace will continue to‬ ‭grow more complicated.‬ ‭In addressing the challenges of cyber warfare, policymakers must reflect on the balance‬ ‭between the need for security and the protection of civil liberties and rights. Furthermore,‬ ‭cyberspace is becoming more and more accessible to groups of all scopes. It is critical to address‬ ‭the changing nature of these technologies and ensure that nation-states recognize vulnerabilities‬ ‭in their information systems. As the impact of cyberwarfare grows more pronounced, the‬ ‭international community must cooperate to create norms of cyberwarfare and prevent escalation‬ ‭of conflict where possible. Ultimately, a comprehensive approach that involves precise and‬ ‭nuanced cybersecurity practices and standards, international legal frameworks for application,‬ ‭and dynamic and adaptive strategies to prepare for these new developments will be crucial in‬ ‭navigating the threat of this new warfare space.‬

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‭EDUCATION AS A CONSTITUTIONAL RIGHT: A STUDY OF SUPREME COURT‬ ‭CASES AND ITS EFFECTS ON EDUCATION‬ ‭WRITTEN BY GURMEHAR KAUR | EDITED BY DEV PATEL‬ ‭Introduction‬ ‭Education is a fundamental human right that encourages individuals to participate in‬ ‭society, promote social well-being, and ensure economic and sustainable development in the‬ ‭United States. It is a powerful element in transforming the lives of many across the globe.‬ ‭However, the Constitution does not categorize education as the federal government's duty. Due to‬ ‭this, the states reserve the right to education and provide the necessary education to all. This‬ ‭separation of powers between the federal and state governments shows how the federal‬ ‭government does not protect the right to education and how this power is only reserved to the‬ ‭states. For several years, there has been a lack of federal assistance regarding education;‬ ‭however, the individuals who formed our Constitution believe that education and democracy‬ ‭depend on each other. Known as “The Father of the Constitution,” James Madison wrote, “... a‬ ‭people who mean to be their governors must arm themselves with the power which knowledge‬ ‭gives. The advancement and diffusion of knowledge is the only guardian of true liberty….”‬‭386‬ ‭Madison’s views underscore the belief that an informed citizenry is the foundation of a‬ ‭functioning democracy. Education is not merely a personal benefit but a societal necessity that‬ ‭ensures collective governance, the protection of freedoms, and the accountability of leaders.‬ ‭Moreover, Jefferson wrote, “Educate and inform the whole mass of the people… They are the‬ ‭only sure reliance for preserving our liberty.”‬‭387‬ ‭This‬‭reflects Jefferson’s belief in universal‬

‭386‬

‭James Madison,‬‭Letters and Other Writings of James‬‭Madison‬‭, vol. 3 (Philadelphia: J.B. Lippincott &‬‭Co., 1865),‬ ‭276.‬ ‭387‬ ‭Thomas Jefferson,‬‭Notes on the State of Virginia‬‭,‬‭ed. William Peden (Chapel Hill: University of North Carolina‬ ‭Press, 1955), 84‬‭.‬

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‭education as the bedrock of a stable democracy. By educating the public, a nation equips its‬ ‭citizens to think critically and participate in government. An educated populace becomes the‬ ‭ultimate guardian of freedom. Substantial disparities in social wealth and class determine one’s‬ ‭education and disadvantage an equal education for all. While the state and local governments‬ ‭determine education policy, this paper will encompass an analysis of cases such as‬‭San Antonio‬ ‭Independent School District vs. Rodriguez‬‭and‬‭Plyler‬‭vs. Doe, Gary B‬‭. It will also showcase that‬ ‭the federal government should protect education as a constitutional right for all, based on‬ ‭precedence set in these cases.‬ ‭Importance of Equal Education‬ ‭Equal education reduces societal inequities, economic mobility, and democratic‬ ‭participation. Glaring disparities continue between states, districts, and socioeconomic groups,‬ ‭denying millions of students the quality education that would prepare them to reach their full‬ ‭potential. According to the NCES, spending per student in New York averages more than‬ ‭$25,000 yearly, hovering at under $10,000 in Idaho and Utah.‬‭388‬ ‭This represents a dramatically‬ ‭different education that ranges from the availability of higher-level classes to even physical‬ ‭facilities. Equal education is more than a moral imperative- it is a requirement for a competitive‬ ‭economy and functioning democracy. Unfair policies and a lack of rigorous federal oversight‬ ‭have yet to realize these ideals.‬ ‭State policies on education also contribute significantly to inequities. For example, states‬ ‭such as Massachusetts and New Jersey have formulas that provide substantial funding for‬ ‭low-income districts through progressive tax systems and targeted aid.‬‭389‬ ‭Other states, like‬ ‭388‬

‭National Center for Education Statistics, “Public School Expenditures,” accessed December 4, 2024,‬ ‭https://nces.ed.gov/programs/coe/indicator_cmb.asp.‬ ‭389‬ ‭Education Law Center, “Making the Grade 2022,” accessed‬‭December 4, 2024,‬ ‭https://edlawcenter.org/research/making-the-grade/.‬

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‭Alabama and Arizona, rely more heavily on local property taxes. This perpetuates inequality‬ ‭since wealthier districts can raise more money for their schools. Further, in terms of policies on‬ ‭the expansion of charter schools, certification requirements for teachers, and priorities on‬ ‭standardized testing, there are vast differences among states that have a bearing on the sameness‬ ‭of the quality of education. While students in Texas urban school districts face crowded‬ ‭classrooms and shortages of teachers, suburban schools have fewer children assigned to each‬ ‭teacher, along with access to more resources.‬‭390‬ ‭Policies‬‭like Michigan's funding structure, which‬ ‭has seen cuts in inflation-adjusted per-student funding by 22% since 2008, exemplify the‬ ‭systematic neglect furthering the gulf between the rich and poor districts.‬‭391‬ ‭Although education is one of the keys to national development, it has remained a‬ ‭second-tier priority of the federal government. The federal share in financing public schools is‬ ‭only about 8%, with the lion's share falling on states and localities.‬‭392‬ ‭Programs like Title I,‬ ‭designed to boost low-income schools, are often underfunded and fail to close gaps in‬ ‭meaningful ways. Equally troubling, federal initiatives, such as ESSA, provide a great deal of‬ ‭latitude to the states concerning establishing academic standards, systems of accountability, and‬ ‭ways of assessing the performance of teachers, effectively creating a quilt of variegated policies‬ ‭rather than coherent national policy.‬‭393‬ ‭This can produce‬‭growth in disparities unhampered,‬ ‭which ultimately affects all students, including students of color, those attending schools in rural‬ ‭areas, and students living with disabilities. The United States is spending less of its Gross‬

‭390‬

‭ exas Education Agency, “Snapshot: School District‬‭Profiles,” accessed December 4, 2024, https://tea.texas.gov/.‬ T ‭Education Trust, “Funding Gaps 2022,” accessed December‬‭4, 2024,‬ ‭https://edtrust.org/resource/funding-gaps-2022/.‬ ‭392‬ ‭U.S. Department of Education, “Federal Role in Education,”‬‭accessed December 4, 2024,‬ ‭https://www2.ed.gov/about/overview/fed/role.html.‬ ‭393‬ ‭U.S. Department of Education, “Every Student Succeeds Act (ESSA),” accessed December 4, 2024,‬ ‭https://www.ed.gov/essa.‬ ‭391‬

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‭Domestic Product on education compared with many developed nations.‬‭394‬ ‭This again depicts a‬ ‭lack of prioritization, undermining the nation's long-term economic and social stability. These‬ ‭inequities still need to be addressed systematically, which reflects the absence of a unified‬ ‭commitment to righting this as a fundamental right, thus setting millions of children behind the‬ ‭eight ball even before they set foot in the classroom.‬ ‭San Antonio Independent School District vs. Rodriguez‬ ‭i.‬‭Background‬ ‭The‬‭San Antonio Independent School District v. Rodriguez‬‭case began in Texas in the late‬ ‭1960s, when significant differences in public school funding started to be questioned. This state‬ ‭based its financing of schools on local property taxes. In practice, this meant enormous‬ ‭disparities between wealthy and poor school districts. Affluent areas with higher property values‬ ‭could raise much more money for their schools than poorer areas. Per-pupil funding within the‬ ‭Edgewood Independent School District, the local district where Demetrio Rodriguez's children‬ ‭went, was a fraction compared to its wealthy neighbor, Alamo Heights. The more significant‬ ‭portion of the money that followed these students to schools translates to lesser funds, which‬ ‭translates to fewer resources, increased sizes, underpaid teachers, and inadequate facilities in‬ ‭other students' poorer districts. With inequities that are thus entrenched, frustrated parents from‬ ‭Edgewood wanted to challenge an arrangement they saw as unfair.‬ ‭The plaintiffs, through Rodriguez, insisted that this funding system denied their children‬ ‭equal educational opportunities in line with their socioeconomic status and community wealth.‬ ‭They further said that education was quintessential to exercising other constitutional rights and‬ ‭394‬

‭Organization for Economic Co-operation and Development (OECD), “Education at a Glance 2022,” accessed‬ ‭December 4, 2024,‬‭https://www.oecd.org/‬‭.‬

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‭that such disparities in funding perpetuate cycles of poverty and limit social mobility. It became a‬ ‭case of national notoriety because it clearly showed how entrenched funding inequity was in‬ ‭public education within Texas and nationally. Eventually, the suit came to question what the‬ ‭government had an obligation for regarding school access equity, which ultimately came to rest‬ ‭on more significant issues relating to race and class, at least large questions related to the‬ ‭resources associated with American schooling.‬ ‭ii. Rulings of the Case‬ ‭In 1973, the U.S. Supreme Court ruled 5-4 against the plaintiffs in the‬‭San Antonio‬ ‭Independent School District v. Rodriguez‬‭case. The‬‭Court decided that education was not a‬ ‭fundamental right protected explicitly under the Constitution and that Texas's unequal system of‬ ‭funding schools did not violate the Fourteenth Amendment's Equal Protection Clause. Writing‬ ‭for the majority, Justice Lewis Powell held that the Constitution did not require equal education‬ ‭funding by the states and that not all discriminatory allocations based on property tax revenues‬ ‭are unconstitutional per se. Justice Powell held that the poverty-based disparities in the case did‬ ‭not meet the strict standards for discrimination against a suspect class since poverty was not a‬ ‭suspect classification under constitutional jurisprudence. This decision effectively validated‬ ‭states' discretion in school funding policies, leaving educational inequities largely unaddressed at‬ ‭the federal level.‬ ‭This decision had enormous ramifications for educational equity in the United States. In‬ ‭refusing to recognize education as a fundamental right, the Court would leave inequities in‬ ‭school funding unchecked and return responsibility to redress them to the states. This decision‬ ‭entrenches a system in which school quality is determined by the wealth of local property,‬

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‭solidifying cycles of inequality for low-income communities and communities of color. In the‬ ‭decades since this decision, states have tried to address and reform school funding inequities;‬ ‭however, significant differences persist. For instance, on average, low-income school districts get‬ ‭$1,000 less per pupil than wealthy districts, according to an Education Trust report,‬‭395‬ ‭which‬ ‭leads back to significant disparities in academic accomplishment and economic opportunity.‬‭396‬ ‭The Rodriguez decision effectively called a halt to federal intervention that would have‬ ‭guaranteed at least a minimum level of educational quality, putting millions of students at a‬ ‭disadvantage.‬ ‭The decision in Rodriguez brought sharply to the fore the fact that strong federal‬ ‭protections are indeed overdue, a necessary step to provide equality in education. Education is‬ ‭fundamental to exercising constitutional rights of free expression, voting, and participating in‬ ‭civic life. It would mean that the system will, without federal law compelling otherwise, continue‬ ‭to infringe these rights in various ways.‬‭397‬ ‭If the‬‭federal government recognized education as a‬ ‭constitutional right, it would set standards across the country on funding disparity, equality of‬ ‭resource accessibility, and the civil rights of all students. This would mean prioritizing education‬ ‭in the nation lining up policy with the reality that an informed, educated populace makes‬ ‭democracy function. It is the failure of the federal government to act that perpetuates this‬

‭395‬

‭Education Trust, “Funding Gaps 2022,” accessed December‬‭4, 2024,‬ ‭https://edtrust.org/resource/funding-gaps-2022/.‬ ‭396‬ ‭National Center for Education Statistics, “Public School Expenditures,” accessed December 4, 2024,‬ ‭https://nces.ed.gov/programs/coe/indicator_cmb.asp.‬ ‭397‬ ‭U.S. Department of Education, “Federal Role in Education,” accessed December 4, 2024,‬ ‭https://www2.ed.gov/about/overview/fed/role.html.‬

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‭inequality undermines social cohesion, and saps the true potential of millions of children,‬ ‭threatening the country's future economic and social stability.‬‭398‬ ‭Plyler vs. Doe‬ ‭iii. Background‬ ‭Plyler v. Doe‬‭was filed in 1975 after the Texas legislature‬‭enacted a law allowing local‬ ‭school districts to deny enrollment to undocumented alien children or, at their option, withhold‬ ‭state funds for the education of such children. The decision to exclude undocumented children‬ ‭was justified by the state as a means to preserve resources for lawful residents and to deter illegal‬ ‭immigration. However, this policy drew criticism for its discriminatory impact on vulnerable‬ ‭children, many of whom had no control over their immigration status. In Tyler, Texas, several‬ ‭undocumented Mexican families challenged the policy on the ground that it violated the Equal‬ ‭Protection Clause of the Fourteenth Amendment, which guarantees that all persons within the‬ ‭United States be treated equally under the law.‬ ‭The case was filed on behalf of a group of undocumented children, with James Plyler,‬ ‭superintendent of the Tyler Independent School District, as a defendant. The plaintiffs contended‬ ‭that what Texas was doing amounted to punishing children for conditions beyond their control‬ ‭and denying them the opportunity to get an education, the fundamentals of which are so essential‬ ‭for breaking the cycles of poverty and marginalization.‬‭399‬ ‭They further clarified that education‬ ‭prepares individuals to participate inspiringly in the affairs of the economic and social‬

‭398‬

‭Organization for Economic Co-operation and Development (OECD), “Education at a Glance 2022,” accessed‬ ‭December 4, 2024, https://www.oecd.org/.‬ ‭399‬ ‭Michael A. Olivas,‬‭No Undocumented Child Left Behind:‬‭Plyler v. Doe and the Education of Undocumented‬ ‭Schoolchildren‬‭(New York: NYU Press, 2012), 17.‬

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‭environment. Ultimately, that case reached the U.S. Supreme Court, from which came the‬ ‭landmark decree on whether education is entitled to a constitutional right and to what extent‬ ‭states should withhold public benefits from undocumented immigrants. The case brought‬ ‭widespread attention to a complex fusion of immigration policy, education access, and‬ ‭constitutional rights.‬

‭iv. Rulings of the Case‬ ‭In 1982, the US Supreme Court decided in the case of‬‭Plyler v. Doe‬‭, by a margin of 5 to‬ ‭4, that the Texas statute that denied access to public education for undocumented children‬ ‭violated the Equal Protection Clause of the Fourteenth Amendment. The Court explained that the‬ ‭state's argument regarding conserving resources and deterring a single class of migrating aliens‬ ‭was insufficient to deny public education to school-aged children. Writing for the majority,‬ ‭Justice William Brennan stressed that undocumented children were "persons" under the‬ ‭Fourteenth Amendment and, as such, entitled to its protections. The Court recognized the unique‬ ‭harm caused by denying children an education, noting that it "imposes a lifetime hardship on a‬ ‭discrete class of children not accountable for their disabling status" and that the inability to‬ ‭obtain even a basic education would permanently limit their economic and social contributions to‬ ‭society.‬ ‭The Plyler decision has profound implications for the role of education in maintaining‬ ‭constitutional principles of equality and justice. In confirming the need for education in the‬ ‭individual as well as societal development processes, the ruling shows clearly how access to‬ ‭education furthers broader democratic participation along with economic mobility.‬‭400‬ ‭Although‬ ‭400‬

‭Michael A. Olivas,‬‭No Undocumented Child Left Behind:‬‭Plyler v. Doe and the Education of Undocumented‬ ‭Schoolchildren‬‭(New York: NYU Press, 2012), 25.‬

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‭the Court did not hold that education is a fundamental right, it clarified that education is‬ ‭necessary to obtain many other rights, such as free speech and informed voting. This would set a‬ ‭framework for the argument because the federal government is interested in equal opportunity‬ ‭for quality education. Plyler showed that withholding education is a detriment not to an‬ ‭individual but to the whole of society: her approach demonstrates education is a public good that‬ ‭crosses state boundaries.‬ ‭The‬‭Plyler v. Doe‬‭decision underlines how federal‬‭education policy is incomplete and‬ ‭calls for a more coherent strategy to protect access to education. The Court implicitly indicated‬ ‭that there should be a constitutional right to education because it is a prerequisite for equal‬ ‭protection and social development. This decision, however, despite its importance, had a limited‬ ‭scope because it dealt only with outright denial and left broader issues on funding disparities,‬ ‭resource allocations, and educational quality not being up to par.‬‭401‬ ‭This is because these areas‬ ‭have little federal oversight or constitutional guarantee. Recognizing education as a right would‬ ‭grant the federal government the authority to establish minimum standards, reduce inequities,‬ ‭and ensure that all children of citizenship, race, or socioeconomic status receive the education‬ ‭necessary to participate fully in democracy. What the Plyler decision does is underscore that‬ ‭education is not just a privilege but a critical necessity in furthering the case for equality with‬ ‭stronger federal protections.‬‭402‬

‭401‬

‭National Center for Education Statistics, “Public School Expenditures,” accessed December 4, 2024,‬ ‭https://nces.ed.gov/programs/coe/indicator_cmb.asp.‬ ‭402‬ ‭U.S. Department of Education, “Federal Role in Education,”‬‭accessed December 4, 2024,‬ ‭https://www2.ed.gov/about/overview/fed/role.html.‬

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‭Conclusion‬

‭Cases such as‬‭San Antonio Independent School District v. Rodriguez, Plyler v. Doe‬‭,‬ ‭and others highlight the importance of education to the development of equality, democracy,‬ ‭and an improved quality of life for all. While these decisions underscore the critical role‬ ‭education plays in creating opportunity and civic engagement, they also reveal the‬ ‭deficiencies in federal protections and the inequities that arise from reliance on state and local‬ ‭policies. The Constitution's failure to explicitly recognize education as a fundamental right‬ ‭has left millions of students at the mercy of a fractured system that perpetuates disparities‬ ‭inconsistent with the very principles of democracy. That means systemic solutions can be‬ ‭installed through government levels by developing a system that elevates education to a‬ ‭federally constitutionally protected right to ensure students of all economic backgrounds and‬ ‭pedigrees can obtain quality education as part of their development contributions toward a‬ ‭democratic society. It is not simply a moral call, but allowing education to be a constitutional‬ ‭right will create a fairer society with cohesion.‬

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‭CORPORATE IMMUNITY OR JUSTICE DEFERRED?:‬ ‭LESSONS FROM THE SACKLER FAMILY OPIOID SETTLEMENT‬ ‭WRITTEN BY NARAYANI ATCHUTUNI | EDITED BY DEV PATEL‬ ‭Introduction‬ ‭i. The Opioid Epidemic‬ ‭Every day, hundreds of Americans turn to their doctors for relief, whether it is to soothe a‬ ‭persistent ache, manage chronic pain, or recover from surgery. The solutions often come in the‬ ‭form of a prescription pad, a symbol of trust and hope in the medical profession. Yet, beneath the‬ ‭surface of this seemingly ordinary exchange lies a troubling truth: the prescription drug industry‬ ‭has not always operated with patients’ best interests at heart.‬‭403‬ ‭Nowhere is this more evident‬ ‭than in the story of Purdue Pharma and its flagship opioid, OxyContin.‬ ‭The opioid epidemic stands as one of the most devastating public health crises in modern‬ ‭history, claiming nearly 727,000 lives from 1999 to 2022 through both prescription and illegal‬ ‭opioids.‬‭404‬ ‭Purdue Pharma, owned by the wealthy and‬‭influential Sackler family, greatly fueled‬ ‭this crisis. OxyContin, marketed aggressively as a low-risk solution for pain management,‬ ‭rapidly became a household name. Behind the scenes, Purdue’s marketing strategies not only‬ ‭downplayed the risks of addiction but also systematically expanded the use of opioids to millions‬ ‭of Americans who might otherwise have avoided such potent drugs.‬‭405‬ ‭ii. Purdue Pharma’s Power in Marketing‬ ‭Purdue’s extensive and strategically coordinated marketing efforts wielded extraordinary‬ ‭influence. Physicians were targeted with promotional materials, financial incentives, and‬ ‭403‬

‭Ben Goldacre, “Bad Pharma: How Drug Companies Mislead Doctors and Harm Patients,” British Journal of‬ ‭Clinical Pharmacology, May 2013, https://pmc.ncbi.nlm.nih.gov/articles/PMC3635613/.‬ ‭404‬ ‭“Understanding The Opioid Overdose Epidemic,” Centers for Disease Control and Prevention, November 1,‬ ‭2024, https://www.cdc.gov/overdose-prevention/about/understanding-the-opioid-overdose-epidemic.html‬ ‭405‬ ‭Art Van Zee, “The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy,”‬ ‭American Journal of Public Health, February 2009, https://pmc.ncbi.nlm.nih.gov/articles/PMC2622774/.‬

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‭carefully crafted narratives about the safety and efficacy of opioids.‬‭406‬ ‭Professional organizations‬ ‭and advocacy groups were similarly co-opted to amplify Purdue’s message.‬‭407‬ ‭These efforts were‬ ‭disturbingly effective, leading to widespread overprescription and an upswing in opioid‬ ‭addiction. The financial gains for Purdue and the Sacklers were staggering, but the societal costs:‬ ‭overdose deaths, broken families, and strained public health systems, were immeasurable.‬‭408‬ ‭iii. A Surge of Litigation‬ ‭As the human toll of the epidemic became undeniable, Purdue faced a flood of lawsuits‬ ‭from states, municipalities, and individuals seeking accountability.‬‭409‬ ‭In 2019 the company filed‬ ‭for bankruptcy, promising to resolve these claims. As Purdue’s bankruptcy proceedings unfolded,‬ ‭the legal battles surrounding the company became a focal point for debates about corporate‬ ‭responsibility and public health. The lawsuits brought against Purdue and the Sackler family‬ ‭highlighted the devastating impact of the opioid epidemic while raising pressing questions about‬ ‭the ethical boundaries of corporate influence within the justice system.‬‭410‬ ‭These cases have‬ ‭become a legal flashpoint, with courts at every level grappling with issues that will have‬ ‭far-reaching implications for transparency in the pharmaceutical industry.‬

‭406‬

‭“AG Healey Sues Purdue Pharma, Its Board Members and Executives for Illegally Marketing Opioids and‬ ‭ rofiting From Opioid Epidemic,” Mass.gov, June 12, 2018,‬ P ‭https://www.mass.gov/news/ag-healey-sues-purdue-pharma-its-board-members-and-executives-for-illegally-marketi‬ ‭ng-opioids-and-profiting-from-opioid-epidemic.‬ ‭407‬ ‭“State of Alaska v Purdue Pharma, Complaint,” Superior Court for the State of Alaska - Third Judicial District in‬ ‭Anchorage, https://www.law.alaska.gov/pdf/press/171031-PurdueComplaint.pdf.‬ ‭408‬ ‭“Opioid Manufacturer Purdue Pharma Pleads Guilty to Fraud and Kickback Conspiracies,” Office of Public‬ ‭Affairs|United States Department of Justice, November 24, 2020,‬ ‭https://www.justice.gov/opa/pr/opioid-manufacturer-purdue-pharma-pleads-guilty-fraud-and-kickback-conspiracies.‬ ‭409‬ ‭Opioid Lawsuits Generate Payouts, Controversy,‬ ‭https://www.americanbar.org/news/abanews/aba-news-archives/2019/09/opioid-lawsuits-generate-payouts-controver‬ ‭sy/.‬ ‭410‬ ‭“The Role of Purdue Pharma and The Sackler Family in the Opioid Epidemic,” Hearing - Before the Committee‬ ‭on Oversight and Reform House of Representatives, December 17, 2020,‬ ‭https://www.govinfo.gov/content/pkg/CHRG-116hhrg43010/html/CHRG-116hhrg43010.htm.‬

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‭In re: Purdue Pharma L.P.‬ ‭iv. Chapter 11: A Strategic Shield‬ ‭The bankruptcy proceedings of Purdue Pharma, formally titled‬‭In re:‬‭Purdue Pharma‬ ‭L.P.‬‭, reshaped how mass tort litigation is handled‬‭in the U.S. legal system. Filed under Chapter‬ ‭11 in 2019, the case became a legal battleground over the use of bankruptcy protections by‬ ‭corporations accused of causing widespread harm.‬‭411‬ ‭Unlike typical bankruptcies, this case‬ ‭involved a company accused of contributing to a public health crisis, raising questions about the‬ ‭balance between protecting businesses financially and keeping them accountable.‬ ‭Through Chapter 11, Purdue Pharma aimed to achieve not only financial reorganization‬ ‭but also a legal strategy to consolidate claims and address its mounting liabilities.‬‭412‬ ‭This process‬ ‭allowed Purdue to continue operating its business while creating a system to allocate its‬ ‭remaining assets among creditors, including victims of the opioid crisis. In simpler terms,‬ ‭Chapter 11 allowed the company to temporarily halt ongoing lawsuits against them and focus on‬ ‭creating a unified plan to distribute its remaining assets to claimants. Purdue’s case showcased‬ ‭how bankruptcy law can be stretched to address the nuances of mass tort litigation. By‬ ‭consolidating thousands of claims into a single process, the Chapter 11 proceedings offered a‬ ‭way to manage disputes involving numerous parties with competing interests.‬‭413‬ ‭Some legal‬ ‭experts saw this approach as a practical tool to streamline overwhelming litigation and ensure‬ ‭that at least some compensation reached victims. However, others criticized it as a controversial‬ ‭tactic, arguing that it prioritized efficiency over justice, especially when holding influential‬ ‭411‬

‭“Chapter 11 - Bankruptcy Basics,” United States Courts,‬ ‭https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-11-bankruptcy-basics.‬ ‭412‬ ‭Dylan Gillespie Trache, Purdue Pharma: An Analysis of the Supreme Court Decision Barring Third-Party‬ ‭Releases, October 11, 2024,‬ ‭https://www.americanbar.org/groups/business_law/resources/business-law-today/2024-october/purdue-pharma-analy‬ ‭sis-supreme-court-decision-barring-third-party-releases.‬ ‭413‬ ‭Scott R Bowling, “Substantive Consolidation and Parties’ Incentives in Chapter 11 Proceedings,” Annual Survey‬ ‭of American Law, October 25, 2010, https://annualsurveyofamericanlaw.org/.‬

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‭individuals like the Sacklers accountable. Beyond financial restructuring, Chapter 11 served as a‬ ‭mechanism to shield its owners, the Sackler family, from direct litigation.‬‭414‬ ‭The use of‬ ‭bankruptcy protections in this way provoked sharp criticism, with adversaries arguing it enabled‬ ‭influential individuals to safeguard their wealth while leaving affected communities with limited‬ ‭recourse.‬ ‭v. Controversial Immunity at the Heart of the Settlement‬ ‭A key aspect of Purdue Pharma’s bankruptcy plan was the Sackler family’s agreement to‬ ‭contribute $5.5 to $6 billion to a settlement fund aimed at addressing the financial needs of‬ ‭victims and communities devastated by the opioid epidemic.‬‭415‬ ‭In exchange, the Sacklers sought‬ ‭legal immunity from future civil lawsuits through a provision known as the nonconsensual‬ ‭third-party release.‬‭416‬ ‭This legal mechanism, embedded‬‭in the bankruptcy settlement, extended‬ ‭protections typically reserved for the bankrupt entity to non-debtor parties, such as the Sackler‬ ‭family, who had not filed for personal bankruptcy. For many, this provision represented a critical‬ ‭compromise to secure much-needed public health initiatives and victim compensation funds.‬ ‭Without this agreement, proponents argued, the Sacklers would have little incentive to contribute‬ ‭such a substantial sum, and the lengthy litigation could further delay relief for those affected.‬ ‭However, including the nonconsensual third-party release sparked a heated debate about‬ ‭fairness and legality. Critics argued that the release abused bankruptcy law, enabling wealthy‬

‭414‬

‭“Justice Department Announces Global Resolution of Criminal and Civil Investigations with Opioid‬ ‭ anufacturer Purdue Pharma and Civil Settlement with Members of the Sackler Family,” Office of Public Affairs,‬ M ‭October 21, 2020,‬ ‭https://www.justice.gov/opa/pr/justice-department-announces-global-resolution-criminal-and-civil-investigations-op‬ ‭ioid.‬ ‭415‬ ‭Attorney General Announces Settlement of at Least $5.5 Billion with Purdue Pharma and Sackler Family,” |‬ ‭Rhode Island Attorney General’s Office, March 3, 2022,‬ ‭https://riag.ri.gov/press-releases/attorney-general-announces-settlement-least-55-billion-purdue-pharma-and-sackler.‬ ‭416‬ ‭Noelle Henry, “The Sackler Shield: How Non-Consensual Third-Party Releases Protect the Bad Businessman,”‬ ‭Wake Forest Journal of Business and Intellectual Property Law, July 9, 2024,‬ ‭https://jbipl.pubpub.org/pub/87trn9x3/release/1.‬

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‭individuals to sidestep responsibility while retaining significant personal wealth. Unlike the‬ ‭typical bankruptcy process, where debtors face scrutiny over their financial records and‬ ‭obligations, the Sacklers maintained control over much of their fortune while enjoying‬ ‭protections from litigation.‬‭417‬ ‭This unprecedented maneuver‬‭has raised broader questions about‬ ‭the limits of bankruptcy law and whether such provisions erode public trust by prioritizing‬ ‭expediency and settlements over principles of justice and accountability.‬ ‭Harrington v. Purdue Pharma L.P.‬ ‭vi. U.S. Trustee’s Objection‬ ‭When the court approved Purdue Pharma’s bankruptcy plan in September of 2021, it‬ ‭marked a turning point in addressing a crisis that had claimed hundreds of thousands of lives and‬ ‭shattered communities nationwide. At the center of the plan was a highly controversial provision:‬ ‭nonconsensual third-party releases that shielded the Sackler family from future lawsuits. The‬ ‭court framed this as a necessary compromise. Given Purdue’s limited resources and the‬ ‭challenges of recovering the Sacklers’ offshore assets, the settlement was portrayed as the‬ ‭quickest and most effective way to channel billions of dollars into combating the opioid‬ ‭epidemic.‬ ‭But not everyone saw it that way. U.S. Trustee William K. Harrington, a federal official‬ ‭responsible for ensuring the integrity of bankruptcy proceedings, had an issue with this decision.‬ ‭He argued that nonconsensual third-party releases were not explicitly permitted under the‬ ‭Bankruptcy Code and undermined the principles of accountability.‬‭418‬ ‭To Harrington, allowing‬ ‭individuals not filing for bankruptcy to sidestep legal responsibility while holding on to much of‬ ‭their wealth was more than a legal oversight; it was a matter of justice. Could a family that had‬ ‭417‬

I‭ n re: Purdue Pharma L.P., https://www.nysb.uscourts.gov/sites/default/files/opinions/296030_3786_opinion.pdf.‬ ‭Harrington v. Purdue Pharma L.P., June 27, 2024,‬ ‭https://www.supremecourt.gov/opinions/23pdf/23-124_8nk0.pdf.‬ ‭418‬

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‭profited billions from a public health catastrophe walk away protected from lawsuits simply‬ ‭because they paid into a settlement fund?‬ ‭Harrington’s objection became a lightning rod for controversy and raised questions about‬ ‭whether the Sacklers were being unfairly insulated from liability. He warned that allowing such‬ ‭releases could turn bankruptcy law into a loophole for the wealthy to escape consequences and‬ ‭erode trust among victims and the public. His challenge also sparked concerns about the limits of‬ ‭bankruptcy protections, especially in cases of large-scale public harm. Despite his arguments,‬ ‭Harrington’s formal objection was overruled by the bankruptcy court.‬‭419‬ ‭vii. District Court’s Reversal‬ ‭Appalled by the bankruptcy court’s decision to grant the Sackler family sweeping‬ ‭immunity from future lawsuits, U.S. Trustee William K. Harrington and a coalition of state‬ ‭attorneys general appealed the ruling to the U.S. District Court for the Southern District of New‬ ‭York.‬‭420‬ ‭They argued that the bankruptcy court had overstepped‬‭its authority, allowing‬ ‭individuals not even declaring bankruptcy to escape legal answerability. In December of 2021,‬ ‭District Judge Colleen McMahon sided with the challengers by reversing the bankruptcy court’s‬ ‭approval of Purdue Pharma’s settlement plan.‬‭421‬ ‭Her‬‭decision was unequivocal: the Bankruptcy‬ ‭Code does not authorize nonconsensual third-party releases, and to allow them would be to‬ ‭rewrite the law entirely.‬‭422‬ ‭This reversal sent shockwaves‬‭through the case, halted the Sacklers’‬ ‭immunity deal, and raised serious doubts about the settlement’s future. For many, it was a‬ ‭419‬

‭Harrington v. Purdue Pharma L.P., June 27, 2024,‬ ‭https://www.supremecourt.gov/opinions/23pdf/23-124_8nk0.pdf.‬ ‭420‬ ‭Dylan Gillespie Trache, Purdue Pharma: An Analysis of the Supreme Court Decision Barring Third-Party‬ ‭Releases, October 11, 2024,‬ ‭https://www.americanbar.org/groups/business_law/resources/business-law-today/2024-october/purdue-pharma-analy‬ ‭sis-supreme-court-decision-barring-third-party-releases.‬ ‭421‬ ‭“Decision and Order on Appeal,” In Re: Purdue Pharma L.P., December 16, 2021,‬ ‭https://portal.ct.gov/-/media/ag/press_releases/2021/judge-mcmahon-decision-121621.pdf.‬ ‭422‬ ‭Leonard L. Gumport, “The 5-4 Purdue Pharma Majority Decision,” California Lawyers Association, July 11,‬ ‭2024, https://calawyers.org/business-law/the-5-4-purdue-pharma-majority-decision/.‬

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‭moment of vindication, where the legal system pushed back against using bankruptcy as a‬ ‭defense for the powerful. But for others, it reignited concerns about delays in distributing billions‬ ‭of dollars earmarked for opioid relief, which would leave victims caught in the crossfire of a‬ ‭contentious legal dispute.‬ ‭viii. Second Circuit Court of Appeals Decision‬ ‭The District Court’s decision to overturn Purdue Pharma’s settlement plan triggered an‬ ‭immediate and intense response. Purdue, the Sackler family, and their legal teams appealed the‬ ‭ruling to the U.S. Court of Appeals for the Second Circuit. They were determined to defend the‬ ‭controversial third-party releases. They argued that without these protections, the Sacklers would‬ ‭refuse to contribute the billions of dollars pledged to the settlement fund, putting critical opioid‬ ‭relief efforts at risk. On the opposing side, U.S. Trustee William K. Harrington and the state‬ ‭attorneys general maintained that granting such releases stretched bankruptcy law beyond its‬ ‭intended purpose and would create a troubling precedent for future cases. In May of 2023, the‬ ‭Second Circuit sided with Purdue and the Sacklers, ruling that bankruptcy courts have the‬ ‭authority to approve nonconsensual third-party releases under certain equitable conditions.‬‭423‬ ‭This decision allowed the settlement to move forward but did little to quell ongoing debates‬ ‭about fairness and scrutiny in mass tort bankruptcies.‬ ‭Supreme Court Review and Implications‬ ‭ix. Potential Outcomes‬ ‭After the Second Circuit upheld Purdue Pharma’s settlement plan, the legal battle reached‬ ‭the highest level of scrutiny: the Supreme Court.‬‭424‬ ‭The Court’s involvement is critical because it‬ ‭423‬

‭Harrington v. Purdue Pharma L.P., June 27, 2024,‬ ‭https://www.supremecourt.gov/opinions/23pdf/23-124_8nk0.pdf.‬ ‭424‬ ‭Nicole Ezeh, “Supreme Court Overrules Purdue Pharma Opioid Settlement, Rejects Immunity for Sacklers,”‬ ‭National Conference of State Legislatures, July 5, 2024,‬ ‭https://www.ncsl.org/state-legislatures-news/details/supreme-court-overrules-purdue-pharma-opioid-settlement-rejec‬ ‭ts-immunity-for-sacklers.‬

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‭determines whether nonconsensual third-party releases are permissible under bankruptcy law.‬ ‭This decision carries far-reaching consequences, as it could either validate or restrict the use of‬ ‭such provisions in future mass tort cases.‬ ‭If the Supreme Court upholds the Second Circuit’s decision, it would set a precedent‬ ‭allowing non-debtor parties, like the Sacklers, to gain immunity in bankruptcy settlements,‬ ‭potentially reshaping the boundaries of bankruptcy law. On the other hand, if the Court overturns‬ ‭the ruling, it would limit the scope of bankruptcy protections, reaffirming that individuals cannot‬ ‭use corporate bankruptcy to safeguard themselves from personal liability. This pivotal decision‬ ‭not only determines the fate of Purdue’s settlement but also influences how culpability is‬ ‭addressed in corporate misconduct cases for years to come.‬ ‭x. Are Non-Consensual Third-Party Releases Allowable Under the Bankruptcy Code?‬ ‭No. In a landmark 5-4 ruling on June 27, 2024, the Supreme Court decided that the Bankruptcy‬ ‭Code does not authorize nonconsensual third-party releases.‬‭425‬ ‭This decision struck down the‬ ‭Second Circuit’s ruling and, with it, the Sacklers’ bid for legal immunity. The Court reasoned‬ ‭that granting such releases to individuals who are not themselves bankrupt undermines the‬ ‭principles of fairness and responsibility that bankruptcy law is designed to uphold.‬‭426‬ ‭Conclusion‬ ‭xi. Balancing Corporate Accountability and Legal Protections‬ ‭The Supreme Court’s decision highlights the delicate balance between resolving legal‬ ‭cases and ensuring justice. By rejecting the Sacklers’ attempt to secure immunity, the ruling‬ ‭425‬

‭Rachel Mackey, “U.S. Supreme Court Decision Halts Purdue Pharma Opioid Settlement,” National Association‬ o‭ f Counties, June 28, 2024,‬ ‭https://www.naco.org/news/us-supreme-court-decision-halts-purdue-pharma-opioid-settlement.‬ ‭426‬ ‭Dylan Gillespie Trache, Purdue Pharma: An Analysis of the Supreme Court Decision Barring Third-Party‬ ‭Releases, October 11, 2024,‬ ‭https://www.americanbar.org/groups/business_law/resources/business-law-today/2024-october/purdue-pharma-analy‬ ‭sis-supreme-court-decision-barring-third-party-releases.‬

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‭sends a clear message: bankruptcy cannot be used as a way for the wealthy to dodge‬ ‭responsibility, no matter how much money they contribute to settlements.‬‭427‬ ‭This outcome is a‬ ‭reminder that social responsibility must remain at the forefront, even in the face of complicated‬ ‭legal and financial challenges.‬ ‭xx. A Lasting Impact on Public Trust‬ ‭The Court’s ruling carries implications far beyond Purdue Pharma. For the Sacklers, it‬ ‭leaves the door open to further lawsuits, exposing them to potential legal consequences for their‬ ‭role in the opioid crisis. However, while the ruling emphasizes accountability, it also complicates‬ ‭securing the billions they had pledged in the settlement, potentially delaying relief for victims‬ ‭and communities. For the public, the decision offers a measure of restored faith in a legal system‬ ‭often criticized for favoring the powerful. This precedent may deter similar attempts in future‬ ‭cases by reaffirming that bankruptcy cannot serve as a loophole for the wealthy. However, it also‬ ‭raises questions about how effectively justice can deliver tangible results. So, to answer the‬ ‭question of “Corporate Immunity or Justice Deferred?” the ruling signifies justice deferred.‬ ‭While accountability remains possible, meaningful relief for victims remains at a standstill.‬

‭427‬

‭Nicole Ezeh, “Supreme Court Overrules Purdue Pharma Opioid Settlement, Rejects Immunity for Sacklers,”‬ ‭ ational Conference of State Legislatures, July 5, 2024,‬ N ‭https://www.ncsl.org/state-legislatures-news/details/supreme-court-overrules-purdue-pharma-opioid-settlement-rejec‬ ‭ts-immunity-for-sacklers.‬

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‭ENFORCING ACCOUNTABILITY: EVALUATING GOVERNMENTAL LAWS‬ ‭TARGETING CORPORATE HUMAN RIGHTS VIOLATIONS‬ ‭WRITTEN BY KYLIE HONG | EDITED BY DEV PATEL‬ ‭Despite a newfound adoption of Corporate Social Responsibility (CSR) policies within‬ ‭burgeoning businesses, incidents like the 2013 Rana Plaza collapse where over a thousand‬ ‭workers were killed,‬‭428‬ ‭or the more recent 2019 Delhi‬‭bag factory fire where almost 50 workers‬ ‭died, highlight the significant oversight of the government in enforcing accountability onto‬ ‭businesses regarding human rights standards.‬‭429‬ ‭The‬‭current laws and policies implemented are‬ ‭insufficient to induce businesses to firmly regulate and encourage CSR. The monitoring and‬ ‭prevention of human rights violations need more rigorous regulations for the enforcement of‬ ‭these standards to be upheld. Understanding the current landscape of governmental policies‬ ‭concerning CSR and human rights, the successful and failed endeavors at stricter regulation, and‬ ‭the potential for improved legislation are all vital to a movement toward human rights protection.‬ ‭The UN Guiding Principles on Business and Human Rights,‬‭430‬ ‭as well as the U.S.‬ ‭Department of State’s Bureau of Democracy, Human Rights, and Labor, lead policy efforts to‬ ‭disseminate and implement the principles that regulate and guide behavior on CSR.‬‭431‬ ‭These‬ ‭frameworks aim to safeguard human rights within business operations. The U.S. State‬ ‭Department’s‬‭guidance on implementing the UN Guiding‬‭Principles for transactions with foreign‬ ‭government end-users for products with surveillance capabilities‬‭is a government agency report‬

‭428‬

‭“Rana Plaza.” Clean Clothes Campaign, March 28,‬‭2024.‬ ‭https://cleanclothes.org/campaigns/past/rana-plaza.‬ ‭429‬ ‭“Delhi Factory Fire: More than 40 Dead in India‬‭Blaze.” BBC News, December 9, 2019.‬ ‭https://www.bbc.com/news/world-asia-india-50703659.‬ ‭430‬ ‭United Nations Human Rights Office of the High Commissioner.‬‭“Guiding Principles on Business and Human‬ ‭Rights.” United Nations, 2011.‬ ‭431‬ ‭Bureau of Democracy, Human Rights, and Labor. “U.S.‬‭Government Efforts to Advance Business and Human‬ ‭Rights in 2020.” U.S. Department of State, January 11, 2021.‬ ‭https://www.state.gov/u-s-government-efforts-to-advance-business-and-human-rights-in-2020/.‬

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‭that provides tools, reports, and guidance to help businesses identify and mitigate “red flags” in‬ ‭their supply chains, continuous risk assessment, stakeholder engagement, and public‬ ‭transparency.‬‭432‬ ‭Although not required by law, this‬‭guidance is essential for businesses to‬ ‭integrate human rights due diligence into their practices. While seemingly helpful for‬ ‭implementing successful CSR standards, these are non-mandatory guidelines that do not have to‬ ‭be adhered to. While these laws and guidance try to enforce and guide CSR practices by setting‬ ‭up preventative measures, their effectiveness is often hindered by inconsistent enforcement,‬ ‭limited scope, and no mandatory legal compliance, showing big gaps in protecting human rights.‬ ‭This combination of solely preventative laws and guidance means we need to continuously‬ ‭evaluate and strengthen CSR laws so they not only exist but are also applied and corporations are‬ ‭held accountable for their global human rights impact.‬ ‭The failure of sufficient policies regarding human rights and CSR laws in a real-world‬ ‭application is evident in the Bangladesh Rana Plaza building collapse in 2013.‬‭433‬ ‭This incident‬ ‭claimed over 1,000 workers and exposed the true violations, brands complicit participation “in‬ ‭the creation of an environment that ultimately led to the deaths and maiming of thousands of‬ ‭individuals.”‬‭434‬ ‭The eight-story building was known‬‭to have had large structural cracks but the‬ ‭garment factory workers were ordered to return to work, which led to the subsequent collapse of‬ ‭the building and death of over 1000 people. The worldwide attention of this horrific event‬ ‭opened up many people’s eyes to the detriments of human rights violations and how companies‬

‭432‬

‭U.S. Department of State. “Guidance on Implementing the UN Guiding Principles for Transactions Linked to‬ ‭ oreign Government End-Users for Products or Services with Surveillance Capabilities.” U.S. Department of State,‬ F ‭2020.‬ ‭433‬ ‭Stauffer, Brian. “World Report 2020: Rights Trends‬‭in Holding Companies to Account: Momentum Builds for‬ ‭Corporate Human Rights Duties.” Human Rights Watch, January 14, 2020.‬ ‭https://www.hrw.org/world-report/2020/country-chapters/global-2.‬ ‭434‬ ‭Stauffer, Brian. “World Report 2020: Rights Trends‬‭in Holding Companies to Account: Momentum Builds for‬ ‭Corporate Human Rights Duties.” Human Rights Watch, January 14, 2020.‬ ‭https://www.hrw.org/world-report/2020/country-chapters/global-2.‬

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‭rarely take accountability unless irrefutable evidence exposes their direct link. This public‬ ‭scrutiny exposed the denials of companies to compensate those who were injured and the lives‬ ‭lost. Many businesses feel complicit to do the bare minimum and stay blind to the violations‬ ‭happening within their supply chain as long as the profits and benefits outweigh the cost of‬ ‭adhering to CSR compliance. This is possible because the laws and regulations of today do not‬ ‭have the enforceability nor strict regulations necessary to ensure steps towards compliance are‬ ‭taken. Although past regulations intend to support organizations to outroot labor abuses,‬ ‭transparency is not enough to remedy the issue at hand.‬ ‭In recent years, many nations have passed laws regarding corporate human rights abuse.‬ ‭France’s Duty of Vigilance Act was passed in 2017 to “hold French companies accountable for‬ ‭human rights violations and environmental damage caused by their subsidiaries, suppliers, or‬ ‭service providers.”‬‭435‬ ‭This encompassing law sets a‬‭high standard for companies, not only‬ ‭demanding transparency through publishing their diligence plans throughout their supply chains‬ ‭but also setting specific, enforceable requirements that have penalties and liabilities that make‬ ‭companies accountable. Parent companies are held liable and are subject to sanctions if they do‬ ‭not conduct thorough due diligence throughout their subsidiaries, suppliers, and service‬ ‭providers, adopt vigilance plans to mitigate possible harm to human rights, report and remedy‬ ‭human rights violations as well as implement a committee responsible for all the implementation‬ ‭and execution of it. Laws such as France’s make set specific requirements and actionable‬ ‭consequences where workers can hold their companies accountable allowing for more employee‬ ‭protections in the workplace.‬

‭435‬

‭FRDM. “France Duty of Diligence Act.” France Duty‬‭Of Diligence Act. Accessed December 5, 2024.‬ h‭ ttps://www.frdm.co/france-duty-of-diligence-act#:~:text=The%20French%20Duty%20of%20Vigilance,%2C%20su‬ ‭ppliers%2C%20or%20service%20providers.‬

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‭These studies and the current government landscape regarding human rights and CSR‬ ‭laws illustrate the urgent need for a clear gap in guidelines and policies the government has in‬ ‭place for human rights and the lack of enforcement penalties. To ensure that CSR standards are‬ ‭uniformly applied and respected throughout all subsections of supply chains within a business‬ ‭enterprise, preventative measures and liability must be established through concrete laws that are‬ ‭enforceable with penalties. Preventing big businesses from exploiting workers through loopholes‬ ‭and lax guidelines is insufficient in protecting people’s human rights within the operations of‬ ‭corporations. Implementing comprehensive federal legislation that mandates CSR compliance‬ ‭within all businesses, with defined metrics for standards and steps necessary to ensure it is‬ ‭implemented, will make achieving business human rights a more accountable framework. The‬ ‭transition from voluntary compliance to strict mandatory policies through government‬ ‭intervention and monitoring is necessary for these businesses to uphold their best practices. Not‬ ‭only is transparency something that should be encouraged through U.S. guidelines and tools, but‬ ‭initiatives, remedies, and provisions for the abuses should be required. Forced labor and unsafe‬ ‭working conditions are common human rights violations that can fall to neglect in large business‬ ‭operations. It is up to the governmental provisions and laws to ensure that, similar to French‬ ‭Legislation, rules and regulations are up to code and plans are in place if such a situation occurs.‬ ‭This mitigates the possibility of abuses and extends liability to upper-level management to ensure‬ ‭that they are made aware of the ongoing conditions of their business. A comprehensive act where‬ ‭inspections are standard, transparency is required, and businesses are accountable for their‬ ‭actions towards their employees encourages an ethical business environment.‬ ‭Given the inadequacies identified through a thorough investigation of the current‬ ‭legislative framework of Corporate Social Responsibility legislation, the government must pass‬

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‭and enforce effective reforms of human rights laws relating to business operations. The case‬ ‭studies of the evident failure of the current system as well as a dive into the possible success of a‬ ‭stringent act, the French Diligence Act, it is clear that there must be an introduction to legislation‬ ‭that transitions from guiding principles on CSR to mandatory standards and provisions providing‬ ‭accountability concerning all levels of business.‬

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‭FROM CIVIL INFRACTION TO CRIMINAL OFFENSE: THE ESCALATION OF‬ ‭IMMIGRATION REGULATION IN UNITED STATES LAW POST WORLD WAR II‬ ‭WRITTEN BY ALICE MEROLLI | EDITED BY DEV PATEL‬ ‭Introduction‬ ‭The United States’s transition into world power status following the World Wars led to an‬ ‭increased flow of immigrants, eventually causing a drastic shift in immigration policies. While‬ ‭limits on immigration were seen as early as 1882 with the Chinese Exclusion Act, the 1920s saw‬ ‭the beginnings of criminalizing certain types of immigration along with unprecedented limits on‬ ‭legal immigration opportunities.‬‭436‬ ‭The Emergency Quota‬‭Act of 1921 established a precedent of‬ ‭quotas based on immigrants’ home countries, allowing for the entry of only three percent of each‬ ‭country’s immigrant population from the 1890 Census.‬‭437‬ ‭The Undesirable Aliens Act of 1929,‬ ‭better known as Blease’s Law, initiated the first act of immigration criminalization, deeming the‬ ‭act of “unlawfully entering the country” a misdemeanor.‬‭438‬ ‭These two fundamental acts paved the‬ ‭way for restrictive immigration policies caused by the refugee crisis after World War II, instilling‬ ‭a hostile political perception towards all immigrants. The post-World War II refugee crisis‬ ‭catalyzed a profound shift in U.S. immigration policies as concerns over shifting demographics,‬ ‭national security, and economic stability drove the criminalization of migration,‬ ‭disproportionately impacting minority communities while simultaneously creating resistance to‬ ‭open-border policies.‬

‭The Refugee Crisis and the Fight for the Prioritization of Americans‬ ‭436‬

‭National Archives, “Chinese Exclusion Act (1882),”‬‭Milestone Documents.‬ ‭https://www.archives.gov/milestone-documents/chinese-exclusion-act.‬ ‭437‬ ‭A Brief History of Civil Rights in the United States:‬‭Historical Overview - Immigration." Howard University‬ ‭School of Law Review.‬‭https://library.law.howard.edu/civilrightshistory/immigration/history‬‭.‬ ‭438‬ ‭Little, Becky. 2019. “How Border-Crossing Became‬‭a Crime in the United States.” HISTORY,‬ ‭(July).https://www.history.com/news/illegal-border-crossing-usa-mexico-section-1325.‬

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‭The tragedies of World War II forced unprecedented numbers of people to flee their home‬ ‭countries, with many looking to the United States as a haven for democracy. In 1948, congress‬ ‭passed the Displaced Persons Act, issuing 400,000 visas to protect world citizens forced to leave‬ ‭their home countries due to fascist regimes. A strong preference was given to individuals with‬ ‭scientific or technological skills, ensuring that the refugees entering the country would advance‬ ‭progress.‬‭439‬ ‭The McCarran-Walter Act, also known as‬‭the Immigration and Nationality Act of‬ ‭1952, followed next, prioritizing authorized entry for family members of United States citizens‬ ‭and skilled workers. However, this act decreased the general immigration cap to 270,000‬ ‭immigrants annually, implementing targeted exclusions for migrants from communist countries.‬ ‭Domestically, the United States implemented the Bracero Program in 1942, aimed at‬ ‭mitigating damages in the agricultural sector from the deployment and casualties of United‬ ‭States rural workers fighting in the war.‬‭440‬ ‭The program‬‭allowed short-term contract laborers‬ ‭from Mexico, also called braceros, to work legally in the United States. This program sparked‬ ‭controversy, leading to attorney general Herbert Brownell Jr.’s creation of Operation Wetback in‬ ‭1954.‬‭441‬ ‭Aimed at lessening the presence of Mexican‬‭workers, who were perceived to be taking‬ ‭American jobs, this program campaigned for the mass deportation of Mexican migrants and‬ ‭punishment for American employers hiring Mexican immigrants. However, Brownell’s desire to‬ ‭punish employers was met with scrutiny, arguing that proving the employer’s knowledge of their‬ ‭workers’ immigration status would be difficult.‬ ‭Furthermore, these programs and policies demonstrate how the unprecedented influx of‬ ‭immigrants encouraged the United States towards stricter immigration policies in fear of the‬ ‭439‬

‭A Brief History of Civil Rights in the United States:‬‭Historical Overview - Immigration." Howard University‬ ‭School of Law Review.‬‭https://library.law.howard.edu/civilrightshistory/immigration/history‬‭.‬ ‭440‬ ‭Britannica, T. Editors of Encyclopaedia. "Bracero Program." Encyclopedia Britannica, September 9, 2021.‬ ‭https://www.britannica.com/event/Bracero-Program‬‭.‬ ‭441‬ ‭Funderburk, B. "Operation Wetback." Encyclopedia‬‭Britannica, July 25, 2024.‬ ‭https://www.britannica.com/topic/Operation-Wetback‬‭.‬

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‭detracting of resources from American citizens. To remove racial preferences within immigration‬ ‭quotas, the Immigration and Nationality Act Amendments were passed in 1965, eliminating‬ ‭specific racial preferences yet assigning a much higher quota of immigrants to the Eastern‬ ‭Hemisphere than the Western Hemisphere.‬‭442‬ ‭This Act,‬‭however, perpetuated ethnically‬ ‭motivated limitations on immigration, demonstrating the intense focus on controlling the ethnic‬ ‭makeup of the United States population.‬ ‭Criminalization of Immigrants After the 1996 Immigration Laws‬ ‭The 1980s saw a wave of highly restrictive immigration‬‭policies, increasing the gravity of‬ ‭illegal entry. One of the most influential immigration acts that caused the criminalization of‬ ‭immigration seen today is the 1988 Anti-Drug Abuse Act.‬‭443‬ ‭Immigration's importance also‬ ‭stems from creating the “aggravated felony” charge. This legislation extensively targeted the‬ ‭deportation of drug traffickers, criminals, and those suspected of involvement with the drug trade‬ ‭at the border. In 1996, two acts expanded the definition of an aggravated felony, centering it‬ ‭around the unauthorized crossing of the border and catalyzing the policing programs enacted in‬ ‭the 1990s and early 2000s. The 1996 Antiterrorism and Effective Death Penalty Act, or AEDPA,‬ ‭combined law enforcement with immigration regulation organizations. The mixing of institutions‬ ‭caused an immense increase in mass incarceration and changed the handling of deportation court‬ ‭hearings.‬‭444‬ ‭The Illegal Immigration Reform and Immigrant‬‭Responsibility Act, or IIRIRA,‬ ‭caused the most significant shift towards the criminalization of immigration. The 287(g)‬ ‭program, first established by IIRIRA, created a series of collaboration systems between law‬ ‭442‬

‭A Brief History of Civil Rights in the United States:‬‭Historical Overview - Immigration." Howard University‬ ‭School of Law Review.‬‭https://library.law.howard.edu/civilrightshistory/immigration/history‬ ‭443‬ ‭United States. Congress. House. H.R.5210 - Anti-Drug‬‭Abuse Act of 1988. 100th Congress (1987-1988).‬ ‭Introduced September 14, 1988. https://www.congress.gov/bill/100th-congress/house-bill/5210.‬ ‭444‬ ‭Abrego, Leisy, Mat Coleman, Daniel E. Martínez, Cecilia‬‭Menjívar, and Jeremy Slack. "Making Immigrants into‬ ‭Criminals: Legal Processes of Criminalization in the Post-IIRIRA Era." Journal on Migration and Human Security‬ ‭5, no. 3 (2017): 694–715.‬‭https://doi.org/10.1177/233150241700500308‬‭.‬

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‭enforcement and Immigration Customs Enforcement, ICE. The 287(g) program under IIRIRA‬ ‭was a jumpstart towards a push for stronger deportation policies caused by the concern of foreign‬ ‭influence on the United States.‬ ‭The War on Terrorism and Modern Political Climate Surrounding Immigration‬ ‭The terrorist attacks on September 11th, 2001, exponentially increased anti-immigration‬ ‭sentiments, causing the push for restrictive border policies and increased punishment for illegal‬ ‭immigration. Immigrants from minority groups, especially those of Hispanic and Middle Eastern‬ ‭ethnicity, became extreme targets of the 2001 U.S.A. The Patriot Act was passed under the Bush‬ ‭administration. Section 412 of the Patriot Act increased resources towards the speedy removal of‬ ‭“certified aliens” whom the Attorney General believed to be an endangerment to society.‬‭445‬ ‭To‬ ‭avoid extensive detention, the Attorney General had instructions to either proceed with removing‬ ‭the immigrant or charge them with a criminal offense. The Patriot Act’s infringement on privacy‬ ‭rights led to multiple lawsuits, one of which resulted in the case of‬‭Raza et al. v. City of New‬ ‭York‬‭. The district court case determined that NYPD’s‬‭use of surveillance, invading Mosques,‬ ‭raiding small businesses, and mass deporting Muslim immigrants over minor visa violations‬ ‭constituted unlawful surveillance.‬‭446‬ ‭Additionally, efforts towards speedy mass deportation also diminished the legal processes‬ ‭needed to ensure constitutionally just court hearings for undocumented immigrants. Started by‬ ‭Homeland Security, the 2005 Operation Streamline program aimed at making deportation court‬ ‭hearings at the border faster to ensure more undocumented immigrants would not be able to flee‬ ‭the Border Patrol. However, the program led to exceedingly unfair trials without due process,‬ ‭445‬

‭Sinnar, Shirin. “Patriotic or Unconstitutional? The‬‭Mandatory Detention of Aliens under the USA Patriot Act.”‬ ‭Stanford Law Review‬‭55, no. 4 (2003): 1419–56. http://www.jstor.org/stable/1229608.‬ ‭446‬ ‭​Justia US Law.‬‭Raza et al. v. City of New York‬‭.‬‭United States District Court for the Eastern District of New York,‬ ‭Case No. 1:2013cv03448.‬ ‭https://law.justia.com/cases/federal/district-courts/new-york/nyedce/1:2013cv03448/343886/28/‬‭.‬

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‭forcing criminal convictions onto people without the proper opportunity to defend themselves,‬ ‭often trying up to seventy immigrants at a time.‬‭447‬ ‭The Supreme Court case of‬‭Moncrieffe v.‬ ‭Holder‬‭demonstrated the harms of the aggravated felony charge. A legal immigrant, charged as‬ ‭an aggravated felon under the Immigration and Nationality Act for the misdemeanor charge of‬ ‭distributing 1.3 grams of marijuana, brought the decision that non-citizens cannot be tried as‬ ‭aggravated felons for drug offenses that the state defines as misdemeanors.‬‭448‬ ‭The case‬ ‭determined that minor offenses such as drug crimes must follow a categorical approach,‬ ‭analyzing the charge put on the state’s regulations on drugs. Executive Orders were used during‬ ‭Donald Trump’s presidency, increasing ICE resources for the deportation of undocumented‬ ‭immigrants, disregarding priorities based on criminal record, and targeting Hispanic immigrants.‬ ‭Conclusion‬ ‭Since World War II, the population makeup of the United States has significantly altered.‬ ‭Following the refugee crisis, people fleeing violence looked for a country that would grant them‬ ‭stronger democratic protection, leading to a massive inflow of immigration within the United‬ ‭States. This event was met with concern over the impact this would have on American workers,‬ ‭supplies, and opportunities, creating a chain reaction of opposition to immigration. Through the‬ ‭criminalization of “illegal entry,” immigration policies villainized migrants from a racial‬ ‭standpoint, which would continue to be seen through the attack on Middle Eastern immigrants‬ ‭following the tragedy of 9/11. The political push towards isolationist America First policies has‬ ‭led to the continued mass deportation of immigrants along with the racial, ethnic, and religious‬ ‭targeting of immigrant populations.‬

‭447‬

‭Abrego, Leisy, Mat Coleman, Daniel E. Martínez, Cecilia Menjívar, and Jeremy Slack. "Making Immigrants into‬ ‭ riminals: Legal Processes of Criminalization in the Post-IIRIRA Era." Journal on Migration and Human Security‬ C ‭5, no. 3 (2017): 694–715.‬‭https://doi.org/10.1177/233150241700500308‬‭.‬ ‭448‬ ‭Moncrieffe v. Holder, 569 U.S. 184 (2013)‬

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‭FAULTY FACIAL RECOGNITION SYSTEMS: THE EMERGENCE OF‬ ‭TECHNO-RACISM‬ ‭WRITTEN BY MADISON LAW | EDITED BY DEV PATEL‬ ‭Introduction‬ ‭As artificial intelligence and software systems advance, the embedding of racial bias‬ ‭within algorithms has become a contemporary form of systemic oppression. Digital technologies‬ ‭employed by government agencies and private companies can inadvertently discriminate against‬ ‭people of color, positioning techno-racism as a critical threat to civil rights.‬‭449‬‭The term‬ ‭“techno-racism” was first coined when “a member of a Detroit civilian police commission used it‬ ‭to describe glitchy facial recognition systems that confused Black faces.” Since then, racist‬ ‭systems have not only manifested within the digital areas of government and the police force but‬ ‭also when using risk assessment tools and processing unemployment benefits. This bias is often‬ ‭implicit, and its insidiousness comes with the belief that technology is inherently objective.‬ ‭Instead, it is formed by racial, gender, ethnic, and other minority inequalities that have evolved‬ ‭for hundreds of years. When racist data is left unchecked, it is mistaken for truth. With the‬ ‭emergence of techno-racism, the U.S. government must address bias in software development,‬ ‭beginning with facial recognition systems, by promoting inclusion and implementing proactive‬ ‭assessments in design.‬ ‭Racial Bias in Police Facial Recognition‬ ‭The use of facial recognition in U.S. police forces serves to perpetuate racial bias,‬ ‭playing a key role in police discrimination against Black individuals.‬‭450‬ ‭A "neural network"‬ ‭449‬

‭CNN. "Techno-Racism: How Technology Can Reinforce‬‭Racial Bias."‬‭CNN‬‭, May 9, 2021.‬ ‭https://www.cnn.com/2021/05/09/us/techno-racism-explainer-trnd/index.html.‬ ‭450‬ ‭CAPTECH. "Understanding and Combating Techno-Racism."‬‭CapTech Consulting‬‭, 2021.‬ ‭https://www.captechu.edu/blog/understanding-and-combatting-techno-racism.‬

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‭system in artificial intelligence can learn tasks that engineers cannot directly code, but it is prone‬ ‭to errors if trained on biased data. For instance, a content moderation system designed to filter‬ ‭pornography was trained with biased data – white-dominated G-rated images and pornography‬ ‭with fewer white individuals. As a result, the system mistakenly identified Black people as‬ ‭pornographic. This highlights the importance of carefully selecting training data as biased‬ ‭training data, often chosen by predominantly white teams, led to these issues.‬‭451‬ ‭Additionally,‬ ‭the National Institute of Standards and Technology tests found that “facial recognition‬ ‭technology generally performs better on lighter-skin men and worse on darker-skin women, and‬ ‭does not perform as well on children and elderly adults.” These discrepancies in identification‬ ‭systems can lead to a more frequent misidentification for specific demographics, such as‬ ‭individuals from marginalized racial or ethnic backgrounds. They may be more likely to be‬ ‭falsely flagged as shoplifters when their images are compared to a database of known offenders.‬ ‭This is because the algorithm may not accurately recognize features, such as darker skin, as‬ ‭mentioned prior, common to these groups, leading to biased outcomes. These misidentifications‬ ‭would only reinforce systemic injustice, resulting in disproportionate false accusations of‬ ‭criminal activity against oppressed groups, which may escalate to wrongful arrests or‬ ‭confrontations with law enforcement and an increase in instances of police brutality.‬ ‭Racial Bias in Software Across Diverse Fields‬ ‭Bias in software systems continues beyond the government level. In some states, facial‬ ‭recognition reduces fraud when processing unemployment benefits. Applicants must upload‬ ‭verification documentation, including a photo. Their images are matched against a database to‬ ‭verify their identity. This system is inherently flawed. Mutale Nkonde, founder of AI For the‬ ‭451‬

‭GAO. "Facial Recognition Technology: Agencies Should‬‭Strengthen Policies and Procedures for Testing and‬ ‭ valuating Technology." U.S. Government Accountability Office, Report GAO-20-522, 2020.‬ E ‭https://www.gao.gov/products/gao-20-522.‬

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‭People, states, “Commercial facial recognition technologies used by Amazon, IBM, and‬ ‭Microsoft are 40% inaccurate when identifying Black people.” This will only lead to Black‬ ‭individuals being accused, more often than their white counterparts, of attempting to commit‬ ‭fraud as they are more commonly misidentified, which could result in potential criminalization.‬ ‭Flawed, racist software is also seen in risk assessment tools used explicitly by online lenders to‬ ‭determine their rates for loan applicants.‬‭452‬ ‭A 2019‬‭study by UC Berkeley researchers found that‬ ‭mortgage algorithms show the same bias toward Black and Latino borrowers as human loan‬ ‭officers. It found that bias costs people of color up to half a billion dollars more in interest every‬ ‭year than white applicants. This bias only perpetuates systemic financial inequalities and‬ ‭exacerbates discrimination that bars these populations from economic opportunities, reinforcing‬ ‭racist structures such as redlining. Homeownership has been a historic obstacle for Black and‬ ‭Latino individuals, and these digital elements only further bar them from breaking from‬ ‭generational poverty.‬ ‭Combatting Techno-Racism‬ ‭To properly tackle bias in software developments, it’s imperative to understand that tech‬ ‭developers do not have to be racist to program inherently racist systems.‬‭453‬ ‭Societal norms,‬ ‭personal beliefs, and stereotypes are all factors that contribute to “the initial planning and design‬ ‭to the testing and deployment.”‬‭454‬ ‭Bias can form from‬‭the presence of racism and the absence of‬ ‭diverse representation and inclusion. When development teams fail to reflect the diversity of‬ ‭their users, there is a lack of consideration of certain needs and perspectives. If a team of‬

‭452‬

‭Berkley. "Mortgage Algorithms Perpetuate Racial‬‭Bias in Lending, Study Finds."‬‭UC Berkeley News‬‭, November‬ ‭13, 2018.‬‭https://news.berkeley.edu/2018/11/13/mortgage-algorithms-perpetuate-racial-bias-in-lending-study-finds/‬‭.‬ ‭453‬ ‭Nagarro. "Breaking Barriers: Unveiling Hidden Biases‬‭in Software Development."‬‭Nagarro Blog‬‭, 2020.‬ ‭https://www.nagarro.com/en/blog/breaking-barriers-unveiling-hidden-biases-in-software-development#:~:text=In%2‬ ‭0 order%20to%20address%20and,algorithms%20used%20in%20software%20development.‬ ‭454‬ ‭Nagarro. "Breaking Barriers: Unveiling Hidden Biases‬‭in Software Development."‬‭Nagarro Blog‬‭, 2020.‬ ‭https://www.nagarro.com/en/blog/breaking-barriers-unveiling-hidden-biases-in-software-development#:~:text=In%2‬ ‭0 order%20to%20address%20and,algorithms%20used%20in%20software%20development.‬

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‭developers is predominantly white, for example, they may inadvertently “prioritize features or‬ ‭designs that align with their own experiences, inadvertently excluding others,” such as‬ ‭developers coding AI assistants like Siri only to detect stereotypically white characteristics.‬‭455‬ ‭Developers who are predominantly white may unconsciously design these systems to prioritize‬ ‭features that are familiar to them. Aspects such as voices, accents, and speech patterns are‬ ‭common‬ ‭Their demographic group becomes universal despite this being far from the case. This can result‬ ‭in AI assistants that struggle to accurately understand or respond to individuals with different‬ ‭accents, dialects, or speech patterns, including those of Black people, people with non-native‬ ‭English speakers, or people with regional accents. This oversight disproportionately affects‬ ‭marginalized communities, who may experience frustration when the technology consistently‬ ‭fails to recognize their commands or requests. Advocating for policies and regulations is a way‬ ‭to keep bias in technology accountable within institutions. By establishing legal frameworks that‬ ‭require diversity and inclusion in technological industries and government, we can provide‬ ‭safeguards against discriminatory practices and ensure each user from all backgrounds is met.‬ ‭Conclusion‬ ‭As artificial intelligence and software development advances, racial bias in algorithms‬ ‭becomes increasingly prevalent. These biases are easy to overlook as they reflect the inherent‬ ‭racial, ethnic, gender, etc, perpetuated by outdated societal norms, stereotypes, and the lack of‬ ‭diverse representation in the development process. From facial recognition technology used by‬ ‭law enforcement to flawed risk assessment tools and facial recognition in unemployment benefit‬ ‭processing, the implications of biased algorithms are seen in various institutions. They‬ ‭455‬

‭Nagarro. "Breaking Barriers: Unveiling Hidden Biases in Software Development."‬‭Nagarro Blog‬‭, 2020.‬ h‭ ttps://www.nagarro.com/en/blog/breaking-barriers-unveiling-hidden-biases-in-software-development#:~:text=In%2‬ ‭0 order%20to%20address%20and,algorithms%20used%20in%20software%20development.‬

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‭disproportionately affect marginalized groups, leading to unjust outcomes such as wrongful‬ ‭accusations, increased police brutality, and financial, specifically housing, discrimination. While‬ ‭developers often do not explicitly project internalized biases into their programs, it results from a‬ ‭lack of diversity in tech teams, as developers not representative of the communities their‬ ‭products serve may fail to consider or understand the needs of minority groups. To prevent the‬ ‭spread of further oppression in these groups, Congress needs to establish universal guidelines‬ ‭that promote fairness, transparency, and accountability within the tech industry. If corporations‬ ‭and governments were to foster diversity in every aspect of software development, it would‬ ‭begin to minimize bias and foster truly equitable spaces.‬

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‭A LEGAL VOID: EXPANDING FRAMEWORKS TO PROTECT‬ ‭CLIMATE-DISPLACED POPULATIONS‬ ‭WRITTEN BY VERA AHLUWALIA | EDITED BY DEV PATEL‬

‭Introduction: Climate Refugees in a Legal Limbo‬ ‭Climate change poses an escalating global challenge, displacing millions of people‬ ‭annually. Despite their growing numbers, “climate refugees” lack recognition under‬ ‭international law, leaving them vulnerable and unprotected. However, the 1951 Refugee‬ ‭Convention, a cornerstone of refugee protection, excludes those fleeing climate-induced‬ ‭displacement. Expanding the 1951 Refugee Convention to include climate-induced‬ ‭displacement and adopting binding international resolutions is critical to addressing this crisis.‬ ‭A comprehensive approach combining international and domestic legal frameworks can bridge‬ ‭existing gaps, protect vulnerable populations, and advance climate justice globally.‬ ‭The Climate Crisis and Migration‬ ‭The human population has undoubtedly affected the climate of Earth. There has been a‬ ‭rise in the Earth’s average surface temperature by about 1.2 degrees Celsius above pre-industrial‬ ‭levels since then, which might seem small but means a significant increase in accumulated‬ ‭heat.‬‭456‬ ‭This increase in temperature is driving regional‬‭and seasonal temperature extremes,‬ ‭reducing snow cover and sea ice, heavy rainfall, and changing habitat ranges.‬‭457‬‭The rapidly‬ ‭melting Arctic ice and rising sea levels increase the risk of violent floods, extreme temperatures,‬

‭456‬

‭Lindsey, Rebecca, and LuAnn Dahlman. 2024. “Climate‬‭Change: Global Temperature | NOAA Climate.gov.”‬ ‭Climate.gov. https://www.climate.gov/news-features/understanding-climate/climate-change-global-temperature.‬ ‭457‬ ‭“Arctic Ice Melt Is Changing Ocean Currents – Climate‬‭Change: Vital Signs of the Planet.” 2020. Climate‬ ‭Change.‬‭https://climate.nasa.gov/news/2950/arctic-ice-melt-is-changing-ocean-currents/.‬

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‭and unstab‬‭le weather plans that impact food production and increase severe natural disasters like‬ ‭storms, droughts, heatwaves, hurricanes, and floods that damage communities and global‬ ‭ecosystems.‬ ‭One significant consequence of these climate impacts is the rise of climate‬ ‭refugees—“people who must leave their homes and communities because of the effects of‬ ‭climate change and global warming.” In 2022, the U.N. reported that the percentage of refugees‬ ‭from areas at risk due to climate change had increased from 61% in 2010 to 84% in 2022.‬‭458‬‭By‬ ‭2050, the climate crisis could displace more than 20‬‭0 mil‬‭lion people.‬‭4‬ ‭For many, migration is a gradual process, beginning with internal displacement‬ ‭within their home country, known as “stepwise migration.”‬‭459‬‭Migration can be expensive,‬ ‭and the majority affected are lower-income and lack the resources to move. Thus, the most‬ ‭common response to environmental stress is not to move far away immediately but first to a‬ ‭nearby location within their nation, like a larger town or city.‬‭460‬‭However, migration to nearby‬ ‭urban centers or regions does not offer long-term solutions. Eventually, they will have to‬ ‭cross international borders. This is why it is crucial now more than ever to help create legal‬ ‭frameworks for climate refugees as their numbers increase.‬ ‭Current Legal Frameworks and Their Limitations‬ ‭Despite the increasing scale of climate-induced displacement, there is no legal‬ ‭precedent for how displaced people may migrate internationally. The 1951 Refugee Convention‬

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‭“Environmental Refugee.” 2024. National Geographic‬‭Education.‬ ‭https://education.nationalgeographic.org/resource/environmental-refugee/.‬ ‭459‬ ‭Paul, Anju M. 2011. “Stepwise International Migration:A‬‭Multistage Migration Pattern For the Aspiring‬ ‭Migrant.”‬‭A‭m ‬ erican Journal of Sociology‬‭116, no. 6‬‭(May): 2092.‬ ‭460‬ ‭“The ‘inconvenient truth’ of future mixed migration:‬‭Climate change, mobility, and legal voids.” 2020. Mixed‬ ‭Migration Centre. https://perma.cc/4GPZ-94ER.‬

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‭and the 1967 Protocol Relating to the Status of Refugees are the only binding international‬ ‭treaties that define the legal status of refugees and address their rights. The convention defines‬ ‭a refugee as “a person, who owing to a well-founded fear of being persecuted for reasons of‬ ‭race, religion, nationality, membership of a particular social group, or political opinion, is‬ ‭outside the country of his nationality and is unable or, owing to such fear is unwilling to avail‬ ‭himself of the protection of that country.”‬‭461‬‭Thus,‬‭the 1951 Convention’s definition of a‬ ‭refugee excludes those displaced by environmental factors. Furthermore, climate refugees are‬ ‭excluded from the protection under the core principle of the 1951 Convention,‬ ‭non-refoulement. The principle asserts that “No Contracting State shall expel or return a‬ ‭refugee in any manner whatsoever to the frontiers of territories where his life or freedom would‬ ‭be threatened on account of his race, religion, nationality, membership of a particular social‬ ‭group, or political opinion.” Since climate change is not recognized as a basis for persecution‬ ‭under the Convention, climate refugees can be returned to an environmentally vulnerable place.‬ ‭The landmark case of Teitora v. New Zealand in 2020 exposed the limitations of the 1951‬ ‭Convention regarding climate-induced displacement.‬‭462‬‭In 2013, Ioane Tietoita, a citizen of‬ ‭Kiribati—a central Pacific Island nation at risk of losing its land because of rising sea‬ ‭levels—applied for refugee status in New Zealand, arguing that climate change's effects on‬ ‭Kiribati are forcing him and other citizens off the island. The New Zealand Supreme Court‬ ‭found that he did not qualify for refugee status under the 1951 Convention because he was not‬ ‭subjected to persecution. In 2016, Teitoita filed a communication with the UN Human Rights‬

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‭UNHCR. 1951. “Convention and Protocol Relating to‬‭the Status of Refugees.” UNHCR.‬ ‭https://www.unhcr.org/sites/default/files/legacy-pdf/3b66c2aa10.pdf.‬ ‭462‬ ‭“Ioane Teitiota v. The Chief Executive of the Ministry‬‭of Business, Innovation and Employment.” 2015. Climate‬ ‭Case Chart.‬ ‭https://climatecasechart.com/non-us-case/ioane-teitiota-v-the-chief-executive-of-the-ministry-of-business-innovatio‬ ‭n‬

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‭Committee, claiming that New Zealand violated his right to life by forcing him to return to‬ ‭Kiribati. No violation was found as there was no “imminent threat” to his life. However, the‬ ‭Committee acknowledged that “the effects of climate change in receiving states may expose‬ ‭individuals to violating their rights ..., thereby triggering the non-refoulement obligations of‬ ‭states.” This decision marked a significant step in recognizing the human rights implications of‬ ‭climate change, as it recognized that nations have a non-refoulement obligation prohibiting them‬ ‭from returning individuals to a country where climate change could deprive them of the “right to‬ ‭life.” It also argues that the slow-onset effects of climate change—‬‭like rising sea levels,‬ ‭desertification, and land degradation—‬‭must be considered‬‭when evaluating refugee claims.‬ ‭However, the Committee also emphasized that Teitiota's risks must be personal and immediate.‬ ‭The ruling limited the protection of climate refugees by setting a high bar for “imminent‬ ‭harm” and focusing on personal risks rather than broader environmental conditions. It was‬ ‭emphasized that Teitota’s risks must be personal and not due to general conditions in Kiribati‬ ‭like overcrowding or violence. However, this approach overlooks that climate change often‬ ‭amplifies existing societal problems—like overcrowding and violence—creating‬ ‭interconnected threats to vulnerable communities. The decision makes it significantly harder‬ ‭for such communities to meet the protection standards under current frameworks by failing to‬ ‭account for this relationship.‬ ‭Expanding the 1951 Refugee Convention‬ ‭Expanding the 1951 Refugee Convention is the most effective step toward integrating‬ ‭climate-induced displacement into international law. This would create an international legal‬ ‭framework for aiding climate refugees and encourage nations to develop complementary‬ ‭domestic legal frameworks. Legal scholar Caitlan M. Sussman highlights two existing‬

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‭regional agreements that offer models for this expansion.‬‭463‬‭The 1969 Convention Governing‬ ‭the Specific Aspects of Refugee Problems in Africa (OAU Convention) protects individuals‬ ‭displaced by‬ ‭“events seriously disturbing public order,” while the 1984 Cartagena Declaration on Refugees‬ ‭includes those whose “lives, security, or freedom have been threatened by … other‬ ‭circumstances which have seriously disturbed public order.” These agreements broaden the‬ ‭scope of refugee protections, allowing individuals displaced by slow-onset climate effects—like‬ ‭famine exacerbated by climate change—to qualify for protection. Notably, the OAU‬ ‭Convention’s definition of a refugee allows those internally displaced to be eligible for refugee‬ ‭status, addressing the reality of stepwise migration. Adopting a similar definition in the 1951‬ ‭Refugee Convention would significantly strengthen protections for climate-displaced‬ ‭individuals.‬ ‭Another way to expand the 1951 Refugee Convention is to leverage existing regional‬ ‭organizations—like the African Union and the Association for Southeast Asian Nations—to‬ ‭address climate-related displacement, as legal scholar Angela Williams argued.‬‭464‬‭These‬ ‭organizations are well-positioned to provide localized solutions due to their understanding of‬ ‭regional dynamics. They could be hosted under the United Nations Framework Convention‬ ‭on Climate Change (UNFCCC) to create a system that ensures climate migrants worldwide‬ ‭are protected by action plans tailored specifically to their region.‬ ‭The Role of Domestic Legal Frameworks‬ ‭463‬

‭Sussman, Caitlan M. 2023. “A Global Migration Framework‬‭Under Water: How Can the International‬ ‭ ommunity‬‭Protect Climate Refugees?”‬‭Chicago Journal‬‭of International Law‬‭2, no. 1 (Winter).‬ C ‭https://cjil.uchicago.edu/online-archive/global-migration-framework-under-water-how-can-international-communit‬ ‭y‬‭-protect.‬ ‭464‬

‭WILLIAMS, A. (2008), Turning the Tide: Recognizing‬‭Climate Change Refugees in International Law. Law &‬ ‭Policy, 30: 502-52‬‭9. https://doi.org/10.1111/j.1467-9930.2008.00290.x‬

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‭Domestic solutions will also be vital in protecting climate refugees, as they can be more‬ ‭efficient than international solutions. For example, climate humanitarian visas allow nations to‬ ‭set criteria for granting protection to individuals displaced by climate change. Such programs‬ ‭enable host countries to respond quickly and effectively to specific migration needs without‬ ‭waiting for international consensus. However, this approach has its limitations, as each nation‬ ‭establishes its criteria, leading to inconsistent definitions of who qualifies as a climate‬ ‭refugee. New Zealand’s attempt at enacting this solution in 2018 highlights the potential and‬ ‭challenges in domestic solutions. New Zealand created a climate refugee visa program for‬ ‭Pacific Islanders displaced by the effects of climate change. However, the program was scrapped‬ ‭after 6 months because of one crucial reason—the Pacific Islanders didn't want the visas.‬ ‭Instead, they called on the New Zealand government to reduce emissions, support adoption‬ ‭efforts, and provide legal migration pathways before granting a form of legally protected status.‬ ‭Therefore, climate humanitarian visas only work when the people affected by climate change‬ ‭cooperate. Despite these challenges, establishing domestic frameworks remains essential as‬ ‭climate change worsens. Nations must prepare for the possibility that vulnerable populations‬ ‭may still need to migrate even with robust mitigation efforts.‬ ‭Conclusion: Towards a Global Consensus‬ ‭A multidisciplinary approach is essential to creating a system that upholds the rights of‬ ‭displaced populations in the face of escalating climate crises. Not only will governments,‬ ‭multilateral institutions, and NGOs be critical in addressing climate-induced migration, but also‬ ‭activists in ensuring that this issue is addressed and brought to the global stage. By bridging‬ ‭legal and policy gaps by expanding the 1951 Convention and domestic frameworks, the‬ ‭international community can uphold human rights, ensure climate justice, and prevent‬

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‭climate-induced migration.‬

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‭THE REGULATION OF THE TECH INDUSTRY AND THE INABILITY TO DO SO‬ ‭WRITTEN BY DEV PATEL | EDITED BY MEGHANA MADHAV‬ ‭Modern Tech‬ ‭Business regulation has been a cornerstone of American law and government since the‬ ‭nation's inception. It is clearly stated in Art. 1 Sec. 8 Cl.3 of the constitution: “[The Congress‬ ‭shall have Power] To regulate Commerce with foreign Nations, and among the several States,‬ ‭and with the Indian Tribes.” This responsibility has been interpreted in countless Supreme Court‬ ‭opinions, chiefly the landmark Marshall case,‬‭Gibbons‬‭v. Ogden‬‭. The‬‭Ogden‬‭decision explicitly‬ ‭outlines that through the legislature's power, the government has the right and responsibility to‬ ‭regulate business and commerce within the United States and any business activities involving‬ ‭the US. American law and governance have been regulating business practices to prevent‬ ‭monopolistic behavior that could enable corporations to amass concentrated economic power,‬ ‭leading to unfair pricing, stifled innovation, and restricted consumer choice. The framers‬ ‭believed such practices would undermine the foundation of a free market and individual liberty‬ ‭that they sought to establish in the new nation.‬‭465‬ ‭In recent years, this power has been delegated‬ ‭to a suite of executive agencies, namely the Federal Trade Commission and the Securities and‬ ‭Exchange Commission, with enforcement arms in the Department of Justice. This paper will‬ ‭explore the future of corporate regulation in the USA's newest primary industry, technology.‬ ‭The modern technology industry was born with the creation of the internet in the late 80s‬ ‭and the emergence of companies like Apple and Microsoft. The industry continues to experience‬ ‭exponential growth, starkly contrasting the decline seen in many other sectors across the United‬ ‭States. This rapid expansion and constant innovation and transformation have created an‬ ‭465‬

‭Winkler, Adam. 2018. We the Corporations: How American Businesses Won Their Civil Rights. First edition.‬ ‭New York, NY: Liveright Publishing Corporation, a Division of W.W. Norton & Company.‬

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‭increasingly complex environment for regulators to anticipate and effectively manage. The‬ ‭industry has also fundamentally altered life from consumerism communication to human‬ ‭psychology. Technology has found its way into every human life yet remains largely unregulated,‬ ‭leaving the largest and most influential American industry to its often disastrous devices. The‬ ‭most significant contributor to this paradox is that there is no underlying regulation of “Big‬ ‭Tech” due to aggressive lobbying by the industry and political desires that outweigh the need for‬ ‭regulation. That said, individual states have stepped in to fill this lack of oversight by the federal‬ ‭government and begun to regulate the companies that have long enjoyed free reign.‬ ‭On the Inability to Regulate:‬ ‭Regulation of companies and industries is accomplished in many ways, but almost all of‬ ‭these methods are done at the prerogative of Congress. Congress sets the legislation and‬ ‭resolutions that empower regulators to go after corporations for malfeasance and the standards‬ ‭that these regulators use to judge company action. Thus, it is Congress's inaction that results in‬ ‭the lack of regulation of the technology industry, and the causes of this inaction must be‬ ‭determined.‬‭466‬ ‭There are two significant reasons why‬‭Congress has yet to institute stricter rules‬ ‭on the tech industry: the prevalence of lobbying and pervasive pressure from political-economic‬ ‭factors.‬ ‭Lobbying is a divisive topic in American politics. Still, it can broadly be defined as when‬ ‭a group seeks to influence the actions of politicians via personal connections or legal transfer of‬ ‭monetary funds at the promise or threat of specific actions. Lobbying is pervasive in the daily‬ ‭conduct of Congress, and the tech industry has donated vast sums of money to congresspeople,‬

‭466‬

‭Center for American Progress, "Congress Must Take More Steps on Technology Regulation Before It Is Too‬ ‭Late,"‬‭Center for American Progress‬‭, last modified‬‭April 4, 2023,‬

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‭making them lobbyists with strong influence in both parties. In 2020, the industry spent about‬ ‭$106.2 million, more than double the $47.1 million it gave in 2018 and nearly three times the‬ ‭$37.7 million in 2016 contributions.‬‭467‬ ‭Most of this spending is concentrated on the left, as‬ ‭Democrats traditionally favor corporate regulation. Republicans are more swayed by other‬ ‭factors, such as foreign policy and economic growth.‬ ‭These corporate dollars are spread across many PACs, private donors, and funding for‬ ‭lobbying agencies, all of which funnel into the pockets of politicians as a way to sway them, if‬ ‭not towards deregulation and support, but more towards a neutral non-action. Non-action is key,‬ ‭as it’s the space where the industry thrives, enough basic labor and workplace safety regulations,‬ ‭as are present in all industries, to appear moral, and no industry-specific regulations to stunt‬ ‭growth and profit. These profits are not insignificant either; the industry brought in a‬ ‭record-breaking 1.5 trillion sector-wide, with median salaries averaging 90,000.‬‭468‬ ‭On the other hand, political-economic pressures can be understood as three ways the tech‬ ‭industry influences Congress without directly lobbying. This idea is substantially less formal‬ ‭than lobbying and more of a case of realist politics, in which the unregulated nature of the tech‬ ‭industry benefits Congress's popularity and political aspirations. One such example is social‬ ‭media, a sector of the tech industry that is the most public-facing and divisive. Social media has‬ ‭overturned everything in politics, and it's clear why. Suppose politicians want to gain or maintain‬ ‭a major office. In that case, they must be successful on social media, which puts a large amount‬ ‭of power into the hands of tech executives who run or are invested in social media companies. It‬

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‭OpenSecrets, "Industries: Computer & Internet,"‬‭OpenSecrets‬‭,‬‭accessed November 8, 2024,‬ ‭https://www.opensecrets.org/industries/indus?ind=B13‬‭.‬ ‭468‬ ‭Forbes Advisor, "Tech Industry Statistics and Facts: Overview,"‬‭Forbes Advisor‬‭, last modified September‬‭5,‬ ‭2023,‬‭https://www.forbes.com/advisor/education/it-and-tech/tech-industry-statistics-and-facts/‬‭.‬

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‭is reasonable to assume that congressional representatives are inclined to retain broad favor with‬ ‭the industry so that they don’t change or interfere with their political prospects.‬ ‭Furthermore, this interference is entirely legal due to the unregulated nature of social‬ ‭media, which many agree could be considered a conflict of interest. Social media had become a‬ ‭potent tool for politicians to use and abuse for their ends, even broad social change, as seen in‬ ‭2016, when Trump and the Republican party effectively used social media to swing traditional‬ ‭democrats and non-voters over to his conservative populist coalition. Trump’s aggressive usage‬ ‭of social media was facilitated by the inattentive approach taken by regulators in enforcing‬ ‭content moderation, allowing him to spread misinformation and inflame his base.‬‭469‬ ‭Another notable example of economic-political pressures is the economic value of an‬ ‭unregulated tech industry. The tech industry made, in profit, 1.5 trillion dollars last year and‬ ‭makes up 10% of the US economy.‬‭470‬ ‭The sector is proliferating‬‭and is set to become the US’s‬ ‭premier industry within the next few years due in part to its mostly unregulated nature.‬‭471‬ ‭The‬ ‭tech industry is also a primary driver of overall economic growth, thanks to high salaries and the‬ ‭development of support industries, such as how Google is rebuilding the nuclear energy sector to‬ ‭meet the power needs of its data centers. This, coupled with the current decline of the American‬ ‭economy, is a substantial reason for Congress to avoid regulations, lest they cause a market‬ ‭shock, as they did when the dot-com bubble popped. The recession brought about by the bubble‬ ‭was partly due to market expectations being shattered by an unexpected rate hike by the Federal‬ ‭Reserve and a signal by congressional leaders that they would move to regulate the burgeoning‬ ‭469‬

‭Centre for Economic Policy Research, "How Twitter Affected the 2016 Presidential Election," VoxEU, last‬ ‭modified October 15, 2018, https://cepr.org/voxeu/columns/how-twitter-affected-2016-presidential-election.‬ ‭470‬ ‭Statista, "Tech GDP as a Percent of Total GDP in Leading States in the U.S. from 2017 to 2022,"‬‭Statista‬‭,‬ ‭accessed November 8, 2024,‬ ‭https://www.statista.com/statistics/1239480/united-states-leading-states-by-tech-contribution-to-gross-‬ ‭471‬ ‭Forbes Advisor, "Tech Industry Statistics and Facts: Overview,"‬‭Forbes Advisor‬‭, last modified September‬‭5,‬ ‭2023,‬‭https://www.forbes.com/advisor/education/it-and-tech/tech-industry-statistics-and-facts/‬‭.‬

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‭tech industry to prevent another bubble. All this to say, the government is not inclined to regulate‬ ‭tech for a suite of reasons, but as the industry has grown and diversified, a need for regulation‬ ‭has become undeniable. This is where the states step in as they begin to assert their regulations‬ ‭on the booming tech industry, and perhaps there is room for the federal government to involve‬ ‭itself in regulation.‬ ‭A Template From the States:‬ ‭States have always maintained a certain level of regulatory power in the US. Generally,‬ ‭states can regulate anything explicitly granted to them or anything not explicitly regulated by the‬ ‭federal government within their borders. Since the federal government has taken such a‬ ‭hands-off approach to regulating the tech industry, this gives the states a certain amount of power‬ ‭to step in, often setting regulations that ripple out through the industry. That’s the fascinating‬ ‭thing about tech: it is so interconnected that one state can set specific rules blanketed all over the‬ ‭nation—for example, California, the home of many tech companies and the eponymous Silicon‬ ‭Valley.‬ ‭Since the early 2000s, California has been the leader in tech regulation; most recently, it‬ ‭has made great strides in data privacy and protection. In 2018, California passed the California‬ ‭Consumer Privacy Act (CCPA), which protects people’s right to know about the personal‬ ‭information a business collects about them and how it is used and shared; the right to delete‬ ‭personal information collected from them; the right to opt-out of the sale or sharing of their‬ ‭personal information.‬‭472‬ ‭In November 2020, California‬‭voters approved Proposition 24, the‬ ‭CPRA, which amended the CCPA and added new privacy protections that began on January 1,‬

‭472‬

‭California Office of the Attorney General. "California‬‭Consumer Privacy Act (CCPA)." Accessed November 29,‬ ‭2024. ‭h‬ ttps://oag.ca.gov/privacy/ccpa‬‭.‬

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‭2023. As of January 1, 2023, consumers have new rights in addition to those above, such as the‬ ‭right to correct inaccurate personal information that a business has about them and the right to‬ ‭limit the use and disclosure of sensitive personal information collected about them.‬‭473‬ ‭California is leading the fight to regulate what big tech companies can and can’t do with‬ ‭our data, and the effects of their actions are not localized but are felt all over the country. This‬ ‭“California effect” is due to the state's massive market and internal economy; it is often cheaper‬ ‭for tech companies to comply with California law on a national and even an international level‬ ‭than to cut out California or make separate ways of serving customers. We have seen this in the‬ ‭recent past in other ways; for example, in‬‭National‬‭Pork v. Ross,‬‭the Supreme Court upheld a‬ ‭similar “California Effect” with pork health regulations and resulted in the pork industry‬ ‭adopting the new higher health standards on a national level.‬‭474‬ ‭The question then becomes, why can states implement this regulation, and why can the‬ ‭federal government not? Simply put, it comes from the nature of states as generally politically‬ ‭homogeneous, even if they are not. In the US, there are only ten truly competitive states, with‬ ‭most states being solidly one party, which allows for a certain ease in passing policy. When local‬ ‭legislators have “safe seats,” they are insulated from pressures their federal counterparts face,‬ ‭allowing them to pass the policies they wish to pass. Although this system is flawed and has‬ ‭resulted in a very lopsided national representation, it does have benefits when addressing local‬ ‭policy concerns, especially when there is a demand from the voting base.‬

‭473‬

‭California Office of the Attorney General. "California Consumer Privacy Act (CCPA)." Accessed November 29,‬ ‭2024. ‭h‬ ttps://oag.ca.gov/privacy/ccpa‬‭.‬ ‭474‬ ‭Vox. "Supreme Court Sides with California in National Pork Producers Case." Last modified May 11,‬ ‭2023. ‭h‬ ttps://www.vox.com/politics/2023/5/11/23719825/supreme-court-pigs-california-national-pork-producers-ros‬ ‭s-neil-gorsuch‬‭.‬

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‭As America moves into a new age with AI and an even greater partisan divide in‬ ‭government, which impacts how easily the legislation can be implemented, states will likely lead‬ ‭the charge in regulation. Even if the enforcement of it is limited to their borders and people, the‬ ‭effects of it will be felt nationally through signaling effects and market capture. However, such‬ ‭similar effects require states to be major drivers of the economy or band together to form‬ ‭economic blocks. For example, states like California and New York can place such regulations‬ ‭due to their massive economic footprint, especially in tech and tech-adjacent industries. In‬ ‭contrast, states like New Jersey and Nevada cannot. In a broader range, however, states can‬ ‭-band together, as seen by Alabama, Alaska, Colorado, Connecticut, Florida, and many more,‬ ‭which have also instituted laws that prohibit or severely limit the publication and distribution of‬ ‭deepfakes and AI-generatedAI generated images.‬‭475‬ ‭In recent years, deepfakes and other forms of AI-generated misinformation have‬ ‭proliferated on social media, becoming a significant source of revenue for certain companies.‬ ‭They have run rampant on social media these past few years. They are also a major driver of‬ ‭profits for specific companies, like Open AI and Meta, whether directly through their creation or‬ ‭by the attention garnered on social media. This significant legislative move has stalled in‬ ‭Congress multiple times as social media companies generate large amounts of engagement from‬ ‭posts that use them. As previously stated, social media companies lobby the tech industry, often‬ ‭advocating for inaction. The blocked passage of bills has slowed or at the least made the‬ ‭production and distribution of deepfakes more transparent, making it more difficult to pass them‬ ‭along as facts online.‬

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‭National Conference of State Legislatures. "Artificial Intelligence 2024 Legislation." Accessed November 29,‬ ‭2024. ‭h‬ ttps://www.ncsl.org/technology-and-communication/artificial-intelligence-2024-legislation‬‭.‬

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‭AI will be a significant key towards advancements in the future, but unchecked‬ ‭innovation leads to chaos. States will need to step in to combat the ill effects of AI on their‬ ‭citizens. With enough blocks, there could be significant shifts in the usage of AI, hopefully in a‬ ‭direction that benefits most people. AI can potentially do irreparable harm, whether in hiring,‬ ‭management, education, etc. AI must be regulated, and there is no desire for such regulation on‬ ‭the federal level.‬ ‭What Should Be Done Now:‬ ‭So what can be done, and what can the federal government mimic or learn from the‬ ‭states? The federal government could reexamine its foreign policy goals to start. Ever since‬ ‭2009, there has been a trend in American politics towards favoring domestic industry and‬ ‭supporting the growth of new industries, mainly so that such an industry does not grow stronger‬ ‭abroad. This economic-political pressure was discussed briefly in section one, but to circle back‬ ‭and see where this is going, look at electric vehicles. The most successful electric vehicle‬ ‭company is Tesla, an American company founded in Silicon Valley at the dawn of the modern‬ ‭tech industry. Tesla is an industry leader, in part, because of massive government subsidies it‬ ‭received when it began to gain traction after the 2009 crash.‬‭476‬ ‭As Chinese competitors started to‬ ‭rise, the government hit the Chinese Ev’s with a near 100% tariff on cars, 25% on batteries, and‬ ‭50% on solar cells, doubling the cost of those vehicles and giving a significant boon to American‬ ‭EV producers, especially Tesla.‬‭477‬

‭476‬

‭Clifford, Catherine. "Musk Embraces Trump and Scorns Subsidies, but Tesla Still Lobbies for U.S.‬ ‭ enefits." ‬‭CNBC‬‭. Last modified August 12,‬ B ‭2024. ‭h‬ ttps://www.cnbc.com/2024/08/12/musk-embraces-trump-and-scorns-subsidies-but-tesla-still-lobbies-for-us-b‬ ‭enefits.html‬‭.‬ ‭477‬ ‭Utility Dive. "Biden Increases Tariffs on China to Bolster EV Battery and Semiconductor Industries." Accessed‬ ‭November 29,‬ ‭2024. ‭h‬ ttps://www.utilitydive.com/news/joe-biden-china-tariff-hikes-ev-battery-semiconductor-final/727014/‬‭.‬

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‭How can the federal government’s favoritism be turned towards regulation without losing‬ ‭this competitive edge with industry abroad? The simple answer is conditional subsidies, to force‬ ‭companies to work in the best interests of consumers while still obtaining the subsidies and tax‬ ‭cuts they rely on. This may seem extreme, but the US already does this with farmers by paying‬ ‭farmers to produce, or not to make, a certain number of crops or type of crops, and even to not‬ ‭plant certain acreage.‬‭478‬ ‭These conditional subsidies‬‭are an established part of American‬ ‭economics, so why can’t they be extended to the tech industry? Why not require data privacy‬ ‭laws in social media in exchange for grants or copyright protection from AI, subsidies, and‬ ‭government contracts for development? This would maintain the domestic industries and allow‬ ‭them to continue innovating and align them with the regulatory goals that favor the people.‬ ‭The federal government could also look into taking an anti-trust stance in policymaking,‬ ‭as it has begun to do against Amazon and Google. Many individual companies in the tech‬ ‭industry have started to dominate their sector and branch out into others. For example, Amazon‬ ‭has dominated online sales, at 40% of all sales, 6 times its closest competition, all while‬ ‭branching out into entertainment, product manufacturing, AI, and so much more.‬‭479‬ ‭Amazon has‬ ‭its hand in so many industries and dominates its own to a point where it can muscle out‬ ‭competition and, as such,h act in such a way that is not beneficial to the consumers, as anyone‬ ‭who has seen the ballooning prices for shipping and other services can say. If the government‬ ‭takes action and breaks up Amazon, it could recreate a competitive environment that is best for‬ ‭consumers, not companies.‬ ‭Conclusion‬ ‭478‬

‭International Monetary Fund. "Article: Economic Implications of Global Trade Policies." IMF eLibrary.‬ ‭Accessed November 29, 2024.‬‭https://www.elibrary.imf.org/view/journals/068/2024/002/article-A001-en.xml‬‭.‬ ‭479‬ ‭eMarketer. "Amazon Will Surpass 40% of U.S. E-Commerce Sales This Year." Accessed November 29, 2024.‬ ‭https://www.emarketer.com/content/amazon-will-surpass-40-of-us-ecommerce-sales-this-year‬‭.‬

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‭This is all admittedly highly speculative; one can never know the inner thoughts and‬ ‭motivations of 535, but such ideas must be considered as society faces a new age of‬ ‭technological advancement. AI is here, and who knows what will come after it? The government‬ ‭must be willing to protect the people from the growing pains that always come with such‬ ‭advancement. The states have done an admirable job, while the government has been inactive on‬ ‭this issue, and it’s thanks to them that the people have some protection. This system is‬ ‭unsustainable in the long run. If nothing is done, it will inevitably unravel, or the status quo is a‬ ‭ticking time bomb. If left unaddressed, its collapse is only a matter of time.‬

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‭THE EVOLVING LEGAL FRAMEWORK FOR INSIDER TRADING:‬ ‭EXAMINING THE EXPANSION OF LIABILITY‬ ‭WRITTEN BY ANUJ H. CHAUHAN | EDITED BY AWAKHIWE NDLOVU‬ ‭Introduction‬ ‭i. Overview‬ ‭For decades, insider trading has prompted the attention of legal scholars, regulators, and‬ ‭market participants due to its implications on investor trust, market fairness, and economic‬ ‭stability. Broadly defined as “the practice of buying or selling a company’s securities by‬ ‭individuals who possess material, nonpublic information about that company,” it is at the core of‬ ‭equitable market conduct.‬‭480‬ ‭While preventing insider‬‭trading seems straightforward, its legal‬ ‭framework is complex, delving into theories, doctrines, and judicial interpretations. As such, the‬ ‭expansion of liability, those that can be charged with insider trading, from its origins in the‬ ‭Securities Exchange Act of 1934‬‭to modern interpretations‬‭with technological and financial‬ ‭instruments, has revolutionized this area of law, making it far more complex than ever. While the‬ ‭act aimed to curb corporate misconduct, the legal framework that has emerged from landmark‬ ‭cases like‬‭Chiarella v. United States‬‭and‬‭United States‬‭v. O’Hagan‬‭has extended liability to those‬ ‭misappropriating information. The Supreme Court held that an individual who misappropriated‬ ‭confidential information for securities trading violates Section 10(b) and Rule 10b-5, even if they‬ ‭owe no fiduciary duty to the company whose stock they trade, further broadening the definition‬ ‭of who can be held accountable for insider trading.‬‭481‬ ‭Since the inception of the‬‭Securities‬ ‭Exchange Act of 1934‬‭, the liability for insider trading‬‭has evolved, now incorporating classical‬

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‭Ita, Dara-Abasi. 2024. “What Is Insider Trading and When Is It Legal?” Investopedia. 2024.‬ ‭https://www.investopedia.com/terms/i/insidertrading.asp.‬ ‭481‬ ‭“United States v. O’Hagan, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997).” 2024. Cornell.edu. 2024.‬ ‭https://www.law.cornell.edu/supct/html/96-842.ZO.html.‬

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‭and misappropriation theories. The classical theory focuses on the relationship between the‬ ‭insider and the corporation, while the misappropriation theory extends liability to those who‬ ‭misappropriate information from their employers. These theories, along with tipper-tippee‬ ‭liability, where an insider (tipper) shares material non-public information (MNPI) to an outsider‬ ‭(tippee) to trade securities have significantly shaped the evolution of insider trading laws.‬‭482‬ ‭ii. Significance of Insider Trading Laws in Modern Financial Markets‬ ‭Insider trading laws are foundational to maintaining‬‭integrity within the financial‬ ‭markets. They ensure everyone is given an equal opportunity to trade based on publicly available‬ ‭information. These laws are mainly enforced to those in the financial services industry to ensure‬ ‭market transparency and foster investor confidence. While insider trading has its ethical‬ ‭implications, it can also have an economic impact, where markets frequently affected by insider‬ ‭trading are prone to investor skepticism, resulting in reduced participation and liquidity. As a‬ ‭result, this can weaken the overall economy as fewer individuals are willing to invest and may‬ ‭perceive the stock market as an unfair system. With investment in the market, some products and‬ ‭companies may be able to expand or grow, resorting to other companies to take on more growth.‬ ‭Thus, regulatory bodies like the Securities Exchange Commission (SEC) and the Department of‬ ‭Justice (DOJ) must adopt an aggressive approach to combat the integrity of financial markets.‬ ‭Expansion of Liability Under the Classical and Misappropriation Theories‬ ‭iii. The Classical Theory‬ ‭The classical theory stems from a form of insider trading where a corporate insider‬ ‭commits securities fraud in violation of Rule 10b-5 by trading their corporation’s securities based‬

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‭Hayes, Adam. 2022. “Misappropriation Theory: What It Is, How It Works, Example.” Investopedia. 2022.‬ h‭ ttps://www.investopedia.com/terms/m/misappropriation_theory.asp#:~:text=The%20 classical%20theory%20‬ ‭targets%20a,outsider%20who%20 receives%20 nonpublic%20information.‬

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‭on material non-public information.‬‭483‬ ‭Individuals employed at publicly traded companies tend to‬ ‭have greater insight into how their company reacts to the market based on management, financial‬ ‭decisions, and growth efforts. As a result, these individuals have greater exposure to the market’s‬ ‭reaction to their company based on information not available to the general public. The classical‬ ‭theory also requires those trading inside information to have a fiduciary duty, meaning a‬ ‭corporate director cannot trade on inside information as they must disclose such information. As‬ ‭fiduciaries, they are entrusted with the privileged information they are expected to keep private.‬ ‭However, if this is breached for personal benefit, then they are to have committed securities‬ ‭fraud.‬ ‭A landmark case pivotal in defining classical theory is‬‭Chiarella v. United States (1980),‬ ‭where the Supreme Court established that only individuals with a fiduciary relationship with‬ ‭shareholders could be liable for insider trading.‬‭484‬ ‭This created a narrow scope of liability,‬ ‭limiting this application solely to insiders with direct corporate roles. Throughout the years,‬ ‭courts have recognized that this scope failed to address individuals who received MNPIs through‬ ‭indirect relationships. Thus, the classical theory’s limitations outlined the need to broaden‬ ‭liability to find those who may exploit access to MNPI without a direct insider position, which‬ ‭later resulted in the establishment of the misappropriation theory.‬ ‭iv. The Misappropriation Theory‬ ‭The misappropriation theory was introduced to address the gaps in the classical approach,‬ ‭thus expanding liability beyond traditional corporate insiders. For instance, the misappropriation‬ ‭theory extends liability “to a person who is not an insider at a company and prohibits these‬

‭483‬

‭“Classical Theory of Insider Trading.” 2016. LII / Legal Information Institute. 2016.‬ h‭ ttps://www.law.cornell.edu/wex/classical_theory_of_insider_trading#:~:text=The%20‬ ‭classical%20theory%20of%20 insider,%20 material%20non%2Dpublic%20information.‬ ‭484‬ ‭"Chiarella v. United States." Oyez. Accessed November‬‭8, 2024. https://www.oyez.org/cases/1979/78-1202.‬

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‭corporate outsiders from trading based on MNPI obtained in breach of a duty owed to the‬ ‭source of the information.”‬‭485‬ ‭Therefore, this theory‬‭applies to individuals who violate the duty‬ ‭of loyalty to the source of the information for personal gain. The expansion of the‬ ‭misappropriation theory was pivotal in‬‭United States‬‭v. O’Hagan (1997),‬‭where the Supreme‬ ‭Court held that an individual who obtained and used MNPI through deceit, even if they owe no‬ ‭fiduciary duty to the shareholders, can still be held liable for insider trading. This court case‬ ‭broadened the classical theory and its liability to capture anyone who gains access to MNPI‬ ‭through trust, regardless of their connection to the company whose stock is traded, also known‬ ‭as fraud-based liability. By applying this concept, the courts effectively closed a loophole that‬ ‭ensured those manipulating confidential information for personal gain were held accountable.‬ ‭The misappropriation theory further reflected the courts’ commitment to preserving market‬ ‭integrity and penalizing any association with the breach of MNPI.‬ ‭The Role of Regulation Fair Disclosure and Recent SEC Rules‬ ‭v. Overview of Regulation Fair Disclosure‬ ‭Regulation Fair Disclosure, also known as Regulation FD, is a rule implemented by the‬ ‭SEC in 2000 to prevent selective disclosure by public companies to market professionals and‬ ‭shareholders.‬‭486‬ ‭It aims to promote fairness by ensuring‬‭all investors have equal access to MNPI‬ ‭by mandating public companies to disclose material information to all investors simultaneously‬ ‭rather than sharing it separately with analysts and investors. By this, the goal of Regulation FD is‬ ‭to prevent asymmetries within the market so no investor falls to a disadvantage or compromises‬

‭“‬‭SEC Extends the Misappropriation Theory of Insider Trading beyond Targets of Acquisitions to Companies‬ ‘‭ Economically Linked’ to Such Targets | White & Case LLP.” 2021. Whitecase.com. September 9, 2021.‬ ‭https://www.whitecase.com/insight-alert/sec-extends-misappropriation-theory-insider-trading-beyond-targets-acquisi‬ ‭tions.‬ ‭486‬ ‭Segal, Troy. 2024. “What Is Disclosure? How It Works and Laws on Transparency.” Investopedia. 2024.‬ ‭https://www.investopedia.com/terms/d/disclosure.asp.‬ ‭485‬

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‭market integrity. Additionally, Regulation FD also required that companies conducting earnings‬ ‭calls simultaneously issue a press release to make all the information available to everyone. This‬ ‭was critical in the early 2000s as investors did not have phones and computers that would‬ ‭instantaneously download companies' financial reports but rather relied on general forecast calls‬ ‭and news outlets.‬‭487‬ ‭Regulation FD was a framework that‬‭the SEC adopted to play a pivotal role‬ ‭in leveling trading transparency and market fairness and ensuring that all parties were treated‬ ‭equally.‬ ‭vi. Impact of Regulation FD Enforcement‬ ‭Regulation FD has highlighted the importance of the SEC enforcing laws against‬ ‭corporations and redefining corporate liability. In September 2024, the SEC charged DraftKings‬ ‭Inc., a sports betting company, with selectively disclosing MNPI through the CEO’s social media‬ ‭accounts without disclosing the same information to all investors.‬‭488‬ ‭CEO Jason Robins had‬ ‭posted on his X and LinkedIn account that the company was expecting “really strong growth”‬ ‭before publicly releasing its second-quarter financial results, thus making this information‬ ‭material and nonpublic.‬‭489‬ ‭Additionally, since this‬‭information was posted under the CEO’s‬ ‭personal accounts, it led to selective disclosure, thus in violation of Regulation FD. This‬ ‭information was also not disclosed to the public until a week later when it was announced in‬ ‭DraftKings’ financial earnings. As a result of this violation, the SEC required DraftKings to pay‬ ‭$200,000 as a civil penalty.‬‭490‬ ‭This highlighted that‬‭companies must ensure material information‬ ‭487‬

‭“Walker Calls for Improved Federal Financial Reporting | Tax Notes.” 2017. Taxnotes.com. 2017.‬ h‭ ttps://www.taxnotes.com/research/federal/other-documents/testimony-other-than-irs-and-treasury/walker-calls-for-i‬ ‭mproved-federal-financial-reporting/xdk7.‬ ‭488‬ ‭“SEC.gov | SEC Charges DraftKings with Selectively Disclosing Nonpublic Information via CEO’s Social Media‬ ‭Accounts.” 2024. Sec.gov. 2024. https://www.sec.gov/newsroom/press-releases/2024-149.‬ ‭489‬ ‭“SEC.gov | SEC Charges DraftKings with Selectively‬‭Disclosing Nonpublic Information via CEO’s Social Media‬ ‭Accounts.” 2024. Sec.gov. 2024. https://www.sec.gov/newsroom/press-releases/2024-149.‬ ‭490‬ ‭tgc-feat-editor. 2024. “DraftKings, SEC Settle over Selective Disclosure Charges - Today’s General Counsel.”‬ ‭Today’s General Counsel - Serving In-House Counsel and Corporate Executives. October 15, 2024.‬ ‭https://todaysgeneralcounsel.com/draftkings-faces-sec-charges-for-selective-disclosure/‬

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‭is disseminated broadly and non-exclusively to all investors simultaneously. If companies intend‬ ‭to use social media platforms for disclosures, they must inform investors in advance about which‬ ‭accounts will be used to ensure there is compliance with Regulation FD. With technology,‬ ‭employees must also take extra precautions to ensure that their social media does not reflect the‬ ‭MNPI of the company in which they are employed.‬ ‭Insider Trading and Non-Traditional Contexts‬ ‭vii. Tipper-Tippee Liability‬ ‭The concept of tipper-tippee liability was introduced in‬‭Dirks v. SEC (1983),‬‭which‬ ‭established the “personal benefits” test, where “the insider receives a direct or indirect personal‬ ‭benefit from the disclosure” or material nonpublic information at issue.‬‭491‬ ‭The test determines‬ ‭whether a tipper’s disclosure of MNPI to a tippee constitutes a breach of fiduciary duty. In‬‭Dirks,‬ ‭the Supreme Court held that liability hinges on whether the tipper disclosed the information for‬ ‭personal benefit, including tangible (money or gifts) and intangible (reputation).‬ ‭Dirks‬‭was pivotal in limiting liability to situations‬‭where the tipper’s intent aligns with‬ ‭self-serving motives. The court ruled that Dirks, who received MNPI from a whistleblower‬ ‭exposing fraud, did not violate insider trading laws because the whistleblower did not gain a‬ ‭personal benefit from the disclosure. Thus, this decision clarified the boundaries of liability and‬ ‭ensured that not every recipient of MNPI is at fault, balancing enforcement with fairness.‬ ‭viii. Expanding Liability to Remote Tippees‬ ‭Due to the broadness of tipper-tippee liability,‬‭the legal framework was further expanded‬ ‭in‬‭Salman v. United States (2016),‬‭where the Supreme‬‭Court addressed the extent of liability for‬

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‭Feder, Meir, Harold K Gordon, Henry Klehm III, and Edward Patrick. 2016. “U.S. Supreme Court Clarifies‬ ‭ tandards for ‘Tippee’ Insider Trading Liability.” Jonesday.com. Jones Day. December 12, 2016.‬ S ‭https://www.jonesday.com/en/insights/2016/12/us-supreme-court-clarifies-standards-for-tippee-insider-trading-liabil‬ ‭ity.‬

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‭remote tippees.‬‭492‬ ‭In‬‭Salman,‬‭the Court reinforced that indirect tippees, those unaffiliated with‬ ‭the original tipper, could be held liable if the tippee knew about the tipper’s breach of fiduciary‬ ‭duty.‬ ‭In‬‭Salman,‬‭the Court upheld the conviction of Bassam‬‭Salman, who had profited from‬ ‭MNPI and passed down a chain of tippees originating from the tipper’s familial relationship. The‬ ‭Court reinforced that a “person commits insider trading where they know that the person who‬ ‭made the tip stands to benefit from disclosing insider information, [and] a personal benefit may‬ ‭be inferred where there is a personal relationship involved, such as one between a family or a‬ ‭friend.”.‬‭493‬ ‭In this case, Salman’s disclosure to a‬‭relative was deemed to carry an implied‬ ‭personal benefit, further satisfying‬‭Dirks’‬‭standard‬‭as the ruling confirmed that gifting‬ ‭information to a relative is sufficient to establish liability. However, these cases have become‬ ‭more difficult to prove as there are various networks where tippees can receive information‬ ‭directly or indirectly. For instance, tippees can obtain information through direct communication‬ ‭or by those breaching fiduciary duty. Thus, Professor Gita Sharma at Rutgers University‬ ‭indicated that “the government has a high burden to show the link between the original insider in‬ ‭receiving a benefit for passing the information down the line to a tippee who must know the‬ ‭tipper’s intentions and personal benefit”.‬‭494‬ ‭Despite,‬‭the SEC’s stringent regulation associated‬ ‭with tipper-tippee liability, Professor Sharma writes that the government must prove that the‬ ‭tipper received personal benefit from the tippee’s knowledge, which involves meticulous‬ ‭prosecution and extensive due diligence from the government. Nonetheless, this case‬ ‭492‬

‭“SUPREME COURT of the UNITED STATES.” 2016.‬ ‭https://www.supremecourt.gov/opinions/16pdf/15-628_m6ho.pdf.‬ ‭493‬ ‭"Salman v. United States." Oyez. Accessed December 1, 2024. https://www.oyez.org/cases/2016/15-628.‬ ‭494‬ ‭This paper was reviewed by Gita Sharma. Gita Sharma is a Professor in Business Law at Rutgers Business‬ ‭School- New Brunswick. She specializes and teaches business law and is an experienced attorney in the areas of‬ ‭ERISA/employee benefits, tax, and employment law.‬

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‭underscored the SEC’s commitment to addressing insider trading in a non-traditional context‬ ‭where the network of information can extend liability to remote tippees.‬ ‭ix. Implications for Insider Trading Liability‬ ‭The precedent established by‬‭Dirks‬‭and‬‭Salman‬‭emphasizes the evolving nature of insider‬ ‭trading enforcement, where courts need to balance the need to deter unfair practices while‬ ‭protecting individuals from undue liability. By refining the “personal benefit” standard and‬ ‭addressing the liability of remote tippees, these cases guide the non-traditional contexts of insider‬ ‭trading.‬ ‭Conclusion‬ ‭The evolution of insider trading laws and their liability‬‭has been fundamentally shaped by‬ ‭the development of legal theories, such as the classical and misappropriation theories and the‬ ‭concept of tipper-tippee liability. These legal frameworks have expanded over time to adapt to‬ ‭the complexities of the model financial market, where material nonpublic information is no‬ ‭longer confined to corporate insiders and professionals, but also extends to remote tippees and‬ ‭those that can profit from such material information.‬ ‭The classical theory traditionally focused on individuals with fiduciary duties to‬ ‭shareholders, thus ensuring these individuals were held accountable for direct insider access.‬ ‭However, as the scope of insider trading evolved, the misappropriation theory further extended‬ ‭this liability to anyone who misused confidential information in breach of fiduciary duty, even if‬ ‭the individual did not have a direct relationship with the corporation.‬ ‭Similarly, tipper-tippee liability clarified the parameters of those responsible for trading‬ ‭on MNPI, as demonstrated in‬‭Dirks v. SEC‬‭and‬‭Salman‬‭v. United States.‬‭The introduction of the‬ ‭“personal benefit” test in‬‭Dirks‬‭and the expansion‬‭of liability to remote tippees in‬‭Salman‬‭truly‬

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‭demonstrate the evolving nature of the laws regarding insider trading, especially in today’s‬ ‭highly interconnected financial market.‬

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‭HUMAN TRAFFICKING AND INTERNATIONAL LAW:‬ ‭ADVOCACY FOR A VICTIM-CENTERED APPROACH‬ ‭WRITTEN BY PAULINA D’AGOSTINO | EDITED BY SAM KLEPPER‬ ‭Introduction.‬ ‭i. Human Trafficking‬ ‭An estimated 49.5 million people, 12 million of them being children, are victims of‬ ‭human trafficking worldwide,‬‭495‬ ‭making it one of the‬‭most widespread human rights violations.‬ ‭A victim-centered approach is a “systematic focus on the needs and concerns of victims to‬ ‭ensure the compassionate and sensitive delivery of services in a non-judgmental manner.”‬‭496‬ ‭A‬ ‭victim-centered approach prioritizes the victim’s needs, support, and safety: victims should know‬ ‭and understand their rights, and all task force members must ensure victims receive services to‬ ‭rebuild their lives.‬‭497‬ ‭The most prevalent approach‬‭used instead is referred to as a “criminal‬ ‭justice approach,” which focuses on the prosecution and punishment of traffickers, often‬ ‭neglecting the needs and protection of the victim.‬‭498‬ ‭While some argue that prosecuting the‬ ‭perpetrators is the best form of justice, the victim-centered approach focuses on ensuring the‬ ‭victim’s well-being. Victims are cared for throughout the entire journey to justice and are not‬ ‭prosecuted for crimes they were coerced into doing. A balance between a criminal justice and‬

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‭Posted by OUR Rescue, “Human Trafficking Statistics and Facts in 2024,” OUR Rescue, September 11, 2024,‬ ‭https://ourrescue.org/education/research-and-trends/human-trafficking-statistics.‬ ‭496‬ ‭Sarah Loughry, “A Victim-Centered Approach to the‬‭Sexual Assault Investigation Process,” Premiere Education,‬ ‭May 11, 2023,‬ ‭https://www.premierece.com/blog/a-victim-centered-approach-to-the-sexual-assault-investigation-process/#:~:text=‬ ‭A%20victim%2Dcentered%20approach%20is,victim%20are%20the%20top%20priority.‬ ‭497‬ ‭Office of Justice Programs, “Human Trafficking Task‬‭Force E-Guide,” OVC TTAC: Office for Victims of Crime‬ ‭Training & Technical Assistance Center, 2024,‬ ‭https://www.ovcttac.gov/taskforceguide/eguide/5-building-strong-cases/51-victim-centered-investigations/#:~:text=I‬ ‭n%20many%20human%20trafficking%20cases,and%20wishes%20of%20the%20victim.‬ ‭498‬ ‭Saba Demeke, “A Human Rights-Based Approach for Effective‬‭Criminal Justice Response to Human Trafficking‬ ‭- Journal of International Humanitarian Action,” SpringerOpen, January 27, 2024,‬ ‭https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-023-00143-4#:~:text=According%20to%20th‬ ‭e%20criminal%20law,the%20perpetrators%20(Amiel%202006).‬

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‭victim-centered approach can complement one another by ensuring that while traffickers are held‬ ‭accountable for their actions, victims are provided with the necessary support and protections to‬ ‭heal and rebuild their lives, ultimately allowing the system to punish perpetrators and empower‬ ‭survivors. Human trafficking is an egregious crime, done for profit and a violation of‬ ‭fundamental human rights. It involves coercing a person to perform commercial sex acts, labor,‬ ‭or services, and often, this coercion is either physical, psychological, or both. Individuals are‬ ‭usually lured in by strangers or close individuals they once trusted. Certain areas in South Asia,‬ ‭such as countries like Nepal and India, are some of the busiest human trafficking spheres in the‬ ‭world. Women and girls from rural areas are often promised work and later trafficked to urban‬ ‭areas and end up in forced prostitution. Efforts to combat human trafficking in Nepal have‬ ‭included attempting to rescue victims at the borders. Still, it is estimated that 11,000 to 13,000‬ ‭women and underage girls are unwillingly forced to work in brothels in these areas, where the‬ ‭money goes to the perpetrator.‬‭499‬ ‭International law plays a vital role in combating human trafficking. While it is proven to‬ ‭have several shortcomings within its current legal frameworks, it would be naive to ignore its‬ ‭successes. Key global treaties in the fight include the United Nations Convention against‬ ‭Transnational Organized Crime and its related protocols.‬‭500‬ ‭Despite advancements in‬ ‭international laws and policies, human trafficking is still a significant issue that is dangerous to‬ ‭the world because it disrupts the stability of communities, undermines the rule of law, and is a‬ ‭violation of our fundamental human rights and dignity. Accordingly, several international‬ ‭agreements exist to combat human trafficking.‬‭501‬ ‭However,‬‭in international human rights law,‬ ‭Al Jazeera, “Spirit Me Away: The Women and Girls‬‭Lost to Trafficking in Nepal,” Al Jazeera, March 8, 2020,‬ ‭https://www.aljazeera.com/gallery/2020/3/8/spirit-me-away-the-women-and-girls-lost-to-trafficking-in-nepal/.‬ ‭500‬ ‭U.S. Department of Justice, “What Is Human Trafficking?,” Human Trafficking, June 26, 2023,‬ ‭https://www.justice.gov/humantrafficking/what-is-human-trafficking.‬ ‭501‬ ‭UN General Assembly, “United Nations Convention‬‭against Transnational Organized Crime,” United Nations :‬ ‭Office on Drugs and Crime, 2000, https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html.‬ ‭499‬

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‭victims' rights and protections are often hardly acknowledged because the main focus is usually‬ ‭on prosecuting the perpetrators. International law and human rights frameworks are essential in‬ ‭addressing human trafficking, yet the effectiveness of anti-trafficking policies is significantly‬ ‭enhanced when victims' support is prioritized. While there are challenges that exist with a‬ ‭victim-centered approach, the need for policies that advocate for comprehensive protection for‬ ‭victims and human rights-focused judicial responses is vital in both preventing re-victimization‬ ‭and promoting long-term recovery for survivors of human trafficking. International law has made‬ ‭several strides in combating human trafficking, but there is an urgent need to utilize consistent‬ ‭victim-centered approaches in international legal frameworks to ensure justice and healing for‬ ‭survivors while reinforcing the legitimacy of international law in protecting all human rights.‬ ‭Prioritizing the Victim‬ ‭ii. Defining a Victim-Centered Approach‬ ‭Prioritizing victims ensures that they are not revictimized and further hurt by the system‬ ‭meant to protect them. This approach allows victims to feel empowered, acknowledges their‬ ‭autonomy, and gives them the right to make all further decisions about their lives. A‬ ‭victim-centered approach prioritizes a victim's rights, needs, and well-being, offering guidance‬ ‭and resources so the victim is informed and has options to move forward. Unlike traditional‬ ‭criminal justice responses, which often focus on punishing perpetrators, this approach is tailored‬ ‭to the survivor’s needs. This might be exceptional support for a child or an understanding of‬ ‭cultural sensitivities when assisting a specific victim.‬ ‭Victims of the heinous crime of human trafficking are coerced into labor or sexual‬ ‭exploitation and stripped of their autonomy and dignity. In most cases, victims are put on the‬ ‭stand in trial and have to relive their trauma without receiving any kind of assistance before or‬

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‭after.‬‭502‬ ‭International human rights frameworks, such as the Palermo Protocol, provide simple‬ ‭foundations for a victim-based approach, such as establishing that victims should not be treated‬ ‭as criminals; victims must receive legal, mental, medical, and social support and encouragement‬ ‭to be compensated for their expenses as a result of suffering.‬ ‭A core element of the victim-based approach is ensuring that the victims are not treated‬ ‭as offenders, which is supported under the Palermo Protocol. In instances where women are‬ ‭forced into prostitution, they may be arrested and charged for prostitution-related offenses, even‬ ‭though they are the victims. In cases such as these, international law comes into play and insists‬ ‭that states not prosecute these people for acts committed as a result of being human trafficked.‬ ‭Another vital victim-centered approach is assuring that victims can fully participate in the whole‬ ‭legal process against traffickers, meaning that victims should have the ability and means to‬ ‭testify in trials and be involved in criminal proceedings against traffickers without fear of‬ ‭discrimination or retribution.‬ ‭iii.‬‭International Frameworks‬ ‭The United Nations Convention against Transnational Organized Crime and its related‬ ‭three protocols form vital legal frameworks that incorporate victim-centered practices in the fight‬ ‭against human trafficking. These three protocols each focus on different areas. Accordingly, the‬ ‭three protocols include the Protocol to Prevent, Suppress, and Punish Trafficking in Persons,‬ ‭especially Women and Children, which was adopted in 2003.‬‭503‬ ‭It intends to facilitate unity in‬ ‭national approaches to support cooperation and prosecuting trafficking in persons. One of the‬ ‭protocol's key goals is to assist and protect the victims of trafficking while respecting their‬ ‭502‬

‭Lara Mullin, “Emphasizing a Victim-Centered Approach in Human Trafficking Prosecutions,” National Institute‬ o‭ f Justice, 2020,‬ ‭https://nij.ojp.gov/topics/articles/emphasizing-victim-centered-approach-human-trafficking-prosecutions.‬ ‭503‬ ‭UN General Assembly, “United Nations Convention against Transnational Organized Crime,” United Nations :‬ ‭Office on Drugs and Crime, 2000, https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html.‬

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‭human rights. The following protocol is The Protocol Against the Smuggling of Migrants by‬ ‭Land, Sea, and Air, adopted in 2004, which addresses the organized crime of smuggling‬ ‭vulnerable migrants. It was one of the first times a definition of smuggling migrants was defined‬ ‭and agreed upon. Likewise, the Protocol against Illicit Manufacturing of and Trafficking in‬ ‭Firearms was adopted in 2001, promoting and growing cooperation among states to combat and‬ ‭prevent the manufacturing of “trafficking in firearms.”‬‭504‬ ‭Similarly, the United Nations‬ ‭Convention Against Transnational Organized Crime (2000) stressed the importance of human‬ ‭rights-based approaches when acknowledging human trafficking victims, specifically victim‬ ‭protection and support services.‬‭505‬ ‭Following this,‬‭the definition of the Palermo Human‬ ‭Trafficking Protocol came to light.‬ ‭While The Palermo Protocol, or the United Nations Protocol to Prevent, Suppress, and‬ ‭Punish Trafficking in Persons (2000), provides critical legal frameworks, it is insufficient on its‬ ‭own to address every victim's needs. Notwithstanding, the agreement’s initial intentions were to‬ ‭combat human trafficking sufficiently.‬‭506‬ ‭There is a‬‭need to train workers to care for victims‬ ‭correctly and efficiently and further discussion to educate people on how to deal with victims of‬ ‭trafficking. Article 6 of the Protocol emphasizes the protection of survivors of human trafficking‬ ‭and requires states to take measures to ensure victims' future security, assistance, and residency.‬ ‭It is important to note how states were eager to shield their territory and legal structures from‬ ‭Articles 5 and 11 of the Convention against Transnational Organized Crime and Article 7 of the‬ ‭504‬

‭UN General Assembly, “United Nations Convention against‬‭Transnational Organized Crime,” United Nations :‬ ‭Office on Drugs and Crime, 2000, https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html.‬ ‭505‬ ‭UN General Assembly, “United Nations Convention against‬‭Transnational Organized Crime,” United Nations :‬ ‭Office on Drugs and Crime, 2000, https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html.‬ ‭506‬ ‭General Assembly resolution 55/25, “Protocol to Prevent,‬‭Suppress and Punish Trafficking in Persons Especially‬ ‭Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime |‬ ‭OHCHR,” Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,‬ ‭supplementing the United Nations Convention against Transnational Organized Crime, November 15, 2000,‬ ‭https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-prevent-suppress-and-punish-trafficking-pe‬ ‭rsons.‬

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‭Migrant Smuggling Protocol.‬‭507‬ ‭The Palermo Protocol also calls for measures to prevent the‬ ‭criminalization of victims. Often, victims of trafficking are inadequately treated; this protocol‬ ‭makes sure they are getting the proper and gentle care they need after their trauma.‬ ‭Thus, several shortcomings of these legal frameworks have proven unsuccessful, such as‬ ‭lack of enforcement, discussion, and victim support structures. Noted that “Although the victim’s‬ ‭consent is irrelevant according to the Palermo Protocol, many countries still consider consent an‬ ‭important factor in determining whether a person in a trafficking situation was trafficked.”‬‭508‬ ‭The‬ ‭protocol lacks enforcement mechanisms to ensure countries uniformly apply it. There has not‬ ‭been a way to eliminate trafficking in persons despite the UN Human Rights Office's‬ ‭commitment to research further awareness of the issue.‬‭509‬ ‭Similarly, trafficked persons are often‬ ‭prosecuted under offenses such as illegal immigration, prostitution, or unlawful work. A solution‬ ‭noted, “Instead of merely prosecuting sex traffickers based on trafficking-related offenses‬ ‭(through the Palermo Protocol), such as illegally smuggling foreigners into the country or‬ ‭abusing human rights of women in brothels or prostitution houses, prosecutors should try to‬ ‭convict the perpetrators for the trafficking offenses themselves.”‬‭510‬ ‭Victims are sent to facilities‬ ‭such as jails, broken immigration centers, or shelters, often without knowing what to do next.‬‭511‬ ‭Even law enforcement notes that “by focusing on victims’ needs and concerns and not‬ ‭criminalizing their actions…better prepare them to break the cycle of abuse, violence, and‬ ‭507‬

‭Yvon Dandurand and Jessica Jahn, The Failing International Legal Framework on Migrant Smuggling and‬ ‭Human Trafficking, 2020, https://link.springer.com/content/pdf/10.1007/978-3-319-63058-8_47.pdf.‬ ‭508‬ ‭Christina A. Seideman, “Why It Has Been Ineffective in Reducing Human Sex Trafficking,” The Palermo Pr‬ ‭palermo Protocol: Why It Has Been Ineff ocol: Why It Has Been Ineffective in Reducing e in Reducing , 2015,‬ ‭https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1152&context=globaltides.‬ ‭509‬ ‭United Nations, “What We Do to End Human Trafficking | OHCHR,” OHCHR’s work on anti-trafficking, 2024,‬ ‭https://www.ohchr.org/en/trafficking-in-persons/what-we-do-end-human-trafficking.‬ ‭510‬ ‭Christina A. Seideman, “Why It Has Been Ineffective in Reducing Human Sex Trafficking,” The Palermo Pr‬ ‭palermo Protocol: Why It Has Been Ineff ocol: Why It Has Been Ineffective in Reducing e in Reducing , 2015,‬ ‭https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1152&context=globaltides.‬ ‭511‬ ‭Anne T. Gallagher, Improving the Effectiveness of the International Law of Human Trafficking: A Vision for the‬ ‭Future of the US Trafficking in Persons Reports, 2010,‬ ‭https://www.researchgate.net/publication/236141877_httplinkspringercomarticle101007s12040-013-0274-‬

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‭manipulation.”‬‭512‬ ‭As a country gains a clearer understanding of human trafficking, it can lead to‬ ‭the recognition of available resources and technologies that can better provide care for a‬ ‭trafficking survivor.‬ ‭In human trafficking laws, there has been evidence of criminal justice systems failing to‬ ‭investigate and prosecute human trafficking effectively and correctly. A significant issue is‬ ‭insufficient training in law enforcement, which counteracts aiding the elimination of trafficking‬ ‭networks. Across many jurisdictions, there are issues and inconsistencies of neglected cases,‬ ‭which result in human trafficking being underreported and rarely even investigated.‬ ‭Unfortunately, law enforcement proves to be ineffective and inconsistent in this realm. Although‬ ‭the legal frameworks put into place can be effective, the shortcomings call for a better‬ ‭understanding of the Protocols and the need for more vital collaboration and coordination with‬ ‭law enforcement, judicial systems, and support systems to combat human trafficking and‬ ‭maintain a focus on victims. A crucial shortcoming of the Palermo Protocol is not sufficiently‬ ‭prioritizing the victims’ needs and protections, as noted: “Because the Palermo Protocol focuses‬ ‭on the act, method, and purpose of trafficking, it ignores the victims and instead focuses on the‬ ‭traffickers,”‬‭513‬ ‭Without this, human trafficking may‬‭continue to persist, leaving several victims in‬ ‭prison or untreated.‬ ‭iv. Why a Victim-Centered Approach‬ ‭A victim-centered approach ensures the victims feel safe and have the power to be heard‬ ‭and have a voice. This approach offers a way to engage with victims to address their trauma and‬

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‭Larry Alvarez, M.S., and Jocelyn Cañas-Moreira, “A Victim-Centered Approach to Sex Trafficking Cases,” FBI,‬ ‭November 9, 2015, https://leb.fbi.gov/articles/featured-articles/a-victim-centered-approach-to-sex-trafficking-cases.‬ ‭513‬ ‭Christina A. Seideman, “Why It Has Been Ineffective in Reducing Human Sex Trafficking,” The Palermo Pr‬ ‭palermo Protocol: Why It Has Been Ineff ocol: Why It Has Been Ineffective in Reducing e in Reducing , 2015,‬ ‭https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1152&context=globaltides.‬

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‭ensure an empathetic delivery.‬‭514‬ ‭With that being said, trauma-informed support services can‬ ‭significantly help victims heal and rebuild their lives. As for a long-term impact on prevention,‬ ‭survivors who receive proper support may become advocates for themselves and then go on to‬ ‭empower survivors by ensuring they have a solid and hopeful path on their healing journey. The‬ ‭term “trauma” can be “any experience that threatens a person’s life, safety, or well-being,‬ ‭overwhelming the ability to cope.”‬‭515‬ ‭It can be a result‬‭of a chain of events, such as being coerced‬ ‭into human trafficking, which can provide trauma for a survivor. Therefore, a victim-centered‬ ‭approach advocates for survivors who have life-long trauma and helps provide them with‬ ‭resources and justice by getting them appropriate cultural, psychiatric, physical, and additional‬ ‭care needed to move forward in their lives.‬‭516‬ ‭Applications‬ ‭v. A Victim-Centered Approach in Real Life‬ ‭In 2021, the General Assembly held a two-day meeting on the United Nations Global‬ ‭Plan of Action to Combat Trafficking in Persons. Representative Rabab Fatima, in Bangladesh,‬ ‭evaluated the complex history of human trafficking and addressed the phenomenon that requires‬ ‭alternative legal frameworks. Fatima’s comments about supporting victims and prosecuting‬ ‭traffickers are referring to the Palermo Protocol; Fatima notes her county’s accomplishments in‬ ‭helping victims and prosecuting traffickers.‬‭517‬ ‭Similarly,‬‭Representative Ameriah Obaid‬ ‭514‬

‭“A Victim-Centred Approach,” UNHCR, accessed November 30, 2024,‬ h‭ ttps://www.unhcr.org/what-we-do/how-we-work/tackling-sexual-exploitation-abuse-and-harassment/victim-centred‬ ‭-approach.‬ ‭515‬ ‭MELISSA M. LABRIOLA, NASTASSIA REED, ANNA WHITE HEWITT,‬‭“Rand Provides Objective Research‬ ‭Services and Public Policy Analysis | Rand,” Literature Review on a Victim-Centered Approach to Countering‬ ‭Human Trafficking, 2024, https://www.rand.org/.‬ ‭516‬ ‭MINNESOTA DEPARTMENT OF PUBLIC SAFETY Office of Justice Programs, “Best Practices Guidelines:‬ ‭Crime Victim Services,” Best Practices Guidelines: Crime Victim Services, November 2010,‬ ‭https://ovc.ojp.gov/sites/g/files/xyckuh226/files/pubs/InnovativePractices/Practices_Best%20practices%20guideline‬ ‭s-508.pdf.‬ ‭517‬ ‭United Nations, “Coordinated Approach to Human Trafficking‬‭Must Feature Cutting-Edge Tools, Outpace‬ ‭Criminals, Delegates Stress as General Assembly Concludes High-Level Meeting | Meetings Coverage and Press‬ ‭Releases,” United Nations, November 23, 2021, https://press.un.org/en/2021/ga12388.doc.htm.‬

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‭Mohamed Obaid Alhefeiti, in the United Arab Emirates, said, “The United Nations Plan of‬ ‭Action to Combat Trafficking in Persons is an important tool to unify international‬ ‭efforts…Stressing that her country has adopted a victim-based approach and adopted a law‬ ‭criminalizing trafficking in persons, she said it is constantly updating its legislation to serve‬ ‭victims’ interests best.”‬‭518‬ ‭The United Nations Plan‬‭of Action to Combat Trafficking in Persons‬ ‭is successfully linked to these stories, especially for combating trafficking by protecting victims‬ ‭and enhancing international collaboration.‬ ‭Additionally, the Royal Thai Government has implemented victim-centered approaches,‬ ‭which is also in line with the Palermo Protocol when dealing with human trafficking, and‬ ‭“remains committed to advancing inter-agency collaboration”‬‭519‬ ‭to provide assistance for‬ ‭survivors of this heinous crime and focus on ensuring victims’ safety and recovery. Providing‬ ‭protection and shelter improves survivors' well-being, creating a foundation for their‬ ‭rehabilitation and life.‬ ‭“In 2023, the Government provided protection and assistance to 640 victims of‬ ‭trafficking in persons, forced labor or services, 270 of whom stayed in government‬ ‭shelters, 22 in private shelters, and 348 outside of the shelters.”‬‭520‬ ‭To enhance the effectiveness of these efforts, Thailand, as of 2023, has prioritized‬ ‭training prosecutors and translators on how to protect victims through a “trauma-informed care‬ ‭approach,” which includes academic seminars and workshop series for judges when considering‬

‭518‬

‭United Nations, “Coordinated Approach to Human Trafficking Must Feature Cutting-Edge Tools, Outpace‬ ‭ riminals, Delegates Stress as General Assembly Concludes High-Level Meeting | Meetings Coverage and Press‬ C ‭Releases,” United Nations, November 23, 2021, https://press.un.org/en/2021/ga12388.doc.htm.‬ ‭519‬ ‭“Royal Thai Government’s Country Report on Anti-Human Trafficking Efforts,” Thaianti-humantraffickingaction‬ ‭, December 31, 2023,‬ ‭https://www.thaianti-humantraffickingaction.org/Home/wp-content/uploads/2023/02/2022-Country-Report.pdf.‬ ‭520‬ ‭“Royal Thai Government’s Country Report on Anti-Human Trafficking Efforts,” Thaianti-humantraffickingaction‬ ‭, December 31, 2023,‬ ‭https://www.thaianti-humantraffickingaction.org/Home/wp-content/uploads/2023/02/2022-Country-Report.pdf.‬

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‭procedures for human trafficking cases. Workshops and seminars ensure victims are treated with‬ ‭empathy and understanding during the legal process. Aside from this, Thailand has implemented‬ ‭open discussion on all of the guidelines and criteria, “particularly regarding the treatment of‬ ‭victims in human trafficking cases,”‬‭521‬ ‭when dealing‬‭with human trafficking cases. While these‬ ‭practices are successful, they do not address the root cause of human trafficking. On the contrary,‬ ‭the success of these measures depends on continued funding and international collaboration,‬ ‭which is usually limited. Therefore, improving systematic issues is essential in achieving change.‬ ‭vi. Violation of International Human Rights‬ ‭The Universal Declaration of Human Rights (UDHR), adopted by the United Nations‬ ‭(UN) in 1948, states that everyone has the right to freedom (Article 3) and the right to be free‬ ‭from slavery (Article 4). Human trafficking directly contradicts these rights, as it is essentially a‬ ‭form of modern-day slavery.‬‭522‬ ‭The Supreme Court case‬‭Nestlé USA, Inc. v. Do (2021),‬‭523‬ ‭touches on human rights issues‬ ‭related to child labor and trafficking. This case highlights the paramount need to hold big‬ ‭corporations accountable for supply chains and ensure global cooperation in combating human‬ ‭trafficking. The plaintiffs in this case were a group of children from Mali who claimed to be‬ ‭trafficked and forced into labor on cocoa farms in the Ivory Coast. The question in this case was‬ ‭whether U.S. courts have jurisdiction over foreign human rights violations under the Alien Tort‬ ‭Statute (ATS), which allows non-U.S. citizens to bring lawsuits in U.S. courts for violations‬ ‭under international laws. Essentially, the plaintiffs argued that U.S. companies like Nestlé,‬ ‭521‬

‭“Royal Thai Government’s Country Report on Anti-Human Trafficking Efforts,” Thaianti-humantraffickingaction‬ ,‭ December 31, 2023,‬ ‭https://www.thaianti-humantraffickingaction.org/Home/wp-content/uploads/2023/02/2022-Country-Report.pdf.‬ ‭522‬ ‭About trafficking in persons and human rights | ohchr,‬‭accessed December 22, 2024,‬ ‭https://www.ohchr.org/en/trafficking-in-persons/about-trafficking-persons-and-human-rights.‬ ‭523‬ ‭“Nestlé USA, Inc. v. Doe, 593 U.S. ___ (2021),” Justia Law, 2021,‬ ‭https://supreme.justia.com/cases/federal/us/593/19-416/.‬

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‭through supply chains, were complicit in human trafficking. The Supreme Court’s ruling was‬ ‭crucial in limiting the ability to sue companies in U.S. courts for human rights violations that‬ ‭happen overseas; the verdict was that the plaintiff’s case could not proceed under the Alien Tort‬ ‭Statute. However, this case allowed for an understanding of the conflict between jurisdictional‬ ‭limitations and the interse‬‭ction of human trafficking‬‭in international law. The violation of human‬ ‭rights depicts the need for more international cooperation and accountability from big‬ ‭businesses, like‬‭Nestlé,‬‭to combat trafficking and‬‭respect our fundamental human rights.‬ ‭In another light, an interview with Professor Michael Kenwick clarified the effectiveness‬ ‭of countries' human rights laws and how some countries are unwilling to enforce such laws at‬ ‭victims' hands. Professor Kenwick notes, “The strength of human rights law is typically‬ ‭proportional to that of domestic judiciaries primarily responsible for implementing those laws. If‬ ‭judicial institutions lack the will or the capacity to enforce human rights law, then typically, the‬ ‭victims of human rights abuses are those who suffer. Certainly, it is no less true when it comes to‬ ‭human trafficking.”‬‭524‬ ‭Kenwick also explained how wealthier‬‭countries do better than poorer‬ ‭countries because of their ability to enforce laws and available resources to aid in trafficking.‬ ‭Thus, there must be a way to channel empathy and care for victims of human rights violations,‬ ‭especially those from less fortunate nations.‬ ‭Conclusion‬ ‭Human trafficking is a significant threat to our world and continues to devastate lives‬ ‭every day. A consistent victim-centered approach can provide survivors with a path to recovery‬ ‭after being trafficked. Unlike strictly traditional methods that may neglect the victims’ needs, the‬ ‭victim-centered approach focuses on protocols like protection and residency, ensuring the‬ ‭reliable support they need following their traumatic experiences. The survivors’ welfare should‬ ‭524‬

‭Interviewed: Michael Kenwick; Assistant Professor in International Relations, Methods Rutgers New Brunswick‬

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‭be prioritized, aiming to rehabilitate their physical and psychological well-being, helping to heal‬ ‭and guide them to life after traumatic events caused by human trafficking.‬

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‭THE INTELLECTUAL PROPERTY CLAUSE IN THE CONTEXT OF GENERATIVE‬ ‭ARTIFICIAL INTELLIGENCE‬ ‭WRITTEN BY NATALIE TOM | EDITED BY AWAKHIWE NDLOVU‬ ‭Introduction‬ ‭The Intellectual Property (IP) Clause grants Congress the power “to promote the progress‬ ‭of science and useful arts, by securing for limited times to authors and inventors the exclusive‬ ‭right to their respective writings and discoveries,”‬‭525‬ ‭thus acting as the basis for federal‬ ‭copyright and patent systems. Referring to the language of the Constitution, the Clause grants‬ ‭exclusive rights for both copyrights and patents in the context of intellectual property: creations‬ ‭born from human thought.‬‭526‬ ‭For the former, Congress‬‭may grant exclusive rights to “authors”‬ ‭over their “writings”; for the latter, to “inventors” over their “discoveries”. The Framers of the‬ ‭Constitution adopted the IP Clause by following a rationale that outlined a purpose to stimulate‬ ‭artistic and technological innovation by granting exclusive rights to one’s intellectual property,‬ ‭thereby incentivizing the creation of new work. Without such protection, competitors would‬ ‭profit from copied creations, and the original creators would lack the incentive to create.‬‭527‬ ‭Therefore, the IP Clause has protected original human work since the Constitution became the‬ ‭nation’s supreme law, yet its effectiveness and applicability become uncertain under examination‬ ‭by a modern lens.‬ ‭Artificial intelligence (AI) is a prominent research field in modern technological‬ ‭innovation. A general term proposed by scholars at Dartmouth University in 1956 as the study of‬ ‭machine simulation of human intelligence, AI has since birthed a global scientific movement.‬ ‭525‬

‭ .S. Constitution, Article 1, Section 8, Clause 8.‬ U ‭“Intellectual Property.” Legal Information Institute.‬‭Accessed November 9, 2024.‬ ‭https://www.law.cornell.edu/wex/intellectual_property.‬ ‭527‬ ‭Overview of Congress’s power over Intellectual Property‬‭| Constitution Annotated | congress.gov | Library of‬ ‭Congress. Accessed November 9, 2024.‬ ‭https://constitution.congress.gov/browse/essay/artI-S8-C8-1/ALDE_00013060/.‬ ‭526‬

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‭Since the end of the 20th century, researchers have launched efforts to train computers to learn‬ ‭human behaviors and accurately simulate them. The quick growth of AI has spurred labor‬ ‭efficiency, reduced labor costs, and brought on revolutionary outcomes for technological‬ ‭innovation.‬‭528‬ ‭Transformative tools such as mapping‬‭technologies, handwriting recognition for‬ ‭mail services, and smartphone voice recognition are integrated heavily into society. Further,‬ ‭advances are being made in medicine, education, public welfare, and other fields that aim to‬ ‭improve social well-being.‬‭529‬ ‭Yet, the question arises–at‬‭what risk to humanity? In the context of‬ ‭IP, the Framers of the Constitution had not considered the implications of non-human creations‬ ‭nor the prospect of granting rights for artificially generated work. As a living document, the‬ ‭Constitution must evolve to address a modern set of challenges. To determine the scope and‬ ‭breadth of such an amendment intended to encompass the issues presented by AI, necessary‬ ‭questions must be answered. Overall,‬‭how must the‬‭framework of the IP Clause be amended to‬ ‭account for the legal implications of AI-generated creative content? To what extent does the IP‬ ‭Clause currently protect AI-generated work? Upon examination of the training methods for‬ ‭generative AI (genAI) tools, how much artificial work is human and thereby considered‬ ‭“intellectual property?”‬‭Examining relevant case law,‬‭the intent of the IP Clause as written by‬ ‭the Framers, and the science behind genAI tools will allow for a modern perspective on‬ ‭protections for intellectual property. In treating the Constitution as a living document, examining‬ ‭the mechanisms behind genAI tools is necessary to determine how much the IP Clause protects‬ ‭AI-generated content. Further, historical context supports that the Framers did not intend the‬ ‭528‬

‭Zhang, Caiming, and Yang Lu. “Study on Artificial‬‭Intelligence: The State of the Art and Future Prospects.”‬ J‭ ournal of Industrial Information Integration‬‭23 (September‬‭2021): 100224.‬ ‭https://doi.org/10.1016/j.jii.2021.100224.‬ ‭529‬ ‭U.S. Department of State. Accessed November 27, 2024.‬ ‭https://www.state.gov/artificial-intelligence/#:~:text=Artificial%20Intelligence%20and%20Society,%2C%20langua‬ ‭ge%20translation%2C%20and%20more.‬

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‭Clause to protect non-human works, thereby necessitating evolution in its framework to address‬ ‭the modern threats posed by AI.‬ ‭i. The Challenge with Generative AI‬ ‭GenAI is a machine-learning model that is trained on data to produce‬‭new‬‭outputs based‬ ‭on inputs.‬‭530‬ ‭With advanced machine learning models‬‭like ChatGBT quickly growing a large user‬ ‭base, generativeAI has disrupted the technology landscape by reaching unprecedented‬ ‭capabilities to generate content that is hardly distinguishable from that of a human. Thus, the‬ ‭traditional goals of AI have shifted from data-driven tasks such as prediction to newly generated‬ ‭creative content.‬‭531‬ ‭Such a shift challenges the framework‬‭of the IP Clause, as the quick‬ ‭development of advanced AI models threatens the applicability of IP laws. The rights of AI users‬ ‭and creators need to be better defined, and the non-intent of current IP laws to regulate‬ ‭non-human works creates ambiguity. Turning to case law, multiple parties occupy a role in the‬ ‭creative process of generating AI content. AI developers are tasked with training the machines to‬ ‭create some output, and the original creators of the inputs on which the systems are trained‬ ‭inspire the new content.‬‭532‬ ‭A Look at Case Law‬ ‭ii. Thaler v. Perlmutter (2023)‬ ‭In‬‭Thaler v. Perlmutter‬‭, the Court set a precedent‬‭by strictly interpreting the IP Clause to‬ ‭apply to human creations. Stephen Thaler, the plaintiff, attempted to apply for copyright‬ ‭ownership for an AI-generated visual work (named “A Recent Entrance to Paradise”). The U.S.‬ ‭530‬

‭Adam Zewe | MIT News. “Explained: Generative AI.”‬‭MIT News | Massachusetts Institute of Technology.‬ ‭Accessed November 9, 2024. https://news.mit.edu/2023/explained-generative-ai-1109.‬ ‭531‬ ‭Banh, Leonardo, and Gero Strobel. “Generative Artificial‬‭Intelligence.”‬‭Electronic Markets‬‭33, no. 1 (December‬ ‭2023). https://doi.org/10.1007/s12525-023-00680-1.‬ ‭532‬ ‭Hess, Sarah. “The Evolving Landscape of IP Law in‬‭the Age of Ai.” ABC Legal Services. Accessed November‬ ‭8, 2024.‬ ‭https://www.abclegal.com/blog/the-evolving-landscape-of-ip-law-in-the-age-of-ai#:~:text=Understanding%20IP%2‬ ‭0Law%20and%20AI,exclusive%20rights%20to%20their%20creations.‬

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‭Copyright Office (USCO) rejected the application because the work lacked human authorship.‬ ‭Thaler admitted that an AI algorithm created the “Creativity Machine” work but maintained that‬ ‭he should be eligible for copyright ownership because he was the machine’s owner. He filed a‬ ‭lawsuit against the USCO, and the Court upheld the USCO’s refusal to register the AI-generated‬ ‭work, citing that copyright law only protects human creations.‬‭533‬ ‭In‬‭Thaler,‬‭the Court examined the definition of “author”‬‭as outlined by copyright law. It‬ ‭was subsequently found that the term is not defined clearly in the IP Clause or the Constitution,‬ ‭an apparent shortcoming of existing IP law. Thus, the Court relied on dictionary definitions of‬ ‭authorship and historical context framing the Constitution, upholding the document’s purpose‬ ‭was to incentivize‬‭human‬‭creativity and innovation.‬‭The prominent legal question in‬‭Thaler‬ ‭revolved around the decision of whether or not a work created entirely by AI was eligible for‬ ‭copyright protection. Given that copyright law does not define authorship and the Court‬ ‭subsequently interpreted the Clause to apply strictly to human work, the question becomes: can a‬ ‭work autonomously created by AI be considered a product of human creation on the basis that‬ ‭the machine was born of the human mind?‬‭534‬ ‭The Court asserted that‬‭human‬‭creativity is fundamental‬‭and necessary for‬ ‭copyrightability, citing‬‭Burrow-Giles Lithographic‬‭v. Sarony‬‭to uphold that only a person may‬ ‭seek copyright ownership. In‬‭Burrow,‬‭the Court found‬‭that Congress may grant copyright‬ ‭ownership to the “author, inventor, designer, or proprietor of a photograph…so far as the‬ ‭photograph is a representation of original intellectual conceptions.”‬‭535‬ ‭The decision emphasized‬ ‭the posed and creative nature of the photograph, asserting that such a non-ordinary photograph‬ ‭533‬

‭ haler v. Perlmutter‬‭, Case 1:22-cv-01564-BAH (D.D.C.,‬‭Aug. 18, 2023).‬ T ‭Case review: Thaler V. Perlmutter (2023) - center‬‭for art law‬‭. Center for Art Law - At the intersection‬‭of visual‬ ‭arts and the law. (2023, December 8).‬ ‭https://itsartlaw.org/2023/12/11/case-summary-and-review-thaler-v-perlmutter/#post-61801-footnote-3‬ ‭535‬ ‭Burrow-Giles Lithographic Company v. Sarony, 111‬‭U.S. 53 (1884).‬ ‭534‬

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‭embodied the “author” (here, the photographer’s) ideas. The specific attributes of the picture‬ ‭proved to the Court that rather than being a mechanical process, such photography was creative‬ ‭and born from the human mind.‬‭536‬ ‭After invoking‬‭Burrow‬‭to support the decision to expand the‬ ‭historical understanding that human creativity is essential to copyrightability, the Court‬ ‭acknowledged the unfamiliar and complex inquiries that‬‭Thaler‬‭required, including “the level of‬ ‭human involvement required to designate a user of an AI system as an ‘author’ of a created‬ ‭work, the extent of protection granted to the resulting image, methods to evaluate the originality‬ ‭of AI-generated works trained on undisclosed pre-existing content, the optimal use of copyright‬ ‭to encourage creativity involving AI, and other related issues.”‬‭537‬ ‭Ultimately, the Court decided‬ ‭that‬‭Thaler‬‭did not require further exploration into‬‭such questions, only acknowledging the‬ ‭necessity of asking them while leaving them unanswered.‬ ‭iii. Getty Images (US), Inc. v. Stability AI, Inc. (2023)‬ ‭Examination of the ongoing case‬‭Getty Images v. Stability‬‭AI‬‭provides a foundation for‬ ‭the path that case law involving genAI will take. In‬‭Getty,‬‭the online image provider Getty‬ ‭Images filed a lawsuit against Stability AI, a company that used images from Getty to train its AI‬ ‭model.‬‭538‬ ‭Getty alleged that Stability AI had brazenly‬‭infringed upon their IP rights “on a‬ ‭staggering scale” by copying “more than 12 million photographs from Getty Images’ collection,‬ ‭along with the associated captions and metadata, without permission from or compensation to‬ ‭Getty Images, as part of its efforts to build a competing business,”‬‭539‬ ‭(referring to Stability AI’s‬ ‭creation and offering of a model “Stable Diffusion” and revenue-generating user interface‬ ‭“DreamStudio.”)‬‭540‬ ‭536‬

‭111 U.S. at 60.‬ ‭ ase review: Thaler (2023).‬ C ‭538‬ ‭Hess, “Evolving Landscape of IP”, ABC Legal.‬ ‭539‬ ‭Getty Images (US), Inc. v. Stability AI, Inc.‬‭, Case‬‭1:23-cv-00135-GBW at 1 (Feb. 3, 2023).‬ ‭540‬ ‭Getty v. Stability, Case 1:23 at 3.‬ ‭537‬

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‭Getty‬‭appears to pose a few primary inquiries. How will IP be safeguarded against‬ ‭AI-model training, which requires vast data often scraped from publicly available Internet‬ ‭sources? Furthermore, given the quickly expanding nature of global technology companies that‬ ‭operate tools that exist only in a digital environment, how will jurisdictional challenges be met?‬ ‭Getty‬‭had originally named Stability AI Inc. (located‬‭in the United States, referred to as‬ ‭“Stability US”) in its lawsuit but later amended the complaint to include Stability AI, Ltd.‬ ‭(referred to as “Stability UK”). Stability AI argued that the alleged actions by Getty took place‬ ‭outside of Delaware, that the District of Delaware lacked jurisdiction over Stability UK, and‬ ‭requested to have the case moved to the Northern District of California. In this jurisdiction, a‬ ‭class action lawsuit is pending against Stability AI with similar allegations, and the company‬ ‭argued that granting this request would avoid inconsistent judgment.‬‭541‬ ‭Regardless of whether‬‭Getty‬‭will be dismissed or‬‭be moved to another district, Stability‬ ‭AI’s request raises uncertainty regarding the jurisdiction of AI-related cases. Stability AI and‬ ‭Getty Images are companies of massive scale with international operations, and their global‬ ‭nature contributes to confusion over the jurisdiction under which the case may proceed. Applied‬ ‭to future genAI-related cases,‬‭Getty‬‭proves that questions‬‭may arise in early proceedings, such‬ ‭as: should the jurisdiction of such cases be determined by the location of the alleged IP‬ ‭infringement, the offending or defending company’s domicile, or where the AI-generated output‬ ‭is being used? With‬‭Getty‬‭remaining an ongoing case,‬‭such inquiries have yet to be answered.‬ ‭Yet, the case reveals that the IP Clause continues to lack clarification given the global operations‬ ‭of technology companies and the international distribution of AI-generated outputs, and further‬ ‭necessitates the need to examine the question of jurisdiction. When viewed with‬‭Thaler,‬‭the‬ ‭541‬

‭“Getty Images v. Stability Ai.” BakerHostetler, September 16, 2024.‬ ‭https://www.bakerlaw.com/getty-images-v-stability-ai/.‬

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‭extent to which the framework of the IP Clause must be revised grows.‬‭Thaler‬‭lays the‬ ‭foundation for the Courts to conduct a nuanced examination of humanity in the context of AI,‬ ‭setting the precedent that a human must create a work for that work to be protected under‬ ‭copyright law but failing to determine the scope and breadth of such an amendment intended to‬ ‭encompass the issues presented by AI.‬‭Getty‬‭reveals‬‭that the IP Clause is challenged by issues‬ ‭involving jurisdiction given the expansive operations of AI companies and their tools, and a‬ ‭watchful eye is necessary to monitor the changing landscape of IP law.‬ ‭The Current State of AI Regulation‬ ‭Regarding AI outputs and copyright law,‬‭Thaler‬‭is‬‭the law of the land. Until a decision is‬ ‭handed down that overturns precedent, human authorship is necessary for a valid copyright‬ ‭claim, and the Copyright Office will not grant protections to any work generated by AI.‬ ‭Regarding the mechanisms of training AI models,‬‭Getty‬‭and numerous similar cases alleging‬ ‭copyright infringement stand before the Court and await judgment. The call to attention for‬ ‭regulating AI is becoming widespread, with several states issuing executive orders for AI.‬‭542‬ ‭In‬ ‭California, Executive Order N-12-23‬‭emphasizes the‬‭benefits of genAI while acknowledging the‬ ‭need for state agencies to examine the privacy and security implications of AI use for California‬ ‭residents, stating that “GenAI‬‭can enhance human potential‬‭and creativity but must be deployed‬ ‭and regulated carefully to mitigate and guard against a new generation of risks.”‬‭543‬ ‭At a federal level, no existing comprehensive legislation directly regulates AI. The White‬

‭542‬

‭“Ai Watch: Global Regulatory Tracker - United States:‬‭White & Case LLP.” United States | White & Case LLP,‬ ‭ ay 13, 2024.‬ M ‭https://www.whitecase.com/insight-our-thinking/ai-watch-global-regulatory-tracker-united-states#:~:text=Laws%2F‬ ‭Regulations%20directly%20regulating%20AI,AI%20albeit%20with%20limited%20application.‬ ‭543‬

‭Executive Order N-12-23, Executive State Department‬‭of California (Sep. 6, 2023),‬ ‭https://www.gov.ca.gov/wp-content/uploads/2023/09/AI-EO-No.12-_-GGN-Signed.pdf‬‭.‬

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‭Nonetheless, the White House Executive Order on AI outlines eight main priorities of AI‬ ‭technology, stating that 1) AI must be safe and secure; 2) To lead in AI development, the US‬ ‭must promote responsible innovation, competition, and collaboration; 3) Responsible‬ ‭development and use of AI requires supporting American workers; 4) AI policies must advance‬ ‭equity and civil rights; 5) The protection of Americans who increasingly use or purchase AI and‬ ‭AI-enabled products in their daily lives must be prioritized; 6) Privacy and civil liberties must be‬ ‭protected; 7) The federal government must manage the risks of its AI use; and 8) The federal‬ ‭government should practice global leadership in societal, economic and technological‬ ‭progress.‬‭544‬ ‭Further, while no AI-specific federal regulator‬‭exists, the Federal Trade Commission,‬ ‭Equal Employment Opportunity Commission, Consumer Financial Protection Bureau, and‬ ‭Department of Justice issued a joint statement clarifying that their authority applies to AI in‬ ‭April of 2023.‬‭545‬ ‭Thus, legislation in the United States may quickly fall behind the speed of genAI growth‬ ‭and innovation.. Especially in the context of IP, current laws lack the nuance to handle the unique‬ ‭challenges AI presents.‬ ‭Conclusion‬ ‭The IP Clause of the Constitution faces unique burdens posed by the advent of genAI‬ ‭tools, necessitating its evolution to accommodate modern challenges. Grounded in the Framers’‬ ‭intent to incentivize human creativity and progress, the Clause’s language referring to “authors”‬

‭544‬

‭Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, The White‬ ‭ ouse (Oct. 30, 2023),‬ H ‭https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-‬ ‭trustworthy-development-and-use-of-artificial-intelligence/‬‭.‬ ‭545‬ ‭“Joint Statement on Enforcement of Civil Rights,‬‭Fair Competition, Consumer Protection, and Equal Opportunity‬ ‭Laws in Automated Systems.” US EEOC. Accessed November 29, 2024.‬ ‭https://www.eeoc.gov/joint-statement-enforcement-civil-rights-fair-competition-consumer-protection-and-equal-opp‬ ‭ortunity.‬

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‭and “inventors” does not anticipate non-human creations, raising fundamental questions about its‬ ‭applicability in the context of AI-generated works.‬‭Thaler‬‭affirmed the foundational principle‬ ‭that human creativity is a prerequisite for copyright protection under current law, thereby‬ ‭underscoring the Framers’ intent to protect works born of human thought. However,‬‭Thaler‬ ‭leaves the degree of human involvement necessary to claim authorship in AI-assisted creations‬ ‭unresolved and effectively addresses the evolving complexities introduced by AI-generated‬ ‭content.‬ ‭In‬‭Getty,‬‭the constitutional implications of IP protections‬‭are complicated by‬ ‭jurisdictional ambiguity arising from the global nature of AI technology. The‬‭Getty‬‭proceedings‬ ‭raise critical questions about how future cases may approach the challenge of localizing IP‬ ‭infringement and the consequent impact on the scope of IP rights. These jurisdictional‬ ‭uncertainties further prove the Clause’s inability to provide an adequate framework for regulating‬ ‭AI-generated works.‬ ‭Thaler‬‭and‬‭Getty‬‭reveal both the strengths and limitations‬‭of the IP Clause as a‬ ‭constitutional safeguard for intellectual property. As it exists, its origins in human creativity‬ ‭provide a clear boundary, yet simultaneously, the Clause’s rigid interpretation leaves it‬ ‭vulnerable to becoming less effective as AI technology progresses. As a living document, the‬ ‭Constitution must evolve so that the IP Clause may effectively address the humanity question in‬ ‭Thaler‬‭and the jurisdictional challenges posed by‬‭Getty.‬‭Such changing interpretations by the‬ ‭Courts will ensure that the IP Clause continues to provide a comprehensive framework for IP‬ ‭protections while fostering innovation, aligning its Constitutional principles with the modernity‬ ‭of an AI-driven legal landscape.‬‭546‬

‭546‬

‭This paper has been reviewed by Camilla A. Hrdy, an Associate Professor of Law at Rutgers Law School.‬ ‭Professor Hrdy specializes in Intellectual Property Law, Trademark Law, and Patent Law, and her research focuses‬

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‭BANNED BOOKS AND THE ECONOMY:‬ ‭EVALUATING THE CONSTITUTION, LAW, AND MARKET‬ ‭WRITTEN BY AWAKHIWE NDLOVU‬ ‭Introduction‬ ‭Banned books in civilization have been a testament to a country’s religion, politics, and‬ ‭culture reflecting the time period in which it was enacted. The act of “banning books” has taken‬ ‭different forms across countries as early as 212 B.C in China with the burning of books as a form‬ ‭of censorship to restrict the power of knowledge that books could insight and to restrict‬ ‭nonconformity under a utilitarian rule.‬‭547‬ ‭Under this‬‭we see a defense of political strategy enacted‬ ‭to limit the information that is being spread to citizens and to ensure that their rule is uncontested‬ ‭and their subjects succumb to their word. The first recorded banned book in the United States‬ ‭was “New English Cannan” by Thomas Quincy in Massachusetts. The justification for this book‬ ‭ban had adopted a view based on religion to protect the values held by Puritans who attempted to‬ ‭rebuild their lives when settling in the United States of America. They sought to conform to their‬ ‭traditional views of education and continue their culture practices on this new land despite‬ ‭previous foundations made in the land by Indigenous Americans.‬‭548‬ ‭In Quincy’s novel he‬ ‭critiques the Puritans strategy of building a new America including the treatment of Indigenous‬ ‭Americans to which the Puritans found to be sacrilegious, culminating in the banning of the‬ ‭novel.‬

‭on artificial intelligence and the relationship between innovation and human well-being.‬ ‭547‬

‭Chan, Lois Mai. “The Burning of the Books in China, 213 B.C.” The Journal of Library History (1966-1972) 7,‬ ‭no. 2 (1972): 101–8. http://www.jstor.org/stable/25540352.‬ ‭548‬ ‭Good, A. (2024, February 9). America’s first banned book? UMN Libraries News & Events.‬ ‭https://libnews.umn.edu/2023/10/americas-first-banned-book/#:‬

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‭The history of banned books provides a roadmap for the executive decisions made by‬ ‭governments and the outcomes that ensue from this, reflecting into how our modern day law is‬ ‭shaped and potential steps to take for the future. In the modern day, socioeconomic factors‬ ‭contribute to the formation of the law exemplified by the living constitution. The social structure‬ ‭of the United States connects family, religion, law, economics, and class, exemplifying that the‬ ‭laws made by a government can in return affect the progression of an economy and how it can‬ ‭function. We see this through the establishment of government agencies, public policy,‬ ‭facilitating investment, and more specifically the circular flow model of the economy.‬ ‭i. First Amendment of the U.S Constitution‬ ‭The Constitution serves as a basis for the laws set in the United States, but looking more‬ ‭specifically at the First Amendment, we can see how the progression of society within the United‬ ‭States begins with the foundations set by the First Amendment allowing for the protection of‬ ‭fundamental rights for the people and limiting the power of the government. Under the First‬ ‭Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting‬ ‭the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the‬ ‭people peaceably to assemble, and to petition the Government for a redress of grievances.”‬‭549‬ ‭In‬ ‭order to understand the concept of banned books, a reflection on the First Amendment is‬ ‭necessary in understanding its effects from an intellectual and social standpoint.‬ ‭In the modern day, we see book bans in public schools. Pen America, a 501 non profit‬ ‭organization that advocates for protection of free expression in the United States defines banned‬ ‭books as “any action taken against a book based on its content and as a result of parent or‬ ‭community challenges, administrative decisions, or in response to direct or threatened action by‬ ‭549‬

‭U.S. Constitution - First Amendment | Resources | Constitution Annotated | congress.gov | Library of Congress.‬ ‭(n.d.). https://constitution.congress.gov/constitution/amendment-1/‬

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‭lawmakers or other governmental officials, that leads to a previously accessible book being‬ ‭either completely removed from availability to students, or where access to a book is restricted or‬ ‭diminished.”‬‭550‬ ‭Current laws set to ban books restrict‬‭the autonomy of young individuals in the‬ ‭United States to assess knowledge and limit their access regarding the socio economics factors‬ ‭that contribute to the growth of a society, resulting in the decline of economic activity in a‬ ‭country.‬ ‭ii. Market Trends in Publishing‬ ‭The publishing industry encompasses a large amount‬‭of vast and diverse companies that‬ ‭contribute to the information that is spread throughout our economy through books, newspapers,‬ ‭blogs, literature, music, etc. The success of the industry is transparent as it generates about $28‬ ‭billion dollars in revenue every year.‬‭551‬ ‭The companies‬‭making up this business sector have a job‬ ‭to its readers to provide high quality and credible information for not only enjoyment and‬ ‭pleasure but as well as scholarly research and discourse to provide intellectual information that‬ ‭contributes to the growth of knowledge. Books serve as the foundation of our society and in turn‬ ‭its content plays a direct role in how our consumer trends are driven. The publishing industry‬ ‭contributes to the market by influencing consumer trends based on what is popular at the time,‬ ‭which generates revenue through book sales all of which depend on multiple services provided‬ ‭through our economy. It is important to note that the increase in the production of goods and‬ ‭services contributes to larger. We see this idea displayed through New York City as a global hub‬ ‭for business.‬ ‭Anne del Castillo, Commissioner of New York City Mayor’s Office of‬ ‭550‬

‭What is a book Ban? and more frequently asked questions. PEN America. (2024, November 15).‬ ‭https://pen.org/book-bans-frequently-asked-questions/‬ ‭551‬ ‭Watson, A. (2023, June 16).‬‭U.S. Book Publishing‬‭Industry Revenue 2022‬‭. Statista.‬ ‭https://www.statista.com/statistics/271931/revenue-of-the-us-book-publishing-industry/‬

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‭Media and Entertainment, provides insight into the role of publishing when stating that “the‬ ‭study confirms that publishing is vital to the city’s creative economy, supporting nearly 95,000‬ ‭jobs, $11 billion in wages and $34 billion in total economic output. The average annual wage of‬ ‭publishing study workers is $122,000, well above the city’s overall average annual wage of‬ ‭$99,000.”‬‭552‬ ‭Barrier of Knowledge and its Effects on the Economy‬ ‭ii. Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico‬ ‭Per the First Amendment, it specifically states that “Congress shall make no‬ ‭law...abridging freedom of speech.”‬‭553‬ ‭including the‬‭right to speak, write, and share ideas and‬ ‭opinions without retaliation from the government.‬‭554‬ ‭In the context of banned books, this section‬ ‭of the Amendment serves as a basis of majority of arguments made regarding banned books and‬ ‭its validity, often referencing the Constitution to create a defense in the powers of individuals‬ ‭that are restricted with the banning of books. In‬‭Board of Education, Island Trees Union Free‬ ‭School District No. 26 v. Pico by Pico (1982)‬‭this‬‭case set a precedent to be followed due to‬ ‭addressing banned books from schools for a publicly noted time. The Island Trees Union Free‬ ‭School District's Board of Education ordered that select books be removed from junior high and‬ ‭high school libraries citing them as “anti-American, anti-Christian, anti-Semitic, and just plain‬ ‭filthy.”‬‭555‬ ‭By recognizing the issue stemming from the‬‭case, it established students' right to‬ ‭receive information per the First Amendment, as the board attempted to remove books based on‬

‭552‬

‭New York City Publishing Industry - Economic Impact Study. (n.d.-b).‬ ‭https://www.nyc.gov/assets/mome/pdf/NYC-Publishing-Industry-Economic-Impact-Study.pdf‬ ‭553‬ ‭What does free speech mean?. United States Courts. (n.d.).‬ ‭https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/‬ ‭what-does‬ ‭554‬ ‭Legal Information Institute. (n.d.). Freedom of speech. Legal Information Institute.‬ ‭https://www.law.cornell.edu/wex/freedom_of_speech‬ ‭555‬ ‭"Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico." Oyez. Accessed December‬ ‭2, 2024. https://www.oyez.org/cases/1981/80-2043.‬

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‭their content. Ultimately, it was deemed unconstitutional for the board to remove these books‬ ‭from libraries.‬ ‭It is important to recognize that the reasoning behind the removal, plays a role in the‬ ‭constitutionality of removing books. The personal moral values played into the decision for the‬ ‭board's removal created a biased view. The content of the selected novels was not one based on‬ ‭education value, rather personal conviction damaging the students ability to gain knowledge.‬ ‭Knowing that the educational value is not what is being restricted but rather the content based on‬ ‭personal values, takes away educational opportunity from the students. While uncomfortable, the‬ ‭content in the books provided serves as an educational value to the realities of life that are not‬ ‭enclosed in the bubble of the school district. The foreign nature of the novels incites thought‬ ‭provoking content to question, comment, and reassess what is being taught by educators and how‬ ‭to go against the status quo and grow from it. To be able to intellectually grow means to question‬ ‭the unquestioned, and if books are being removed based on the opinions of others, this creates a‬ ‭measure in which content is not being absorbed. While this case set a large foundation in the‬ ‭argument of banned books, the split decision between the judges left a large question into how‬ ‭large the scope of freedom of speech could reach and if it is situational.‬ ‭iii. Looking at economic growth‬ ‭Knowledge is a key factor in the economic growth of society and how it can develop in‬ ‭the long run. People with higher levels of education such as 4-year colleges tend to earn‬ ‭significantly more in a lifetime compared to an individual who has not, which contributes to‬ ‭economic productivity.‬‭556‬ ‭The college premium is an‬‭important aspect to economic growth. The‬

‭556‬

‭Falling college wage premiums by race and ethnicity‬‭- san francisco fed‬‭. SF Fed. (2024, December 18).‬ h‭ ttps://www.frbsf.org/research-and-insights/publications/economic-letter/2023/08/falling-college-wage-premiums-b‬ ‭y-race-and-ethnicity#‬

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‭education provided by these books during the young academic years plays a role in shaping this‬ ‭foundation. By exposing young minds to diverse perspectives and problem-solving approaches,‬ ‭books can allow for these future workers to excel in their career with the necessary skills to‬ ‭navigate problems that may arise in an ever changing economy.‬ ‭While overall the effects of banned books on the economy are negative, we see rare‬ ‭occasions in which the Streisand effect can control consumer trends and affect the publishing‬ ‭market. The Streisand effect is the “ phenomenon in which an attempt to censor, hide, or‬ ‭otherwise draw attention away from something only serves to attract more attention to it.”‬‭557‬ ‭In‬ ‭this censorship over novels can either lead in two avenues. Book bans create economic barrier‬ ‭that make it slow to recover from. When books are banned this leads to sales declining from‬ ‭bookstores and publishing companies. Schools and libraries are a large part of the market of‬ ‭book sellers which also leads to a reduced revenue. This reduction in consumer spending leads to‬ ‭other industries that depend on the services provided to also slow. These barriers can have a‬ ‭negative impact on overall GDP as less money is circulating in the economy.‬‭558‬ ‭Obscene or not too Obscene: An analysis of‬‭Miller‬‭v. California‬‭(1973)‬ ‭In the banned books conversation a common argument brought up is obscenity in books.‬ ‭Allegedly, this is the large factor into why books are banned in history based on what is‬ ‭considered obscene especially in the context of public schools.‬‭Miller v. California (1973)‬‭,‬ ‭serves as a monumental basis into the definition of obscenity, the circumstances in which it is‬ ‭used, and highlights the importance of a living constitution to understand how the law applies to‬ ‭ever evolving situations in modern day society. While the case does not directly involve the‬ ‭notion of banned books, the ruling sets precedent into the standards that are highlighted‬ ‭557‬

‭ ldridge, A. (n.d.).‬‭Streisand Effect‬‭. Britannica.‬ E ‭Ellen Rolfes, S. F. (2024, March 20). Examining the economic costs of book bans. Marketplace.‬ ‭https://www.marketplace.org/2024/03/20/costs-of-book-bans/#‬ ‭558‬

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‭regarding obscenity. Marvin Miller was prosecuted for “mailing advertisements for four books‬ ‭— Intercourse, Man–Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography‬ ‭— and a film entitled Marital Intercourse.”‬‭559‬ ‭which‬‭was illegal under California law. However,‬ ‭Miller argued that this content was not considered obscene citing‬‭Memoirs v. Massachusetts,‬ ‭which required a national definition of obscenity in order to be convicted.‬‭560‬ ‭The sexual nature of‬ ‭this content was put into question with Miller claiming they were not obscene. However, it was‬ ‭later concluded they were obscene due the standards set by the court and emphasis on looking at‬ ‭the material as a whole. Justice Warren Earl Burger had reiterated that the First Amendment does‬ ‭not protect obscenity but also created a standard for when a material was considered obscene. It‬ ‭stated that “1) Whether the average person, applying contemporary community standards, would‬ ‭find that the work as a whole appeals to the prurient interest; 2) Whether the work depicts or‬ ‭describes sexual conduct or excretory functions, as defined by state law, in an offensive way; and‬ ‭3) Whether the work as a whole lacks serious literary, artistic, political, or scientific value.”‬‭561‬ ‭The key line that needs to be recognized is “whether the work as a whole lacks serious‬ ‭literary, artistic, political, or scientific value.” The reasoning behind what is considered obscene‬ ‭plays into the argument of why books are banned in the United states of America. Is it based on‬ ‭the content or who the content represents? Among 32 states, 1648 books were banned.‬‭562‬ ‭A‬ ‭common pattern seen amongst books that are banned are they tackle topics regarding race,‬ ‭sexuality, and activism.‬ ‭iv. Consequences‬ ‭559‬

‭Hudson, D. L. (2024, July 2).‬‭Miller v. California‬‭(1973)‬‭. The Free Speech Center.‬ ‭https://firstamendment.mtsu.edu/article/miller-v-california/‬ ‭560‬ ‭Miller v. California, 413 U.S. 15 (1973)‬‭. Justia‬‭Law. (n.d.). https://supreme.justia.com/cases/federal/us/413/15/‬ ‭561‬ ‭Miller v. California, 413 U.S. 15 (1973)‬‭. Justia‬‭Law. (n.d.). https://supreme.justia.com/cases/federal/us/413/15/‬ ‭562‬ ‭Banned in the USA‬‭. PEN America. (2024a, August 7).‬ ‭https://pen.org/report/banned-usa-growing-movement-to-censor-books-in-schools/‬

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‭An interview was conducted with Ashley L. White, Ph.D, an Assistant Professor at‬ ‭University of Wisconsin-Madison. She emphasizes that what we are witnessing is a long history‬ ‭of massive resistance that relates back to‬‭Brown v. Board of Education (1954)‬‭and the Southern‬ ‭Manifesto. She states that “while it may not be the first act of massive resistance, it is the most‬ ‭demonstrative in which right policy makers decided that the‬‭Brown v. Board of Education‬ ‭decision was unconstitutional.” Book banning is another round of massive resistance efforts that‬ ‭work to hinder the educational process particularly of black citizens in the country.‬ ‭Conclusion‬ ‭The effects of banning books prohibit a new generation of youth to capture information‬ ‭that is provided through these novels. The intertwining identities displayed in the novels are‬ ‭essential in understanding how socioeconomic factors play into the decisions made in everyday‬ ‭life. To strip students from this intellectual tool kit provided by a majority of these rules prohibits‬ ‭them from learning of the realities of our society and how they can make our society function.‬ ‭To censor one from information gives a blinded view of what can be taught and in turn makes the‬ ‭possibility of problem solving and evolving difficult in nature when not all facts are presented in‬ ‭front of them. How can a society grow when information is kept from the people who will grow‬ ‭it?‬