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No international legal convention presently defines “justice.” From Hyde Park to the Hague, platitudes urging its assurance falsely promulgate the hollow call to action as an ideal means of redress. The premier American legal reference, Black’s Law Dictionary, depicts a protection-punishment dyad that adopts the Rawlian belief that justice results in fairness. Semantic plurality, however harmful, is not at the heart of my concerns. Rather, I am intrigued with how our perception of which part of speech justice ought to belong to forks its fate: either retained as a stagnant noun or pioneered into the necessary verb.
Social institutions founded on justice, the noun, deprive violated persons of any real authority to seek remedies beyond retroactive recourse. Out of exhaustion, we acquiesce to the notion that tardy nominal concessions and cheap compensation are sufficient end goals within existing legal frameworks’ constraints. They cast aside reform as a radical notion embraced only by those without a sophisticated grasp of these strict frameworks that, by design, preclude progress.
Justice diluted will never be a first choice among those who witnessed their rights flagrantly denied. The global conversation has stretched the noun to acrobatic proportions to no productive avail. But beyond peers and media pundits, everyday injustices have been more accentuated to me these past few months. I’ve heard the accentuated helplessness from Title IX recounts and felt the dignity stripped away with each microaggression hurled at community members whose livelihoods I hold dearer than my own.
Aaron Pettes, a Prison Program Associate at Rise, a comprehensive reentry nonprofit, shared an insight with my Human Rights Field Work class that helped me overcome mounting frustration. He argued that a system will not create or promote something that threatens its existence. Case wins that do not tackle injustice’s root causes are not to be mistaken as benchmarks inching us toward a fairer world. This standardized application of bandages to societal ills without caring to interrogate why bleeding persists is as blatant as it is offensive. I grow afraid the rhetoric we feed one another reclining on justice as a noun lends powers uninvested in our livelihood a hand to pigeonhole us from a more collective, expansive imagination of what justice must look like in practice. No charted path to fairness began with as stationary an imagination as the noun allows.
Our unwillingness to toy with taboo reform to soothe institutional discomfort proves just who today’s structure exists to benefit and exclude and the minimal degrees by which obscured justice is palatable. Another example of what I most reverently describe as “good people” I had the privilege of learning from in the Pozen Human Rights major was class speaker, movement lawyer, and former ULM interviewee Joey Mogul. Mogul shared with my Contemporary Issues class how crucial it was as co-lead counsel to yield the Burge Torture survivors full reigns to imagine what successful reparations look like even if they were never to see the fruits of the nation’s first reparations package for survivors of torture in 2020.
No, I do not have a eureka answer for how undergraduate minds or legal practitioners can eclipse systemic injustice. Frankly, I can barely scrape together the answers for tomorrow’s statistics problem set. But I know there is great wisdom we can glean from those audacious enough to push the envelope.
Volume II, Issue I features 101 mentions of “justice.” As I write my midway Letter from the Editor since reviving ULM over a year ago and graduating next year, I urge you to, with each reference, pursue justice as a verb, imagining how it unfettered could gap deficits presented in your life and the causes and people closest to your heart. Encouraging full audacity,
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Of all technological development over the past century, some of the most important developments occurred in the realm of medicine. Over the course of a few decades, scientists used new technology to eradicate diseases, research the human body, and make strides in biotechnology, playing a large role in adding 30-odd years to the human lifespan between 1923 and now. A majority of these medical advances were enabled by a single tool: the HeLa cell line. Among med ical major discover ies, the HeLa cell line was used to develop the Polio vaccine, slow cancer cell growth, research HIV infection, and most re cently, to develop the COVID-19 vaccine.
The HeLa cell line, however, has a contro versial origin. The cells were harvested without consent from Henrietta Lacks (thus the name HeLa for the cell line) when a cervical cancer tumor of hers was biopsied in 1951. The case has been a central issue in the field of medical ethics since it was brought to court in 2021 by her family. The 2021 suit, Lacks v. Thermo Fisher Scientific Inc., was brought about on the basis that multiple Thermo Fisher products were HeLa-based products. Thermo Fisher’s most recent revenue posting shows that they
had a 2023 revenue of $42.7 billion, putting them in the same league as other pharma and biotech giants, such as Pfizer and Janssen. While initially Thermo Fisher alleged the claims were too old to be considered, a settlement was reached between Lack’s family and the company.
In addition to the Thermo Fisher case, Lack’s family filed a new suit against Ultragenyx Pharmaceutical for its AAV-powered gene therapies and their use of the HeLa cell line despite knowing its origin. Ultragenyx has not yet commented on the suit.
Both the Thermo Fisher suit and the Ultragenyx suit hinge on the idea that the companies are staking a claim on Ms. Lacks’ genetic ma-
terial for their own profit, knowing its origins and without consulting the members of the late Ms. Lacks’ estate. The Third Restatement of Restitution and Unjust Enrichment plays the largest role in both cases- as stated in the Lacks v. Thermo Fisher Scientific Inc. brief, because these companies “…made the conscious choice to profit from the assault of Henrietta Lacks”, their “…ill-gotten gains rightfully belong to Ms. Lacks’ Estate.” Further detailed in the case brief is the treatment of not just Ms. Lacks, but other Black patients in the Johns Hopkins segregated wards whose cervical cancer biopsies were also used without consent. Lacks’ case was not a oneoff, but was the most successful of all the other instances where Black patients were taken advantage of and dehumanized as their genetic material was stolen from them and used without consent.
The case of Henrietta Lacks speaks to two major topics in the world of medicine: the systemic exploitation of Black patients and the diminishing protections for patient privacy. Implicit biases in healthcare have exacerbated already-existing disparities in health between Black people and the general population. Besides socioeconomic divides and disadvantages faced by the Black commu-
Lacks’ case brings further attention to the need for equality of care among patients. . .Specific protections for Black individuals regarding privacy and explicit consent in their care processes will further protect Black patients, and will prevent another case such as Henrietta Lacks’ from occuring again.
nity, a 2005 report by the National Academy of Medicine indicated that the primary driving factor for these health disparities was the systematically inferior care that physicians give to Black patients. In addition to poor healthcare, health complications are higher for Black patients because of the higher proportion of Black patients given undesirable treatments compared to white patients (such as the prescription of antipsychotics, and even the amputation of limbs), and the higher proportion of Black patients not prescribed drugs compared to white patients (especially in the case of cardiovascular conditions such as coronary artery disease, which is highly prevalent among Black individuals). Lacks’ case brings further attention to the need for equality of care among patients- Black patients are often dehumanized in the healthcare process through implicit biases, and as a result face worse outcomes than their white counterparts. Specific protections for Black individuals regarding privacy and explicit consent in their care processes will further protect Black patients, and will prevent another case such as Henrietta Lacks’ from occurring again.
In addition to racial discrimination in healthcare, patient privacy is an overarching issue that has worsened with the dawn of advanced and accessible AI tools. Data is used to train AI models to perform a wide array of tasks. However, when these same models are trained using patient data, how is patient privacy protected? A primary concern of AI being used in medicine is the lack of coverage that HIPAA offers for patients whose data is collected by various entities. Things such as consumer apps collect health data provided by patients, and this data can be freely used without patient consent regarding the applications of the data themselves. The precedent of the Henrietta Lacks case, if used correctly going forward, could provide a strong foundation for the requirement of patient consent and equality of care in medicine- Lacks’ genetic material was harvested and used without consent, and given the precedent of the case, improper usage of patient data could be protected by the same laws that were used to settle the Lacks case. Already, there are strong restrictions to using real-world patient data- in the EU, the General Data Protection Regulation
act (GDPR) requires that each patient whose medical records are used in research must provide informed consent to the researchers. Given the medical mistrust that the Henrietta Lacks case has engendered within the Black community, legal and ethical protections for patient data (especially for patients of color) are essential to enabling proper care and coverage in medical literature for Black patients.
Johnson v. Prentice deals with whether depriving a prisoner in solitary confinement of virtually all exercise for three years violates the Eighth Amendment. And whether such a denial violates the Eighth Amendment if it’s imposed in response to an “utterly trivial infraction.” To be clear, Michael Johnson was held in solitary confinement for several years, exacerbating his mental illness and leading to unpredictable behaviors. As such, the legal team for Johnson presented this issue in their writ of certiorari–to petition the court for review–to associate Justice Amy Coney Barrett of the Supreme Court. The Court then denied this petition, with Justice Jackson, Justice Sotomayor, and Justice Kagan dissenting. In the dissent, Justice Jackson argues that the Seventh Circuit should’ve used the deliberate-indifference standard to determine Johnson v. Prentice. And that relying on Pearson’s “utterly trivial infraction” rule has caused their judgment to not fully cover the extent of Johnson’s punishment.
The time Michael Johnson, the applicant, has been held in solitary confinement has exacerbated his existing mental illnesses. Johnson has bipolar disorder, severe depression, anxiety, and excoriation disorder (characterized by the compulsive picking of one’s own skin). So when Johnson faced “more than three years of solitary confinement” at the Pontiac Correctional Center, he engaged in several unpredictable behaviors, like spitting on another inmate, throwing liquid at prison staff, and damaging property. At this center, Johnson stayed in a windowless cell and was only permitted to leave his cell to shower or exercise; a ten-minute shower once per week and exercise in a “single-person cage on a weekly ba-
sis.” And when Johnson did leave his cell, he left it bound in shackles. It is under these circumstances that Johnson engaged in unpredictable behaviors and was, consequently, punished.
As punishment, Johnson received extensions to his solitary confinement and was given yard restrictions. It is the second punishment, yard restriction–the deprivation of all access to exercise–that established the basis for this case, Johnson v. Prentice. The usual denial of exercise ranges from thirty to ninety days but Johnson, on the other hand, was alarmingly denied exercise for nearly three years. Such a denial occurred because Johnson’s punishments were imposed consecutively and even when he was allowed “only one hour per month of yard time,” that time was routinely eliminated. Thus, creating a “24/7 solitary confinement.”
In the dissent, Justice Jackson claimed that Johnson’s solitary confinement was unusually severe because “prison officials completely deprived [him] of exercise for nearly all of his incarceration at Pontiac.” It is important to note that in all of the infractions committed by Johnson, only four –spitting on another inmate and throwing liquid at prison staff– incidences could be characterized as involving any violence; yet, Johnson was punished to yard restrictions. This, of course, caused Johnson to have “no opportunity at all to stretch his limbs or breathe fresh air.”
Johnson’s unusually severe punishment has, in Justice Jackson’s opinion, allowed the Eighth Amendment to provide the proper legal standard for evaluating this case. The Eighth Amendment provides protections for those accused of crime, it prohibits excessive bail, the imposition of
excessive fines, and cruel and unusual punishments. The Eighth Amendment is pivotal to the case because it prohibits conditions of confinement that can be attributed to a prison official’s deliberate indifference to an inmate’s health or safety, Estelle, 429 U. S., at 104. For in instances of deliberate indifference, it can be fairly said that “the official has inflicted cruel and unusual punishment,” Wilson v. Seiter, 501 U. S. 294, 299 (1991). Thus, violating the constitutional rights of the inmate who is harmed by that condition. Farmer, 511 U. S., at 837.
In order for the deliberate-indiffere nce standard to be used in Johnson v. Prentice, two factors must be analyzed: “first, whether the exercise deprivation at issue posed a substantial risk to the prisoner’s health or safety, and second, whether prison officials ‘knowingly and unreasonably disregard[ed]’ that risk of harm.” Justice Jackson then goes on to state that Pearson’s “utterly trivial infraction” test bears no relationship to the deliberate-indifference standard because the Pearson rule isn’t concerned with how a prolonged denial of exercise has “indisputable risks to health or safety.” The Pearson rule calls for an analysis of each separate yard restriction extension and rather than “the sum total of the deprivation.”
Justice Jackson emphasizes how the Court of Appeals for the Seventh Circuit should’ve abandoned Pearson’s “utterly trivial infraction” rule because it caused a harmful error in the case. By only considering the nature and volume of Johnson’s infractions, it ignores the impact yard restriction had on Johnson’s physical and mental health and the prison officials’ deliberate indifference. Justice Jackson states that there was more than enough
evidence to establish the unconstitutional deliberate indifference; there’s a record of Johnson’s several attempts to notify prison officials of his deteriorating mental and physical health as it connects to yard restriction punishments. As such, the Eighth Amendment’s prohibition of cruel and unusual punishment should be applied in a manner that considers the broader
context and effects of the punishment on the inmate’s health and safety.
Reparative justice would follow from considering the context and effects of Johnson’s punishment. Reparative justice is about rectifying and transforming systemic and structural injustices, which means repairing past harms, stopping present harm, and preventing the reproduction of harm.
So by acknowledging that Johnson’s yard restrictions exacerbated his existing mental illnesses, higher courts can work towards rectifying those harms and, in the Supreme Court’s case, rule on how a law should be interpreted and applied. Furthermore, a broader interpretation of the Eighth Amendment is necessary so that reparative justice is achieved.
Bruce Springsteen once claimed that blind faith will get you killed, but in a nation where 16 percent of Americans believe that global warming is a work of fiction, perhaps it will be blind doubt that is our undoing.
Nearly a decade after claiming global warming was a Chinese hoax, former commander-in-chief Donald Trump is up for reelection, and the existence of climate change is still up for debate. The future of the environmental policy of the world’s second-largest polluter is on the line in the 2024 presidential election. In the state of Minnesota, climate change advocates have begun work to combat false narratives around the severity of the climate crisis by holding Big Oil accountable for their misinformation efforts. The case began on June 24, 2020, when Minnesota Attorney General Keith Ellison brought a complaint against several bodies representing the broader fossil fuel industry, including lobbying group the American Petroleum Institute, oil and gas powerhouse ExxonMobil, and three companies owned by fossil fuel billionaire Charles Koch. Among complaints of fraud, failure to warn, deceptive trade practices, and false statements in advertising, the joint defendants face multiple violations of Minnesota state laws
by ELIJAH BULLIE STAFF WRITERthat protect against consumer fraud. American Petroleum Inst., etET alAL. vV. Minnesota follows the lead of 15 other plaintiffs who have brought lawsuits against Big Oil on similar grounds. Massachusetts, New York, and Rhode Island are notable recent plaintiffs against polluters spreading misinformation about the environmental cost of their business practices. The genesis of the lawsuit was the discovery of internal communications within these groups wherein experts notified polluters of the harmful effects of CO2 and fossil fuels.
In a memo circulated on October 16, 1979, ExxonMobil executives were informed that fossil fuel combustion was the direct cause of the elevated CO2 concentrations in the air and that fossil fuel consumption would cause dramatic consequences for the environment. The complaint argues that after obtaining this information, the defendants continued to defend the use of fossil fuels and intentionally spread misinformation about the dangers. In what the Minnesota Attorney General calls a “campaign of deception,” the National Coal Association, the Western Fuels Association, and the Edison Electrical Institute created a front group to release print ads compromising the
public’s understanding of scientific reality. Under the name, the Information Council for the Environment, the three companies compare global warming to the false existential hysteria incited by the folk tale character ‘Chicken Little’ to discredit expert assertions of climate change’s gravity.
Many climate change activists look to Minnesota’s prior history of holding large corporations accountable for their consumer deception and subsequent adverse effects on public health. Former Minnesota Attorney General Skip Humphrey, along with the Blue Cross and Blue Shield of Minnesota, prosecuted Big Tobacco on behalf of Minnesota consumers in a similar case. The court found that the companies ignored warnings about the carcinogens within cigarettes and intentionally misinformed the public about the safety of consuming their products. In this case, misinformation efforts inflicted biological, rather than ecological, harm. Upon settling the case in 1998, the defendants were ordered to pay the state of Minnesota in perpetuity, and have since racked up a whopping $6 billion bill. In a press release from the Minnesota Attorney General’s office, Ellison cites research from the Minnesota
Inan era where technology blurs the line between reality and fiction, the lack of regulation of artificial intelligence stands at the intersection of innovation and ethical concerns. While society has witnessed recent advancements in AI, such as ChatGPT, one of the most concerning developments emerged in 2017 on Reddit - deepfake. Deepfake is a type of synthetic media where artificial intelligence is utilized to generate a digital replica of an individual, replicating aspects such as their physical appearance or voice. This technology has many forms of usage, from the entertainment industry to the healthcare industry. Most notably, deepfakes has been used in the healthcare industry to train artificial intelligence to detect tumors. However, the use of deepfake has the potential to be harmful, like the harassment of women in the form of revenge porn or the creation of fake news. The potential adverse effects of deepfakes begs the question of the legality and its regulation.
There are currently no federal laws in the United States against the creation and sharing of non-consensual deepfake pornography. The lack of any regulations makes non-consensual deepfake pornography more common. Sensity AI found the number of pornographic deepfakes online roughly doubled every six months from 2018 to 2020. The proliferation of deepfake nonconsensual pornography represents a gendered issue where society exploits the images of vulnerable people, especially women, who make up more than 90% of victims. The victims of non-consensual deepfake pornography not only en-
dure emotional distress, but also face potential harm to their professional lives. A Microsoft study found that almost 80% of employers use search results to make hiring decisions. Although it can be proven that these images are fake, the image of the victims can cause implicit bias and for the employer to choose another candidate because of this. Despite the widespread negative consequences of deepfakes, pursuing claims against perpetrators can only be done through state law or indirectly through related federal laws, both of which are often ineffective in addressing this issue.
A significant challenge in prosecuting cases involving deepfake nonconsensual pornography revolves around the liability of the platforms hosting such content. Section 230 of the Communications Decency Act shields online platforms from being held liable for the publication of user-generated deepfakes. This legal provision not only safeguards third-party websites, but also allows for deepfakes to be reposted on the same platform or across other sites. There is a pressing need for modifications to this act to address these concerns and establish mechanisms to counter the proliferation of harmful deepfake content online.
Another challenge is the ability of the government to regulate deepfake in relation to the First Amendment. Deepfakes are considered a form of expression which makes a widespread ban on this technology unconstitutional under the First Amendment. However, there are exceptions when speech is no longer protected under the First Amendment when it includes defamation, which deepfake nonconsensual pornography would
fall under.
Support for the argument that deepfakes can be protected under the First Amendment is found in copyright law. Copyright law protects exclusive rights to media, but the fair use doctrine permits limited use of copyright use without permission. The fair use doctrine is determined by a four factor test: Purpose and character, Nature of original work, Amount and substantiality of content borrowed, and Effect of such use on the potential market. The US Supreme Court, in Campbell v. Acuff Rose, affirmed that if the new work is considered transformative then a portion of the copyrighted work would be considered fair use. The assertion is made that deepfakes, being transformative works with a different purpose than the original, may qualify for protection under fair use. Therefore, removing deepfakes based on copyright infringement could be seen as a violation of free speech.
Despite the challenges posed by deepfakes, there are potential solutions that the government and legal system can implement to protect individuals, particularly women, from their harmful effects. One effective strategy involves the creation of new laws and regulations specifically targeting deepfakes intended for defamatory purposes, with established penalties for offenders. Such legal measures would constitute a critical step in mitigating the adverse impact of deepfake technology on individuals’ lives and preventing its malicious use in the digital realm.
Exploring remedies within defamation law could offer another avenue of protection. In the case of Gertz v. Robert Welch, the Supreme Court emphasized that “there is no
constitutional value in false statements of fact.” Deepfake nonconsensual pornography inherently involves false and defamatory statements as it is manipulated, constituting both falsehood and harm to the victims’ reputations. A precedent supporting the applicability of defamation law to deepfakes is found in Tharpe v. Lawidjaja. In this case, the plaintiff successfully sued for defamation when the defendant altered photos using Photoshop. The court ruled in favor of the plaintiff, asserting that the statements were inherently defamatory as they identified the plaintiff in a sexually explicit manner. This same legal logic could be applied to deepfakes, acknowledging the potential for defamation claims when the manipulated content harms an individ-
ual.
In navigating the complex landscape of deepfake technology, it is imperative for legal frameworks to evolve to safeguard women against the potential harms posed by this innovative yet potentially destructive form of synthetic media. However, the development of legal frameworks has to be coupled with swift robust legislative action. This past month has demonstrated the need for legislation with the proliferation of explicit fake images of Taylor Swift throughout the social media platform X, formerly known as Twitter. These images have called for bipartisan support to introduce a federal bill called The Disrupt Explicit Forged Images (DEFIANCE), which allows for victims to sue if they know those who creat-
Pollution Control Agency as the reason for this case’s urgency. Despite Big Oil fueling the fire of pervasive public doubt, in reality, Minnesota’s climate has been warming at a rate faster than national and global averages, according to the MPCA. The complaint specifically notes deception and subsequent pollution that disproportionately impacts urban African American and American Indian populations. A recent study from the University of California, Berkeley found that increasingly frequent climate change-related events like extreme heat and cold, flooding, wildfires, and infectious diseases have a greater effect on communities of color in the United States.
This lawsuit represents the battle for knowledge, and how to hold public deceivers accountable. In their book
A Lot of People Are Saying: The New Conspiracism and the Assault on Democracy, conspiracy theory scholars Russell Muirhead and Nancy Rosenblum write that “conspiracism is not skepticism. In its discriminate denial of standing to knowledge-producing institutions, it undercuts the basis for criticism: a commitment to evidence, impartial analysis, and ongoing research.” Climate change denial is not a problem that can be resolved simply with a favorable finding in Minnesota’s lawsuit. However, a win in this case could produce effective
ed the deepfake. This act would be the first federal law to protect victims from deepfakes, but it would not criminalize the act and it still places a burden on the victim to find the person who committed the act. In the UK, the sharing of deepfake pornography became illegal as part of its Online Safety Act in 2023. The effects of deepfake call on the United States to pursue legislation that is as decisive and reflects the broader international movement against deepfakes. The development of robust regulations and legal mechanisms is essential to strike a balance between technological innovation and the protection of individuals’ rights and well-being in the digital age’s reputation.
ammunition in the firefight against misinformation and establish a precedent for future climate change-related lawsuits. The complaint asks that the court order the defendants to use their “wrongfully obtained profits to help Minnesota pay for the devastating consequences of climate change” and benefit the marginalized communities harmed by industry deception. If awarded damages, the defendants could be forced to fund an independent organization to facilitate a new climate change education campaign for the Minnesotan public, an effort to reassert facts over fiction.
Editor’s Note: This article was written before January 31, 2024, when Judge Allen Winsor of the U.S. District Court for the Northern District of Florida in Tallahassee dismissed the Disney v. DeSantis on the basis that Disney did not have standing for the case, nor could the company prove that the motivation behind the legislation in question was targeted at them specifically. Disney pledged it would appeal the decision, and therefore, the case is expected to return & evolve under new circumstances in the near future.
If you aim for the king, you better not miss. That’s how the timeless adage goes, and more or less applies for Florida Governor Ron DeSantis and his spat with his state’s largest employer- Disney. A dispute over the social issues that the Governor has championed led to unprecedented changes in the longstanding relationship between the company and the Sunshine state, and the company’s eventual lawsuit in Disney v. DeSantis. This article will examine the lawsuit, its circumstances, and how a Tow Truck Service may reveal what this case may say about the future of government-business and Free Speech Constitutional Law.
The beginning of the breakdown of the relationship between Disney and DeSantis can be traced back to another controversial measure by the DeSantis Administration: The 2022 “Parental Rights in Education” Act, colloquially the “Don’t Say Gay” act, which banned “classroom discussion and instruction” of sexual orientation or gender identity in Florida
public schools. There was much internal discussion within Disney on their stance on the bill, but ultimately, the company openly declared its opposition when the bill was signed into state law on March 28 2022, as Disney CEO Bob Chapek pledged to work to get the law repealed. The backlash from Florida Republicans was swift, some explicitly pledging to retaliate against the company, and in particular, target the Reedy Creek Improvement District.
Reedy Creek Improvement District, colloquially known as “Disney’s District,” is key for this case. This district was established by state law in 1967 to provide the Walt Disney World a special development district with the same powers as a county government, plus a Board of Supervisors appointed by the Disney Company itself. The district has been an economic success, as an Oxford Economics study says Dis-
state law made that also its most vulnerable point for alterations. This was the case when DeSantis signed House Bill (HB) 9-B into law, which removed Disney’s existing powers over the existing Improvement District, and gave way to the Central Florida Tourism Oversight District, which now had a Board appointed by the State Government. The wheels were coming off the Disney-Florida relationship, and brought to a breaking point on April 26 when the new state-backed board voted to nullify two agreements: A last minute agreement between the outgoing board and Disney to secure long term expansion for the Parks, and the 1967 agreement that established the original Improvement District. This was the final straw for Disney, which responded the same day by filing a lawsuit in the Northern District Court of Florida against DeSantis’s state government, thus giv-
Disney’s lawsuit is tional law. The lawsuit
“Ultimately, this will be a case that business interests, Free Speech advocates and more will monitor closely. What started as a political dispute over divisive social issues grew into one of 2023’s key Constitutional Law cases.”
inally had five charges- two on First Amendment Freedom of Speech Clause, one on Article 1’s Contracts Clause, one on the Fifth Amendment’s Takings Clause, and one on the Fourteenth Amendment’s Due Process Clause. As of September 2023, Disney has narrowed down its claims to the two First Amendment violation Claims. Per the American Bar Association’s Journal, the first Free Speech claim asserts that the Central Florida Tourism Oversight District’s “retaliatory” nullification of the two agreements with Disney is a violation of the First Amendment’s protected speech, while the second claim asserts that the state’s board and policy changes on the Improvement District’s administration were done with the intent of a “chilling effect”- or coercing an entity to hold back their speech out of fear of legal blowback- on Disney’s opposition to Don’t Say Gay. For that claim, Disney focuses on the rapid dissolution of the original Improvement District, which was catalyzed only after Disney declared its total opposition to Don’t Say Gay. In some cases, Republican office holders in Florida stated that measures taken by the State Government were meant to “punish” Disney for said stance. Disney further argues that the nullification of the agreements is not just evidence of damages, but its reversal would be the case’s relief. Harvard Law School’s Rebecca Tushnet believes that these specific claims and targeted relief make Disney’s retaliation case “strong.” These factors may already shape a compelling case for Disney,
however, there is a legal precedent that may be even more important in analyzing the future of this case.
There is a key Supreme Court precedent that speaks to this case. In 1996, the mayor’s office of Northlake, Illinois, removed the O’Hare Towing Service from its local providers list after the company’s owner had thrown his support for the mayor’s opposition for Northlake’s mayoral election. O’Hare claimed this contract cancellation was retaliation for the company’s preferred political speech and had less to a considerable loss of income, as it thereafter sued. O’Hare v. Northlake reached the Supreme Court, which ruled 7-2 in favor of O’Hare. In the Opinion of the Court, Justice Anthony Kennedy stated that companies under government contract are entitled to the same Free Speech protections as individuals are, and furthermore, could not be punished for its political stances unless the government could prove that the company’s political allegiances was affecting job performance- which Northlake did not attempt to prove. Though it is important to recognize that Disney is not a contractor to Florida, but rather a partner through legal agreements, O’Hare will remain a key precedent to consider as it deals with the key question of whether it is legal for the government to retaliate against a company on the basis of political, if not protected, speech. Furthermore, this precedent may also demonstrate that DeSantis’s team to dismiss the case on the virtue of legislative immunity is not sound, which may indicate a formal
case ala O’Hare is bound to happen.
With these facts in mind, Disney v. DeSantis is shaping to be a major, but not existential, case for government-business relations. According to Washington University Law School Professor Gregory Magarian, this case is not about whether companies have the same protected speech as individuals. Not only was this implicitly answered by O’Hare, but he claims that “in fact, the principle that corporations have some constitutional rights goes back to the 19th century,” long before 2023, or cases that addressed similar questions such as Citizens United v. FEC or O’Hare v. Northlake itself. For Free Speech, however, Professor Magarian states that Government “may not retaliate against any speaker’s political speech,” and “that appears to be exactly what Florida Governor Ron DeSantis is doing to Disney” as it comes to DeSantis’s actions against Disney after its opposition to the Don’t Say Gay Act. There is a credible case towards First Amendment Free Speech violations on the basis of retaliation against Disney due to their political stances. Ultimately, this will be a case that business interests, free speech advocates and more will monitor closely. What started as a political dispute over divisive social issues grew into one of 2023’s key constitutional law cases, and the case may point not just at the facts, but at a precedent on tow trucks as determining factors for the outcome of the case.
Following a sudden and turbulent divorce in winter of 2008, James Kahler had sunk into severe depression, and in spite of numerous mental health consultations and a myriad of depressive remedies, little progress was made. Then nearing a year later, on Thanksgiving weekend of 2009, he drove himself to the residence of his ex-wife to then fatally shoot his ex-wife and two daughters
During the previous months, he had increasingly grappled with diagnosed depression and obsessive compulsive disorder, enduring intense psychological therapies. Shortly thereafter, he arrived at the local police station to confess to the shooting of his wife, mother in-law, and two daughters. Later in 2011, Kahler was to defend himself under the jurisprudence of Justice Robert Court at the Kansas Supreme Court. The defense pleaded insanity in response to the prosecution’s case. As of 1979, The U.S. Department of Justice had defined a criminally insane person, “an individual whose mental makeup at the time of the offending act was such that he/she was incapable of acting rationally with respect to the criminality of his/her conduct.”
In essence, the insanity defense, also referred to as the Mc’Naughten rule, affords defendants the ability to contend that they did not know the difference between right and wrong at the time of the offense. However, in 1995, Kansas became one of six states to abolish the insanity defense, in favor of a Mens Rea (“guilty mind” in Latin) approach which holds that offenders with mental health issues are guilty of the crime, however, they perhaps were not aware of its illegality. Under this framework, offenders may be found guilty, but insane and subsequently sentenced to
psychiatric institutionalization before a likely prison sentence. According to the defense, Kansas’s abolishment of the insanity defense was an obstruction of due process according to the eighth and fourteenth amendments, as it did not allow Kahler to argue that his mental illness had barred moral judgment at the time of the crime. The defense attorney detailed that Kahler had, “completely lost control,” which should absolve him of criminal culpability. Additionally, they argued in favor of constitutionalizing an insanity test for mentally ill defendants; contending that “In this state, we don’t kill the mentally ill.” However, according to Kansas state law, mental illness may not be considered at all in relation to a criminal offense unless, “the defendant lacked the mental state required as an element of the offense charged.” Traditionally, the M’Naghten Rule allowed that if an individual lacked cognitive ability and moral capacity to dissect morally correct or incorrect choices, they could then employ this defense. Thus, Kansas was essentially negating the latter requirement. In essence, the question presented in the case was about whether or not the states can conduct itself in this manner without breaching rights already inscribed in the eighth and fourteenth amendments. The Kansas Supreme Court came to rule in favor of the prosecution and recommended the death sentence for Kahler. Kahler then appealed through to the U.S. Supreme Court, where Justice ruled against his case and maintained that states may both abolish the M’Naghten rule and neglect to constitutionalize insanity tests while simultaneously upholding the constitutional principles of due process. U.S. Supreme Court Justices
Sotomayor, Ginsburg, and Breyer digressed from the majority, authoring a dissenting opinion to argue that the court’s decision, “eliminated the core” [of a defense] “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Supplementing this perspective, is that 25% of individuals shot and killed by the police, suffer from an acute mental illness. And while mentally ill individuals are frequently perceived as dangerous and violent, simultaneously, they are routinely denied accommodations throughout criminal cases. To provide a familiar anecdote, Cook County jail has been increasingly regarded by many to be “the nation’s largest mental hospital,” due to the fact that a majority of its inhabitants are both mentally ill and convicted of non-violent crimes. In the aftermath of Kahler v. Kansas (2020), it becomes clear that the intricate interplay between mental health science and the legal system has come to the forefront. And according to various psychiatric and legal experts, the prohibition of the insanity plea in Kansas raises blaring alarms as an obstruction to both justice and science. Their arguments aim to embrace the unquantifiable nature of mental disorders and the complexity of its roots, including a largely genetic basis. The ruling has also widely been viewed as challenging fundamental constitutional principles of due process and equal protection under the law, as well as additionally reinforcing stigma and misunderstandings about mental illness within society. This case raises crucial contemporary questions about the convergence of these realms: how should the legal system navigate the complexities of mental health science? What safeguards can be imple-
mented to prevent biases, be they racial or gendered, from influencing this delicate intersection? The delineation be-
tween sanity and insanity and the must undoubtedly demand thoughtful consideration across fields and specialties
in order to thoroughly understand how to conduct such cases as Kahler’s.
Inan age of European politics defined by threats to democracy and worrying shifts rightward, Hungary, led by Viktor Orbán, has become a powerful, and dangerous threat to the stability of the European Union. Even more concerning, however, is how little Hungary has been restricted, given its various violations of human rights, E.U. treaties, and the rule of law. This past December, the European Commission released € 10.2 billion in cohesion to Hungary, which was previously frozen due to such transgressions. Cohesion funding is allocated to lessen economic imbalances between member states. In December 2022, cohesion funding for Hungary was frozen amid human rights and corruption concerns. The recent decision by the European Commission, then, comes as confusing since Hungary has not yet fulfilled the conditions of the agreement, which included fundamental changes to oppressive legal and social structures.
Since Viktor Orbán’s ascent to power in 2010, Hungary as a democracy has only deteriorated. In 2012, despite international condemnation, Hungary adopted a new constitution, which limited religious and sexual freedoms, judicial independence and review, freedom of speech and the media, and afforded Orbán unprecedented amounts of power. Since then, Orbán’s term has been marred by legal scandals, international proceedings, and severe infringements of E.U. policies. In 2018, the European Parliament
triggered Article 7 (TEU) proceedings against Hungary, for breaching the founding values of the E.U. Article 7, of the Treaty of the European Union, essentially allows a majority of member states to suspend the voting rights of a member state for severe violations of E.U. policies. The volume of violations is so large that proceedings are still ongoing. Since the revocation of cohesion funding in 2022, Hungary, however, has continued to flout the rights of its citizens. For example, Hungary is currently subject to ongoing proceedings by the European Court of Human Rights for the segregation of Romani children in schools and broader discrimination against ethnic minorities. A report by the European Parliament, from September 2023, states that by that point in time, Hungary had not sufficiently combatted Romani segregation, economic disenfranchisement, and legal discrimination against ethnic minorities.
Hungary’s abysmal progress has paired, rather worryingly, with deepening ties with Putin. For the past few months, the European Union has battled intensely with Orbán to allow crucial aid to Ukraine, amid their war against Russia. However, Orbán, with extremely close ties to Moscow, has repetitively blocked budget negotiations and revisions. Hungary’s ambitions are substantiated by the structure of member-state voting; matters such as the E.U. fiscal budgets are voted on by the European Council, which is composed of every E.U. leader. The issue,
however, is that each agenda must be passed unanimously, which Hungary vehemently opposes. This has caused the E.U. to fall into a dangerous cycle, where Orbán repeatedly threatens to withhold his vote, in exchange for economic benefits, or for slower trial proceedings against Hungary. The European Commission, disappointingly, has now permitted Hungary to continue violating foundational treaties of the E.U. and threaten international stability, in exchange for votes that Orbán may not even cast. Just three days after the European Commission approved funding for Hungary, Orbán blocked €50 billion of aid towards Ukraine.
Although the European Parliament has threatened legal action against the European Commission for their decision, arguably the damage is done; Hungary is emboldened. As far-right movements become significant political players in Europe, it is imperative that the European Commission resists such movements, to remain in line with fundamental principles of the E.U., but also for the greater stability of Europe. The European Parliament and Commission cannot diverge to the point where a single member state can incapacitate the goals of the Union. The European Commission, with their decision to award Hungary such funding, refuses to acknowledge the severity of Hungary’s democratic state, and how such permissibility could embolden similar far-right movements across Europe.
According to Article 7 of the UN Convention on the Rights of the Child “[e]very child has the right to be registered at birth, to have a name and nationality, and, as far as possible, to know and be cared for by their parents.” The right to be registered at birth is a universal right that all children hold under international law.
However, according to UNICEF, one in four children under age five are not registered in low-and middle-income countries, amounting to 166 million children. In other words, 166 million children around the world are legally invisible, barred from governmental protection, formal education, and healthcare. Why such a great number of children lie under legal invisibility is a multifaceted question. In some cases, lack of knowledge or financial ability to proceed with the legal process of birth registration serves as a barrier. Other times, domestic law restricts a single mother or single father from registering a child’s birth on their own. Through such complicated factors, one country that has been striving to enhance children’s right to be registered at birth is South Korea. Studies of a nation’s cases exhibit a complicated yet meaningful journey of bringing more children under the spotlight of legal protection.
In South Korea, birth registration has gone through changes in its legal presence. Until 2015, a single father was unable to register one’s child in the absence of the biological mother’s address, social identification number, and proof of single status. Accordingly, many children were left unregistered. In June of 2015, the Supreme Court of Korea officially recognized the universal law of a child to be registered at birth (UN Article
7 of the Convention on the Rights of the Child). Yet, the country continued to confront challenges in discovering legally invisible children, as no government branch was dedicated to keeping track of children without birth certificates. Moreover, the financial penalty of non-registration of one’s child being about $37 incentivized some biological parents with unwanted births to neglect their duty of registration. From 2024, South Korea is facing a new phase of solvency regarding the legally invisible children. As “Act on the Registration of Family Relationships” passed the national assembly’s plenary session on June 30, 2023, medical institutions will be legally responsible for notifying the government of children’s birth, in lieu of parents. The new act focuses on the previous problem of biological parents knowingly or inadvertently neglecting the birth registration of their children and aims to make the registration process more official and seamless. While countries such as the United States, United Kingdom, New Zealand, and Canada have been imposing the responsibility of birth registration on medical institutions, the application of such a law in South Korea leaves a few concerns to take care of. One of such is the children’s right to information about their biological parents. As the act introduces institutions, rather than parents, as the actors of birth registrations, it introduces a possible dearth of information available to children wishing to access their roots, building tension with the children’s rights on the current “Act on Special Cases Concerning Adoption.” Another issue revolves around a parental choice to evade hospitals’ support when hav-
ing children. Because parents are able to avoid medical institutions’ formal monitoring, both the child’s safety in the birth-giving process and the child’s chance of being registered face a great risk.
Solvency of the legally invisible children involves complicated interests and responsibilities of parents, medical centers, and children in the future. Moreover, its root often extends deeper than the difficulty of the birth registration policy itself; lack of financial capability to support one’s child on their own, restricted information, a societal norm towards young parents—all play a role in a parent’s decision to throw their child into the realm of legal invisibility. In other words, the changes regarding the birth registration law ongoing in South Korea may not be an immediate solution to its problem. Yet, as society continues to recognize the legal invisibility of children as a social issue for which resources should be invested and formal responsibilities be assigned, a positive light shines on the road to embracing more children under the protection of law and government.
Freedom of speech, a fundamental pillar of democratic societies, stands as both a constitutional right and a subject of perpetual legal examination. The interplay between preserving individuals’ expressive liberties and mitigating potential harm or threats to others creates a nuanced and continually evolving legal landscape. As courts navigate the delicate balance between the constitutional protection of free speech and the imperative to safeguard against genuine threats, the recent case of Counterman v. Colorado emerges as a pivotal milestone. In this landmark decision, the U.S. Supreme Court, led by Justice Elena Kagan, not only overturned the conviction of Billy Raymond Counterman, who had been found guilty of stalking musician Coles Whalen, but also reshaped the idea of what constitutes a “true threat” under the First Amendment. This case offers a lens through which to explore the complexities of constitutional rights and the government’s authority to regulate speech that carries the potential for harm.
In 2014, Billy Raymond Counterman persistently contacted an individual through Facebook, consistently sending unsettling messages from multiple accounts despite being blocked repeatedly. Some of these messages hinted at Counterman watching the person, expressing a desire for harm or death. The victim reported Counterman to law enforcement, leading to his arrest in 2016; he faced charges of stalking with a credible threat, stalking causing serious emotional distress, and harassment. Before the trial, the prosecution dropped the credible threat charge. Counterman argued that the remain-
ing charges, particularly in relation to his Facebook messages, would infringe upon his First Amendment right to free speech, claiming they did not constitute “true threats.” The trial court rejected his motion to dismiss, and a jury ultimately found him guilty of stalking causing serious emotional distress; the Colorado Court of Appeals upheld Counterman’s conviction.
The Court held that the First Amendment’s protection of free speech necessitates that prosecutors demonstrate the defendant’s awareness of the threatening nature of their communications for it to be considered a “true threat,” in a 7-2 ruling authored by Justice Elena Kagan. The justices ruled that the state courts had applied the wrong test to determine whether Counterman’s statements were “true threats,” and argued that courts should look at whether prosecutors had shown that Counterman had made the threats recklessly. The ruling provided clarification on this concept of “true threats,” emphasizing that such threats are not protected speech under the First Amendment and can be subject to state criminal laws. Justice Kagan established a recklessness standard, asserting that the state must prove that the speaker consciously disregarded a substantial risk that their communications would be perceived as threatening violence. This standard, while requiring a level of culpable mental state, sets a relatively low bar for recklessness.
The majority opinion was supported by Justices John Roberts Jr., Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Sonia Sotomayor concurred in part and in
judgment, expressing concern that the newly established standard might overcriminalize speech, particularly on the internet, where unintentionally threatening expressions could lead to severe consequences. Justices Amy Coney Barrett and Clarence Thomas dissented, with Justice Barrett arguing against replacing the objective test for assessing true threats, asserting that true threats carry little value and imposing great costs. She criticized the majority for relying on a specific strand of doctrine from New York Times Co. v. Sullivan. Justice Thomas, in his dissent, questioned the soundness of the New York Times v. Sullivan ruling and characterized the majority’s decision as a policy-driven choice masquerading as constitutional law. The majority acknowledged that its decision did not satisfy all parties but argued that the recklessness standard strikes a balance between protecting speech and enforcing laws against true threats. The ruling in Counterman v. Colorado sets a recklessness standard for true threat cases, requiring some level of awareness from the speaker without sacrificing the enforcement of laws against true threats, and presents a compelling intersection of constiuttional rights and legal precedent in the realm of free speech.
Moreover, the decision may have implications for the prosecution and defense of similar cases in the future. By requiring prosecutors to demonstrate that the speaker acted recklessly in making a threat, the ruling sets a precedent that could potentially lead to more rigorous scrutiny of the prosecution’s evidence and arguments in such cases. Defense attorneys may leverage this standard to argue for the dismissal of charges or the acquittal of their clients based on the absence CONTINUED ON PAGE 19
Even if only at a surface level, most Americans are aware of their medical privacy rights and tend to take for granted that health information is confidential, as attributed to the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. However, it is far rarer that one understands the specifics of this law, let alone where it fails, as HIPAA is less than the perfect guarantee of privacy it appears as. The insecurity of personal information under US law does not stop at websites selling consumer information; rather, as a recent inquiry into the privacy practices of eight major pharmacies — CVS, Walgreens, Cigna, Optum Rx, Walmart, Kroger, Rite Aid and Amazon– these pharmacies regularly turn consumer information over to government actors even in the absence of a warrant (Harwell 2023). As explained by U.S. Senator Ron Wyden, Rep. Pramila Jayapal, and Rep. Sara Jacobs in a letter to the Secretary of the Department of Health and Human Services (HHS), “each year law enforcement agencies secretly obtain the prescription records of thousands of Americans without a warrant,” and “[a]s a result, many Americans’ prescription records have few meaningful privacy protections.” This gap in medical privacy is due to a loophole in HIPAA regulations, as the act governs how health information is used and distributed between “covered entities,” those being medical facilities such as hospitals and doctors’ offices. Pharmacies, in contrast, are not covered. In fact, CVS, Kroger, and Rite Aid do not require their staff to run the information
requests from law enforcement past their company lawyers before complying with the inquiries.
This raises particular questions about privacy in a world after the decision brought forth from Dobbs v. Jackson Women’s Health Organization, overturning protections on abortion from both Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. One interesting aspect of the majority opinion in Dobbs as written by Justice Alito was that, in its originalist reading of the constitution, it not only indicts the right to abortion as “not mentioned in the Constitution,” but it particularly critiques it as being grounded in “the right to privacy, which is also not mentioned.” The case discussed the dual meaning of the constitutional right to privacy as defined by Court precedent — first, “the right to shield information from disclosure” and second, “the right to make and implement important personal decisions without governmental interference” — and deemed the second meaning to be a lacking foundation for protections on the right to obtain an abortion.
However, with the HIPAA loophole on law enforcement slowly being drawn open, this could mean an erosion of both these privacies. According to Carmel Shachar, an expert on Health Law at Harvard Law School, “there’s a perception that abortions or gender-affirming care exist on their own islands separate from other medical care, but somebody who is medically literate can read between the lines of a medical record to see if an abortion happened.” Even in states where abortion remains protected, medical records pertaining to prescriptions received may still reveal
to law enforcement if and when they have obtained an abortion; although they may have the right to the privacy involved in their own private choice to obtain certain healthcare, the right to control that information has been seriously challenged by the practices of these pharmacies. This is even more noteworthy in states that have made moves to restrict or criminalize abortion access; even without the procedure being listed in their medical history, law enforcement may be able to glean from their prescription records that they have either obtained an abortion secretly within the state or crossed state lines to access one. For instance, medical records may list prescribed prenatal care for a pregnant person and later the prescription of a medication incompatible with pregnancy and not prescribed to pregnant persons.
American consumers do retain the right under HIPAA to know when their medical consumer data is being handed to law enforcement, but this is a right that few people seem to be aware of, as only very few ever take advantage of it. According to the letter to HHS, “CVS Health, the largest pharmacy in the nation by total prescription revenue, only received a single-digit number of such consumer requests.” Moreover, Amazon Pharmacy was the only company reviewed that actively notifies consumers of law enforcement requests for consumer prescription data. As such, this practice of data disclosure operates relatively in the shadows of consumer and healthcare privacy law; while HIPAA requires physicians and hospitals to distribute notices of privacy practices and any changes in such, as non-”covered” entities, pharmacies operate under
“American consumers do retain the right under HIPAA to know when their medical consumer data is being handed to law enforcement, but this is a right that few people seem to be aware of”
no such regulation. As CVS Health said in a statement when reached by The Hill for comment, “the Office for Civil Rights, the agency that enforces HIPAA, has reviewed [their] processes on multiple occasions and deemed them to be compliant,” indicating that this is not a failure of oversight but rather one of policy,
leaving a chasm between the privacy rights Americans understand ourselves as having and those that are sincerely protected under HIPAA. This can be understood not only as a gap in privacy as it refers to the right to control information about one’s self but also as it refers to one’s right to make and implement personal de-
of evidence of recklessness.
In today’s digital age, where individuals frequently engage in online discourse, the lines between protected speech and potential threats can blur. The establishment of a recklessness standard acknowledges the unique dynamics of online communication while seeking to balance the protection of free expression with the need to address genuine threats. Additionally, the Court’s ruling underscores the ongoing evolution of First Amendment jurisprudence in response to contemporary societal
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challenges. As the nature of communication continues to evolve, legal interpretations must adapt to ensure that fundamental rights are upheld while also addressing legitimate concerns about safety and security, and the recklessness standard established in Counterman v. Colorado reflects a nuanced approach to balancing these competing interests.
The Counterman v. Colorado decision marks a significant milestone in the ongoing discourse surrounding free speech rights and the regulation of threatening speech. By establish-
cisions as it pertains to healthcare; as law enforcement agencies can access medical information stored by pharmacies without a warrant, this opens a flow of information that may make personal healthcare more vulnerable to government regulation.
ing a recklessness standard for determining “true threats,” the Court has provided clarity while also prompting continued dialogue and debate on these complex and multifaceted issues.
Race-conscious college admissions decisions continue to be a divisive issue for Americans. In a poll conducted in Spring 2023 and published weeks before the Supreme Court’s landmark decision in Students for Fair Admissions v. Harvard, the Pew Research Center found that “Half of U.S. adults disapprove of selective colleges considering race and ethnicity in admissions decisions, while a third approve.”
In 2013, Students for Fair Admissions (SFFA) sued Harvard, alleging that the university’s undergraduate admissions process discriminated against Asian Americans. After lower courts sided with Harvard, the Supreme Court deemed affirmative action unconstitutional in a 6–2 vote, with Justice Jackson recusing herself, and the rest of the court split along ideological lines. Taken at face value, favoring certain races over others in college admissions constitutes a clear violation of the Equal Protection Clause, which is applicable to federally-funded private institutions in conjunction with Title VI. As such, for race-based affirmative action policy to be permissible, they must follow a narrow set of criteria to qualify as an exception to the Clause. Harvard’s de facto racial quotas and broad consideration of race clearly fails the test of strict scrutiny, necessitating the Supreme Court’s ruling against these
practices.
“No State…… [shall] deny to any person within its jurisdiction the equal protection of the laws.” Harvard, although not a state agency, receives federal funding, and is therefore governed by Title VI of the Civil Rights Act of 1964. Since “the Title VI statutory prohibition on discrimination is based on the Equal Protection Clause, the constitutional analysis of intentional discrimination should be applied under Title VI”; In other words, the standard of strict scrutiny should be applied in Title VI cases against federally-funded private institutions in a similar manner as in Equal Protection Clause cases against governmental bodies.
Grutter v. Bollinger upheld affirmative action but placed upon it strict constraints. It contended that all “racial classifications, however compelling their goals,” were a “deviation from the norm of equal treatment,” “dangerous,” and must have a “termination point.”
Furthermore, in Hirabayashi v. United States and Korematsu v. United States, the Supreme Court
established race as a suspect classification. The government’s actions based on suspect classifications are subject to review under strict scrutiny, the most stringent standard of judicial review, which stipulates that the use of these classifications must be justified by a “compelling government interest,” “narrowly tailored” to serve this interest, and be “the least restrictive means” to achieve this interest. For Harvard’s affirmative action policies, which are based on the suspect classification of race, to be permissible, the burden of proof lies with Harvard to demonstrate that the policies fit within the narrow criteria of strict scrutiny.
That the goal of affirmative action—namely, to achieve a diverse student body—is a “compelling government interest” is not contested. However, Fisher v. University of Texas clarifies that this “interest” does not refer to numerical diversity per se, but rather “educational benefits that flow from student body diversity”. Moreover, Fisher v. University of Texas further establishes that the goals of affirmative action policies—in other words, the outcomes that serve the government interest—“must be sufficiently measurable to permit judicial scrutiny of the policies adopted CONTINUED ON PAGE 23
Itall began on March 6th, 1961, when President John F. Kennedy issued Executive Order 10925, ordering employers to “take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color or national origin.” The term “affirmative action” was born in legal precedent, as a term used to describe an intentional action toward ensuring equal opportunity for all. The first time affirmative action was disputed concerning college admissions processes was in 1978, nearly 46 years before the recent ruling in the Supreme Court’s landmark ruling of Students for Fair Admissions v. Harvard. Before this became the landmark ruling in Regents of the University of California v. Bakke, where 35-year-old Allan Bakke contended his admissions to the University of California Medical School at Davis based on race. The school had reserved sixteen places in every entering class for minority students as a part of their affirmative action process, and Bakke contended that though his test scores and GPA were higher than those of minority students, he was still rejected twice. The case made major headlines across the nation and another term, “reverse discrimination” became the subject of contention. In the ruling of the case, there was clear dissent in a variety of areas, and the rigidity of the decision left many questions unanswered.
While Bakke did receive admission to the medical school, five of the justices also argued that the use of race as a criterion in college admissions was constitutionally permissible. The lack of a single majority opinion spoke volumes to the controversial nature of affirmative action, though it was clear that the lack of equal opportunity for minority students was incredibly difficult to address without it.
Many wonder, why affirmative action? Why would there be a system ingrained and supported through our government to advance the opportunity for minority students in college admissions? In 1970, in the same decade as Regents of the University of California v. Bakke, 91% of college students were white. By 2021, that number has decreased to nearly 50%, with 12.6% of students being Black, 21.4% being Hispanic, and 7.1% being Asian. As time has progressed, colleges are moving further toward having diverse student bodies that truly reflect the diversity across the United States too. Furthermore, the more prevalent factors in college admissions–test scores, essays, interviews–often do not mitigate racial inequality but rather further it. SAT and ACT scores have been proven to only be indicators of a singular factor–socioeconomic status. Minority students often do not have nearly the same resources or access to education-
al opportunities to study for standardized tests, already putting them at a significant disadvantage versus their counterparts. Moreover, students who come from generationally low-income backgrounds once given the opportunity to attend a post-secondary institution have demonstrated the ability to make nearly as much as students who come from predominantly wealthy backgrounds. And even then, minority students arrive at these institutions and often find themselves feeling isolated or even unsafe. According to the National Survey of Student Engagement, one in seven Black students report feeling unsafe on their college campus. All in all, the use of affirmative action has only worked to enhance one of the most important things: equal access. Equal access to education, opportunity, resources, that set these students up for success and allows them to not only break the cycles of poverty and precedent.
In 2013, Students for Fair Admissions sued Harvard University alleging that there were clear practices in college admissions processes that discriminated against Asian American students in favor of white applicants, and they alleged that this was a clear violation of the Civil Rights Act of 1964. Harvard University, though they did admit that race was a consid-
erable factor in admissions processes, cited the court’s ruling in Grutter v. Bollinger. The case had a majority decision by the Supreme Court to uphold the decision made in Regents of the University of California v. Bakke, deciding that utilizing racial precedents for college admissions does not violate the Equal Protection Clause of the 14th Amendment or Title IV of the Civil Rights Act of 1964. The decision was narrow, with a 5-4 majority. The precedent called for the Supreme Court to essentially uphold Affirmative Action, as they should have for the bridges it had created in cross-cultural backgrounds, the opportunities it afforded minority students, and more.
Though Harvard University quoted this precedent, ultimately in the case of Students for Fair Admissions v. Harvard, the court ruled with a 6-2 majority that the use of race in the college admissions process was a violation of the Equal Protection Clause of the 14th Amendment. In the majority ruling delivered by Chief Justice Robert, the court reasoned that the use of race in the admissions process failed to meet the burden of “strict scrutiny,” non-stereotyping, and termination criteria component of Grutter v. Bollinger. Essentially, post the Regents of the University of California v. Bakke case, the measure of evaluating the constitutionality of race-based admissions was through the opinion of Justice Lewis Powell’s words, where he reasoned that having diversity in the student body could have a “compelling state interest” but that race could not be used as a quota but rather just a plus in the admissions process. This was furthered in Grutter v. Bollinger where it was also added that utilizing race should not result in stereotypingsteretyping
or harm to non-minority applicants, and ultimately, this was not a practice that should be in place forever, but rather would come to an end at some point.
That point was in 2023, as the majority opinion depicted that Harvard did not have a compelling reason to utilize race as a factor in admissions, it did provide a clear timeline for when they would stop to consider race in the process, and there was no active intention in place to avoid racial stereotypes, therefore failing “strict scrutiny.”
The decision was a major hit to minority students, making many of them wonder how this would affect their access to opportunities. Affirmative action had opened the door to increasing diversity on campuses, fostering differences in opinions, backgrounds and inciting challenging academic discourse. With the removal of affirmative action, while those ideas might persist in many of the institutions where that is the norm, it also calls for a deep self-evaluation of the colleges where it is not. How will this impact inclusion and how can this change discourse? In states like Florida, where diversity and inclusion is punished, not celebrated, how does this shift perspectives for minority students? Is it not enough to already feel like outliers when they arrive at these post-secondary institutions? Affirmative action reaffirmed their right and merit to not only be a part of these institutions, but also acted as a catalyst to empower many for what could be. What would happen if cycles of poverty could be broken, what could happen if someone in the family finally has a college degree, or if someone took the reins to use knowl-
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edge to advance and make changes in the world? How many times have first-generation or minority students been referred to as, “affirmative action admits?” When in reality, admissions offices utilized affirmative action to firmly evaluate the discrepancies in resources such as access to test preparation materials, access to rigorous courseloads, etc. They use it to understand the complexities that can be related to backgrounds that may not be typical, to understand that these students have the merit to attend their schools not only for their essays, test scores, and recommendations but because they can offer what many students cannot–lived experiences. Lived experiences related to familial responsibilities, language barriers, perseverance, resilience and so much more. Now, college admissions offices are being forced to reevaluate these measures, and students? Students are working harder than ever to highlight the impact and the importance of their racial identity and the impacts it has had on their backgrounds. Ultimately, the overturning of the precedent regarding affirmative action is a significant step backward for minority students, but it does not implicate or diminish the identity they have been raised with or how that has contributed to shaping their lives. Students are not prohibited from writing about this material, and as colleges navigate to readjusting their practices during this coming college admissions cycle, the implications of the ruling will become more and more clear. Affirmative action will be back in some way, shape or form, and without it, students face an uphill battle to prove how their backgrounds will contribute to their future college campuses.
to reach them.”
Some outcomes Harvard and UNC use to justify affirmative action include “training future leaders,” “preparing graduates to adapt to an increasingly pluralistic society,” “broadening and refining understanding,” and “fostering innovation and problem-solving.” But when are future leaders sufficiently trained, understanding sufficiently broadened, and innovation sufficiently fostered, so that affirmative action is no longer necessary? Immediately, it is clear that the Court cannot apply judicial scrutiny to these goals, themselves vague, filled with buzzwords, and therefore immeasurable
Reviewing racial breakdowns of Harvard’s admitted classes between 2009 and 2018, African Americans make up 10-12% of the class, while Asian-Americans make up 17-20%. This remarkable consistency is not surprising, since according to Harvard’s director of admissions, the goal of considering race during application review “is to make sure that [Harvard does] not hav[e] a dramatic drop-off ” in minority admissions from the prior class.
But for race-conscious admissions policies to be constitutional, they must be narrowly tailored to achieve a specific set of goals. Constructing a student body with a certain demographic composition would not be a permissible policy. For this practice to be permissible, one of two scenarios must be true: Either a broad goal, such as the benefit in race qua race— in race for race’s sake—is permissible, or admitting a specific portion of
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students of a particular race necessarily introduces diverse viewpoints. But strict scrutiny stipulates narrow tailoring, and the belief that those of the same race share the same viewpoint that is different from other races is, itself, a “stereotype that treat[s] individuals as the product of their race,” according to Miller v. Johnson Harvard’s de facto and de jure quota, enforced by ensuring the racial breakdowns of incoming classes remain consistent, fails the narrow-tailoring rule.
The final rule of strict scrutiny stipulates that race-based classifications must be the “least restrictive means” to serve the compelling interest in question. In other words, racial classifications should be the last resort in a sense, employed only when all other race-neutral policies have been exhausted. It is worth reiterating that the burden of proof falls upon Harvard to prove that no race-neutral policy can achieve similar benefits of diversity achieved by its broad race-based classifications.
The University of California system is an excellent example of race-neutral policies achieving the diversity goals of race-conscious affirmative action policies, which were outlawed in California by Proposition 209 in 1996. Since it has been demonstrated that Harvard and UNC’s stated goals are vague and immeasurable, we will here examine the most measurable statistic—the racial composition of incoming classes at the UCs.
The implementation of Proposition 209 initially led to a significant
drop in the proportion of Black and Hispanic students in the applicant pools and admitted classes. However, after years of trial-and-error of alternative measures to boost diversity, both of these figures have risen above affirmation-action era numbers, proving that it is possible to admit a diverse class of students using race-neutral policies, and that affirmative action policies are not the “least restrictive means” to achieve admissions goals. Indeed, experimenting with and implementing these race-neutral policies can be a strain on the school’s budget and resources, but given that Harvard is the most endowed university in the world, there may be no better starting place.
Considering students’ race in the admissions process, even with good intentions, is inherently suspect. Although the educational benefits that come with a diverse student body do serve a “compelling government interest,” Harvard’s affirmative action policy fails all other criteria set forth by strict scrutiny: It does place a de facto quota to achieve numerical diversity, rather than narrowly tailoring its requirements to attain the benefits of a diverse student body; It is not the least restrictive means to serve its purpose; It does not have an end in sight; Finally, the specific goals illustrated by Harvard cannot be subject to judicial review. Having demonstrably failed to adhere to Equal Protection, and failed to remain within the extremely narrow exceptions to Equal Protection set by the Constitution and decades of Supreme Court precedent, Harvard’s affirmative action policy must be overruled.
Since the Constitution’s inception, the Supreme Court has been intended to be an entity protecting the people from political corruption. Their role was to protect the Constitution from the leverage of partisanship and to maintain the sovereignty of the Constitution, requiring a degree of nonpartisanship. As not to be swayed by the influence of another government body, lifetime appointments became a key form of protection and a contentious topic surrounding the integrity of the high court. Given the current state of the Supreme Court, reform may be justified, but term limits won’t necessarily remedy or resolve the desired issues. Targeting Term limits will only result in a weakly positioned court that cannot properly serve its purpose.
Due to the appointment process for the Supreme Court, placing term limits on these justices may not lead to the desired result. The current process essentially involves two major components: 1) a nomination from the president and 2) two-thirds consent of the nominee from the Senate (Federalist No. 76, 1778). Members of the Senate have six-year appointments, as opposed to the president’s four years. Depending on the timing/results of these elections, the president may be caught in a position where the Senate majority consists of a different party than that of the president’s affiliation. If the nominee does not align with their agenda, their consideration can either be rejected or lapsed. Though fairly uncommon, if more political emphasis is placed on judge appoint-
ments with this shorter span, Senators may simply reject nominations of a president and use this power to bypass the appointments for the time being.
Enacting limits impacts the effectiveness of lawmakers beyond partisanship, it also impacts the quality of legislation, therefore diminishing its integrity. Suppose lawmakers accept positions with the foresight that they will have to resign after a particular date. In that case, they become less incentivized to develop the necessary specializations to perform to their full potential, as is the expectation of the highest court of the land. Congruently, term limits may create issues of court stacking, where each president is given an appointment opportunity. While this may give each president an equal chance to increase their staying power, it also leads to further partisanship of the role, as justices are more inclined to bend to the whim of the president. With this awareness of their time constraints, justices may feel a sense of urgency to promote their legislative agendas with what time they do have. The issue may no longer be the court’s inability to adapt to a changing society, but rather an increase in stakes that uproots SCOTUS’ role as a legislative balancer. Without these judicial checks in place, citizens’ rights are at risk of not being protected to the fullest extent.
We see threats to citizens’ rights being threatened when analyzing the current court lineup, cited by some to be the most conservative court in 90 years. Their recent repeal of landmark cases such as Roe v. Wade serves
as a threat to citizens’ freedoms and undermines their position as defenders of public rights, per Dobbs v. Jackson Women’s Health Organization. Though conservative administrators may contend that abortion is not a human right, it is without a doubt an endangerment to public health to politicize and outlaw such a fundamental aspect of reproductive rights.
Instead of targeting issues of court stacking which term limits are meant to prevent, their enactment has the potential to exacerbate a pre-existing issue and would require the re-working of infrastructure that the country is not currently equipped to deal with. Instead of solely relying on term limits as a solution, attention should be directed towards upholding the integrity and authority of the Supreme Court by addressing the fundamental issues at its core, particularly the ap pointment process. Rather than making appointments driven by political consid erations, the emphasis should be on selecting jus tices who possess a deep understanding of the law and demonstrate a nuanced grasp of its application in modern contexts. This approach ensures that the court remains steadfast in its mission and maintains its crucial role in interpreting and upholding the law.
Currently, Justice William O. Douglas possesses the title of “longest-standing justice,” serving from 1939 to 1975. In those 36 years, Justice Douglas served amid seven different presidencies, WWII, the Cold War, the Civil Rights Movement, the Korean War, the Space Race, the assassination of a U.S. president, the Vietnam War, and the Watergate Scandal. It’s indisputable that the U.S., in those 36 years, evolved and diversified in population demographics, values, and standards. It’s hard to imagine that in the thick of all that change, a Supreme Court Justice like Douglas could be reflective and representative of the current reality. The crux of the issue with lifetime appointments is that the Court cannot be reflective and representative of the contemporary public, so it cannot be a Court that can preserve its legitimacy as a democratic institution. In a novel new Supreme Court term limits bill, Senator Alex Padilla pushes for 18-year term limits for Supreme Court justices that prevent them from ruling on all cases after serving for 18 years. In a socio-political climate like our current one, in which the motivations, ethics, and reasonings of the Supreme Court are being called into question, the prospect of an 18year term limit is not only an exciting one but an imperative one. The Supreme Court must fulfill “the promise of equal justice under law” and it cannot do that when its’ justices are unable to reflect what society demands.
limit could solve this problem by ensuring justice turnover which fashions a pathway for the Court to evolve with society and maintain legitimacy. One of the premier issues with lifetime appointments is that over the prolonged time that justices serve on the Court, they become disconnected from the values and wishes of the American people. For instance, our presidential elections are somewhat a representation of where the American people as a whole lie on certain issues. Additionally, presidents who get the opportunity to appoint new justices often appoint justices that align with their political beliefs. We, the American society, elect a new president every four years (barring re-elected presidents), indicating that our values are continuously changing. The fact that despite this clear shift each presidential term the Supreme Court Justices that are appointed during one term continue to serve even amid a new era of American ideologies. New and evolving norms and ideals cannot infiltrate the court to better reflect what society needs and wants when the Court is stuck in its old ways that cannot ameliorate a progressing society. The cause for worry with this is that the Court moves farther and farther away from garnering the public trust. Public trust is directly correlated to the legitimacy of the U.S. court system. As so aptly put by Raymond J. Lohier, a judge on the U.S Court of Appeals for the Second Circuit, “a lack of confidence increases the risk that actors — it could be public actors, legislatures, certainly ordinary people — are just over time going to ignore our orders and mandates.”
The conceptualization of lifetime appointments molds justices into strategic actors. In theory, factors such as public opinion, the potential for outside actors to withhold perks from justices, and the potential to lose the respect of colleagues should act as external political constraints on the judiciary. Yet, in reality, these constraints fail to compel the justices to abstain from countermajoritarianism. This is the idea that courts strike down the desires of the masses through “a subjective reading of abstract constitutional principles.” Instead, because of lifetime appointments, constraints are no longer constraints. Justices do not feel the pressure to act legitimately when they are shielded from the effects and implications of the aforementioned factors because they are guaranteed that they will not lose their job. At the behest of lifetime appointments, justices assume the role of strategic actors. They are given the leeway to implement their policy and ideological objectives or champion the causes and fortunes of the political party that placed them in office or that they belong to. What an 18-year term limit accomplishes is that it reinforces these pressures back into the judiciary system. It makes justices aware that in 18 years they will have to face their colleagues, our country’s institutions, and the public head-on without the protection of the pillars of the U.S Supreme Court building. They will likely think a bit more carefully about how they act in the present behind those pillars.
Ultimately, 18-year term limits can no longer remain a suggestion but rather a reality that our country adheres to. Our justice system has strayed too far from respectability and the lack of term limits on the Court has dragged it there.
An 18-year term
A potentially more intuitive benefit of term limits is that they can function to establish more accountability on the Court which will motivate justices to conduct themselves better in their roles.
For decades, the United States has been embroiled in tort law debates, with advocates of medical tort reform convinced that American tort law has unjustly taken billions of dollars from defendants while raising the general cost of medicine in America. Tort law governs liability and damages. A tort is a civil wrong that allows a claimant plaintiff who has suffered loss or harm to claim damages against the person who caused them said damages. Medical tort law is a subset of tort law that primarily in-
volves medical liability and damages. In the last century, tort law has become greatly pro-victim. The scope of liability expanded, pushing more responsibility onto enterprises. In this treacherous healthcare environment, practitioners begin relying on “defensive medicine” to reduce liability. That is, to protect against future lawsuits, doctors order largely unnecessary, but very expensive, procedures and tests, driving up medical bills. While tort reform punishes some dangerous practices, it also punishes good conduct. With the cost of healthcare skyrocketing, tort reform is vital to conserve medical resourc-
es, protect medical practitioners, and sponsor technological innovation.
Through becoming increasingly pro-victim, tort law has paradoxically made it harder for medical personnel to provide quality care. In the 1960s and 1970s, the scope of negligence law broadened. Enterprise actors were suddenly required to engage in affirmative, protective steps to reduce harm to consumers. In this same era, “enterprise liability” thinking resulted in an “increasing number of behaviors labeled ‘abnormally dangerous’”per People v. Sugarman. Enterprise liability thinking comprises legal doctrines holding individuals
In 1992, Stella Liebeck bought a cup of coffee from a McDonald’s drivethrough and spilled it on her lap. She then sued McDonald’s for the burns she suffered and won about $3 million in damages. Her story quickly drew attention from mainstream media outlets as an example of a frivolous lawsuit. How could a woman be awarded 3 million dollars for spilling coffee on herself? In reality, the situation was more serious than the media portrayed. The truth is that Stella Liebeck was 73, the temperature of the coffee was dangerously hot, and she suffered third-degree burns which required skin grafts. She only took McDonald’s to court when they
refused to cover the costs of her medical bills. Still, advocates of the Tort Reform movement latched on to the story as evidence of a problem in America of greedy citizens filing frivolous lawsuits for a quick payout.
Tort law is a set of laws that allows injured people to file lawsuits for compensation when damages are caused to them by others. Tort reform is a movement to change the civil justice system. Generally speaking, tort reform makes it harder for victims to file lawsuits. Additionally, tort reform limits the amount of compensation injured people can receive from injuries in a lawsuit, reduces the amount of damages the wrongdoers can pay, and makes it more difficult for victims to get a jury trial. Additionally, caps on damages
make plaintiff lawyers less inclined to take on cases, as they generally work for a contingency fee. According to Justia, “Tort reform started in the 1970s. It was a movement spearheaded by insurance companies and large corporations, the goal of which was to attack the civil justice system and change rules of law, not through case-by-case adjudication, but through public perceptions and legislation limiting personal injury lawsuits.” The Tort Reform movement has focused much of its efforts on the medical field. Advocates of tort reform argue that plaintiffs are too eager to sue and as a result file frivolous lawsuits, resulting in higher insurance premiums and higher costs of medical care. A common argument is that doctors practice something called defensive medicine, or carry
accountable for corporations’ actions so long as they maintain shares in the company. The stage of debate quickly became politically polarized with Republicans joining the business community to push back against tort law and Democrats siding with plaintiff lawyers (who coincidentally became generous donors). Amidst the politicized debate, juries unpredictably swung between asking for millions in punitive damages or awarding no damages at all. However, tort reform, while seemingly driven by enterprise self-interest and lobbied for by many corporations, will likely increase patient welfare and decrease the cost of medical care. The push for tort reform should not be viewed as taking away victims’ rights. Rather,
tort laws themselves, by driving up insurance and medical care, are large barriers to medical accessibility. In a study conducted by the National Bureau of Economic Research, researchers found that “caps on non-economic damages, collateral source reform, and joint and several liability reforms reduce self-insured premiums by 1 to 2 percent each.” Tort reform would reduce both the cost of care and insurance for both the patient and the hospital, which buys insurance to protect against medical malpractice while also employing an oft-expensive fleet of lawyers to fight such cases. Similarly, companies often invest less in experimental medical procedures or new medicine out of fear of liability claims. Protective tort laws
cut down America’s growth in innovative medicine. With medical costs nearly unmanageable, tort reform, if properly done, could quickly cut down the price of vital medical care as large-scale healthcare reform takes place to solve for new, more effective medicines for the future.
Opponents of tort reform argue that, without strict liability laws and severe consequences, medical professionals have no incentive to provide proper care. They fear that tort reform will open the doors to flagrant medical malpractice. Indeed, since the 1960s, there has been a rampant increase in the frequency of medical malpractice claims in the United States. While many argue that it is due
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out unnecessary testing, out of fear of getting sued, which ultimately raises the price of medical care. In most states, there are caps on the amount of money in damages victims of medical malpractice can be awarded. For example, according to Justia, “California’s Medical Injury Compensation Reform Act of 1975 sets a cap only on non-economic or pain and suffering damages. The cap is $250,000, a rate that never has been adjusted for inflation.”
In reality, tort reform doesn’t work. “A major study published recently in the New England Journal of Medicine confirms what multiple other studies have shown: tort reform has had no impact on defensive medicine.” Even when doctors in emergency rooms faced minimal chances of being sued for medical malpractice, they still issued the same number of CAT scans and MRIs as emergency room doctors with higher chances of being sued. In terms of
insurance premiums, there seems to be little evidence that torts drive up prices. Tort reform fails to impact defensive medicine or lower insurance premiums. Not only does tort reform fail to lower the cost of healthcare, but it can be extremely harmful as well. What tort reform has done in the medical field is cause harm to injured people. Tort reform prevents injured people from obtaining compensation for their injuries, delays the reform of medical standards, and allows wrongdoers to go unpunished. While reform in the medical field could save lives, the tort reform movement has shifted focus away from these initiatives. A review of the history of anesthesiology reveals the dangers of diverting focus away from safety initiatives. In the 1980s, there were many advancements in the field in response to malpractice claims. The result was a reduction in mortality rates related to anesthesia and a reduction in liability
claims. Paul Greenberg, a managing member of a law firm writes, “Without the insurance industry’s smoke screen of tort reform, it seems painfully clear that the best way to address the medical malpractice problem is to work to reduce medical errors in the first place, not limit lawsuits over those errors.”
Tort reform fails to achieve what proponents claim it will: lower insurance premiums and more accessible healthcare. Tort reform accomplishes what insurance companies and large corporations have pushed for; it prevents injured people from obtaining justice, wrongdoers from being held liable, and the necessary medical reforms needed to save lives from being implemented. Medical errors are currently the third leading cause of death in the United States. Rather than focusing on limiting lawsuits, we should be focusing on reducing medical errors and saving lives.
Following the appointment of judges Neil M. Gorsuch, Brett Kavanaugh, and Amy Coney Barrett by the Trump administration, the Supreme Court became the epicenter of political turmoil in the United States. Since then, many controversial cases have been picked up by the Court, and equally as many controversial decisions have been handed down. Due to its conservative character, the SCOTUS’s every move seems bound to wreak havoc in progressive circles. Sometimes though, the negative perception that many Americans have of the SCOTUS today demerits, nay, mischaracterizes the substantive benefits of certain rulings. This holds true for Creative 303 LLC v. Elenis, a case decided this past summer about a woman whose freedom of speech was jeopardized by the Colorado Anti-Discrimination Act (CADA). The bulk of the criticism this case has received seems to be grounded on a misconception; namely that the case is about religious freedoms rather than about free speech. At stake in this case was whether people can legally be compelled to express themselves in ways that run counter to how they think.
The case was brought forward by Lorie Smith, a web designer seeking to expand her business to include wedding websites for couples. As a devoted Christian, Ms. Smith worried that the Colorado Anti-Discrimination Act would “compel her to create websites celebrating marriages she does not endorse.” To
be clear, her faith dictates that marriage “should be reserved to unions between one man and one woman.” According to Ms. Smith, her design services for these wedding websites will be “customized and tailored” and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting her own view of marriage.” In crafting such messages for gay couples, then, Ms. Smith would be expressing herself in a way that runs counter to her religious beliefs – in a way that runs counter to how she thinks. The Free Speech Clause of the First Amendment is very clear about this: the law ought to protect the “freedom to think as you will and to speak as you think.”
The Colorado Anti-Discrimination Act, for its part, stipulates that no person shall be denied the “full and equal enjoyment of goods and services” of any place of “public accommodation” based on “their race, creed, disability, sexual orientation, or other statutorily enumerated traits.” A place of ‘public accommodation’ encapsulates virtually every public-facing business in the United States. Herein lies the worry that prompted Ms. Smith’s appeal to the courts: namely that CADA would view her refusal to make websites for gay couples as discrimination rather than as an entrenchment on her free speech. To be sure, there is good reason to think that way at first glance. Given that her business falls within the confines of what is meant by public accommodation, refusing a
customer said service on the basis of their sexual orientation is without a doubt an act of blatant discrimination. However, she wouldn’t really be refusing her services to a gay couple. Instead, she would be refusing to make any website that would compel her to express herself in ways that she disagrees with. Let us consider the following hypothetical for the sake of clarity: If a straight, married guy were to solicit Ms. Smith’s services on behalf of his gay couple friends, would she refuse him her services as well? Given her reasons, it tracks that she would also refuse to create the website in this instance. We’d then have to explain her refusal not in terms of discrimination against her customer (i.e the straight guy), but in terms of something else. This case, Ms. Smith argued, isn’t about discriminating against her customers on the basis of their sexual orientation, but rather on the content of the website itself, of which she’d “produce the final story [...] using her own words and original artwork.” It makes absolute sense to protect people from discrimination anywhere and everywhere. However, this particular case is not actually about that. This case concerns whether the government can legally tamper with someone’s right to express themselves freely.
Ultimately, the Court ended up siding with Ms. Smith by a 6-3 vote. The majority opinion, delivered by Justice Gorsuch, emphasized that the CADA was wrong in its use of the law “to compel an individual to create speech she does not believe.”
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The past summer produced some of the most stunning Supreme Court decisions in recent memory. While the destruction of Affirmative Action policies in education that came with the Students for Fair Admissions v. The Fellow of Harvard College decision took up much of the media’s attention, there was another equally destructive ruling that undid some of the work of civil rights activists over the past few generations. In Creative 303 v. Elenis LLC, SCOTUS ruled that the Colorado Anti-Discrimination Act went against the First Amendment Right to Freedom of Speech in that it could not force businesses to create and sell messages/designs that the owner was against. Including in this case, same sex marriage. I argue that the Colorado Anti-Discrimination did not impede the First Amendment Right to Freedom of Speech since it was not prohibiting the plaintiff from spreading messages of hate, instead, it was prohibiting her from discriminating against a community of people in the market.
In this controversial case Lori Smith, founder of the graphic design firm, 303 Creative LLC, wished to expand her graphic design business to include the creation of wedding websites, which to her meant making websites for heterosexual couples. Because of these beliefs, she intended her business only to serve heterosexual couples to the exclusion of all other couples, citing her religious beliefs as
the justification. Thus Smith’s business went directly against the Colorado Anti Discrimination Act which prohibits businesses that open their services to the public from discriminating against based on numerous characteristics such as sexual orientation. Even before the state sought to enforce the law against the firm, Smith challenged the law in federal court alleging that it violated her constitutional rights of freedom of expression. Thus SCOTUS heard arguments on whether CADA violated the First Amendment’s Free Speech Clause. The Court ultimately decided in a 6-3 vote that Smith was correct and that the law violated the First Amendment. Thus, the ruling made it legal for businesses across the country to discriminate against LGBTQ+ people if doing so went against their beliefs.
The majority opinion led by Justice Neil Gorsuch ruled that the First Amendment prohibits Colorado from forcing a website designer to create expressive messages with which the designer may disagree. The majority disagreed with Colorado’s argument that a business that sells commercial products/services must sell that product to everyone and instead argued that since “Ms. Smith does not seek to sell an ordinary commercial good, but intends to create ‘customized and tailored’ speech.” The first amendment applies and thus Smith does not have to offer services to LGBTQ+ couples. The majority believed that this one stipulation allows businesses that create messages such as Smith’s website
design company to refuse services to clients that disagree with the business legally. However, the majority has misunderstood the nature of the situation. The law does not prevent her from spreading hateful speech, instead, it prohibits her from refusing to sell to anyone she doesn’t like. The dissent led by Justice Sonia Sotomayor argued otherwise. Justice Sotomayor and the rest of the dissent insisted the Colorado law in question did not target speech, but instead targeted conduct, meaning that any infringement on speech was incidental. Sotomayor explained that public accommodation laws such as CADA have two purposes; “first, the law ensures ‘equal access to publicly available goods and services’…Second, a public accommodations law ensures equal dignity in the common market.” This is grounded in the principle that “a business that chooses to sell to the public assumes a duty to serve the public without discrimination.”
This much is supported by the analysis of David Cole, national director of the American Civil Liberties Union. Cole does not believe that CADA forces any artist or business owner from expressing a certain idea or belief. Instead, CADA requires businesses open to the public to not discriminate in sales based on protected characteristics. In addition, “under Colorado’s law, artists are free to not offer their services to the public.” Thus, the idea that businesses should be exempt from rules of nondiscrimination in sales where the
Justice Sotomayor led the dissenting opinion, arguing that “religious objections to gay marriage do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” While her line of reasoning is correct here, Justice Sotomayor errs in appealing to public accommodations law to begin with – as it does not apply. This is because the case is not about the discrimination of protected persons, but rather about Ms. Smith’s right to express herself as she sees fit through her creative work. Whether it is a gay couple, or a straight person soliciting a marriage website on behalf of a gay couple, it is the content of the website (and not the customers themselves) that Ms. Smith has a problem with. What does this decision signify? For the media it is abundantly clear:
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this decision is a blatant attack on LGBTQ+ protections. Although this interpretation of the ruling is misguided, there is some validity to it for two reasons. Firstly, considering the conservative majority in the Supreme Court, all legal decisions tend to be scrutinized by the public through the lens of the Democrat/ Republican divide. This holds true even in cases where the distinctions are not as straightforward, as exemplified in Creative 303 LLC v. Elenis. Given the current SCOTUS’s track record though, there is ample reason to suspect them. It is plausible that even when the Court’s arguments are framed differently, the underlying motivations might indeed be influenced by the zero sum dichotomy between LGBTQ+ rights and religious freedoms that has become prominent in American politics (though it need not be like that). Secondly, even though this court case is really about
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to tort laws that victims were empowered to sue for damages, researchers, in a systematic review of the impact of tort reform on quality of care, found that “caps on noneconomic damages were associated with a decrease in defensive medicine, increase in physician supply, and decrease in healthcare suspending, but had no effect on the quality of care.” Essentially, the study implies that the most common cases of malpractice rarely have to do with egregious negligence or recklessness; rather, in cases like failure to treat or delayed diagnosis, oftentimes physicians are simply operating at
maximum capacity. It should also be noted that while medical malpractice cases increased, physicians still win the majority of lawsuits. In the last 20 years, researchers have found that physicians win “80% to 90% of the jury trials with weak evidence of medical negligence, approximately 70% of the borderline cases, and even 50% of the trials in cases with strong evidence of medical negligence.” Rather than the possibility of truly losing a trial, physicians are acting under the fear of spending years and thousands litigating before an unpredictable jury. Most physicians practice defensive
free speech, homophobes everywhere will celebrate it as if it had indeed been a win for discrimination. While the Court’s argument is legitimate, the perceived implications of the decision lie in the eye of the beholder. This is inevitable as well as lamentable.
This pessimistic read notwithstanding, the facts of the case are very clear, and so the ruling is both fair and reasonable. Additionally, we should stop and think about a hypothetical whereby a gay person or couple is compelled to say or express themselves in a way that contradicts their beliefs. This is not unlikely, and so it is reassuring to know that the law can offer protection from such predicaments.
medicine to avoid lawsuits that are rarely successful in the eyes of the law because of the perceived ease of winning medical malpractice cases. The impact of such frequency is two-fold; physicians must be excessively careful to avoid what would otherwise be baseless cases, and actual malpractice cases are being buried under countless others. Tort reform would raise the barrier to launching malpractice suits so that doctors can focus on medical care without worrying about legal traps. Furthermore, tort reform will rarely impede true malpractice cases, providing the same degree of incentive for practitioners to perform the necessary elements of healthcare.
service could be considered expressive is both contrary to precedent and unworkable. Following the majority’s opinion, because an almost limitless range of conduct can be deemed “expressive,” “artistic,” or “customized,” 303 Creative’s proposed exemption would either swallow the rule or impose on judges the impossible task of assessing when a product or service is sufficiently expressive, artistic, or customized to permit its provider to discriminate.
Additionally, years of SCOTUS precedent serves as counterevidence to the majority’s logic. In Runyon v. McCary, a group of schools in question, claimed that they did not have to allow Black students to enroll in their schools because it would violate their First Amendment rights of ‘freedom of speech’ and association. They believed that this was justified since they offered educational services to the public for sale. The
Tort reform reduces the perceived ease of winning a malpractice suit and allows physicians to provide the same quality of care—without wasting precious medical resources.
Lastly, tort laws, as they are, do little to protect the most vulnerable communities in America; rather than protecting socioeconomically disadvantaged patients against medical malpractice, tort laws raise the price of care for patients who often cannot bear the cost of malpractice suits. While it is commonly thought that the medically indigent sue for malpractice more often than the average patient, research conducted in 51 hospitals in New York State found
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Court rejected this rationale because “ the Constitution places no value on discrimination. Second, the government’s regulation of conduct did not ‘inhibit’ the schools’ ability to teach its preferred “ideas or dogma.” Applying this same rationale to Smith, the dissent argued that “The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms. Such a law does not directly regulate petitioners’ speech at all, and petitioners may not escape the law by claiming an expressive interest in discrimination.” In other words, the Constitution protects people’s freedom of speech, it does not allow individuals to discriminate against marginalized communities. Once again the dissent reaffirms its belief that the Colorado law does not regulate speech, instead, it regulates a business’s conduct.
In matters of freedom of speech, there is often a very thin line that individuals must tow. While Freedom of Speech must be protected, especially in mediums such as social media, TV, and the press, the same cannot be said for businesses. If businesses are allowed the same exemptions as mediums such as the ones above, then the livelihood of whole communities may be at risk. If businesses can now refuse their services to LGBTQ+ couples wanting to be more open about their love, then how far of a leap is it for future businesses to refuse those same services to other couples including but not limited to interracial, Muslim, or Jewish couples, simply because the business owner doesn’t agree with their relationships? No one is compelling businesses to agree with same-sex marriages but to deny services to this community based on a protected characteristic bears a weary resemblance to segregation.
that “poor and uninsured patients are significantly less likely to sue for malpractice, even after controlling for the presence of medical injury.” Tort laws do not protect every American from medical malpractice—they protect those wealthy enough to afford strong malpractice lawyers—some of the highest-paid lawyers in America—over the prolonged court battles that can last for years if a settlement is not reached. Wealthy patients are protected by insurance, and doctors order whatever tests they need to protect themselves. Yet, the medically indigent and uninsured are left with underfunded and under-resourced hospitals with exorbitant costs of
care.
Tort reform would result in more accessible medicine without significantly reducing the quality of care. Doctors who no longer operate under fear of baseless lawsuits but instead with the confidence that they can do what they need are more likely to save patients’ lives. If implemented well, tort reform can protect both the patient, the practitioner, and the public.
The United States criminal justice system suffers from a dismal reputation, and for good reason. It disproportionately targets Black and low-income communities, subjects incarcerated individuals to excessively harsh conditions, and fails to improve public safety. In recent years, however, another significant shortcoming of this system has emerged in the public consciousness: its inadequate response to survivors of sexual assault.
Sexual assault, a widespread and devastating form of violence, impacts nearly half of all women and a third of all men. Its effects are often severe, including post-traumatic stress disorder, depression, and in some cases, suicide. Yet, despite its alarming impact, only 3 percent of perpetrators spend time in prison. Though social issues like victim-blaming and shame undoubtedly contribute to this low number, structural challenges within our legal system also play a role. For instance, the adversarial nature of our legal process often retraumatizes victims, especially during ag-
gressive cross-examinations in court, deterring many from reporting their assault. Additionally, the high burden of proof required for criminal prosecution—while crucial for preventing prosecutorial misconduct— poses a significant challenge in sexual violence cases. These cases often lack significant physical evidence, making it difficult to meet legal standards for conviction.
However, even when convictions are secured, the outcomes do not always benefit survivors. The carceral system, with its focus on retribution over rehabilitation, frequently fails to
Ultimately, this will be a case that business interests, Free Speech advocates and more will monitor closely. What started as a political dis-
address the underlying behaviors that lead to assault; this oversight results in high recidivism rates. As such, under our current approach, survivors can be left without true justice or closure, and society remains at risk from unreformed offenders.
The limitations of the criminal justice system raise a critical question: is there an alternative approach that can support survivors, hold perpetrators accountable, and protect society from unreformed offenders? The answer may lie in restorative justice. Unlike the traditional criminal justice system that focuses on penalizing perpetrators, restorative justice emphasizes the harm caused to the victim. This approach has its roots in Indigenous communities in the United States, Canada, and New Zealand, but gained broader recognition and application through the work of American criminologist Howard Zehr.
Restorative justice defines itself by a unique set of questions it poses in response to a crime. The criminal justice system primarily asks: (1) what laws have been broken, (2) who is responsible, and (3) what punishment is deserved? In contrast, restorative justice shifts the focus to: (1) who has been harmed, (2) what are their needs, and (3) whose duty is it to fulfill these needs?
With these questions, restorative justice recognizes crime not just as a violation of legal statutes, but as a breach of personal relationships and individual well-being—a distinction that prioritizes victim needs over perpetrator punishment. Supporting this perspective, empirical data confirms the efficacy of restorative justice: the approach is shown to
motivate victims to report crimes, decrease recidivism rates among perpetrators, and cultivate a more fulfilling sense of justice for both victims and perpetrators.
The potential benefits of restorative justice for survivors of sexual assault are immense. Firstly, it could avoid retraumatization and disempowerment by encouraging them to lead their own justice process. This might involve options like establishing no-contact directives, restricting access to shared spaces, securing financial restitution, and mandating counseling programs that address issues such as sexual violence, anger management, or substance abuse. Secondly, by removing typical legal barriers to reporting—such as the high burden of proof and the threat of aggressive cross-examinations— restorative justice could encourage more survivors to speak out about their experiences, improving the low rate at which sexual violence is reported. Finally, because restorative justice offers a unique opportunity for perpetrators to seek redemption and rehabilitation, it encourages them to accept responsibility for their actions, which can provide profound validation for survivors. This contrasts sharply with the traditional criminal justice system, where admitting guilt often contradicts the advice of defense attorneys who focus on avoiding jail time at all costs.
While restorative justice offers several benefits, it is not without its critiques. A primary concern is the potential for perpetrators to manipulate the process, superficially claim accountability, and then continue their abusive behaviors. However, this critique overlooks a key aspect of
restorative justice: it places the principal agency with survivors, not the perpetrators. Survivors, not perpetrators, decide whether to approach their case using restorative justice rather than criminal justice, and they have the primary authority in how the process unfolds. Through this survivor agency, restorative justice mitigates the risk of perpetrator manipulation.
Another critique is the fear that offenders, especially rapists, might escape the severe consequences they “deserve.” But considering the statistic that only 3 percent of perpetrators face jail time, it’s clear that many already avoid substantial punishment in the current system. Although restorative justice might be seen as a less harsh form of accountability, it can still offer survivors some form of recourse that the traditional system often fails to provide.
Restorative justice is not a one-sizefits-all solution for all instances of sexual violence. It’s only one aspect of a larger strategy to reduce sexual violence—one that requires shifting entrenched cultural norms, launching extensive education campaigns, and substantially increasing resources dedicated to prevention and survivor support. However, for perpetrators ready to take responsibility for their actions, and for survivors who seek to pursue justice on their own terms, restorative justice could be a powerful approach that justice systems everywhere could benefit from implementing.
On December 18, 2023, Governor Gregg Abbot signed Texas Senate Bill 4 to deter illegal immigration and strengthen border security. The highly controversial bill makes illegal entry a state crime and prohibits “sanctuary city” policies. Sanctuary cities prevent local law enforcement from inquiring about a person’s immigration status or adhering to ICE detainer requests. Under S.B. 4, local and state law enforcement can arrest anyone suspected of illegally crossing the border. Those found to have violated the law can be charged with crimes such as a class A misdemeanor, a second-degree felony, and deportation to Mexico.
This is a clear violation of both the U.S. Constitution and humanitarian protections afforded to immigrants crossing the border. The law circumvents federal statutes, granting Texas judges the authority, and requiring justices to deport individuals regardless of their eligibility for asylum or other federal humanitarian safeguards. This not only violates due process but also overreaches the power delegated to states by the Constitution as immigration law and its enforcement fall under federal oversight.
The bill places unfair burdens on local law enforcement by forcing them to allocate resources, including jail capacity, officers’ active duty hours, and local taxpayer funds, to work that traditionally has been assigned to the federal government. This law will surely deteriorate the little trust between communities with high immigrant populations and police, further perpetuating an atmosphere of fear and suspicion. Previous research on the distrust between law endorsement and predominantly
immigrant communities found that most undocumented immigrants were less likely to offer information or report a crime because they were afraid that police inquire about their immigration status. As a result, Police Chiefs, most notably those in Dallas, Houston, Austin, and San Antonio, have spoken in opposition to the legislation: while the law intends to protect crime victims and witnesses, they worry that the law will “foster the belief that people cannot seek assistance from police for fear of being subjected to an immigration status investigation.” Additionally, placing the power and responsibilities of federal immigration enforcement agencies in the hands of local police, who often lack the specialized training necessary, is likely to have contemptible consequences. One probable consequence of the bill is an uptick in racial profiling, as there is virtually nothing deterring biased police officers from targetting/questioning individuals based on race or appearance. S.B. 4 draws notable similarities with the 287(g) program, established by the Federal government in the aftermath of the terrorist attacks on September 11, 2001. This federal initiative grants local law enforcement officers the authority to carry out designated immigration officer responsibilities under the supervision of ICE. The historical record of the 287(g) program is tainted by instances of systematic racial profiling. Instances such as Department of Justice investigations in Maricopa County, Arizona, and Alamance County, North Carolina, revealed widespread racial profiling and unlawful police practices. Placing the power and responsibilities of federal immigration enforcement agencies in the hands of local police, as seen in both the 287(g) program and Texas Senate Bill 4, raises concerns about potential civil rights violations, amplifying the risks of
racial profiling and eroding community trust. The parallels between the two initiatives suggest that, without careful oversight, SB 4 may lead to similar detrimental consequences observed in the troubled history of the 287(g) program.
The resulting fear and distrust of law enforcement from the community is likely to deter businesses, organizations, and tourists from traveling to Texas. A similar trend was observed in Arizona following the passing of S.B. 1070, more notoriously known as the “show me your papers” provision. The bill was estimated to cost state businesses a devastating $141 million in loss revenue. Since the undermining of public safety and the loss of state funds were not consequential enough for the bill to have been denied passage, the numerous legal challenges and lawsuits currently contesting the bill may stop it from taking effect on March 5, 2024. The bill faces several lawsuits from the American Civil Liberties Union, the ACLU of Texas, the Texas Civil Rights Project, the Justice Department, and the Biden Administration. The principal claims of the suits are that the bill violates The Supremacy Clause of the Constitution, Due Process, and The Equal Protection Clause under the 14th Amendment. They condemn its unprecedented forced conscription of local law enforcement into assuming the responsibilities of ICE agents, and its granting of the state Attorney General to remove from office any local elected officials who do not comply with the law. Evidently, Texas Senate Bill 4 is an abhorrent violation of civil rights efforts and the Constitution. It will undoubtedly have a damaging impact on vulnerable communities and the fragile relationship between diverse communities and police.
The U.S. Supreme Court adopted its first Code of Conduct on November 13, 2023. Adopting the Code might seem like progress in judicial ethics, ending the explicit exceptionalism of Supreme Court Justices as the only group of federal judges not bound to any ethics code. However, the Code of Conduct for Justices reaffirms the Supreme Court’s outrageous immunity to real accountability with its disingenuous language, vague content, and lack of enforcement mechanisms.
The Code starts with an explanatory statement: the Justices had already been regulating their conduct, establishing the ethics code as a formality to avoid the misunderstanding that they are unrestrained. In other words, the American public was deluded when spotlighting that Justice Clarence Thomas had received six-figure gifts and happened to rule in a way that favored the gift-givers.
Besides attempting to manipulate the American public mentally, the Code also involves certain alarming word-plays in its content. For example, in contrast to the Code of Conduct for United States judges, the Code uses “should’’ instead of “shall’’ when speaking of the disqualification of a Justice: “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.” “Should “ fundamentally differs from “shall’’ in ethical implications: while the latter conveys a sense of unavoidability, the former proposes an appropriate action, yet allows for deviation under
exceptional circumstances. More specifically, “should’’ situates the rule of disqualification to the second highest position on the hierarchy of principles at most and allows for another rule to override the rule of disqualification. This delicate wordplay showcases the Supreme Court Justices’ mastery of legal writing for exceptionalist ethical leeways and testifies against their commitment to upholding the integrity of the U.S. legal system.
The Code posits that “the rule of necessity may override the rule of disqualification.” This statement resonates with the aforementioned effects of choosing “should” to create a hierarchy of principles where disqualification on ethical grounds becomes a secondary principle. The rule of necessity is an often-brought-up defense for a Justice to sit despite potential biases and conflicts of interest, and concerns problems caused by absence, such as the risk of a tied decision and having an overly downsized court. However, having a downsized court has been a historically familiar and viable practice for the Supreme Court. Prioritizing a fully-staffed court over a less-biased court as a legal principle damages an indispensable component of the Supreme Court’s legitimacy: public trust. Especially in an era when public trust has hit a record low, insisting on the commitment to a full-size court even in situations where conflicts of interest and biases arise, the Code makes a laughable declaration that further betrays the American public.
Besides being disingenuous and vague, the Code also lacks an enforcement mechanism. As the Code has been adopted, the question is, “Who is going to enforce it?” Unfortunate-
ly, the enforcement of the Code still relies exclusively on the Justices themselves. For instance, a Justice still has the sole discretion to determine if they should recuse themselves from a case. The lack of an enforcement mechanism defeats the purpose of an ethics code. Worse, this flaw restates the Supreme Court’s exceptionalist status as an entity untouchable by regulations: for instance, Justice Samuel Alito said that “no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court, period.”
Paradoxically, adopting the Code shields the Supreme Court from real accountability by formally endorsing ethical exceptionalism and disabling enforcement mechanisms. Failure to have a sincere and enforceable ethics code is a salient manifestation of an overall culture of exceptionalism in the Supreme Court. Supreme Court judicial independence has undergone a metamorphosis from a necessary component of the constitutional design to an unregulated privilege that repeatedly disappoints the American public.
The facade of judicial integrity created by the Code will eventually break down, exposing the hideous reality of the Justices’ continued misconduct, contempt for the legislative and executive branches, and manipulative attitude toward the American public. The juxtaposition between the existence of the Code and its uselessness would set the Supreme Court on fire in the court of public opinion, where even judges adhering to judicial ethics would be tainted by their colleagues’ disintegrity.
Following Union victory in the Civil War, Congressional Republicans had to incorporate freedmen into the American polity. With the 13th Amendment ending the slavery question and the 14th codifying civil rights among all citizens into the Constitution, the framers of the Reconstruction Amendments sought to do the same for political equality in the 15th Amendment. Moderates and radicals in the party alike heralded the mission of Black suffrage, claiming it would abjure “that ar rogant, self-righteous assumption that one man can be charged with the liberties and destinies of anoth er” and “put the great words of the Declaration of Independence in the Constitution itself.” The spirit of the 15th Amendment was not mere ly that Black men deserved the right to vote, but that the American republic ought to be a true popular de mocracy.
ter the ratification of the Reconstruction Amendments, the Constitution transformed the federal government into the chief protector of racial equality. The 15th Amendment, the capstone of the Reconstruction project, was “a constitutional recognition of the necessity to provide remedies for the years of political, social, and economic terror that have been visited upon Black citizens.” It remains an important symbol of the incongruence between civic equality and political inequality. Its goal of universalizing access to the ballot, however, has been under-
mined by both state legislators and an increasingly reactionary high court. In its most ambitious attempt to abridge voting rights, the Supreme Court struck down a key part of the Voting Rights Act mandating that states and localities with a history of discriminatory voting practices had to seek DOJ approval before enacting electoral changes in Shelby County v. Holder. Claiming that the formula by which Congress decided which states would be subject to the preclearance agreement was antiquated and a violation of the Tenth Amendment, the Roberts Court unleashed a wave of restrictions on voting rights.
In a more recent case, the Court ruled that two policies by Arizona — one that discards ballots mistakenly submitted to incorrect precincts and another that criminalized the collection of early ballots by other people with some exceptions — were not violations of the Voting Rights Act. However, it was shown that the policies would have a significant negative effect on the state’s minority voters, specifically for Native American Arizonans. In short, the same court that felt that preempting discriminatory voting policies was insufficient grounds for abridging states’ rights felt that entirely fictitious concerns about voter fraud were sufficient grounds for a discriminatory voting policy.
The text of the 15th Amendment alone does not provide sanctuary from these rollbacks — it didn’t even provide sanctuary against the Jim Crow era attacks on the right to vote sanctioned by the Supreme Court. What it does provide, however, is a Constitutional basis for expanding and protecting the right to vote. This is because, as Yale Law professor
Akhil Reed Amar puts it, the text of the amendment “explicitly links voting rights to the idea of congressional enforcement power.”
While the court may be hostile to the idea that the 15th Amendment on its own protects against many insvidious forms of discrimination, the amendment still lends Congress the power to enforce it via “appropriate legislation.” An example of this would be a national preclearance law to ensure that all attempts to restrict the right to vote must first seek
approval from the DOJ. A policy like this would be an increase in the federal government’s involvement in states’ electoral policies. That being said, it would be nowhere near the revolution that the initial passage of the Reconstruction amendments signified, which fundamentally reshaped the relationship between the two levels of government. Moreover, while similar to the policy of the Voting Rights Act, the equal treatment of all states and localities means that it wouldn’t be voided by Shelby.
Many conservatives argue that these attempts at preventing voter suppression constitute a pointless endeavor, as the policies being enacted aren’t explicitly racist. What this argument misses, however, is that the broader principle at hand with the Reconstruction amendments was not merely the written protection of the right to vote for minorities, but the material reality of political equality for all.
The First Amendment has faced significant modern challenges, undermining its utility in protecting freedom of expression. Namely, present-day censorship has come from private entities, which fall outside the scope of the First Amendment. Considering this new reality, freedom of speech must be defended through the medium of consumer rights.
The First Amendment of the United States was instituted when the government had full control over the public sphere. Newspapers, radio stations, speeches, and television served as the “marketplace of ideas.” The advent of social media platforms completely transformed how information was disseminated and, consequently, hindered the power of the State.
As the digital public sphere emerged, companies like Alphabet, Meta, and Microsoft protected freedom of expression—a duty bound for failure. In the late 1990s, as a part of the Communications Decency Act, Section 230 made these corporations immune to legal repercussions from the content generated on their platforms. While that had the positive
intention of protecting these startups from drowning in legal quarries, the legislation hasn’t been modified to match their prominence. We have discovered since then that Big Tech is not particularly suited to protect freedom of expression.
The Center for Democracy and Technology reports that 9.2 percent of social media users believe they were shadowbanned in the last year; 68 percent of those believed their social-political stances were the reason why. While the practice of shadowbanning is difficult to trace, several testimonials point to its existence. For example, TikTok was found shadow-banning LGBTQ+ hashtags in Russia, Bosnia, and Jordan. The problem is two-fold: users are being censored for socio-political speech and are not receiving notice of such decisions. If individuals are unaware of their speech being censored, they cannot fight it, explaining the lack of media coverage on this topic.
One way in which this status quo can be fought is through consumer rights law. Legislation similar to the Fair Packaging and Labeling Act
(FPLA), which requires companies to disclose the contents of their products, must be applied to Big Tech. The structures of these companies follow a consumer-provider model: users exchange their screen time and personal data, which bring in millions of dollars in ads for these companies, for the content on the platform. Big Tech should be required to disclose how information gets regulated on their platforms. By disclosing when they regulate speech, users would gain awareness of their censorship, reducing the effectiveness of shadow-banning. Consequently, companies would invest more monetary and human capital into their speech-regulation protocols. That is because governmental fines and public pressure would force companies into compliance through hefty revenue cuts and stock volatility.
Accountability for Big Tech’s regulation of speech is long overdue, and the application of consumer rights law is a solution. For the sake of the “free marketplace of ideas,” which was once believed to be the cornerstone of Western society, legislative measures must be taken to protect the fundamental
aspect of the 21st century is the continuous development of public personas through social media. Actors, influencers, and, especially, politicians all cultivate personalities online as if manufacturing a product for the average person to consume daily. A politician’s name and face are inextricable from their established viewpoints. Their name signifies their position on the vast political spectrum: the discussion of a politician and their beliefs is a consumption of their cultivated persona.
Amidst current political discourse, “TRUMP TOO SMALL” seems like an innocuous political statement— unremarkable, even. After all, it doesn’t stand out from the more vitriolic comments on public forums. In 2018, Steve Elster attempted to trademark this phrase for various shirts, prompting the US Patent and Trademark Office (USPTO) to reject his application. The USPTO cited Section 1052(c) of the Lanham Act, regarding a trademark that “[c]onsists of or comprises a name . . . identifying a particular living individual” without said individual’s “written consent.” Elster appealed this decision and opted to bring the case before the Supreme Court—arguing that the decision infringed upon his First Amendment rights. It is not difficult to prove that this section of the Lanham Act is unconstitutional: one can look at the provision’s content-based restrictions and public personas in the eyes of the law. The question now, however, is how the consumption of public personas— particularly those in the political arena—should be reconciled within
the eyes of the First Amendment. Perhaps, examining the specifics of Section 1052(c)’s unconstitutionality can pinpoint a solution.
One way in which Section 1052(c) can be considered unconstitutional is its provision of a content-based restriction. Elster intended for this trademark to serve as commentary on Trump’s policies, referencing an exchange between former President Trump and Senator Marco Rubio from the 2016 Republican primary debate. Justice Marshall, in Police Dep’t of Chi. v. Mosley stated that the First Amendment means, “above all else… that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” However, in rejecting Elster’s trademark application, the USPTO, a government agency, restricts his expression on account of its content; the appeal board claimed that Section 1052(c) applies “regardless of the viewpoint conveyed by the proposed mark.” In other words, the statute is not designed to discriminate against specific beliefs or ideas.
It is impossible to bar the trademark without incidentally restricting Elster’s own commentary on Trump’s politics. Regardless of its intended design and function, Section 1052(c) cannot be viewpoint neutral—and thus constitutional— when concerned with the public-facing nature of American politics.
Turning toward the work of political cartoonists also elucidates Section 1052(c)’s unconstitutionality. Hustler Magazine, Inc. v. Falwell had the court determine whether public figures or public officials can recover damages due to the emotional distress caused by caricature. In Hustler, Justice Rehnquist states that, even
if a speaker has bad motives for tort law, the First Amendment offers protections to speakers in public debates about public figures. Rehnquist contends that to hold otherwise would cause undue burden to political cartoonists and satirists, the appeal of whose work is based on “politically embarrassing events,” and whose work “played a prominent role in public and political debate.” By restricting these often caustic depictions, the Court would have rendered political discourse “considerably poorer,” thus discouraging the “free flow of ideas and opinions on matters of public interest and concern.”
This reasoning can be applied to Elster. The USPTO claims that Section 1052(c) seeks to “protect rights of privacy and publicity that living persons have in the designations that identify them.” According to the USPTO, Elster’s proposed trademark also violates Trump’s rights to privacy and publicity. Implicit in Hustler, however, is the relinquishing of protections from public figures and officials in debates: having stepped into the spotlight, they forgo certain degrees of privacy and assume the risk of critique. In other words, as someone “intimately involved in the resolution of important public questions,” Trump cannot claim damages on account of the words uttered about him. Consequently, by applying Hustler, Elster—intending for his proposed trademark to serve as political commentary—does not violate Trump’s rights to privacy. Elster’s proposed trademark can be interpreted as a “weapon of… ridicule and satire,” as “TRUMP TOO SMALL” is meant to critique the former President’s comments from 2016: his work is similar to those of political
satirists and thus plays a material role in political debate. By rejecting Elster’s trademark, the USPTO also disregards his protections within the arena of political discourse, stifles the flow of opinions on public interest matters, and ultimately violates Elster’s First Amendment rights.
The Lanham Act’s ultimate objective is to protect the image of an individual—be it in public or private spheres. In the political arena, a politician’s image and name cannot be distinguished from their ideologies. If the right of political discourse—
through verbal or visual means—is guaranteed under the First Amendment, then one should also have the right to invoke politicians’ names during such discourse. And, by stepping into the political arena, these politicians are already marketing their beliefs and viewpoints to an audience. As demonstrated in Vidal v. Elster, the Lanham Act infringes upon this constitutional right; by protecting the publicity of public figures, it necessarily proscribes specific speech on a content basis.
So, what now? The First Amend-
Childhood
sexual trauma is one of the most deeply rooted and permanently damaging experiences an individual can experience. It can often take someone many years to come to terms with what has happened to them, let alone facing their abuser in a courtroom and recounting the details of abuse. At the Manhattan Criminal Court last Summer, I was given the opportunity to talk with victims of childhood sexual abuse who were able to bring their suits under a new New York law. Some of them said they felt relief knowing their abusers would be brought to justice. Others worried that their fractured memories would lead to an unbelievable testimony. Others, particularly in cases of incestual child sex abuse cases, were there without the support of their families and wondered whether their lives would ever regain normalcy. These varied reactions are a normal response to an incredibly abnormal situation. It
is the law’s responsibility to see these differences and provide a fair and just system for survivors.
In 2019, New York State signed the Child Victims Act (Senate Bill S2440) into law. The law itself had three components - first, it allowed victims of childhood sexual violence to bring civil lawsuits until their 55th birthday, as opposed to their 23rd birthday. Second, the criminal prosecution of childhood sexual violence was allowed to begin at the age of 23, as opposed to 18. Finally, and most importantly, it introduced a one-year window where the statute of limitations for childhood sexual abuse cases was essentially suspended. This yearlong window allowed individuals whose statute of limitations had expired (e.g., they are older than 23) to bring civil suits against their abusers. It has been well-recognized that childhood sex abuse should be treated differently than other offenses in terms of a statute of limitations, as well as modified expectations of survivor testimony, which is often unclear or jumbled, especially as new
ment already has free speech protections for speakers in public discourse, so then, it must be the Lanham Act that requires some revisions. Perhaps, the act ought to consider politicians’ personas and their names as consumable commodities—ones that the public may purchase or sell. Without revisiting the Lanham Act, the USPTO may see its bastion for privacy and publicity rights crumble under the First Amendment.
memories may be recovered over the time it takes to go through a grand jury and a trial.
Given the psychological underpinnings of childhood sexual trauma, it seems evident that having an ordinary statute of limitations is not functional or fair. It can take people decades to fully psychologically grasp what happened to them as a child, by which time the statute of limitations has long passed. New York is setting the example that expanding the statute of limitations works. Under the Child Victims Act, 10,857 cases were filed. These cases extended far beyond individual abusersreligious institutions and hospitals were among the most implicated institutions. Around 50 percent of the cases brought were against religious institutions. Youth-serving organizations and schools each made up another 15 percent of the cases. These numbers show how remarkably individuals and lawmakers are failing the children in their care. Though it is beyond the purview of this article,
The reputation of private charities in the United States is nearly sterling. They are egalitarian, generous, and inspiring in their efforts to alleviate real and persistent suffering—traits that are not immediately associated with American conservatives. However, data consistently shows that conservatives—the same folks likely to vote for tax cuts and social spending slashes—are more generous and support these laudable institutions much more than liberals. Do these things balance out? The short answer is no.
One explanation could be that private charities are more efficient, that conservatives are correct. However, private charities suffer from the same criticisms so often levied against “wasteful,” “inefficient,” or “ineffective” government programs. Private charities maintain their own bureaucracies, with their own amounts of administrative overhead, creating the same effect as is apparently endemic in government agencies. They are also inefficient as when demand for them is highest, during economic downturns, they too recess instead of meeting the uptick in need. Being as deferential as possible, the patchwork system of privatized welfare only allocates a third of all charitable giving to the vulnerable. What private charities lack is sufficient size, funding, or coordination to reach relevant portions of the underserved. This critique is not of the charities themselves; it is that we are asking too much. It is the welfare equivalent of chopping down a forest with a pocket knife. Moreover, the tradeoff is wholly unnecessary; one can support private charities and support more holistic government programs. Thus, even
though they do important work, it is not immediately clear why conservatives insist on the replacement of one with the other. In any case, few believe charities are as effective at reaching the masses as the government, which makes the message that much more sinister.
Given private charities are not going to single-handedly reduce nationwide poverty to acceptable levels, it follows there is another reason for their status within conservative politics. Although you will probably not hear it come out of Newt Gingrich’s or Kevin McCarthy’s mouths, it is implausible that conservatives writ large believe that charities fill in the gaps sufficiently. In fact, the way they describe it as a “voluntary civil society” concedes as much. A brief explanation of the modern conservative position is in order. Just a few decades ago, even the conservatives were not broadly against public welfare to the extent they are now. Things changed when inflation was increasing in the 1970s, and conservatives united with neoliberals around a moralized vision of inflation to bring it down. Neoliberals had already identified government welfare as a demon to exorcise in their mission to reorient the social contract towards protecting markets and enforcing class divides. Public welfare that went to single Black mothers became inextricably tied to the inflation issue because of the belief that the Black community was lazy and recklessly wasting their welfare dollars. This brought conservatives on board with the neoliberal end by bridging the economic goals of the neoliberals with the social views of the conservatives. Notably, conservatives seemed to take no issue
with the far larger inflationary allocations such as Social Security or the military. Conservatives did not try to repeal programs that largely benefited the white lower class who were deemed a part of the more “deserving poor.” Once it was evident that the public dollar was being used to lift up those whom they deemed as less worthy, political cries for privatizing welfare grew louder. It was as the Warren Court decisions to equalize public welfare access were being handed down that this shift crystalized; it was no mere coincidence. For conservatives, it used to be possible to tolerate private and public welfare institutions, but the latter fell away after the political alliance with the neoliberals. Whether implicitly or otherwise, they know relying on private charity has a hopeless chance of resolving class or racial inequalities, which is why they acclaim it.
Proving this claim seems difficult, as few conservatives would say “our platform is to keep the poor in their place.” However, given their effusive support of private charities, there must be some distinct difference between them and government welfare. When discussions of government programs arise, conservatives flock to tropes of welfare queens, arguments about work requirements, and the regrettable nature of the poor misusing or not working for their money. In contrast, private charities seemingly have no faults, and whenever the government fails, they succeed. Moving beyond the lack of rigor in most of these arguments, ones that fail to account for why any of those things are true or for the incentive structures at play, the tone with which they vilify government-sponsored cash handouts is not matched
by their discussions of private, often religious charities. The difference, of course, is that government programs give much more in amount and, increasingly, were mandated to give to racial minorities. When they write off huge donations to laudable religious charities, it is unlikely they are auditing where that money went or if the people who received that money wasted it. The only thing they do know, at least more specifically than with public programs, is the general contours of who is receiving their charity. In (not so) unrelated news, over 90 percent of foundation CEOs are white while less than 10 percent
of grant-making flows into communities of color. The government has to give out to more people, and it cannot discriminate in who it can target, a fact that statistically leads to lower support for welfare.
The apparent inconsistency lies here: private charities are legally less compelled to give to groups conservatives deem unworthy. When the government excluded the perceived unworthy, conservatives were not in opposition. Government programs are now legally compelled to give more money out to more of the lower class, and, crucially, to more of the lower class Black community, than
it begs the question of what other structural changes can be made to better protect children at an institutional level.
New York’s success, as compared to other states, in suspending statutes of limitations in childhood sex abuse cases is nothing short of remarkable. Compared to New York’s almost 11,000 cases, only around 1,000 were brought under similar laws in Delaware, California, and Minnesota. Experts have argued about why this may be - whether New York simply had more cases of sex abuse or publicized the law better. Notably, all of the states that have brought these
private charities. It is this difference that accounts for statistically significant shifts in voter attitudes toward public welfare. Thus, the emphasis on replacing government assistance with private charities should be treated as a continuation of neoliberalism’s mission to retool the government to enforce market results at the expense of differences along race or class. It should not be treated as a serious, comprehensive anti-poverty strategy; it is a red herring to ensure most of them remain in their place, as is consistent with the underlying ideology.
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changes are heavily Democratic. While this should be a nonpartisan issue, officially passing legislation to extend the statute of limitations remains difficult in more right-leaning states. Though the reason is unstudied, this may be related to the link between religious institutions, which are more prominently involved in right-wing politics, and child sex abuse cases. Whatever the reason, this is clearly an issue that should cross party lines. However, what remains true is that these suspensions increased the suits brought in every state. This is undoubtedly a positive outcome - more people have
been empowered to come forward and given a chance at the justice they deserve. We owe the one in five girls and one in 20 boys who are victims of childhood sexual abuse in the U.S. a fighting chance at justice, and the best way to do that is to expand, or even waive, statutes of limitations in childhood sex abuse cases.
One such lasting side-effect of the former Emperor’s rule is the Napoleonic Code, an established French civil code. The legal protocol was enacted in France on March 21, 1804, following four years of deliberations and arrangements within the French government under its relatively new head, General Napoleon Bonaparte himself. Upon entering French government leadership, Napoleon took it upon himself to codify and ascertain French law more specifically. Thus, he established a special commission to debate how these new laws would be rendered and appointed JeanJacques-Régis de Cambacérès, duke de Parme and second consul, to lead said commission. Cambacérès’s commission met over 80 times, with Napoleon attending almost half of these sessions, to discuss the creation of new French law. Ultimately, these sessions resulted in the establishment of the Napoleonic Code.
In its final form in 1804, the Napoleonic Code featured several attributes (3). Mainly, it codified several branches of French law, including commercial, criminal, and civil (which was further split into property and family law). The Code also granted equal rights for all male citizens and fortified their authority over their spouses and dependent families, which was inevitably detrimental to female citizens’ rights, primarily in negating their natural rights among men’s. Under the Napoleonic Code, colonial slavery was reintroduced throughout France and applicable French territories. This perpetuated the authority of the new set of laws not only in mainland France, but also in other European and South American countries where France had governing authority.
To this day, the Napoleonic Code is still applied to French law. Furthermore, it is still in use in other modern-day
countries, such as Belgium, Luxembourg, Monaco, Haiti, and the Dominican Republic. In fact, Belgian civil code remains to be based on the Napoleonic Code. Even the current U.S. government borrows some inspiration from the Napoleonic Code; the only civil law state of Louisiana draws similarities to the Napoleonic Code with its civil code of 1825.
Upon its initiation and impact on subsequent national and state governments outside of France, the Napoleonic Code has paved the way for the codification of common law. In other words, it placed into definitive, legally binding text the rights that are granted to each French citizen under the eyes of the law.
execute legal code under the present-day context and issues that need to be addressed legally, rather than a retroactive falling-back on legislation inaugurated in a vastly different social landscape.
Oftentimes, the legal defense for utilizing the code is that it was such a significant document that has stood the test of time. Yet, it is unclear if that same argument applies today. In fact, it seems oxymoronic to utilize a legal code that is several centuries old as a foundation for modern law. This seems all-the-more paradoxical especially when such an archaic form of rule intrinsically violates the rights of several groups of people based on race, class, gender, and other identity politics.
In totality, while it is inevitably vital to recognize the historical implications of the Napoleonic Code, placing it at the center of codified common law not only in France and Europe but also around the world seems counterintuitive to constructive legal reform in the present-day. Why be retrospective when we are striving to be progressive? Perhaps the Code is something better suited to historical
However, with that being said, the Napoleonic Code is unmistakably an outdated legal document. This is shown in its obvious restriction of rights to women, children, and persons forcefully enslaved. Even though it was an important development and consequential ate, amend, and
Imagine you are a journalist. Imagine that the district attorney told you that he “didn’t appreciate” your reporting, which is heavily critical of law enforcement. Now imagine that law enforcement in your city conspired to arrest you under an obscure law—one they had never arrested anyone for, and one which no one has ever been convicted of—after which they took pictures of you in jail, all while mocking and laughing at you. Finally, imagine that, after you were ultimately released, you filed suit against the officials who conspired to have you arrested, only for the suit to be dismissed—not because they didn’t violate the law, but because “no clearly established law placed the officers on notice of [your] First Amendment right not to be arrested.”
Unfortunately, this is not a hypothetical scenario. This was the experience of Priscilla Villarreal—a citizen journalist from Texas who had her First Amendment claim denied by the full Fifth Circuit in January of 2024 due to the doctrine of qualified immunity.
But what is qualified immunity?
The doctrine of qualified immunity first emerged with Harlow v. Fitzgerald, a Supreme Court case that established that, for individuals to sue officials for a violation of their constitutional rights, the right in question must be “clearly established” for the suit to proceed—a holding found nowhere within the text of the original statute. As a result, plaintiffs in such suits must not only prove that the defendant “violated a federal statutory or constitutional right,” but also that the unlawfulness of their conduct was “clearly established at the time.” “Clearly established,” in turn, means that “[m]erely proving a consti-
tutional deprivation doesn’t cut it”; instead, “plaintiffs must cite functionally identical precedent that places the legal question ‘beyond debate’ to ‘every’ reasonable officer.”
Here, a problem arises. The necessity for such “functionally identical precedent” means that “public officials [may] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” This, in turn, has led to a number of facially absurd results: in one notable case, an inmate was forced to sleep “naked” in a room filled with “a massive amount of feces.” The circuit court in this case granted qualified immunity, as “[t]hough the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end,” the plaintiff “stayed in his extremely dirty cell for only six days.”
Adding on to this problem, however, the Supreme Court has also held that courts are allowed to first determine whether a “clearly established right” exists at all, instead of whether a constitutional violation occurred. As a result, courts have developed a tendency to avoid ruling on the constitutional issue altogether—creating, in effect, a legal catch-22. Specifically, though plaintiffs must produce “clearly established law” that supports their case, courts are not producing such law as precedent, as their initial conclusion that no “clearly established law” exists marks the end of the case. Judge Willett of the Fifth Circuit, noticing this issue, points out a recent Eleventh Circuit decision that “expressly [took] no position” as to whether an officer firing at the family dog—but instead hitting a 10-year-old child—was a constitutional violation. This, as Judge Willett aptly notes, means that “[i]f the same officer
tomorrow shoots the same child while aiming at the same dog, he’d receive the same immunity. Ad infinitum.”
Qualified immunity, as a result, violates a fundamental maxim of our legal system: that “every right when withheld must have a remedy, and every injury its proper redress.” With qualified immunity, however, only violations of clearly established laws are remedied—resulting in official wrongdoing gaining, in effect, a stamp of approval from our legal system. When taken into a broader constitutional context, such a stamp of approval is deeply disturbing, and, as evidenced by Villarreal’s case, can have significant chilling effects on freedom of speech and the press. Indeed, Villarreal’s ordeal is emblematic of a broader issue: the difficulty of holding public officials accountable when they infringe upon constitutional rights. We should make it easier—not harder—to remedy such infringements, and one way the Supreme Court can do so is by eliminating the atextual doctrine of qualified immunity.
This, however, is just one of the many problems with qualified immunity. Recognizing this, jurists—from across the ideological spectrum—have called for the Supreme Court to do away with qualified immunity. Justice Sotomayor, for instance, has described qualified immunity as “render[ing] the protections of the Fourth Amendment hollow”—while even Justice Thomas has said that,” [i]n an appropriate case, [the Court] should reconsider [its] qualified immunity jurisprudence.”
Ultimately, “[i]gnorance of the law,” as Thomas Jefferson once stated, “is no excuse in any country.” The same theory should apply—if not with increased force—to public officials, whose very duty is to serve our constitution and its laws.
The 14th Amendment to the U.S. Constitution is, undoubtedly, one of the most influential pieces of law in the United States. Giving equal protection under the law to all citizens, the amendment has single-handedly integrated schools, legalized interracial marriage, and enshrined the right to privacy into our common law system. Yet, buried in the 14th Amendment’s consequential text is a peculiar provision: “No person holding any office, civil or military… shall have engaged in an insurrection or rebellion against the Constitution of the United States.”
Today, this provision is being used to remove former President Donald Trump from the ballot in numerous states. Already, the Supreme Courts of Colorado and Maine have disqualified the former president from the ballot in November and cases have yet to be heard in 17 other state. Arguing that president Trump incited a violent insurrection against the U.S. Capitol on January 6th, 2022, lawyers from across the nation believe that the 14th Amendment prevents the former President from reappearing on the ballot in 2024. Though, regardless of your opinions of President Trump, his actions on January 6th, or his fitness to be President, every American should oppose the use of the 14th Amendment to remove Trump from the ballot.
Firstly, there is no historical precedent for the use of this clause. When the 14th Amendment was being drafted in 1866, the purpose of Section 3 was to bar former Confederates from holding office. Many Union citizens believed that every
soldier in the Confederacy had severely violated his “oath to the constitution” and that this violation rendered him untrustworthy. So, to respond to hissings from Union politicians that “Copperheads” and “Secessionists” were wandering the halls of Congress, Radical Republicans drafted Section 3 of the 14th Amendment. Though, the clause only had a six year shelf life. In 1872, President Uylsses S. Grant signed the Amnesty Act reversing most penalties against former Confederates. In an attempt to further rebuild the South, Grant had voided Clause 3 and unknowingly opened the floodgates for former Confederate sympathizers. In the Senate alone, 150 veterans of the Union and Confederate Armies had been elected to six year terms. Not only that, but much to the detriment
begun electing former Confederates to state and local office across the United States. This marked the relative end of Section 3 as, after the civil war, only two politicians (who had been previously convicted of insurrectionist activities or espionage) had been subject to disqualification. Without a criminal insurrectionist conviction of the former President (which at the time of this article’s publication has not yet come), there exists almost no historical precedent to disqualify President Trump from the ballot using the 14th Amendment.
Though, many may argue that a criminal conviction is superfluous to the invocation of the 14th Amendment. In Section 3, the word conviction does not appear. The 14th Amendment only discusses individuals who had “participated” in acts of
had not been convicted of participating in an “insurrection”. While this paper does agree that a criminal conviction is not needed to invoke Section 3 of the 14th Amendment, we still contend that the law is not applicable to the 2024 election. States, we believe, cannot disqualify candidates on the basis of ineligibility for a particular office. Article 2 of the Constitution, argues that if a President fails to qualify for the office, the vice president will take over on inauguration day. This implies that an ineligible candidate can be elected to the office, but is only barred from assuming that office. Therefore, if the 14th Amendment clause is employed against former President Trump, it appears that Congress rather than the states would be the body to “officially” disqualify him. This is supported by both precedent and the disqualification provision in the 14th Amendment. In hearing a motion to disqualify former President Trump from the ballot in Minnesota, the state Supreme Court ruled that “unqualified candidates are allowed to remain on the ballot.” Not only that, but the final line of Section 3 reads: “By a vote of two-thirds in each house, Congress may remove [a can-
didate’s disqualification].” It appears that the Constitution, precedent, and Section 3 itself each demand that Congress be the final decision maker regarding disqualification. This means that current motions and decisions being handed down in states are outside of the 14th amendment’s scope and unable to be applied to the law itself.
Though, outside of historical precedent and legal application, there exists a more immediate danger to democracy by disqualifying former President Trump from the ballot. Currently, three in ten Americans believe that the 2020 election was stolen. Not only that, but views of electoral systems as a whole are at record lows. Invoking the 14th Amendment disqualification clause against one of the major party frontrunners is likely to severely decrease trust in an already embattled system. Elections are the bedrock of American democracy. They occur on every level of politics and are some citizens’ only connection to government. If these institutions are rocked by the use of a relatively arcane and unknown subsection of the 14th Amendment,
support for the bedrock of American democracy threatens to crumble even further. No matter if you identify as a Democrat and Republican, supporters of American Democracy should advocate for former President Trump to win or lose by a plurality of votes, not by 9 judges sitting in a secluded courtroom. This will ensure that trust in democratic systems remains high regardless of the winner on the ballot.
Through each and every metric, it appears that Section 3 of the 14th Amendment should not be used to disqualify President Trump from the 2024 Presidential Ballot. Since the law has no historical precedent, an inability to be applied properly, and the possibility of seriously shaking confidence in American democracy, there exists no argument to justify the use of this provision to disqualify President Trump from running for a second term. No matter your views on the former President, the protection of American democracy is paramount and can only be achieved by a swift end to the use of Section 3 of the 14th Amendment.
Foreign debt is one of the most difficult and complex concepts dealt with by international law. Not only does it transcend national borders, it involves sums of money that essentially only exist in the financial system and span the border between public government budgets and privately owned wealth. One of the most important questions related to international debt arises when a nation’s regime changes. Should debt be associated with the nation as a continuous whole, or with the government that took out the debt?
Should the people be on the hook for debt incurred by a dictatorial regime that they then overthrow? To explain and answer these questions, some legal scholars have turned to the idea of “odious debt,” formulated in the wake of the Spanish-American War in 1898. America claimed that newly-liberated Cuba should not be held responsible for debts incurred by the colonial Spanish regime, which had not ruled with the consent of the people or tried to meet their needs. However, in subsequent decades, the theory fell into disuse due to economic theories and the fact that creditor countries generally had far greater ability to enforce their claims than debtor countries had to refute them. Odious debt theory can and should be applied by the international community, helping various institutions following its implementation and exploring institutions that might be useful for implementation.
In 1979, Nicaraguan president Anastasio Somoza was overthrown, leaving his country with $618 million in unpaid debt, much of it from Somoza’s lavish spending on himself and his family. As it became clear
that he would be unable to remain in power, Somoza worked rapidly to liquidate national assets, ensuring that he would be able to carry enormous wealth abroad as he fled into exile. His decision left the new government to grapple with this debt. It would seem ridiculous to lay this debt at the feet of the new government, which had no role in incurring it. Yet, this is exactly what happened.
South Africa faced a similar fate. Through years of economic turbulence caused by sanctions, the Apartheid regime borrowed heavily to ensure financial solvency. Much of the borrowed money was used to purchase the weapons used to suppress protests in favor of racial equality. However, the new democratic government was forced to pay off the debts of the old government once it was ousted.
Today, it is a guiding principle of international law that governments should rule with the consent and for the benefit of the governed. This is more of an aspiration than an enforceable rule, but it should form a basis for how democracies should act. It naturally follows that actions taken by a government without regards to the will of the people or without attempting to benefit them are the responsibility of that government. If borrowed money is spent to finance a lavish lifestyle for the autocrat, then it should be viewed as a loan to an individual. However, loans used to finance the oppression of the people, such as those spent on military gear or to pay troops, are more ambiguous, since these can be construed as spending on national security. However, for example, in South Africa’s case, the entirety of the state securi-
ty apparatus was used to grind black South Africans into submission.
One of the most obvious objections to odious debt theory is the question of who decides when a debt is odious. This is a fair criticism; without an objective standard, any country could use the theory to weasel out of debt by claiming that a previous government borrowed it without the consent of the people and misused it. Most scholars who favor odious debt theory argue for the establishment of a legal regime that would independently handle disputes, investigating spending by toppled regimes to establish which of their expenditures may be nullified.
Not only would declaring some debt odious bring international financial institutions more in line with international law, but it would actively help to dry up funding sources used by dictators. If lenders realize that there will be no mechanism to enforce debt collection, they will have less incentive to give money to these governments. This will make it harder for dictators to fund their brutal activities and thus, in the long run, make their overthrow more likely. Furthermore, there is little risk of this system harming the people of the countries involved, because expenditures that benefit the people do not fall under the definition of odious debt. This means that dictatorial regimes would be free to spend money on critical supplies like food and medicine, just not on weapons. Thus, as opposed to sanctions, this method would restrict the capacities of authoritarian governments without causing harm to the people.
This raises an important question: if odious debt theory is so intu. itive and seems to have so few draw-
“Governments of developed, democratic countries cannot reasonably claim to support democracy abroad while also backing up debts paid to dictators.”
backs, why is it generally disregarded by international legal scholars and those in the halls of power? Creditor countries would avoid lending money to authoritarian regimes due to the risk that it won’t be collected. Typically, the countries lending money tend to be rich and powerful, meaning that they can enforce their will by threatening to cut off debtor countries from future lines of credit if they refuse to pay debt incurred by overthrown regimes.
Every argument points to the conclusion that some debt should be considered as odious and thus not collected. Governments of developed, democratic countries cannot reasonably claim to support democracy abroad while also backing up debts paid to dictators. International legal norms should not saddle the people with debts incurred by regimes they have shaken off themselves. Currently, international law is subordinated to greed, but this system robs Amer-
ica and other countries that purport to uphold a rules based international order of credibility. Hopefully, leaders in the future will be brave enough to shake off their preference for those who hold capital in their own countries and take a decisive stance in favor of the international rule of law.
Saper is principal attorney at Saper Law Offices, an award-winning law firm that maintains its edge above other firms across multiple practice areas—intellectual property (IP), social media, business law, and more—by staying up to date with the latest technological trends.
In the two decades since she founded Saper Law in 2005, Saper has seen firsthand how the development of new technology (i.e. iPhones, social media, and now AI) has led to new legal issues. In fact, Saper has been at the forefront of the social media and internet law world, approaching it from several angles: building her business to meet the demands of clients facing new issues; scoring victories on their behalf in high-profile court cases; and using her experience to provide commentary on a number of related cases for top news outlets such as NPR, Fox News, and The New York Times. ULM is honored that Saper has taken the time to speak with us on these topics and more.
At first, after graduating from The University of Illinois Urbana-Champaign Law School, Saper set upon the traditional IP law job market. Though she had previously completed a summer internship at a prestigious IP firm, she did not receive a return offer to work there as a fulltime associate because that firm was primarily a patent firm, and Saper did not have a science degree. So, as Saper told ULM, once she was outside the system, she had to “reinvent” what her future legal path would look like.
Saper knew she didn’t want to abandon her passion for IP, and thus decided to take matters into her own hands. “It was like… well, if I want to be an IP lawyer, I have to figure out how to do that the nontraditional way,” she said. In this sense, Saper Law was born not only out of resilience but also of necessity.
It was with this innovative spirit that, as her business grew and her areas of expertise expanded, Saper would begin to tackle cases involving unprecedented legal issues about new technology. Most notably, Saper scored a victory before the Illinois Supreme Court in Bonhomme v. St. James, one of the first “catfishing” cases involving a fake Facebook account—a novel problem as social media sites were first becoming popular around that time. Saper represented Paula Bonhomme, the plaintiff, who sued Janna St. James, the defendant, for fraud and emotional distress. To win the case, Saper had to make her argument about a novel digital interaction in a manner that the judges could understand. This meant thinking on her feet in a courtroom where the spotlight was on her. “It was exhilarating, heart-stopping, exciting,” she told ULM, especially since it had been such “a long road procedurally to get to the [Illinois] Supreme Court.” Indeed, Saper had much to be proud of: a victory like this one at such a high level was rare for a small firm. Saper was successful because she was able to translate new technical terms into a clear and concise legal
argument. The widespread attention garnered by her victory propelled Saper Law forward for years to come as a leader in the social media legal landscape.
However, technology has evolved much since then. Right now, AI is all the rage, and it has come along with its own fair share of legal issues, mostly related to copyright infringement. Recently, there has been a wave of writers and artists suing tech companies such as Google and OpenAI, arguing that the companies’ new AI engines (Gemini and ChatGPT, respectively) have used their copyrighted works in its training data in such a way that constitutes infringement. In fact, just a few months ago, The New York Times sued OpenAI and Microsoft on behalf of its writers––the first time a major media company had taken such legal action.
Saper predicts that the changes these lawsuits will bring to the AI space will be similar to those brought about by the music industry in the 2000s when it faced the widespread sharing of songs. That is to say: Saper believes that more and more subscription services will be created. Most people today don’t buy a single song; they use Apple Music or Spotify. In the same way, Saper thinks the subscription model will become increasingly prominent, and perhaps unavoidable, for AI. “I bet what will happen is that we’ll have to start paying for content that ChatGPT and [similar] programs are outputting, and that means [OpenAI will have]
“What will happen is that we’ll start paying for content that ChatGPT and [similar] programs are outputting, and that means [OpenAI will have] to pay for the source content”
daliah saper principal attorney at saper law offices
to pay for the source content, negotiating broad licenses with [media companies like] The New York Times to be able to access that database [of source content].” This is also to say that, in Saper’s opinion, the AI copyright lawsuits are a business problem as much as a legal one. Thus, they will require solutions at the intersection
of business and law.
In addition to her work at Saper Law, Saper is doing her part to educate rising attorneys who will solve problems like these in the future. Indeed, Saper teaches courses as an Adjunct Professor at Loyola University Chicago School of Law, always reminding her students that the
process of crafting strong legal arguments is as much an art as a science.
“Writing a brief [is] like chiseling a sculpture,” she says. “You start with a mound, then you take away words, then you add words, and move things here and there, and you get the final piece.”
Amidst a world rife with injustices and threats to democracy, billions of people find relief in rights enshrined in their constitutions. Democracies pride themselves on the promise of rights protection, but the extent to which judicial decisions are actually enforced has little to do with whether or not a state has a constitution. Adam Chilton, Professor of Law and a Walter Mander Research Scholar at the University of Chicago Law School, has conducted extensive research in investigating just why constitutional rights and the promise (or lack thereof) of their enforcement vary so greatly from nation to nation.
Chilton posits that two types of law can be seen in jurisprudence; ordinary law, or state-enforced statutes and codes, enjoys relatively more enforcement in comparison to its constitutional counterpart. Chilton’s research suggests that because constitutional law is “not only the source of law, but also its subject,” it
can be difficult to definitively demarcate the boundary between policy creation and its enforcement. Key in Chilton’s assessment of rights protection is the fact that it is not only the executive that often falls flat in their enforcement duties, but it is popular will within a nation that can also inhibit protections: “The state may be able to ignore those constitutions, but it’s also sometimes because the public wants those things to be ignored. In some instances, it is really just following popular will.”
Chilton warns citizens of the assumption of protection that comes with enshrinement of a particular right on paper. In some countries, particularly in South America, where healthcare and social services amongst other things are officially classified as constitutional rights, their mere classification on paper rarely translates properly in their enforcement. Instead, “individual rights of action” are implemented,
where citizens are to assume the role of political actor to bring their cases to a court. A common example of this can be seen in medical cases, where a citizen appears in front of a judge in an effort to obtain a medical procedure, on the grounds that they have a right to healthcare. Where this can get problematic, Chilton argues, is when social backgrounds and degrees of privilege amongst a population are considered. “This [process] was meant to ensure greater provision of healthcare around the country. But in practice, the people that are best at using this system are those with the most resources, knowledge, education, and higher socioeconomic status generally. As a result, an idea that was meant to be progressive to get better health resources into the most marginalized members of a country, is actually shifting resources to be spent on the more affluent.”
So what does this mean for nations
“The Big Lie.” The fake Pentagon explosion. Social media and generative artificial intelligence allow any individual to post a misleading narrative. Once a post has gone viral, it is hard to put the “genie back in the bottle.” Controversies over digital speech platforms bring a unique combination of stakeholders together, from governments to technology companies and legal experts, in a debate about mis/disinformation.
Misinformation is defined as “the dissemination of false information, either knowing it to be false (see disinformation), or unknowingly.” Disinformation is the purposeful dissemination of false information. These terms, along with the more colloquial “fake news,” are now part of Americans’ vernacular.
Professor Genevieve Lakier, a Professor of Law and Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School, is a self-proclaimed “First Amendment addict.” She researches the free speech environment and the First Amendment as a vehicle for constitutional litigation. Lakier is passionate about the First Amendment doctrine because it is dynamic, relevant, and expansive, stating that “working on the First Amendment means you work on all kinds of things.”
Anxieties and uncertainties around social media’s impact on mis/disinformation and democracy raise new questions about the First Amendment’s interpretation. Should First Amendment standards for tradi-
tional media apply to digital speech platforms? Were they wrong to begin with? Are algorithms protected under free speech? Lakier describes how legal theories around free speech have shifted over time. The early and mid-20th century “democracy theory of free speech” protected speech deemed important and necessary for democracy. The Court then shifted away from that interpretation, where corporations do not possess obvious First Amendment rights, to the “classic conservative” view that free speech belongs to everyone, including corporations. This model favored a hands-off government approach to free speech in order to foster a marketplace of ideas. Lakier believes that a fundamental flaw with this model is that it does not account for power inequalities in markets, such as forces of domination. Liberal opposition to this “classic conservative” model aims to protect individuals and minority groups against abusive, private power.
The rise of prominent social media platforms has ushered in an “equality model” of interpreting the First Amendment. While social media platforms provide speech forums where healthy debate can flourish, these companies have unrestrained power to remove and regulate content. Lakier warns us about the dangers of a laissez-faire speech environment without any oversight: “In response to public and political pressure about misinformation, hate speech, and violence, they [digital platforms and technology companies] are increasingly … repressive. They kick out speech. They repress what they think of as misinformation.” She notes
that technology companies are often perceived as liberal. As a result, some courts and conservative thinkers have embraced the “equality model” of interpreting the First Amendment –if private corporations are unfair to certain groups, the government has a right to step in and protect these groups from corporate power.
While Lakier understands the harms of misinformation and is sympathetic to why companies became aggressive in controlling misinformation, she believes that stakeholders are insufficiently sensitive to the dangers of abusing First Amendment Rights. To her, free speech protection is intended to serve us all, not just social media users, stakeholders, and shareholders. She states, “The reason we want to protect speech is to produce social good for us all.”
Debates around mis/disinformation often center around the role of companies and governments in dealing with mis/disinformation. Lakier is deeply concerned about government and corporate collusion to label differences of opinion as misinformation, referencing the long history of government and private corporations cooperating to produce orthodox views. To Lakier, previously censored viewpoints now merely considered alternative viewpoints – such as opinions on masking during COVID-19 – are evidence of how difficult classifying misinformation is. Democratic transparency and oversight are important to resist the unconstrained power of any one entity, whether the government or private institutions, in determining truth. Lakier posits an approach to content regulation where banning or excluding speech is
“There’s no goldilocks approach to regulating speech that is going to solve the problem. It’s about mistrust of authority, the decline of legitimacy of our scientific institutions, our universities, journalism.”
professor genevieve laker professor of law at university of chicago law shcool
not the go-to solution; instead, individuals should understand where information is coming from to empower them to make informed decisions about their information consumption.
Even though mis/disinformation is often framed as a problem of speech regulation, Lakier remarks that the problem has deeper roots: “There’s no goldilocks approach to regulating speech that is going to solve the problem … It’s about mistrust of authority, the decline of legitimacy of our scientific institutions, our universi-
ties, journalism...” A way to promote trust in institutions is by shoring up the legitimacy of independent, private institutions that serve public roles in determining truth from falsity, such as scientific institutions, the press, and universities. These institutions adopt rigorous, internal disciplinary practices to promote integrity in their work. Although these institutions may not be completely resistant to political forces, Lakier believes that their relatively independent nature allows them to serve as our best hope in creating an inclusive speech envi-
ronment devoid of false information.
Regarding the impact she wants her work to have on the free speech environment, Lakier hopes to provide well-informed, nonpartisan arguments and analysis about the freedom of speech. She emphasizes the breadth of options to explore when combating mis/disinformation: “We should not think we either have to commit to laissez-faire or allow the government to do whatever the hell it wants.”
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“The worst regimes, the most autocratic, are more than willing to put broad rights into their constitutions. But what they are terrified of are independent political parties, religious groups, presses, all of the things that help create civil mobilization and civil society.”
professor adam chilton professor of law at university of chicago law school
across the globe? The constitution as a symbol of the strength and resilience of the law is, in the present-day, marred by social and political inequities. While this may seem to signify that we are on the precipice of a world where rights are not promises and the checks and balances fall short, Chilton argues that nations should invest faith in their communities and mobi-
lize their wills together. “Broad-based social mobilization and organizations that are able to mobilize societies are the key features. Around the world, the worst regimes, the most autocratic, the least respectful of rights, etcetera, are more than willing to put broad rights into their constitutions. But what they are terrified of are independent political parties, religious
groups, presses, all of the things that help create civil mobilization and civil society.” For Chilton, while it is important to keep executives and judiciaries responsible in their civic obligations, voters should also avoid neglecting our own power of advocacy and community in protecting our rights.
For Professor Meighan Parker, Harry A. Bigelow Teaching Fellow and Lecturer in Law at the University of Chicago Law School, some of the most compelling issues and questions lie not only in the letter of the law, but also in the ways the law can be leveraged as “a tool to improve the quality of life for citizens within a given jurisdiction.” Her multifaceted background – including a B.S. in Biology, Masters of Theological Studies (with an area of focus in religion, ethics, and politics) from Harvard Divinity School, and J.D. from the University of Alabama School of Law – informs her approach to the similarly intersectional issues she focuses on, including the democratization of healthcare.
This phenomenon, although primarily within the field of healthcare, poses complicated legal questions as technology usage continues expanding and discrimination in the provision of healthcare remains a pressing issue. Professor Parker’s work centers around the possibilities and risks of the increased use of digital health technologies, such as telehealth, and the impact its implementation may have on marginalized communities.
In her 2024 Columbia Science and Technology Law Review article titled “Come As You Are?: Democratizing Healthcare Through Black Church - Telehealth Initiatives,” Parker proposes new models for partnerships between faith-based organizations and local healthcare systems. These interventions are designed to mitigate what is called “tech solutionism,” or the tendency to regard new technologies (e.g., telehealth) as one-
size-fits-all solutions to social issues.
If not properly implemented, Parker says, telehealth and other technology-based interventions can “exacerbate some existing health disparities.” By centering telehealthcare around trusted faith- and community-related organizations, issues such as medical mistrust and the digital divide, which disproportionately impact Black communities, can be mitigated. To address the digital divide, for example, Parker explains that the “requisite technology, the internet, the computer or the app on the phone, and [the knowledge of] how to use the technology [are all necessary] in order to have a virtual doctor’s appointment.” Locating these technologies in a church creates a social and technical support system between members and ideally fosters a more informed and community-based perspective in patients and practitioners.
While her article expands on interventions projected to be specifically effective in Black churches, she emphasizes the potential for scalability in Black communities and expansion to other marginalized and vulnerable communities. She draws on her personal background, “being from Alabama, and going to primary school as well as high school in a rural area,” to look forward to further work in this field. Regardless of the demographics of a given area, she believes that a better way to expand access to healthcare is by forming partnerships between community-based organizations and healthcare providers. She says, “It is important for healthcare providers to go to the communities they serve
and talk to the trusted leaders and ask, ‘What are you all seeing on the ground? What do you all need?’ It’s having that openness and deference to the leaders of the communities to say, yes…we [healthcare providers] are experts in the medical field, you all are the experts in your community. And we can talk to each other and work together to figure out what the particular needs of the community are and how healthcare providers can help.”
Though she says that “in my ideal world, your zip code would not determine whether you have access to care – period – and whether you have access to quality care,” she acknowledges real challenges in the future of equitable democratization of healthcare. Foremost, she “grapples with a cultural question…of why access to healthcare is a political issue,” tempering her legal analysis of the situation with her background in religion and ethics. In addition to social challenges, significant legal practicalities stand in the way of a full democratization of healthcare. Tensions between religious institutions and their healthcare partners -- especially over divisive social and legal issues such as abortion and medical aid in dying -- and the growing share of the healthcare market held by religiously-affiliated care providers are subjects for Parker’s future work. By focusing on “how our different belief systems and ethical questions can shape health care law and policy,” Parker hopes to move towards creating a legal framework that allows for each individual and their community to access quality healthcare.
Adecade or two ago, making a living off of social media would have sounded unusual, but recently it has become increasingly common to hear of people, even children, who are influencers. With the meteoric rise of child influencers found on platforms such as Instagram and TikTok, there comes valid concerns regarding the possible misuse and exploitation of their labor and earnings by guardians. In an effort to battle these concerns, Illinois has introduced Senate Bill 1782 which has become effective as of January 1, 2024. This groundbreaking bill stands as the first of its kind, pioneering a legal framework to secure the earnings of child influencers under the age of sixteen by compelling parents to establish trust funds for their child to access once they reach adulthood.
Shreya Nallamothu, a student in Illinois, began to research the topic of child influencers and look into their possible exploitation as part of a class report. Shreya’s findings led her to begin advocating for the protection of child influencers, ultimately encouraging her to reach out to state senator Dave Koehler about the issue as well. The legislation aims to redefine the rights of children against child labor while simultaneously providing them with a financial safety-net in the world of social media influence. Senate Bill 1782 stipulates that along with hav-
ing a trust fund for child influencers, parents must also keep records of the minutes the child was featured in videos for, the earnings accrued from the videos, and the amount deposited in the trust fund based on those minutes. While the law does protect children, it is not rigid and strictly enforced, rather it just provides a foundation for what the child is entitled to as an influencer. Failure to comply with the conditions set forth by the bill, however, leaves the legal guardians vulnerable to civil liability once the child is sixteen. The child could file a lawsuit against their parent for several reasons,
from mismanaging the records that must be kept as set forth by the law to choosing to not start a trust fund at all, as the latter would raise concerns for exploitation.
Originally, the bill intended to make it so that children could ask for any monetized media with them on it to be deleted once they were eighteen years old. However, Illinois Senator Dave Koehler expressed that it would be difficult to put the idea in practice technologically because of privacy and consumer protection concerns. Nonetheless, Senate Bill 1782 is already cre-
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Illinois and Chicago are famous for their persistent history of political corruption. That the last three governors of Illinois have not gone to jail represents a “streak of governors unprecedented in Illinois history since 1960.” When looking specifically at Chicago and its suburbs, based on federal convictions for public corruption, the Northern District of Illinois was the most corrupt in the U.S. from 1976 to 2020 on a per capita basis. This history of corruption continues to be a reality as Ed Burke, the longest serving alderman in the history of the Chicago City Council, was convicted on “13 of 14 counts of racketeering, bribery and extortion” this past December.
Burke is known for having been a prominent leader of the Vrdolyak 29 in the 1980s, named after the majority faction leader former Ald. Edward Vrdolyak. This faction vehemently opposed every initiative of Chicago’s first Black mayor, Harold Washington during the “Council Wars.” Burke’s political power after this era continued. According to a 1997 profile of Burke, he was second only to then Mayor Richard M. Daley when it came to “manipulat[ing] the political system, simultaneously calling in favors and racking up new ones, and remembering where all the bones are buried.” A large part of his political
power can also be explained by the powerful position he held as chair of the Finance Committee “which control[led] most of the city’s important legislation.” He was described as the “most powerful and longest-serving member” in of the Chicago City Council by the Chicago Sun-Times.
And now, after a 54 year career as a Chicago politician, Ed Burke was found to have used his political positions of power for extortion and bribery, often by withholding political assistance based on whether business-owners solicited Burke’s private law firm specializing in appealing property taxes. As chair of the Finance Committee, the renovation of the Old Post Office building in downtown Chicago required his backing. He was found guilty of using this powerful position in an unsuccessful attempt to force the developer to hire his private law firm. He was similarly unsuccessful with the owners of a Burger King in his ward. As alderman, Burke had aldermanic prerogative over requested permits for the renovation of the Burger King and explicitly refused to allow it to go through unless his law firm was solicited. In a third such case, businessman Charles Cui, seeking a permit for a sign outside his building, did hire Burke’s law firm. Cui was found guilty of bribery in the same trial. He also never got the sign he wanted. In the fourth such “scheme” Burke was found guilty of “operating,”
threatening to block a fee increase at the Field Museum unless former alderman Terry Gabinski’s daughter was given an internship. Gabinski’s daughter never ended up taking a job at the museum.
The trial benefited a great part from wiretapping and the undercover work of former alderman Danny Solis. Solis’s recordings show Burke saying things like “If we’re not signed up, we’re not going to do heavy lifting” and “The cash register has not rung yet.” Danny Solis’ cooperation with investigators came after his own corrupt behavior was discovered. Solis traded different political favors in exchange for “Viagra and massage parlor visits on demand” as well as weekend use of a farm for his son’s graduation.
Solis is also said to be key in the trial of former state congressman Mike Madigan, the longest serving state house speaker in U.S. history. Madigan, “known as the ‘Velvet Hammer’ for his quiet but forceful use of power”, was indicted back in March 2022 for schemes that involved illegally bringing work to his private law firm. The indictment also alleged “Madigan...sought jobs, contracts and money for Madigan’s associates from ComEd between 2011 and 2019 and that Madigan took official action to help ComEd pass favorable legislation.” How Madigan’s trial plays out
ating change as the first child labor law to extend protections into the digital world in that it is calling attention to a prevalent but relevant issue; children have and continue to be posted without their consent whilst providing monetary gain to their families, and in the process, parents overlook the reality that they may be dipping their hands in child labor without necessarily meaning to. Though there are no immediate and direct results from the bill yet due to its very recent effective date, there is a great possibility that this bill will set a precedent and other states across the country will follow suit. The most prominent reason states may tag along in creating their own version of Senate Bill 1782 is due to ongoing discourse regarding child influencers and how they are more vulnerable to loss of privacy, infinite and unrestricted working hours, and perhaps even being taken away from
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their education without a legal right to the money they are earning. Thus, protective policies, such as Senate Bill 1782 are hoping to begin scathing the surface of a deeper issue by at least providing children the ability to gain compensation if nothing else.
This legislation begins to build a financial foundation for children at a young age if their parents comply with the demands, while also providing security against any possibility of their exploitation on social media. Additionally, it lends a “safety blanket” of sorts by offering the option for a lawsuit in the event that the bill was not particularly followed in their household and they are left wanting compensation once of age. Building a trust fund for a child as an effect of parents posting online could be life changing as it can help the child transition into adulthood by providing any money that may be necessary
is up in the air, though, as his trial has been delayed until October 8 in order to wait for the U.S. Supreme Court’s ruling in James E. Snyder v. U.S., regarding whether a federal bribery law refers to just bribery or whether it also includes gratuities. The ruling is expected this June.
While Madigan’s fate may be up in the air, there remains the more important question of what this all means for Chicago and Illinois political corruption. Madigan has been characterized as “the biggest power broker in state government for generations” while Ed Burke has been described as the “most powerful alderman” in Chicago. That two Illinois
later on to pay for their education, develop their career, or pursue anything they may desire. And while this holds true, the policy is new enough that the question of how it can be applied or litigated if not upheld correctly arises. On one hand, there seems to be an emphasis placed on the idea of a child being able to take action, with the end result highlighting they will be compensated in some way. On the other, it would take being informed of the bill’s existence to know to take action at all. Even then, if action were taken, it could be argued that the child’s quality of life improved as a result of being featured in videos and helping parents earn money, leaving the child’s face online and their trust fund void. Senate Bill 1782 and its applications are ones to follow closely, especially as social media continues to grow and more child influencers begin to show.
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and Chicago politicians known for their vast political power be indicted in connection to political corruption represents a shameful political history. That both these politicians also set historic records in political longevity adds to this shame. However, perhaps the end of their political careers and their federal indictments signal hope on the horizon for cleaner Illinois and Chicago politics. Such hope is supported by the findings of the University of Illinois at Chicago’s most recent Anti-Corruption Report. The report finds that federal convictions involving political corruption continue declining in Chicago and Illinois since Chicago’s peak in 1988
and Illinois’s peak in 1995. As powerful politicians like Burke and Madigan leave the political sphere and face legal scrutiny and federal convictions for political corruption continue to trend downwards, the general movement in Chicago seems to be away from its political corruption. While all these developments in the cases of Ed Burke, Mike Madigan and even Danny Solis do not themselves mean an end to the political corruption typical of Chicago and Illinois, it hopefully marks a serious step towards that future.
Recently, the Illinois General Assembly passed House Bill (HB) 2394 to wholly rework the state’s occupational license renewal process. The bill attempts to solve the ongoing issue faced by the Illinois Department of Financial and Professional Regulation in approving and renewing occupational licenses for over 100,000 individuals solely through paper mail. In temporarily allowing batch-renewal of licenses and contracting a state vendor to develop a new regulatory software for online license approval, the General Assembly aims to expedite the current licensing process and make it more transparent to applicants all around the state.
Occupational licensing has long been a popular method for states to assure the quality of work done by small-scale businesses and self-employed individuals. Standardized programs involving various state-sponsored classes ensure licensed individuals meet a high level of consistency and ethical behavior, which in theory protects consumers and industries. Although the correlation between the rigour of licensing programs and quality of service from licensed businesses have proven to be weak overall, state governments still value the structure occupational licensing provides. However, such licensing is not without its faults, with the main one being the lack of accessibility for the general public. The long and arduous process currently in place for the state of Illinois, in which applicants have to wait more than half a year to receive licenses, prevents a significant portion of the population from breaking into voca-
tional industries. This especially affects lower income populations, who do not have the spare time for delays in licensing for jobs that they need as soon as possible. HB 2394, if implemented effectively, would be a massive step towards fixing these issues and improving the job opportunities present in the state of Illinois.
However, there are still problems with Illinois’ occupational licensing that are left unanswered by HB 2394. For one, the required classes for licensing are both long and expensive: the average license requires around 234 days of education and costs up to $20,000 in tuition. Most low-income workers looking for better job opportunities do not have the time or capital to invest into such classes. Another issue is that ex-felons, who are a significant part of the low-in-
come population in the United States, can be denied opportunities to acquire licenses for over 100 different professions. This prevents these ex-felons from properly reintegrating into their local communities, recidivism continues,and crime rates fail to decrease. These problems contribute to the continuing population decline of Illinois, which ranks the fourth highest state in rate of decline per year, negatively impacting the state as a whole.
Given such ongoing issues, it is the hope that House Bill 2394 is merely the start of a long-term operation in improving occupational licensing in Illinois.
OnNovember 7, 2023, the Chicago city council approved plans to turn a vacant lot into migrant tent camps. The plan was to convert the land into a winterized base camp capable of holding about 1,500 people. However, the site could not continue to be used as the site of a migrant camp beyond November 1, 2024. This announcement was a huge move in the direction of being more inclusive and protective of Chicago’s migrants. Chicago as a sanctuary city has a reputation for welcoming refugees. However, Texas has been sending migrants to Chicago and other Democratic-led sanctuary cities nationwide as part of Governor Greg Abbott’s “Operation Lone Star.” From October 2022 to February 2024, over 35,000 migrants have arrived via Texas buses and airplanes. This influx of migrants creates a crisis of managing the safe intake of asylum seekers, as there is very little coordination in the resettlement of refugees, and a lack of available space in existing shelters. Thus, the tent camps would have been a temporary solution to the lack of space in refugee shelters. On November 28, 2023, construction of the camp in Brighton Park began on 38th and California, before an environmental assessment had been completed. Migrant advocates were concerned about the site being built on a previous zinc smelting site, which had raised concerns about pollution.
The environmental assessment did in fact reveal soil contamination, and therefore construction was halted until the contaminated soil could be removed. In early December, city
officials deemed the site in Brighton Park safe and suitable for housing as many as 2,000 migrants. However, Governor Pritzker still canceled construction of the camps all together, citing environmental concerns after the Illinois Environmental protection Agency review of the city’s environmental assessment declared that there had been “insufficient soil sampling and remediation.”
One week after this development, the city council put plans in place to relocate the camps to Morgan Park, at the site of a former Jewel Osco store and on 115th and Halsted, with a similar end date this year. The camp would have to shut down in October to continue a previous retail and housing development project called Morgan Park Commons. On December 11, 2023, the city of Chicago once again halted the plans for the migrant camp construction before it even began, putting it on the “backburner.” With the Morgan Park site put on hold and the permanent cancellation of the Brighton Park site construction, it seems as though the city of Chicago will not be building migrant tent camps any time in the near future.
As of February 13, 2024, city officials say that 12,947 asylum seekers are staying at one of Chicago’s 26 active city-run shelters. This major policy change sheds light on the failures of the city’s planning in dealing with migrants. The announcement of tent camps was accompanied with a lack of details, transparency, and community engagement. Residents and advocacy groups had been raising concerns about the camps’ conditions, the impact on local neighborhoods, and the overall decision-making process.
One question that arises with the announcement of tent sites and subsequent withdrawal is whether this signifies a broader change in Chicago’s stance towards hosting asylum seekers. The city has begun implementing a new policy to deal with the increasing concentration of migrants in the form of landing zones. These zones are designated areas where transportation vehicles are able to drop off newly arrived migrants. City staff are meant to welcome them, provide them with basic resources, and work towards securing their housing, while placing them in warming buses in the interim. In a very short time, these zones have gone from shortterm processing sites to makeshift longer-term holding sites, in place of the tent camps. This spontaneous policy shift is essentially a course correction from the original base camp plans and reveals Chicago’s infrastructure flaws. These migrants at the landing zones have very little assistance as support teams are often overwhelmed by the sheer number of migrants dropped off in each wave. They face severe food shortages, often resorting to digging for food in receptacles. Governor Pritzker’s office does seem to be attempting to create other short-term solutions, as he has expedited the process of converting an old CVS Pharmacy into a 200bed shelter in Little Village, currently being utilized to house the migrants previously staying in O’Hare. Mayor Brandon Johnson also announced in November Chicago’s Unity Initiative, including plans for 17 Chicago churches to begin taking in migrants, as has been a major part of Chicago’s history as a sanctuary city.
After announcing the hold on the
InJuly 2022, Illinois became the 17th state to sign the Create a Respectful and Open Workplace for Natural Hair (CROWN) Act. This law went into effect on January 1, 2023. The Act prohibits race-based employment or education discrimination due to hair texture or style. Discrimination against natural hair is an aspect of the historical trends of racial and cultural discrimination within the United States against BIPOC.
Discrimination against natural hair can be traced as far back as slavery. Slaves with straighter hair were considered more “desirable” for house positions. After slaves were emancipated, free Black women began to wear their natural hair. They often decorated it with feathers or jewels and white women saw it as a threat to their standing in the social order. The Tignon Law was passed in 1786 and forced Black women in Louisiana to cover their natural hair with a tignon (a type of headscarf) as a sign that they were part of the enslaved class. At the end of the 19th century, the hot comb was perfected. Subsequently, Black women were pressured to keep their hair straight through hot combs and chemical treatments. Racialized beauty standards defined Black hair as “nappy” or “unkempt.”
There has also been a long history of discrimination against Indigenous populations and their cultural hairstyles. In the 1930s, Indigenous students were forced to attend government-run boarding schools, also known as residential schools. These students were forced to cut their hair, a method of disconnecting them from their culture intended to force them
into assimilation. In some Indigenous cultures, hair is believed to be an extension of the self and/or a symbol of strength.
In the wake of the Black Power movement in the 1960s and 1970s, natural black hairstyles became a symbol of black liberation, pride, and acceptance. Although the Civil Rights Act was passed in 1964 and created the Equal Employment Opportunity Commission (EEOC), discrimination against Black individuals continued. Black natural hair and protective hairstyles were routinely discouraged or banned in the workplace for being “unprofessional.” These types of dress codes have been used to discriminate in the hiring of Black individuals, as well as deny them promotions. One study found Black women’s hair was 2.5x more likely to be considered unprofessional. In 2020, another study found that Black women with natural hair were considered to be less professional, less competent, and less likely to be recommended for a job interview as compared to black women with straightened hair and white women with straight/curly hair.
This has also been used to discriminate against BIPOC children in schools. A Brookings Institution study in 2021 found that Black students are more likely to be suspended for “discretionary” reasons, including dress code and long hair violations. For example, Jett Hawkins was sent home from school when he was four years old for having braids, which sparked the Jett Hawkins Act. Dress codes that enforce short hair for boys discriminate against Indigenous boys. Forcing Indigenous boys to cut their hair or be suspended is an extension of colonialist beauty standards. This type of systemic racism leads to a decrease in instructional time and educational
opportunities for BIPOC students.
In 2021, Illinois passed the Jett Hawkins Act, which banned hairstyle discrimination in Illinois schools. The CROWN Act expands these protections to employment, housing, financial transactions, and public accommodations. Since the Crown Act has been spearheaded by the crown coalition, the letter of the law is similar for both California and Illinois. In Illinois, it amends the Human Rights Act to recognize that race includes traits historically associated with race, such as hair texture and protective hairstyles. Under California’s CROWN Act, a Black job applicant in California successfully sued a company that asked him to cut his dreadlocks to be hired. This demonstrates how this act expands potential legal avenues for BIPOC job applicants and workers who have been discriminated against due to their hair to seek remuneration.
State Senator Mattie Hunter (D-Chicago) stated “So much of our identity has been wrapped into our hair, and the way we wear it has been judged for centuries. The CROWN Act shouldn’t have been necessary in the land of the ‘free,’ but its implementation will protect people from petty discrimination.” Discrimination against natural hair is racial discrimination that cuts to the core of personal identity and culture. The Crown Act is a long-overdue step forward towards addressing the insidious aspects of systemic discrimination that work as loopholes around current discrimination acts. However, like most employment discrimination laws, it can be difficult for applicants to prove that their natural hair was the reason they weren’t hired. More reforms still need to be made in order to address systemic racism in employment and education.
The question of reproductive rights has pervaded the social and political spheres of the United States since the 19th century, only made more widespread after the overturning of Roe v. Wade in June 2022. With individual states holding legal power over reproductive rights, the Illinois Constitution alone determined Illinois access to abortion clinics and alternative pregnancy options. Notably, the Illinois Supreme Court was ahead of the curve, already passing a 2019 statutory protection for abortion in the state. This protection outlines the right to one’s own reproductive health, whether that be to continue with a birth or to have an abortion. The clause also recognizes that a fetus, egg, or embryo does not have independent rights in Illinois. The state constitution’s leniency reflects in the number of abortion clinics, with a total of 17 Planned Parenthood sites in Illinois compared to fewer in other states. However, these statistics represent a different story when put in context. Even though Illinois seems to have made significant progress in the reproductive sphere, pro-life organizations still hold a large amount of power.
Illinois has three times as many crisis pregnancy centers (legally known as limited services pregnancy centers) as it has abortion clinics, and the two categories are eerily similar in presentation. Crisis pregnancy centers may sound like a valid course of action for women seeking abortions or alternative pregnancy care, but they are quite the opposite. These fraudulent centers
imitate abortion clinics in their brand messaging, while their true objective lies in promoting—at times forcefully—birth and rejecting abortion as a viable option. From a safety and security standpoint, crisis pregnancy centers are equally as deceiving. Women will give the organizations their personal and identifiable information, assured that it will be withheld from the public, only to discover that the information is shared with the public. In fact, pregnancy crisis centers go beyond their own places of business, resorting to sidewalk consultations as a secondary political scheme. Even at abortion clinics, pro-life organizations will pretend to be workers and advise patients on their options outside of the entrance. With Illinois law prioritizing reproductive rights, these crisis pregnancy centers have been identified as a clear threat to legal transparency.
To combat the false advertising of crisis pregnancy centers, the SB1909 bill was proposed by the Illinois senate and signed into law by Illinois governor J.B. Pritzker on July 27, 2023. This bill, otherwise known as the Deceptive Practices of Limited Services Pregnancy Centers Act, prohibits crisis pregnancy centers from “engaging in unfair methods of competition or unfair or deceptive acts or practices.” The act specifically bars these businesses from interfering with individuals seeking abortion or emergency contraception clinics, persuading individuals to enter their limited pregnancy centers, and participating in/performing any pregnancy-related services.
A mere hour after the law was passed, a nonprofit public interest law firm, known as the Thomas More
Society, filed a lawsuit against the SB1909 bill. The Chicago-based law firm has full support of pro-life organizations and voters and specializes in pro-life causes. On the firm’s website, the mission statement discloses that Thomas More Society’s key values are “restoring respect in law for life, family, and religious liberty.” Past cases that Thomas More Society took on largely center around reproductive health and the first amendment. The law firm acquired multiple national lawsuits, from the support of abortion pill reversals—as per The People of the State of California v. Heartbeat International and Real Options— to the abolishing of the 100 ft bubble ordinance for sidewalk counseling as inCoalition Life v. City of Carbondale.
Thomas More Society sued Illinois Attorney General Kwame Raoul in representation of crisis pregnancy centers National Institute of Family and Life Advocates (NIFLA) and Women’s Help Services and Relevant Pregnancy Options Center, as well as two sidewalk counseling centers. These organizations refer to themselves as pro-life ministries, with an evangelical Christian foundation. The collaborated lawsuit continued into December and was addressed on December 11, 2023, wherein the United States District Court for the State of Illinois ruled in favor of Thomas More Society. The original SB1909 bill sustained a permanent injunction, with the senate bill dismissed with prejudice and opportunity for “the Plaintiffs to file a motion seeking costs of litigation.” This injunction became known as National Institute of Family Life Advocates et al v. Raoul.
With the SB1909 bill officially re-
moved from practice, Illinois lawmakers must look to new opportunities of enforcement against crisis pregnancy centers. For the time being, Illinois’ Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/) can still apply to the conflict at hand. In a WTTW interview on the final ruling, Raoul directly references this
act as a reliable course of action against fraudulent reproductive healthcare providers. However, the effectiveness of the consumer fraud act heavily relies on the cooperation of Illinois citizens, specifically those with direct experiences with Illinois pregnancy crisis centers. Aside from this act, the state cannot prevent the pro-life min-
istries from offering up their services. The final ruling on the SB1909 bill represented a symbolic victory for religious organizations against abortion. Even left-leaning states like Illinois are subject to the political and legal power that the Christian right possesses.
InAugust 2016, the Illinois House of Representatives and State Senate passed House Bill 6109, which, effective January 1, 2017, established a pilot program to allow individuals to electronically file petitions for temporary orders of protection. Prior to the bipartisan Bill, a petitioner had to physically appear in civil court to file for an order of protection. Then, in May 2022, the Illinois General Assembly codified the option to e-file orders of protection in state law, adding that “a county with a population above 250,000” must “offer the option of a remote hearing to a petitioner for a protective order, stalking no contact order, civil no contact order, or order of protection.” The new law amended the Illinois Domestic Violence Act (IDVA), Code of Criminal Procedure, the Stalking No Contact Order Act, the Civil No Contact Order Act and became effective January 1, 2023.
An order of protection is a court order issued on behalf of a member of a household to prevent domestic violence perpetrated by another family member. The IDVA describes a wide range of people who may petition, but the overarching rule of thumb is that the person against whom the order of protection is being sought (known as the “respondent”) must be a “family
or household member” of the petitioner. This includes those related by blood, who share a child, currently or formerly married or in a dating relationship, and share or shared a household.
The criteria for abuse that must be met to grant an order of protection is defined by the IDVA as “physical abuse, harassment, intimidation, interference with personal liberty or willful deprivation.” If the criteria is met and an order of protection is issued, the order of protection may impose a range of measures and restrictions on the respondent depending on the case. For instance, it may bar the respondent from entering the shared residence, order them to stay away from the petitioner and their children, mandate that they receive counseling or pay child support etc. If the respondent violates any of the mandates established by an order of protection likely, they would likely face criminal penalties.
Furthermore, the new law allowing for online petitions for orders of protection also extends to Civil and Stalking No Contact Orders, which apply to respondents who either do not have a required relationship with the petitioner or have no relationship with them at all. As their names suggest, such orders primarily require the respondent to stay away from the petitioners and also result in criminal
penalties if they are violated.
In expanding the options for filing and attending hearings for orders of protection, the new law eliminates the barriers domestic abuse victims face to taking legal action against their abuser and putting an end to their plight. The new electronic process is especially significant for victims who are held captive by their abuser or fear that their abuser will discover their petition if they leave their home.
Although the new law does make the primary legal recourse against domestic abuse more accessible to victims, its effectiveness depends largely on how the legal and law enforcement systems respond to the petitions. State Rep. Joyce Mason, a cosponsor on the bill that enacted the law, in 2023 told WTTW News “Illinois is one of the best funded states for domestic violence services. In this year’s budget we allocated $70 million. We also have one of the most comprehensive Domestic Violence Acts. So, we stack up very well compared to other states — but that doesn’t mean there’s not a lot of work still to be done and so many victims who need better protection and services.” This is to say the law cannot singlehandedly protect victims of abuse, but it is certainly an upgrade. So far, there have been no reports of issues with the electronic process, but its true efficacy will become clear in the coming years.
Morgan Park site, Brandon Johnson and Alderman Ronnie Mosley of the 21st Ward released a joint statement, writing “in the event that we move forward together in addressing this humanitarian crisis with a base camp at the site, we remain committed to our collaboration and shared plans for capital improvements, community development and support for housing, health and safety for residents of the 21st Ward.” This vague statement does not reveal how the city plans to move forward in dealing with the refugee crisis. The only
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mention of future plans was a promise for “dedicated efforts and an open line of communication.”
Asylum-seekers deserve clarity regarding policies about their basic rights and fair treatment. The abrupt scrapping of the tent camp plan raises questions about the protection of migrants’ rights and the importance of a humane and comprehensive approach to asylum. Chicago’s lack of preparedness and coordination could have long-term consequences for both the city and those seeking refuge. As the city revisits its strategy for
housing asylum-seekers, it is crucial to prioritize their rights and well-being while fostering community collaboration to build a more effective response. Asylum is a cross-state and nationwide issue, and there is a very apparent lack of federal government involvement and assistance in the crisis in Chicago, despite federal asylum laws. The U.S. government has a responsibility to these asylum seekers and should be contributing to Chicago’s efforts to protect them in terms of establishing an organized and humane reception system.
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