Volume II, Issue I (Winter 2024)

ULM

Undergraduate Law Magazine IN THIS ISSUE the case of henrietta lacks and exploitation in medicine | page 6 qualified immunity as unqualified impunity | page 42 reversal of bill sb1909: crisis pregnancy centers in illinois | page 60

UNIVERSITY OF CHICAGO | VOLUME II | ISSUE I | WINTER 2024

ABOUT

UNDERGRADUATE LAW MAGAZINE The University of Chicago Undergraduate Law Magazine (ULM) is the College’s premier student-run legal publication. ULM is a pre-professional community committed to the e xploration, analysis, and evaluation of issues pertaining to the law and seeks to demonstrate its role in shaping society’s agency, authority, and attitudes towards life.

MASTHEAD & STAFF Editor-In-Chief Aya Hamza Managing Editor Ryanne Leonard Executive Editors Divya Mehrotra Lucas Freitag Iman Snobar Associate Editors Ahmed Ahmed: Interviews Alejandro Sandoval Elizondo: Upcoming Chicago Policy

Samuel Espinal Jr.: Opinion Aminah Ghanem: Legal Analyses Madison Rhee:Two Views Style Manager Kayla Rubenstein Illustration Manager Lia Yufei He Illustration Assistants Ana Estupinan Mella Bettag

Staff Writers Enmanuel Acosta Aparicio Isabel Alia Arias Sebastian Arnal Khristian Bass Brodie Bojorquez Rachel Bolte Elijah “Ellie” Bullie Amani Creamer Michelle Du Eli Dunlap Joshua Enebo Miriam Friedman Gianna Grant Kevin Guo João Pedro Tetto Hepp Emma Huerta Jane Jusko Rhea Kanuparthi Yoo-Bin Kwon Ralph Lam

Harris Lencz Vincent Li Juan Leal-Mendoza Jack Martinez Anusha Mehta Andrea Pita Mendez Jahlanny Morrobel-Pena Arya Nagraj Dohyun Park Justin Posner Leena Sfar Tejas Shivkumar Sanjay Srivatsan Advaita Sood Emberlynn St. Hilaire Isabelle Townley Nitya Upadrasta Hélöise Vatel Hayes Whorton Tony Yu

2 | ABOUT ULM

Social Chair Lizbeth Herrera Gomez Treasurer Rocio Portal Social Media Managers Saia Patel Tomas Vallejo Content Manager Kathryn Fang Print Manager Natalia Girolo

Letter from the Editor N

o 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, Aya Hamza Refounding Editor-in-Chief

LETTER FROM THE EDITOR | 3

TABLE OF CONTENTS LEGAL ANALYSES | 6

The Case of Henrietta Lacks and Exploitation in Medicine_______________________6 Johnson v. Prentice: The Right to Air__________________________________________8 The Sky is Falling for Big Oil, says SCOTUS_____________________________________9 The Legality of Deepfakes and Its Impact on Women___________________________10 The Mouse Strikes Back: An Analysis of Disney v. Desantis______________________12 The Legality of Pleading Insanity: Kahler v. Kansas_______________________________14 The Dangers of Permissible Democractic Backsliding in Hungary, and Its Troubling Precedent for the EU________________________________________________________15 Legally Invisible Children_____________________________________________________16 Counterman v. Colorado_____________________________________________________17 The Limits of Health Privacy_________________________________________________18

TWO VIEWS | 20

On the SCOTUS Affirmative Action Decision (2023)____________________________20 On SCOTUS Term Limits_____________________________________________________24 On Tort Reform_____________________________________________________________26 On 303 Creative LLC. v. Elenis________________________________________________28

OPINION | 32

Beyond Punishment: Embracing Restorative Justice In Sexual Assault Cases_________32 States’ Enforcement of Immigration Laws______________________________________34 Justice Unchecked: Ethics Code Shields Supreme Court Justices from Real Accountability____________________________________________________________35 The Forgotten Radicalism of the 15th Amendment_____________________________36 Freedom of Expression: A Consumer Right___________________________________37 Patently Unconstitutional: From Vidal v. Elster__________________________________38 Sex Abuse Lawsuits in New York_____________________________________________39 Private Charities as Neoliberalism’s Pawns____________________________________40 Against the Napoleonic Code________________________________________________42 Qualified Immunity as Unqualified Impunity___________________________________43 Keep Trump on the Ballot___________________________________________________44 Is it Time to Apply Odious Debt Theory?______________________________________46

INTERVIEWS | 48

Daliah Saper: Technology Through the Times___________________________________48 Adam Chilton: On Constitutional Rights Enforcement____________________________49 Genevieve Lakier: The First Amendment in the Digital Age with Law Professor and First Amendment Expert________________________________________________50 Meghan Parker: UChicago Law Professor on Democratizing Healthcare____________52

UPCOMING CHICAGO POLICY | 54

Beyond Likes and Shares: Illinois Legislation Ensures Financial Stability for Child Influencers________________________________________________________54 Ed Burke, Political Corruption, and an Uncertain Hope for Chicago and Illinois’ Future___55 Occupational Licensing Illinois________________________________________________57 Base Camp Migrant Tent Sites________________________________________________58 CROWN Act________________________________________________________________59 The Reversal of Bill SB1909: Crisis Pregnancy Centers in Illinois__________________60 Filing Electronic Orders of Protection__________________________________________61

4 | TABLE OF CONTENTS

MEET THE BOARD aya hamza editor-in-chief

ryanne leonard managing editor

lucas freitag executive editor

iman snobar executive editor

divya mehrotra executive editor

kayla rubenstein style manager

lia yufei he illustration manager

ana estupinan illustration assistant

mella bettag illustration assistant

lizbeth herrera gomez social chair

rocio portal treasurer

aminah ghanem associate editor

natalia girolo print manager

ahmed ahmed associate editor

samuel espinal jr associate editor

alejandro sandoval elizondo associate editor

madison rhee associate editor

kathryn fang content manager

tomas vallejo social media manager

saia patel social media manager

TO LEARN MORE ABOUT OUR STAFF, VISIT: ulm.rso.uchicago.edu/staff/

MEET THE BOARD | 5

LEGAL ANALYSES THE CASE OF HENRIETTA LACKS AND EXPLOITATION IN MEDICINE by TEJAS SHIVKUMAR STAFF WRITER

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f 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 medical major discoveries, the HeLa cell line was used to develop the Polio vaccine, slow cancer cell growth, research HIV infection, and most recently, to develop the COVID-19 vaccine.

The HeLa cell line, however, has a controversial 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 6 | LEGAL ANALYSES

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.

| illustration by ana estupinan

LEGAL ANALYSES | 7

JOHNSON V. PRENTICE: THE RIGHT TO AIR

by LIZBETH HERRERA GOMEZ SOCIAL CHAIR

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ohnson 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 ba8 | LEGAL ANALYSES

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.

THE SKY IS FALLING FOR BIG OIL, BUT CAN THEIR TALL TALES BE UNTOLD? by ELIJAH BULLIE STAFF WRITER

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ruce 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

that 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 CONTINUED ON PAGE 11

LEGAL ANALYSES | 9

THE LEGALITY OF DEEPFAKES AND ITS IMPACT ON WOMEN dure emotional distress, but also face fall under. potential harm to their professional Support for the argument that STAFF WRITER lives. A Microsoft study found that deepfakes can be protected under the n an era where technology blurs almost 80% of employers use search First Amendment is found in copythe line between reality and fiction, results to make hiring decisions. Al- right law. Copyright law protects the lack of regulation of artificial in- though it can be proven that these exclusive rights to media, but the fair telligence stands at the intersection images are fake, the image of the use doctrine permits limited use of of innovation and ethical concerns. victims can cause implicit bias and copyright use without permission.

While society has witnessed recent ad- for the employer to choose another The fair use doctrine is determined vancements in AI, such as ChatGPT, candidate because of this. Despite by a four factor test: Purpose and one of the most concerning devel- the widespread negative consequenc- character, Nature of original work, opments emerged in 2017 on Red- es of deepfakes, pursuing claims Amount and substantiality of condit - deepfake. Deepfake is a type of against perpetrators can only be tent borrowed, and Effect of such synthetic media where artificial intel- done through state law or indirectly use on the potential market. The US ligence is utilized to generate a digital through related federal laws, both of Supreme Court, in Campbell v. Acuff replica of an individual, replicating which are often ineffective in address- Rose, affirmed that if the new work is considered transformative then aspects such as their physical appear- ing this issue.

A significant challenge in prose- a portion of the copyrighted work ance or voice. This technology has many forms of usage, from the enter- cuting cases involving deepfake non- would be considered fair use. The tainment industry to the healthcare consensual pornography revolves assertion is made that deepfakes, beindustry. Most notably, deepfakes has around the liability of the platforms ing transformative works with a difbeen used in the healthcare industry hosting such content. Section 230 ferent purpose than the original, may to train artificial intelligence to detect of the Communications Decency qualify for protection under fair use. tumors. However, the use of deep- Act shields online platforms from Therefore, removing deepfakes based fake has the potential to be harmful, being held liable for the publication on copyright infringement could be like the harassment of women in the of user-generated deepfakes. This seen as a violation of free speech.

Despite the challenges posed by form of revenge porn or the creation legal provision not only safeguards of fake news. The potential adverse third-party websites, but also allows deepfakes, there are potential solueffects of deepfakes begs the question for deepfakes to be reposted on the tions that the government and legal same platform or across other sites. system can implement to protect inof the legality and its regulation.

There are currently no federal laws There is a pressing need for modifica- dividuals, particularly women, from in the United States against the cre- tions to this act to address these con- their harmful effects. One effective ation and sharing of non-consensual cerns and establish mechanisms to strategy involves the creation of new deepfake pornography. The lack of counter the proliferation of harmful laws and regulations specifically targeting deepfakes intended for deany regulations makes non-consensu- deepfake content online.

Another challenge is the ability of famatory purposes, with established al deepfake pornography more common. Sensity AI found the number the government to regulate deepfake penalties for offenders. Such legal of pornographic deepfakes online in relation to the First Amendment. measures would constitute a critical roughly doubled every six months Deepfakes are considered a form of step in mitigating the adverse impact from 2018 to 2020. The prolifera- expression which makes a widespread of deepfake technology on individution of deepfake nonconsensual por- ban on this technology unconstitu- als’ lives and preventing its malicious nography represents a gendered issue tional under the First Amendment. use in the digital realm.

Exploring remedies within defawhere society exploits the images of However, there are exceptions when vulnerable people, especially women, speech is no longer protected under mation law could offer another avwho make up more than 90% of vic- the First Amendment when it in- enue of protection. In the case of tims. The victims of non-consensual cludes defamation, which deepfake Gertz v. Robert Welch, the Supreme deepfake pornography not only en- nonconsensual pornography would Court emphasized that “there is no 10 | LEGAL ANALYSES

by ISABEL ALIA-ARIAS

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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-

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.

THE SKY IS FALLING FOR BIG OIL CONTINUED FROM PAGE 9 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

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.

LEGAL ANALYSES | 11

THE MOUSE STRIKES BACK: AN ANALYSIS OF DISNEY VS. DESANTIS public schools. There was much in- state law made that also its most vul-

by JUAN LEAL MENDOZA

STAFF WRITER

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.

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f 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 12 | LEGAL ANALYSES

ternal 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 Disney World has generated Florida up to $40 Billion in economic revenue (or 2.5% of the state’s GDP) in 2022 alone. Yet, the autonomous district’s unique basis on a

| illustration by lia yufei

nerable 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 giving way to Disney v. DeSantis.

Disney’s lawsuit is based on Constitutional law. The lawsuit orig-

“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 however, there is a legal precedent case ala O’Hare is bound to happen.

Amendment Freedom of Speech that may be even more important With these facts in mind, Disney Clause, one on Article 1’s Contracts in analyzing the future of this case. v. DeSantis is shaping to be a major, Clause, one on the Fifth AmendThere is a key Supreme Court but not existential, case for government’s Takings Clause, and one on precedent that speaks to this case. In ment-business relations. Accordthe Fourteenth Amendment’s Due 1996, the mayor’s office of North- ing to Washington University Law Process Clause. As of September lake, Illinois, removed the O’Hare School Professor Gregory Magarian, 2023, Disney has narrowed down its Towing Service from its local pro- this case is not about whether compaclaims to the two First Amendment viders list after the company’s owner nies have the same protected speech violation Claims. Per the American had thrown his support for the may- as individuals. Not only was this Bar Association’s Journal, the first or’s opposition for Northlake’s may- implicitly answered by O’Hare, but Free Speech claim asserts that the oral election. O’Hare claimed this he claims that “in fact, the principle Central Florida Tourism Oversight contract cancellation was retaliation that corporations have some constiDistrict’s “retaliatory” nullification for the company’s preferred political tutional rights goes back to the 19th of the two agreements with Disney is speech and had less to a considerable century,” long before 2023, or cases a violation of the First Amendment’s loss of income, as it thereafter sued. that addressed similar questions such protected speech, while the second O’Hare v. Northlake reached the as Citizens United v. FEC or O’Hare claim asserts that the state’s board Supreme Court, which ruled 7-2 in v. Northlake itself. For Free Speech, and policy changes on the Improve- favor of O’Hare. In the Opinion of however, Professor Magarian states ment District’s administration were the Court, Justice Anthony Kennedy that Government “may not retaldone with the intent of a “chilling stated that companies under govern- iate against any speaker’s political effect”- or coercing an entity to hold ment contract are entitled to the same speech,” and “that appears to be exback their speech out of fear of legal Free Speech protections as individu- actly what Florida Governor Ron Deblowback- on Disney’s opposition to als are, and furthermore, could not be Santis is doing to Disney” as it comes Don’t Say Gay. For that claim, Dis- punished for its political stances un- to DeSantis’s actions against Disney ney focuses on the rapid dissolution less the government could prove that after its opposition to the Don’t Say of the original Improvement District, the company’s political allegiances Gay Act. There is a credible case towhich was catalyzed only after Disney was affecting job performance- which wards First Amendment Free Speech declared its total opposition to Don’t Northlake did not attempt to prove. violations on the basis of retaliation Say Gay. In some cases, Republican Though it is important to recognize against Disney due to their political office holders in Florida stated that that Disney is not a contractor to stances. Ultimately, this will be a case measures taken by the State Gov- Florida, but rather a partner through that business interests, free speech ernment were meant to “punish” legal agreements, O’Hare will remain advocates and more will monitor Disney for said stance. Disney fur- a key precedent to consider as it deals closely. What started as a political disther argues that the nullification of with the key question of whether it pute over divisive social issues grew the agreements is not just evidence is legal for the government to retali- into one of 2023’s key constitutionof damages, but its reversal would ate against a company on the basis al law cases, and the case may point be the case’s relief. Harvard Law of political, if not protected, speech. not just at the facts, but at a preceSchool’s Rebecca Tushnet believes Furthermore, this precedent may dent on tow trucks as determining that these specific claims and targeted also demonstrate that DeSantis’s factors for the outcome of the case. relief make Disney’s retaliation case team to dismiss the case on the vir“strong.” These factors may already tue of legislative immunity is not shape a compelling case for Disney, sound, which may indicate a formal LEGAL ANALYSES | 13

THE LEGALITY OF PLEADING INSANITY: KAHLER V. KANSAS

by LEENA SFAR STAFF WRITER

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ollowing 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 14 | LEGAL ANALYSES

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 tween sanity and insanity and the must in order to thoroughly understand or gendered, from influencing this del- undoubtedly demand thoughtful con- how to conduct such cases as Kahler’s. icate intersection? The delineation be- sideration across fields and specialties

THE DANGER OF PERMISSIBLE DEMOCRATIC BACKSLIDING IN HUNGARY AND ITS TROUBLING PRECEDENT FOR THE E.U.

by HELOISE VATEL STAFF WRITER

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n an 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.

LEGAL ANALYSES | 15

THE LEGALLY INVISIBLE CHILDREN

ing children. Because parents are able to avoid medical institutions’ formal

by DOHYUN PARK ASSOCIATE EDITOR monitoring, both the child’s safety ccording to Article 7 of the UN 7 of the Convention on the Rights in the birth-giving process and the Convention on the Rights of the of the Child). Yet, the country con- child’s chance of being registered face Child “[e]very child has the right to tinued to confront challenges in dis- a great risk. be registered at birth, to have a name covering legally invisible children, as Solvency of the legally invisible and nationality, and, as far as possi- no government branch was dedicated children involves complicated interble, to know and be cared for by their to keeping track of children without ests and responsibilities of parents, parents.” The right to be registered at birth certificates. Moreover, the fi- medical centers, and children in the birth is a universal right that all chil- nancial penalty of non-registration of future. Moreover, its root often exdren hold under international law. one’s child being about $37 incentiv- tends deeper than the difficulty of However, according to UNICEF, one ized some biological parents with un- the birth registration policy itself; in four children under age five are not wanted births to neglect their duty of lack of financial capability to support registered in low-and middle-income registration. From 2024, South Korea one’s child on their own, restricted countries, amounting to 166 million is facing a new phase of solvency re- information, a societal norm towards children. In other words, 166 million garding the legally invisible children. young parents—all play a role in a children around the world are legally As “Act on the Registration of Fami- parent’s decision to throw their child invisible, barred from governmental ly Relationships” passed the national into the realm of legal invisibility. In protection, formal education, and assembly’s plenary session on June other words, the changes regarding healthcare. Why such a great number 30, 2023, medical institutions will be the birth registration law ongoing in of children lie under legal invisibility legally responsible for notifying the South Korea may not be an immeis a multifaceted question. In some government of children’s birth, in diate solution to its problem. Yet, as cases, lack of knowledge or financial lieu of parents. The new act focuses society continues to recognize the leability to proceed with the legal pro- on the previous problem of biologi- gal invisibility of children as a social cess of birth registration serves as a cal parents knowingly or inadvertent- issue for which resources should be barrier. Other times, domestic law re- ly neglecting the birth registration of invested and formal responsibilities stricts a single mother or single father their children and aims to make the be assigned, a positive light shines on from registering a child’s birth on registration process more official and the road to embracing more children their own. Through such complicat- seamless. While countries such as under the protection of law and goved factors, one country that has been the United States, United Kingdom, ernment. striving to enhance children’s right to New Zealand, and Canada have been be registered at birth is South Korea. imposing the responsibility of birth Studies of a nation’s cases exhibit a registration on medical institutions, complicated yet meaningful journey the application of such a law in South of bringing more children under the Korea leaves a few concerns to take spotlight of legal protection. care of. One of such is the children’s In South Korea, birth registration right to information about their biohas gone through changes in its legal logical parents. As the act introduces presence. Until 2015, a single father institutions, rather than parents, as was unable to register one’s child in the actors of birth registrations, it the absence of the biological moth- introduces a possible dearth of inforer’s address, social identification mation available to children wishing number, and proof of single status. to access their roots, building tenAccordingly, many children were left sion with the children’s rights on the unregistered. In June of 2015, the Su- current “Act on Special Cases Conpreme Court of Korea officially rec- cerning Adoption.” Another issue ognized the universal law of a child revolves around a parental choice to to be registered at birth (UN Article evade hospitals’ support when hav16 | LEGAL ANALYSES

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COUNTERMAN V. COLORADO

judgment, expressing concern that the newly established standard might

by SAIA PATEL SOCIAL MEDIA MANAGER overcriminalize speech, particularly reedom of speech, a fundamen- ing charges, particularly in relation on the internet, where unintentiontal pillar of democratic societies, to his Facebook messages, would in- ally threatening expressions could stands as both a constitutional right fringe upon his First Amendment lead to severe consequences. Justices and a subject of perpetual legal ex- right to free speech, claiming they Amy Coney Barrett and Clarence amination. The interplay between did not constitute “true threats.” Thomas dissented, with Justice Barpreserving individuals’ expressive lib- The trial court rejected his motion to rett arguing against replacing the oberties and mitigating potential harm dismiss, and a jury ultimately found jective test for assessing true threats, or threats to others creates a nuanced him guilty of stalking causing seri- asserting that true threats carry little and continually evolving legal land- ous emotional distress; the Colorado value and imposing great costs. She scape. As courts navigate the deli- Court of Appeals upheld Counter- criticized the majority for relying on a cate balance between the constitu- man’s conviction. specific strand of doctrine from New tional protection of free speech and The Court held that the First York Times Co. v. Sullivan. Justice the imperative to safeguard against Amendment’s protection of free Thomas, in his dissent, questioned genuine threats, the recent case of speech necessitates that prosecutors the soundness of the New York Counterman v. Colorado emerges as demonstrate the defendant’s aware- Times v. Sullivan ruling and chara pivotal milestone. In this landmark ness of the threatening nature of acterized the majority’s decision as a decision, the U.S. Supreme Court, their communications for it to be policy-driven choice masquerading led by Justice Elena Kagan, not only considered a “true threat,” in a 7-2 as constitutional law. The majority overturned the conviction of Billy ruling authored by Justice Elena Ka- acknowledged that its decision did Raymond Counterman, who had gan. The justices ruled that the state not satisfy all parties but argued that been found guilty of stalking musi- courts had applied the wrong test to the recklessness standard strikes a balcian Coles Whalen, but also reshaped determine whether Counterman’s ance between protecting speech and the idea of what constitutes a “true statements were “true threats,” and enforcing laws against true threats. threat” under the First Amendment. argued that courts should look at The ruling in Counterman v. ColoraThis case offers a lens through which whether prosecutors had shown that do sets a recklessness standard for true to explore the complexities of consti- Counterman had made the threats threat cases, requiring some level of tutional rights and the government’s recklessly. The ruling provided clar- awareness from the speaker without authority to regulate speech that car- ification on this concept of “true sacrificing the enforcement of laws ries the potential for harm. threats,” emphasizing that such against true threats, and presents a In 2014, Billy Raymond Count- threats are not protected speech un- compelling intersection of constiuterman persistently contacted an in- der the First Amendment and can be tional rights and legal precedent in dividual through Facebook, consis- subject to state criminal laws. Justice the realm of free speech. tently sending unsettling messages Kagan established a recklessness stanMoreover, the decision may have from multiple accounts despite being dard, asserting that the state must implications for the prosecution and blocked repeatedly. Some of these prove that the speaker consciously defense of similar cases in the future. messages hinted at Counterman disregarded a substantial risk that By requiring prosecutors to demonwatching the person, expressing a de- their communications would be per- strate that the speaker acted recklesssire for harm or death. The victim re- ceived as threatening violence. This ly in making a threat, the ruling sets a ported Counterman to law enforce- standard, while requiring a level of precedent that could potentially lead ment, leading to his arrest in 2016; he culpable mental state, sets a relatively to more rigorous scrutiny of the prosfaced charges of stalking with a cred- low bar for recklessness. ecution’s evidence and arguments in ible threat, stalking causing serious The majority opinion was sup- such cases. Defense attorneys may emotional distress, and harassment. ported by Justices John Roberts Jr., leverage this standard to argue for the Before the trial, the prosecution Samuel Alito, Brett Kavanaugh, and dismissal of charges or the acquittal dropped the credible threat charge. Ketanji Brown Jackson. Justice Sonia of their clients based on the absence CONTINUED ON PAGE 19 Counterman argued that the remain- Sotomayor concurred in part and in LEGAL ANALYSES | 17

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THE LIMITS OF HEALTH PRIVACY

by JANE JUSKO

requests from law enforcement past to law enforcement if and when they their company lawyers before com- have obtained an abortion; although STAFF WRITER plying with the inquiries. they may have the right to the privacy This raises particular questions involved in their own private choice ven if only at a surface level, most Americans are aware of their about privacy in a world after the to obtain certain healthcare, the right medical privacy rights and tend to decision brought forth from Dobbs to control that information has been take for granted that health infor- v. Jackson Women’s Health Organi- seriously challenged by the practicmation is confidential, as attributed zation, overturning protections on es of these pharmacies. This is even to the Health Insurance Portability abortion from both Roe v. Wade and more noteworthy in states that have and Accountability Act of 1996, bet- Planned Parenthood of Southeastern made moves to restrict or criminalter known as HIPAA. However, it Pa. v. Casey. One interesting aspect ize abortion access; even without the is far rarer that one understands the of the majority opinion in Dobbs as procedure being listed in their medispecifics of this law, let alone where it written by Justice Alito was that, in cal history, law enforcement may be fails, as HIPAA is less than the perfect its originalist reading of the constitu- able to glean from their prescription guarantee of privacy it appears as. The tion, it not only indicts the right to records that they have either obtained insecurity of personal information abortion as “not mentioned in the an abortion secretly within the state under US law does not stop at web- Constitution,” but it particularly or crossed state lines to access one. sites selling consumer information; critiques it as being grounded in “the For instance, medical records may list rather, as a recent inquiry into the right to privacy, which is also not prescribed prenatal care for a pregprivacy practices of eight major phar- mentioned.” The case discussed the nant person and later the prescripmacies — CVS, Walgreens, Cigna, dual meaning of the constitutional tion of a medication incompatible Optum Rx, Walmart, Kroger, Rite right to privacy as defined by Court with pregnancy and not prescribed Aid and Amazon– these pharmacies precedent — first, “the right to shield to pregnant persons. regularly turn consumer information information from disclosure” and American consumers do retain over to government actors even in the second, “the right to make and imple- the right under HIPAA to know absence of a warrant (Harwell 2023). ment important personal decisions when their medical consumer data As explained by U.S. Senator Ron without governmental interference” is being handed to law enforcement, Wyden, Rep. Pramila Jayapal, and — and deemed the second meaning but this is a right that few people Rep. Sara Jacobs in a letter to the Sec- to be a lacking foundation for protec- seem to be aware of, as only very few retary of the Department of Health tions on the right to obtain an abor- ever take advantage of it. According and Human Services (HHS), “each tion. to the letter to HHS, “CVS Health, However, with the HIPAA loop- the largest pharmacy in the nation year law enforcement agencies secretly obtain the prescription records of hole on law enforcement slowly being by total prescription revenue, only thousands of Americans without a drawn open, this could mean an ero- received a single-digit number of warrant,” and “[a]s a result, many sion of both these privacies. Accord- such consumer requests.” Moreover, Americans’ prescription records have ing to Carmel Shachar, an expert on Amazon Pharmacy was the only few meaningful privacy protections.” Health Law at Harvard Law School, company reviewed that actively noThis gap in medical privacy is due to “there’s a perception that abortions tifies consumers of law enforcement a loophole in HIPAA regulations, as or gender-affirming care exist on requests for consumer prescription the act governs how health informa- their own islands separate from oth- data. As such, this practice of data tion is used and distributed between er medical care, but somebody who disclosure operates relatively in the “covered entities,” those being med- is medically literate can read between shadows of consumer and healthcare ical facilities such as hospitals and the lines of a medical record to see privacy law; while HIPAA requires doctors’ offices. Pharmacies, in con- if an abortion happened.” Even in physicians and hospitals to distribute trast, are not covered. In fact, CVS, states where abortion remains pro- notices of privacy practices and any Kroger, and Rite Aid do not require tected, medical records pertaining to changes in such, as non-”covered” their staff to run the information prescriptions received may still reveal entities, pharmacies operate under 18 | LEGAL ANALYSES

E

“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-

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.

COUNTERMAN V. COLORADO CONTINUED FROM PAGE 17 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

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-

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.

LEGAL ANALYSES | 19

TWO VIEWS PRO

by TONY YU

STAFF WRITER

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ace-conscious college admis- practices. established race as a suspect classificasions decisions continue to be tion. The government’s actions based a divisive issue for Americans. In a A Legal Technicality: Applicability on suspect classifications are subject poll conducted in Spring 2023 and of the Equal Protection Clause to to review under strict scrutiny, the published weeks before the Supreme Private Universities most stringent standard of judicial reCourt’s landmark decision in Stu“No State…… [shall] deny to any view, which stipulates that the use of dents for Fair Admissions v. Harvard, person within its jurisdiction the these classifications must be justified the Pew Research Center found that equal protection of the laws.” Har- by a “compelling government inter“Half of U.S. adults disapprove of se- vard, although not a state agency, est,” “narrowly tailored” to serve this lective colleges considering race and receives federal funding, and is there- interest, and be “the least restrictive ethnicity in admissions decisions, fore governed by Title VI of the Civil means” to achieve this interest. For while a third approve.”

Rights Act of 1964. Since “the Title Harvard’s affirmative action policies, In 2013, Students for Fair Admis- VI statutory prohibition on discrim- which are based on the suspect classions (SFFA) sued Harvard, alleging ination is based on the Equal Pro- sification of race, to be permissible, that the university’s undergraduate tection Clause, the constitutional the burden of proof lies with Haradmissions process discriminated analysis of intentional discrimination vard to demonstrate that the policies against Asian Americans. After lower should be applied under Title VI”; fit within the narrow criteria of strict courts sided with Harvard, the Su- In other words, the standard of strict scrutiny. preme Court deemed affirmative ac- scrutiny should be applied in Title VI tion unconstitutional in a 6–2 vote, cases against federally-funded private Compelling Government Interest with Justice Jackson recusing herself, institutions in a similar manner as in That the goal of affirmative acand the rest of the court split along Equal Protection Clause cases against tion—namely, to achieve a diverse ideological lines. Taken at face value, governmental bodies. student body—is a “compelling govfavoring certain races over others in ernment interest” is not contested. college admissions constitutes a clear Strict Scrutiny: The Exception to However, Fisher v. University of Texviolation of the Equal Protection the Rule as clarifies that this “interest” does Clause, which is applicable to fed- Grutter v. Bollinger upheld affirma- not refer to numerical diversity per se, erally-funded private institutions in tive action but placed upon it strict but rather “educational benefits that conjunction with Title VI. As such, constraints. It contended that all flow from student body diversity”. for race-based affirmative action poli- “racial classifications, however com- Moreover, Fisher v. University of Texcy to be permissible, they must follow pelling their goals,” were a “deviation as further establishes that the goals of a narrow set of criteria to qualify as from the norm of equal treatment,” affirmative action policies—in other an exception to the Clause. Harvard’s “dangerous,” and must have a “termi- words, the outcomes that serve the de facto racial quotas and broad con- nation point.” government interest—“must be sufsideration of race clearly fails the test Furthermore, in Hirabayashi v. ficiently measurable to permit judiof strict scrutiny, necessitating the United States and Korematsu v. cial scrutiny of the policies adopted CONTINUED ON PAGE 23 Supreme Court’s ruling against these United States, the Supreme Court 20 | TWO VIEWS

On the SCOTUS Affirmative Action Decision (2023)

AGAINST

by ANDREA PITA MENDEZ

STAFF WRITER

I

t all 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 al opportunities to study for stanthe medical school, five of the justices dardized tests, already putting them also argued that the use of race as a cri- at a significant disadvantage versus terion in college admissions was con- their counterparts. Moreover, stustitutionally permissible. The lack of dents who come from generationally a single majority opinion spoke vol- low-income backgrounds once given umes to the controversial nature of the opportunity to attend a post-secaffirmative action, though it was clear ondary institution have demonstratthat the lack of equal opportunity for ed the ability to make nearly as much minority students was incredibly dif- as students who come from predomficult to address without it. inantly wealthy backgrounds. And even then, minority students arrive The Statistics at these institutions and often find Many wonder, why affirmative themselves feeling isolated or even action? Why would there be a system unsafe. According to the National ingrained and supported through Survey of Student Engagement, one our government to advance the op- in seven Black students report feeling portunity for minority students in unsafe on their college campus. All in college admissions? In 1970, in the all, the use of affirmative action has same decade as Regents of the Uni- only worked to enhance one of the versity of California v. Bakke, 91% of most important things: equal access. college students were white. By 2021, Equal access to education, opportuthat number has decreased to nearly nity, resources, that set these students 50%, with 12.6% of students being up for success and allows them to not Black, 21.4% being Hispanic, and only break the cycles of poverty and 7.1% being Asian. As time has pro- precedent. gressed, colleges are moving further toward having diverse student bodies The Case that truly reflect the diversity across In 2013, Students for Fair Adthe United States too. Furthermore, missions sued Harvard University althe more prevalent factors in college leging that there were clear practices admissions–test scores, essays, inter- in college admissions processes that views–often do not mitigate racial discriminated against Asian Ameriinequality but rather further it. SAT can students in favor of white appliand ACT scores have been proven to cants, and they alleged that this was a only be indicators of a singular fac- clear violation of the Civil Rights Act tor–socioeconomic status. Minority of 1964. Harvard University, though students often do not have nearly the they did admit that race was a considsame resources or access to educationCONTINUED ON PAGE 22 TWO VIEWS | 21

SCOTUS AFFIRMATIVE ACTION DECISION: AGAINST CONTINUED FROM PAGE 21 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 22 | TWO VIEWS

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 Aftermath 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-

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.

SCOTUS AFFIRMATIVE ACTION DECISION: PRO CONTINUED FROM PAGE 20 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

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 Least Restrictive Means 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.

Narrowly Tailored 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, The implementation of Propoor admitting a specific portion of sition 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.

TWO VIEWS | 23

On SCOTUS Term Limits TERM LIMITS (AGAINST)

as a threat to citizens’ freedoms and undermines their position as defendby ELI DUNLAP STAFF WRITER ers of public rights, per Dobbs v. Jackince the Constitution’s inception, ments with this shorter span, Senators son Women’s Health Organization. the Supreme Court has been in- may simply reject nominations of a Though conservative administrators tended to be an entity protecting the president and use this power to bypass may contend that abortion is not a people from political corruption. the appointments for the time being. human right, it is without a doubt an Their role was to protect the ConstituEnacting limits impacts the effec- endangerment to public health to potion from the leverage of partisanship tiveness of lawmakers beyond parti- liticize and outlaw such a fundamenand to maintain the sovereignty of the sanship, it also impacts the quality of tal aspect of reproductive rights.

Instead of targeting issues of court Constitution, requiring a degree of legislation, therefore diminishing its nonpartisanship. As not to be swayed integrity. Suppose lawmakers accept stacking which term limits are meant by the influence of another govern- positions with the foresight that they to prevent, their enactment has the ment body, lifetime appointments will have to resign after a particular potential to exacerbate a pre-existing became a key form of protection and date. In that case, they become less issue and would require the re-worka contentious topic surrounding the incentivized to develop the necessary ing of infrastructure that the country integrity of the high court. Given the specializations to perform to their full is not currently equipped to deal with. current state of the Supreme Court, potential, as is the expectation of the Instead of solely relying on term limits reform may be justified, but term lim- highest court of the land. Congru- as a solution, attention should be diits won’t necessarily remedy or resolve ently, term limits may create issues of rected towards upholding the integrity the desired issues. Targeting Term court stacking, where each president and authority of the Supreme Court limits will only result in a weakly po- is given an appointment opportunity. by addressing the fundamental issues sitioned court that cannot properly While this may give each president an at its core, particularly the apserve its purpose. equal chance to increase their staying pointment process. Rather Due to the appointment process power, it also leads to further parti- than making appointments for the Supreme Court, placing term sanship of the role, as justices are more driven by political considlimits on these justices may not lead to inclined to bend to the whim of the erations, the emphasis the desired result. The current process president. With this awareness of their should be on selecting jusessentially involves two major com- time constraints, justices may feel a tices who possess a deep ponents: 1) a nomination from the sense of urgency to promote their leg- understanding of the law president and 2) two-thirds consent islative agendas with what time they do and demonstrate a nuof the nominee from the Senate (Fed- have. The issue may no longer be the anced grasp of its applicaeralist No. 76, 1778). Members of the court’s inability to adapt to a changing tion in modern contexts.

Senate have six-year appointments, as society, but rather an increase in stakes This approach ensures opposed to the president’s four years. that uproots SCOTUS’ role as a legis- that the court remains Depending on the timing/results of lative balancer. Without these judicial steadfast in its mission these elections, the president may be checks in place, citizens’ rights are at and maintains its crucial caught in a position where the Senate risk of not being protected to the full- role in interpreting and upholding the law. majority consists of a different party est extent. than that of the president’s affiliation.

We see threats to citizens’ rights If the nominee does not align with being threatened when analyzing the their agenda, their consideration can current court lineup, cited by some either be rejected or lapsed. Though to be the most conservative court in fairly uncommon, if more political 90 years. Their recent repeal of landemphasis is placed on judge appoint- mark cases such as Roe v. Wade serves | illustration by mella betta 24 | TWO VIEWS

S

ag

TERM LIMITS (PRO)

The conceptualization of lifetime appointments molds justices into strategic

by EMBERLYNN ST HILAIRE STAFF WRITER actors. In theory, factors such as public urrently, Justice William O. Doug- limit could solve this problem by en- opinion, the potential for outside actors las possesses the title of “lon- suring justice turnover which fashions to withhold perks from justices, and the gest-standing justice,” serving from a pathway for the Court to evolve with potential to lose the respect of colleagues 1939 to 1975. In those 36 years, Justice society and maintain legitimacy. One should act as external political conDouglas served amid seven different of the premier issues with lifetime ap- straints on the judiciary. Yet, in reality, presidencies, WWII, the Cold War, the pointments is that over the prolonged these constraints fail to compel the jusCivil Rights Movement, the Korean time that justices serve on the Court, tices to abstain from countermajoritariWar, the Space Race, the assassination they become disconnected from the val- anism. This is the idea that courts strike of a U.S. president, the Vietnam War, ues and wishes of the American people. down the desires of the masses through and the Watergate Scandal. It’s indis- For instance, our presidential elections “a subjective reading of abstract constiputable that the U.S., in those 36 years, are somewhat a representation of where tutional principles.” Instead, because of evolved and diversified in population the American people as a whole lie on lifetime appointments, constraints are demographics, values, and standards. certain issues. Additionally, presidents no longer constraints. Justices do not It’s hard to imagine that in the thick who get the opportunity to appoint feel the pressure to act legitimately when of all that change, a Supreme Court new justices often appoint justices that they are shielded from the effects and imJustice like Douglas could be reflective align with their political beliefs. We, the plications of the aforementioned factors and representative of the current real- American society, elect a new president because they are guaranteed that they ity. The crux of the issue with lifetime every four years (barring re-elected pres- will not lose their job. At the behest of appointments is that the Court cannot idents), indicating that our values are lifetime appointments, justices assume be reflective and representative of the continuously changing. The fact that the role of strategic actors. They are givcontemporary public, so it cannot be a despite this clear shift each presidential en the leeway to implement their policy Court that can preserve its legitimacy as term the Supreme Court Justices that and ideological objectives or champion a democratic institution. In a novel new are appointed during one term continue the causes and fortunes of the political Supreme Court term limits bill, Senator to serve even amid a new era of Ameri- party that placed them in office or that Alex Padilla pushes for 18-year term lim- can ideologies. New and evolving norms they belong to. What an 18-year term its for Supreme Court justices that pre- and ideals cannot infiltrate the court to limit accomplishes is that it reinforces vent them from ruling on all cases after better reflect what society needs and these pressures back into the judiciary serving for 18 years. In a socio-politi- wants when the Court is stuck in its old system. It makes justices aware that in cal climate like our current one, in ways that cannot ameliorate a progress- 18 years they will have to face their colwhich the motivations, ethics, ing society. The cause for worry with leagues, our country’s institutions, and and reasonings of the Su- this is that the Court moves farther and the public head-on without the protecpreme Court are being farther away from garnering the public tion of the pillars of the U.S Supreme called into question, trust. Public trust is directly correlated to Court building. They will likely think a the prospect of an 18- the legitimacy of the U.S. court system. bit more carefully about how they act in year term limit is not As so aptly put by Raymond J. Lohier, the present behind those pillars. only an exciting one a judge on the U.S Court of Appeals for Ultimately, 18-year term limits can no but an imperative the Second Circuit, “a lack of confidence longer remain a suggestion but rather a one. The Supreme increases the risk that actors — it could reality that our country adheres to. Our Court must fulfill be public actors, legislatures, certainly justice system has strayed too far from “the promise of equal ordinary people — are just over time go- respectability and the lack of term limits justice under law” ing to ignore our orders and mandates.” on the Court has dragged it there. and it cannot do that A potentially more intuitive benefit when its’ justices are of term limits is that they can function unable to reflect what to establish more accountability on the society demands.

Court which will motivate justices to An 18-year term conduct themselves better in their roles.

TWO VIEWS | 25

C

TORT REFORM (PRO)

by RHEA KANUPARTHI

STAFF WRITER

F

or 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-

vs.

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

TORT REFORM (AGAINST)

by ISABELLE TOWNLEY

STAFF WRITER

I

n 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 26 | TWO VIEWS

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 tort laws themselves, by driving up cut down America’s growth in innoso long as they maintain shares in the insurance and medical care, are large vative medicine. With medical costs company. The stage of debate quick- barriers to medical accessibility. In a nearly unmanageable, tort reform, ly became politically polarized with study conducted by the National Bu- if properly done, could quickly cut Republicans joining the business reau of Economic Research, research- down the price of vital medical care community to push back against tort ers found that “caps on non-econom- as large-scale healthcare reform takes law and Democrats siding with plain- ic damages, collateral source reform, place to solve for new, more effective tiff lawyers (who coincidentally be- and joint and several liability reforms medicines for the future. came generous donors). Amidst the reduce self-insured premiums by 1 to Opponents of tort reform argue politicized debate, juries unpredict- 2 percent each.” Tort reform would that, without strict liability laws and ably swung between asking for mil- reduce both the cost of care and in- severe consequences, medical profeslions in punitive damages or award- surance for both the patient and the sionals have no incentive to provide ing no damages at all. However, tort hospital, which buys insurance to proper care. They fear that tort rereform, while seemingly driven by protect against medical malpractice form will open the doors to flagrant enterprise self-interest and lobbied while also employing an oft-expen- medical malpractice. Indeed, since for by many corporations, will likely sive fleet of lawyers to fight such cas- the 1960s, there has been a rampant increase patient welfare and decrease es. Similarly, companies often invest increase in the frequency of medithe cost of medical care. The push for less in experimental medical proce- cal malpractice claims in the United tort reform should not be viewed as dures or new medicine out of fear of States. While many argue that it is due CONTINUED ON PAGE 30 taking away victims’ rights. Rather, liability claims. Protective tort laws

out unnecessary testing, out of fear of insurance premiums, there seems to be claims. Paul Greenberg, a managing getting sued, which ultimately raises little evidence that torts drive up prices. member of a law firm writes, “Without the price of medical care. In most states, Tort reform fails to impact defensive the insurance industry’s smoke screen there are caps on the amount of money medicine or lower insurance premiums. of tort reform, it seems painfully clear in damages victims of medical malprac- Not only does tort reform fail to low- that the best way to address the meditice can be awarded. For example, ac- er the cost of healthcare, but it can be cal malpractice problem is to work to cording to Justia, “California’s Medical extremely harmful as well. What tort reduce medical errors in the first place, Injury Compensation Reform Act of reform has done in the medical field is not limit lawsuits over those errors.”

1975 sets a cap only on non-economic cause harm to injured people. Tort reTort reform fails to achieve what proor pain and suffering damages. The cap form prevents injured people from ob- ponents claim it will: lower insurance is $250,000, a rate that never has been taining compensation for their injuries, premiums and more accessible healthadjusted for inflation.” delays the reform of medical standards, care. Tort reform accomplishes what In reality, tort reform doesn’t work. and allows wrongdoers to go unpun- insurance companies and large cor“A major study published recently in ished. While reform in the medical porations have pushed for; it prevents the New England Journal of Medicine field could save lives, the tort reform injured people from obtaining justice, confirms what multiple other studies movement has shifted focus away from wrongdoers from being held liable, and have shown: tort reform has had no these initiatives. A review of the history the necessary medical reforms needed impact on defensive medicine.” Even of anesthesiology reveals the dangers of to save lives from being implemented. when doctors in emergency rooms diverting focus away from safety ini- Medical errors are currently the third faced minimal chances of being sued for tiatives. In the 1980s, there were many leading cause of death in the United medical malpractice, they still issued the advancements in the field in response States. Rather than focusing on limitsame number of CAT scans and MRIs to malpractice claims. The result was a ing lawsuits, we should be focusing on as emergency room doctors with high- reduction in mortality rates related to reducing medical errors and saving lives. er chances of being sued. In terms of anesthesia and a reduction in liability TWO VIEWS | 27

On 303 Creative LLC. v. Elenis AN ARGUMENT FOR FREEDOM OF SPEECH

by ENMANUEL APARICIO ACOSTA STAFF WRITER

customer said service on the basis of their sexual orientation is without a ollowing the appointment of be clear, her faith dictates that mar- doubt an act of blatant discriminajudges Neil M. Gorsuch, Brett riage “should be reserved to unions tion. However, she wouldn’t really Kavanaugh, and Amy Coney Barrett between one man and one woman.” be refusing her services to a gay couby the Trump administration, the Su- According to Ms. Smith, her design ple. Instead, she would be refusing to preme Court became the epicenter of services for these wedding websites make any website that would compel political turmoil in the United States. will be “customized and tailored” her to express herself in ways that she Since then, many controversial cases and will “express Ms. Smith’s and disagrees with. Let us consider the have been picked up by the Court, 303 Creative’s message celebrating following hypothetical for the sake of and equally as many controversial and promoting her own view of mar- clarity: If a straight, married guy were decisions have been handed down. riage.” In crafting such messages for to solicit Ms. Smith’s services on beDue to its conservative character, the gay couples, then, Ms. Smith would half of his gay couple friends, would SCOTUS’s every move seems bound be expressing herself in a way that she refuse him her services as well? to wreak havoc in progressive circles. runs counter to her religious beliefs Given her reasons, it tracks that she Sometimes though, the negative per- – in a way that runs counter to how would also refuse to create the webception that many Americans have she thinks. The Free Speech Clause site in this instance. We’d then have of the SCOTUS today demerits, of the First Amendment is very clear to explain her refusal not in terms of nay, mischaracterizes the substantive about this: the law ought to protect discrimination against her customer benefits of certain rulings. This holds the “freedom to think as you will and (i.e the straight guy), but in terms of true for Creative 303 LLC v. Elenis, a to speak as you think.” something else. This case, Ms. Smith case decided this past summer about The Colorado Anti-Discrimina- argued, isn’t about discriminating a woman whose freedom of speech tion Act, for its part, stipulates that against her customers on the basis of was jeopardized by the Colorado no person shall be denied the “full their sexual orientation, but rather Anti-Discrimination Act (CADA). and equal enjoyment of goods and on the content of the website itself, The bulk of the criticism this case has services” of any place of “public ac- of which she’d “produce the final received seems to be grounded on a commodation” based on “their race, story [...] using her own words and misconception; namely that the case creed, disability, sexual orientation, original artwork.” It makes absolute is about religious freedoms rather or other statutorily enumerated sense to protect people from discrimthan about free speech. At stake in traits.” A place of ‘public accommo- ination anywhere and everywhere. this case was whether people can le- dation’ encapsulates virtually every However, this particular case is not gally be compelled to express them- public-facing business in the Unit- actually about that. This case conselves in ways that run counter to ed States. Herein lies the worry that cerns whether the government can how they think. prompted Ms. Smith’s appeal to the legally tamper with someone’s right The case was brought forward by courts: namely that CADA would to express themselves freely.

Lorie Smith, a web designer seeking view her refusal to make websites for Ultimately, the Court ended up to expand her business to include gay couples as discrimination rather siding with Ms. Smith by a 6-3 vote. wedding websites for couples. As a than as an entrenchment on her free The majority opinion, delivered by devoted Christian, Ms. Smith wor- speech. To be sure, there is good rea- Justice Gorsuch, emphasized that ried that the Colorado Anti-Dis- son to think that way at first glance. the CADA was wrong in its use of crimination Act would “compel Given that her business falls with- the law “to compel an individual to her to create websites celebrating in the confines of what is meant by create speech she does not believe.”

CONTINUED ON PAGE 30 marriages she does not endorse.” To public accommodation, refusing a 28 | TWO VIEWS

F

303 CREATIVE LLC. V. ELENIS: AGAINST

by TOMAS VALLEJO

SOCIAL MEDIA MANAGER

T

he 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 busi- design company to refuse services to ness went directly against the Colo- clients that disagree with the busirado Anti Discrimination Act which ness legally. However, the majority prohibits businesses that open their has misunderstood the nature of the services to the public from discrim- situation. The law does not prevent inating against based on numerous her from spreading hateful speech, characteristics such as sexual orien- instead, it prohibits her from refustation. Even before the state sought ing to sell to anyone she doesn’t like. to enforce the law against the firm, The dissent led by Justice Sonia SoSmith challenged the law in feder- tomayor argued otherwise. Justice al court alleging that it violated her Sotomayor and the rest of the dissent constitutional rights of freedom of insisted the Colorado law in question expression. Thus SCOTUS heard ar- did not target speech, but instead guments on whether CADA violated targeted conduct, meaning that any the First Amendment’s Free Speech infringement on speech was incidenClause. The Court ultimately decid- tal. Sotomayor explained that public ed in a 6-3 vote that Smith was cor- accommodation laws such as CADA rect and that the law violated the First have two purposes; “first, the law enAmendment. Thus, the ruling made sures ‘equal access to publicly availit legal for businesses across the coun- able goods and services’…Second, a try to discriminate against LGBTQ+ public accommodations law ensures people if doing so went against their equal dignity in the common marbeliefs. ket.” This is grounded in the princiThe majority opinion led by Jus- ple that “a business that chooses to tice Neil Gorsuch ruled that the sell to the public assumes a duty to First Amendment prohibits Colora- serve the public without discriminado from forcing a website designer tion.” to create expressive messages with This much is supported by the which the designer may disagree. analysis of David Cole, national diThe majority disagreed with Colo- rector of the American Civil Liberrado’s argument that a business that ties Union. Cole does not believe that sells commercial products/services CADA forces any artist or business must sell that product to everyone owner from expressing a certain idea and instead argued that since “Ms. or belief. Instead, CADA requires Smith does not seek to sell an ordi- businesses open to the public to not nary commercial good, but intends discriminate in sales based on proto create ‘customized and tailored’ tected characteristics. In addition, speech.” The first amendment ap- “under Colorado’s law, artists are plies and thus Smith does not have to free to not offer their services to the offer services to LGBTQ+ couples. public.” Thus, the idea that businessThe majority believed that this one es should be exempt from rules of stipulation allows businesses that cre- nondiscrimination in sales where the CONTINUED ON PAGE 31 ate messages such as Smith’s website TWO VIEWS | 29

AN ARGUMENT FOR FREEDOM OF SPEECH CONTINUED FROM PAGE 28 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:

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

TORT REFORM (PRO) CONTINUED FROM PAGE 27 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 30 | TWO VIEWS

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.

303 CREATIVE LLC V. ELENIS: AGAINST CONTINUED FROM PAGE 29 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

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.

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

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.

TWO VIEWS | 31

OPINION

BEYOND PUNISHMENT: EMBRACING RESTORATIVE JUSTICE IN SEXUAL ASSAULT CASES

by ARYA NAGRAJ

STAFF WRITER

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he 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.

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32 | OPINION

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 disaddress 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.

OPINION | 33

STATES’ ENFORCEMENT OF IMMIGRATION LAW

by JAY MORROBEL-PENA

immigrant communities found that most undocumented immigrants were STAFF WRITER less likely to offer information or report n December 18, 2023, Governor a crime because they were afraid that Gregg Abbot signed Texas Senate police inquire about their immigration Bill 4 to deter illegal immigration and status. As a result, Police Chiefs, most strengthen border security. The high- notably those in Dallas, Houston, Ausly controversial bill makes illegal entry tin, and San Antonio, have spoken in a state crime and prohibits “sanctuary opposition to the legislation: while the city” policies. Sanctuary cities prevent law intends to protect crime victims local law enforcement from inquiring and witnesses, they worry that the law about a person’s immigration status will “foster the belief that people cannot or adhering to ICE detainer requests. seek assistance from police for fear of beUnder S.B. 4, local and state law en- ing subjected to an immigration status forcement can arrest anyone suspected investigation.” Additionally, placing the of illegally crossing the border. Those power and responsibilities of federal imfound to have violated the law can be migration enforcement agencies in the charged with crimes such as a class A hands of local police, who often lack the misdemeanor, a second-degree felony, specialized training necessary, is likely to and deportation to Mexico. have contemptible consequences. One This is a clear violation of both the probable consequence of the bill is an U.S. Constitution and humanitarian uptick in racial profiling, as there is virprotections afforded to immigrants tually nothing deterring biased police crossing the border. The law circum- officers from targetting/questioning invents federal statutes, granting Texas dividuals based on race or appearance. judges the authority, and requiring jus- S.B. 4 draws notable similarities with tices to deport individuals regardless of the 287(g) program, established by the their eligibility for asylum or other fed- Federal government in the aftermath of eral humanitarian safeguards. This not the terrorist attacks on September 11, only violates due process but also over- 2001. This federal initiative grants local reaches the power delegated to states by law enforcement officers the authority the Constitution as immigration law to carry out designated immigration ofand its enforcement fall under federal ficer responsibilities under the supervioversight. sion of ICE. The historical record of the The bill places unfair burdens on 287(g) program is tainted by instances local law enforcement by forcing them of systematic racial profiling. Instances to allocate resources, including jail ca- such as Department of Justice investigapacity, officers’ active duty hours, and tions in Maricopa County, Arizona, and local taxpayer funds, to work that tradi- Alamance County, North Carolina, retionally has been assigned to the federal vealed widespread racial profiling and government. This law will surely dete- unlawful police practices. Placing the riorate the little trust between commu- power and responsibilities of federal imnities with high immigrant populations migration enforcement agencies in the and police, further perpetuating an hands of local police, as seen in both the atmosphere of fear and suspicion. Pre- 287(g) program and Texas Senate Bill vious research on the distrust between 4, raises concerns about potential civil law endorsement and predominantly rights violations, amplifying the risks of 34 | OPINION

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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.

JUSTICE UNCHECKED: ETHICS CODE SHIELDS SUPREME COURT JUSTICES FROM REAL ACCOUNTABILITY

by VINCENT LI

STAFF WRITER

T

he 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.

OPINION | 35

THE FORGOTTEN RADICALISM OF THE 15TH AMENDMENT

by AHMED AHMED

ASSOCIATE EDITOR

F

ollowing 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 arrogant, self-righteous assumption that one man can be charged with the liberties and destinies of another” and “put the great words of the Declaration of Independence in the Constitution itself.” The spirit of the 15th Amendment was not merely that Black men deserved the right to vote, but that the American republic ought to be a true popular democracy.

Af-

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36 | OPINION

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.

FREEDOM OF EXPRESSION: A CONSUMER RIGHT

by JOAO PEDRO TETTO HEPP STAFF WRITER

T

he 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 OPINION | 37

PATENTLY UNCONSTITUTIONAL: FROM VIDAL V. ELSTER

by RALPH LAM

the eyes of the First Amendment.

Perhaps, examining the specifics of STAFF WRITER Section 1052(c)’s unconstitutionaliprominent aspect of the 21st ty can pinpoint a solution.

One way in which Section 1052(c) century is the continuous development of public personas through can be considered unconstitutionsocial media. Actors, influencers, and, al is its provision of a content-based especially, politicians all cultivate per- restriction. Elster intended for this sonalities online as if manufacturing trademark to serve as commentary a product for the average person to on Trump’s policies, referencing an consume daily. A politician’s name exchange between former President and face are inextricable from their Trump and Senator Marco Rubio established viewpoints. Their name from the 2016 Republican primasignifies their position on the vast ry debate. Justice Marshall, in Police political spectrum: the discussion of Dep’t of Chi. v. Mosley stated that the a politician and their beliefs is a con- First Amendment means, “above all sumption of their cultivated persona. else… that government has no power Amidst current political discourse, to restrict expression because of its “TRUMP TOO SMALL” seems like message, its ideas, its subject matter, an innocuous political statement— or its content.” However, in rejectunremarkable, even. After all, it ing Elster’s trademark application, doesn’t stand out from the more vit- the USPTO, a government agency, riolic comments on public forums. restricts his expression on account of In 2018, Steve Elster attempted to its content; the appeal board claimed trademark this phrase for various that Section 1052(c) applies “regardshirts, prompting the US Patent and less of the viewpoint conveyed by the Trademark Office (USPTO) to reject proposed mark.” In other words, the his application. The USPTO cited statute is not designed to discrimiSection 1052(c) of the Lanham Act, nate against specific beliefs or ideas.

It is impossible to bar the traderegarding a trademark that “[c]onsists of or comprises a name . . . iden- mark without incidentally restricttifying a particular living individual” ing Elster’s own commentary on without said individual’s “written Trump’s politics. Regardless of its consent.” Elster appealed this deci- intended design and function, Secsion and opted to bring the case be- tion 1052(c) cannot be viewpoint fore the Supreme Court—arguing neutral—and thus constitutional— that the decision infringed upon his when concerned with the public-facFirst Amendment rights. It is not ing nature of American politics.

Turning toward the work of podifficult to prove that this section of the Lanham Act is unconstitutional: litical cartoonists also elucidates Secone can look at the provision’s con- tion 1052(c)’s unconstitutionality. tent-based restrictions and public Hustler Magazine, Inc. v. Falwell had personas in the eyes of the law. The the court determine whether public question now, however, is how the figures or public officials can recover consumption of public personas— damages due to the emotional disparticularly those in the political tress caused by caricature. In Hustler, arena—should be reconciled within Justice Rehnquist states that, even 38 | OPINION

A

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 through verbal or visual means—is role in political debate. By rejecting guaranteed under the First AmendElster’s trademark, the USPTO also ment, then one should also have the disregards his protections within the right to invoke politicians’ names arena of political discourse, stifles the during such discourse. And, by stepflow of opinions on public interest ping into the political arena, these matters, and ultimately violates El- politicians are already marketing ster’s First Amendment rights. their beliefs and viewpoints to an The Lanham Act’s ultimate ob- audience. As demonstrated in Vidal jective is to protect the image of an v. Elster, the Lanham Act infringes individual—be it in public or private upon this constitutional right; by spheres. In the political arena, a pol- protecting the publicity of public figitician’s image and name cannot be ures, it necessarily proscribes specific distinguished from their ideologies. speech on a content basis.

If the right of political discourse— So, what now? The First Amend-

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.

SEX ABUSE LAWSUITS IN NEW YORK

by AMANI CREAMER

STAFF WRITER

C

hildhood 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

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 abusers religious 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, CONTINUED ON PAGE 41

OPINION | 39

PRIVATE CHARITIES AS NEOLIBERALISM’S PAWNS

by JOSHUA ENEBO STAFF WRITER

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he reputation of private chari- though they do important work, it is ties in the United States is nearly not immediately clear why conservasterling. They are egalitarian, gener- tives insist on the replacement of one ous, and inspiring in their efforts to with the other. In any case, few bealleviate real and persistent suffer- lieve charities are as effective at reaching—traits that are not immediately ing the masses as the government, associated with American conser- which makes the message that much vatives. However, data consistently more sinister. shows that conservatives—the same Given private charities are not folks likely to vote for tax cuts and going to single-handedly reduce nasocial spending slashes—are more tionwide poverty to acceptable levels, generous and support these laudable it follows there is another reason for institutions much more than liberals. their status within conservative poliDo these things balance out? The tics. Although you will probably not hear it come out of Newt Gingrich’s short answer is no.

One explanation could be that or Kevin McCarthy’s mouths, it is private charities are more efficient, implausible that conservatives writ that conservatives are correct. How- large believe that charities fill in the ever, private charities suffer from the gaps sufficiently. In fact, the way they same criticisms so often levied against describe it as a “voluntary civil soci“wasteful,” “inefficient,” or “ineffec- ety” concedes as much. A brief explative” government programs. Private nation of the modern conservative charities maintain their own bureau- position is in order. Just a few decades cracies, with their own amounts of ago, even the conservatives were not administrative overhead, creating the broadly against public welfare to the same effect as is apparently endemic extent they are now. Things changed in government agencies. They are when inflation was increasing in also inefficient as when demand for the 1970s, and conservatives united them is highest, during economic with neoliberals around a moralized downturns, they too recess instead of vision of inflation to bring it down. meeting the uptick in need. Being as Neoliberals had already identified deferential as possible, the patchwork government welfare as a demon to exsystem of privatized welfare only allo- orcise in their mission to reorient the cates a third of all charitable giving to social contract towards protecting the vulnerable. What private charities markets and enforcing class divides. lack is sufficient size, funding, or co- Public welfare that went to single ordination to reach relevant portions Black mothers became inextricably of the underserved. This critique tied to the inflation issue because of is not of the charities themselves; it the belief that the Black community is that we are asking too much. It is was lazy and recklessly wasting their the welfare equivalent of chopping welfare dollars. This brought conserdown a forest with a pocket knife. vatives on board with the neoliberal Moreover, the tradeoff is wholly un- end by bridging the economic goals necessary; one can support private of the neoliberals with the social charities and support more holistic views of the conservatives. Notably, government programs. Thus, even conservatives seemed to take no issue 40 | OPINION

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 of grant-making flows into commureligious charities. The difference, of nities of color. The government has course, is that government programs to give out to more people, and it give much more in amount and, in- cannot discriminate in who it can creasingly, were mandated to give to target, a fact that statistically leads to racial minorities. When they write lower support for welfare. off huge donations to laudable reliThe apparent inconsistency lies gious charities, it is unlikely they are here: private charities are legally less auditing where that money went or compelled to give to groups conserif the people who received that mon- vatives deem unworthy. When the ey wasted it. The only thing they do government excluded the perceived know, at least more specifically than unworthy, conservatives were not in with public programs, is the gener- opposition. Government programs al contours of who is receiving their are now legally compelled to give charity. In (not so) unrelated news, more money out to more of the lowover 90 percent of foundation CEOs er class, and, crucially, to more of the are white while less than 10 percent lower class Black community, than

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.

SEX ABUSE LAWSUITS IN NEW YORK CONTINUED FROM PAGE 39 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

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.

OPINION | 41

AGAINST THE NAPOLEONIC CODE

by EMMA HUERTA STAFF WRITER

O

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 legal analysis and the occasional blockbuster biopic.

ne such lasting side-effect of the countries, such as Belgium, Luxemformer Emperor’s rule is the Na- bourg, Monaco, Haiti, and the Dominpoleonic Code, an established French ican Republic. In fact, Belgian civil code civil code. The legal protocol was en- remains to be based on the Napoleonic acted in France on March 21, 1804, fol- Code. Even the current U.S. governlowing four years of deliberations and ment borrows some inspiration from arrangements within the French govern- the Napoleonic Code; the only civil law ment under its relatively new head, Gen- state of Louisiana draws similarities to eral Napoleon Bonaparte himself. Upon the Napoleonic Code with its civil code entering French government leadership, of 1825.

Napoleon took it upon himself to codi- Upon its initiation and impact on subfy and ascertain French law more specifi- sequent national and state governments cally. Thus, he established a special com- outside of France, the Napoleonic Code mission to debate how these new laws has paved the way for the codification of would be rendered and appointed Jean- common law. In other words, it placed Jacques-Régis de Cambacérès, duke de into definitive, legally binding text the Parme and second consul, to lead said rights that are granted to each French commission. Cambacérès’s commission citizen under the eyes of the law. met over 80 times, with Napoleon atHowever, with that being said, the tending almost half of these sessions, to Napoleonic Code is unmistakably an discuss the creation of new French law. outdated legal document. This is shown Ultimately, these sessions resulted in the in its obvious restriction of rights to establishment of the Napoleonic Code. women, children, and persons forcefulIn its final form in 1804, the Napo- ly enslaved. Even though it was an imleonic Code featured several attributes portant development and consequential (3). Mainly, it codified several branches precedent-setter in the codification of of French law, including commercial, human rights, it seems as though modcriminal, and civil (which was further ern law has moved far past any need for split into property and family law). The the Napoleonic Code, regardless of the Code also granted equal rights for all impact it maintains in modernity. male citizens and fortified their authorAlthough the fundamental ity over their spouses and dependent impact the Napoleonfamilies, which was inevitably detrimen- ic Code had on the tal to female citizens’ rights, primarily codification of civil in negating their natural rights among code is indubitable men’s. Under the Napoleonic Code, co- and impossible to lonial slavery was reintroduced through- undo, especially in out France and applicable French terri- its established predetories. This perpetuated the authority of cessors, it should not the new set of laws not only in mainland continue to serve as France, but also in other European and the principal point South American countries where France of departure for legal had governing authority. civil code-making. It To this day, the Napoleonic Code is appears to be much still applied to French law. Furthermore, more seamless to cre| illustration by ana estupinan it is still in use in other modern-day ate, amend, and 42 | OPINION

QUALIFIED IMMUNITY AS UNQUALIFIED IMPUNITY

by KEVIN GUO

tutional deprivation doesn’t cut it”; instead, “plaintiffs must cite functionally STAFF WRITER identical precedent that places the legal magine you are a journalist. Imagine question ‘beyond debate’ to ‘every’ reathat the district attorney told you sonable officer.” that he “didn’t appreciate” your reHere, a problem arises. The necesporting, which is heavily critical of law sity for such “functionally identical enforcement. Now imagine that law precedent” means that “public officials enforcement in your city conspired to [may] duck consequences for bad bearrest you under an obscure law—one havior—no matter how palpably unthey had never arrested anyone for, and reasonable—as long as they were the one which no one has ever been con- first to behave badly.” This, in turn, victed of—after which they took pic- has led to a number of facially absurd tures of you in jail, all while mocking results: in one notable case, an inmate and laughing at you. Finally, imagine was forced to sleep “naked” in a room that, after you were ultimately released, filled with “a massive amount of feces.” you filed suit against the officials who The circuit court in this case granted conspired to have you arrested, only for qualified immunity, as “[t]hough the the suit to be dismissed—not because law was clear that prisoners couldn’t they didn’t violate the law, but be- be housed in cells teeming with human cause “no clearly established law placed waste for months on end,” the plaintiff the officers on notice of [your] First “stayed in his extremely dirty cell for Amendment right not to be arrested.” only six days.”

Unfortunately, this is not a hypoAdding on to this problem, howthetical scenario. This was the experi- ever, the Supreme Court has also held ence of Priscilla Villarreal—a citizen that courts are allowed to first deterjournalist from Texas who had her First mine whether a “clearly established Amendment claim denied by the full right” exists at all, instead of whether Fifth Circuit in January of 2024 due to a constitutional violation occurred. the doctrine of qualified immunity.

As a result, courts have developed a But what is qualified immunity? tendency to avoid ruling on the conThe doctrine of qualified immunity stitutional issue altogether—creating, first emerged with Harlow v. Fitzgerald, in effect, a legal catch-22. Specifically, a Supreme Court case that established though plaintiffs must produce “clearthat, for individuals to sue officials for a ly established law” that supports their violation of their constitutional rights, case, courts are not producing such law the right in question must be “clearly as precedent, as their initial conclusion established” for the suit to proceed—a that no “clearly established law” exists holding found nowhere within the text marks the end of the case. Judge Willett of the original statute. As a result, plain- of the Fifth Circuit, noticing this issue, tiffs in such suits must not only prove points out a recent Eleventh Circuit that the defendant “violated a feder- decision that “expressly [took] no poal statutory or constitutional right,” sition” as to whether an officer firing at but also that the unlawfulness of their the family dog—but instead hitting a conduct was “clearly established at the 10-year-old child—was a constitutiontime.” “Clearly established,” in turn, al violation. This, as Judge Willett aptly means that “[m]erely proving a consti- notes, means that “[i]f the same officer

I

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.

OPINION | 43

KEEP TRUMP ON THE BALLOT

by JACK MARTINEZ STAFF WRITER

T

he 14th Amendment to the U.S. soldier in the Confederacy had seConstitution is, undoubtedly, verely violated his “oath to the conone of the most influential pieces stitution” and that this violation of law in the United States. Giving rendered him untrustworthy. So, to equal protection under the law to respond to hissings from Union polall citizens, the amendment has sin- iticians that “Copperheads” and “Segle-handedly integrated schools, le- cessionists” were wandering the halls galized interracial marriage, and en- of Congress, Radical Republicans shrined the right to privacy into our drafted Section 3 of the 14th Amendcommon law system. Yet, buried in ment. Though, the clause only had a the 14th Amendment’s consequen- six year shelf life. In 1872, President tial text is a peculiar provision: “No Uylsses S. Grant signed the Amnesty person holding any office, civil or Act reversing most penalties against military… shall have engaged in an former Confederates. In an attempt insurrection or rebellion against the to further rebuild the South, Grant Constitution of the United States.” had voided Clause 3 and unknowToday, this provision is being used ingly opened the floodgates for forto remove former President Donald mer Confederate sympathizers. In Trump from the ballot in numerous the Senate alone, 150 veterans of the states. Already, the Supreme Courts Union and Confederate Armies had of Colorado and Maine have disqual- been elected to six year terms. Not ified the former president from the only that, but much to the detriment ballot in November and cases have of former slaves and race relations, yet to be heard in 17 other state. Ar- voters had guing 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.

The History 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 44 | OPINION

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.

The Law 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 insurrection. In fact, each Confederate general who had been disqualified from public office under the 14th Amendment

| illustration by ana estupinan

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.

The Republic 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.

OPINION | 45

IS IT TIME TO APPLY ODIOUS DEBT THEORY?

by JUSTIN POSNER STAFF WRITER

F

oreign debt is one of the most that he would be unable to remain difficult and complex concepts in power, Somoza worked rapidly dealt with by international law. Not to liquidate national assets, ensuring only does it transcend national bor- that he would be able to carry enorders, it involves sums of money that mous wealth abroad as he fled into essentially only exist in the finan- exile. His decision left the new govcial system and span the border be- ernment to grapple with this debt. tween public government budgets It would seem ridiculous to lay this and privately owned wealth. One of debt at the feet of the new governthe most important questions relat- ment, which had no role in incurring ed to international debt arises when it. Yet, this is exactly what happened.

South Africa faced a similar fate. a nation’s regime changes. Should debt be associated with the nation Through years of economic turbuas a continuous whole, or with the lence caused by sanctions, the Apartgovernment that took out the debt? heid regime borrowed heavily to enShould the people be on the hook for sure financial solvency. Much of the debt incurred by a dictatorial regime borrowed money was used to purthat they then overthrow? To explain chase the weapons used to suppress and answer these questions, some le- protests in favor of racial equality. gal scholars have turned to the idea However, the new democratic govof “odious debt,” formulated in the ernment was forced to pay off the wake of the Spanish-American War debts of the old government once it in 1898. America claimed that new- was ousted.

Today, it is a guiding principle ly-liberated Cuba should not be held responsible for debts incurred by the of international law that governcolonial Spanish regime, which had ments should rule with the consent not ruled with the consent of the and for the benefit of the governed. people or tried to meet their needs. This is more of an aspiration than an However, in subsequent decades, enforceable rule, but it should form a the theory fell into disuse due to eco- basis for how democracies should act. nomic theories and the fact that cred- It naturally follows that actions takitor countries generally had far great- en by a government without regards er ability to enforce their claims than to the will of the people or without debtor countries had to refute them. attempting to benefit them are the Odious debt theory can and should responsibility of that government. If be applied by the international com- borrowed money is spent to finance a munity, helping various institutions lavish lifestyle for the autocrat, then following its implementation and it should be viewed as a loan to an exploring institutions that might be individual. However, loans used to finance the oppression of the people, useful for implementation.

In 1979, Nicaraguan president such as those spent on military gear Anastasio Somoza was overthrown, or to pay troops, are more ambiguleaving his country with $618 mil- ous, since these can be construed as lion in unpaid debt, much of it from spending on national security. HowSomoza’s lavish spending on himself ever, for example, in South Africa’s and his family. As it became clear case, the entirety of the state securi46 | OPINION

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.

OPINION | 47

INTERVIEWS

DALIAH SAPER: TECHNOLOGY THROUGH THE TIMES

by HARRIS LENCZ STAFF WRITER

D

aliah 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.

48 | INTERVIEWS

Saper knew she didn’t want to aban- argument. The widespread attention don her passion for IP, and thus de- garnered by her victory propelled cided to take matters into her own Saper Law forward for years to come hands. “It was like… well, if I want to as a leader in the social media legal be an IP lawyer, I have to figure out landscape. how to do that the nontraditional However, technology has evolved way,” she said. In this sense, Saper much since then. Right now, AI is all Law was born not only out of resil- the rage, and it has come along with ience but also of necessity. its own fair share of legal issues, mostIt was with this innovative spir- ly related to copyright infringement. it that, as her business grew and her Recently, there has been a wave of areas of expertise expanded, Saper writers and artists suing tech comwould begin to tackle cases involv- panies such as Google and OpenAI, ing unprecedented legal issues about arguing that the companies’ new AI new technology. Most notably, Saper engines (Gemini and ChatGPT, rescored a victory before the Illinois spectively) have used their copyrightSupreme Court in Bonhomme v. St. ed works in its training data in such a James, one of the first “catfishing” way that constitutes infringement. In cases involving a fake Facebook ac- fact, just a few months ago, The New count—a novel problem as social me- York Times sued OpenAI and Microdia sites were first becoming popular soft on behalf of its writers––the first around that time. Saper represented time a major media company had takPaula Bonhomme, the plaintiff, who en such legal action. sued Janna St. James, the defendant, Saper predicts that the changes for fraud and emotional distress. To these lawsuits will bring to the AI win the case, Saper had to make her space will be similar to those brought argument about a novel digital inter- about by the music industry in the action in a manner that the judges 2000s when it faced the widespread could understand. This meant think- sharing of songs. That is to say: ing on her feet in a courtroom where Saper believes that more and more the spotlight was on her. “It was ex- subscription services will be created. hilarating, heart-stopping, exciting,” Most people today don’t buy a single she told ULM, especially since it had song; they use Apple Music or Spobeen such “a long road procedural- tify. In the same way, Saper thinks ly to get to the [Illinois] Supreme the subscription model will become Court.” Indeed, Saper had much to increasingly prominent, and perhaps be proud of: a victory like this one at unavoidable, for AI. “I bet what will such a high level was rare for a small happen is that we’ll have to start payfirm. Saper was successful because ing for content that ChatGPT and she was able to translate new techni- [similar] programs are outputting, cal terms into a clear and concise legal 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

process of crafting strong legal arguof business and law.

In addition to her work at Saper ments is as much an art as a science.

Law, Saper is doing her part to edu- “Writing a brief [is] like chiseling a cate rising attorneys who will solve sculpture,” she says. “You start with problems like these in the future. a mound, then you take away words, Indeed, Saper teaches courses as an then you add words, and move things Adjunct Professor at Loyola Univer- here and there, and you get the final sity Chicago School of Law, always piece.” reminding her students that the

ADAM CHILTON: CONSTITUTIONAL RIGHTS ENFORCEMENT

by BRODIE BOJORQUEZ STAFF WRITER

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midst 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 demar- where citizens are to assume the role cate the boundary between policy of political actor to bring their cases creation and its enforcement. Key in to a court. A common example of this Chilton’s assessment of rights protec- can be seen in medical cases, where a tion is the fact that it is not only the citizen appears in front of a judge in executive that often falls flat in their an effort to obtain a medical proceenforcement duties, but it is popular dure, on the grounds that they have will within a nation that can also in- a right to healthcare. Where this can hibit protections: “The state may be get problematic, Chilton argues, is able to ignore those constitutions, when social backgrounds and degrees but it’s also sometimes because the of privilege amongst a population public wants those things to be ig- are considered. “This [process] was nored. In some instances, it is really meant to ensure greater provision of just following popular will.” healthcare around the country. But Chilton warns citizens of the as- in practice, the people that are best at sumption of protection that comes using this system are those with the with enshrinement of a particu- most resources, knowledge, educalar right on paper. In some coun- tion, and higher socioeconomic statries, particularly in South America, tus generally. As a result, an idea that where healthcare and social services was meant to be progressive to get amongst other things are officially better health resources into the most classified as constitutional rights, marginalized members of a country, their mere classification on paper is actually shifting resources to be rarely translates properly in their spent on the more affluent.” enforcement. Instead, “individual So what does this mean for nations rights of action” are implemented, CONTINUED ON PAGE 51 INTERVIEWS | 49

GENEVIEVE LAKER: THE FIRST AMENDMENT IN THE

DIGITAL AGE WITH LAW PROFESSOR AND FIRST AMENDMENT EXPERT

by MICHELLE DU

STAFF WRITER

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he 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 tradi50 | INTERVIEWS

tional media apply to digital speech that technology companies are often platforms? Were they wrong to be- perceived as liberal. As a result, some gin with? Are algorithms protected courts and conservative thinkers have under free speech? Lakier describes embraced the “equality model” of how legal theories around free speech interpreting the First Amendment – have shifted over time. The early and if private corporations are unfair to mid-20th century “democracy theo- certain groups, the government has ry of free speech” protected speech a right to step in and protect these deemed important and necessary for groups from corporate power. democracy. The Court then shifted While Lakier understands the away from that interpretation, where harms of misinformation and is symcorporations do not possess obvi- pathetic to why companies became ous First Amendment rights, to the aggressive in controlling misinforma“classic conservative” view that free tion, she believes that stakeholders are speech belongs to everyone, includ- insufficiently sensitive to the dangers ing corporations. This model favored of abusing First Amendment Rights. a hands-off government approach to To her, free speech protection is infree speech in order to foster a mar- tended to serve us all, not just social ketplace of ideas. Lakier believes that media users, stakeholders, and sharea fundamental flaw with this model holders. She states, “The reason we is that it does not account for power want to protect speech is to produce inequalities in markets, such as forces social good for us all.” of domination. Liberal opposition to Debates around mis/disinformathis “classic conservative” model aims tion often center around the role of to protect individuals and minority companies and governments in dealgroups against abusive, private pow- ing with mis/disinformation. Lakier er. is deeply concerned about governThe rise of prominent social media ment and corporate collusion to label platforms has ushered in an “equali- differences of opinion as misinformaty model” of interpreting the First tion, referencing the long history of Amendment. While social media plat- government and private corporations forms provide speech forums where cooperating to produce orthodox healthy debate can flourish, these views. To Lakier, previously censored companies have unrestrained pow- viewpoints now merely considered er to remove and regulate content. alternative viewpoints – such as opinLakier warns us about the dangers ions on masking during COVID-19 of a laissez-faire speech environment – are evidence of how difficult classiwithout any oversight: “In response fying misinformation is. Democratic to public and political pressure about transparency and oversight are immisinformation, hate speech, and portant to resist the unconstrained violence, they [digital platforms and power of any one entity, whether the technology companies] are increas- government or private institutions, ingly … repressive. They kick out in determining truth. Lakier posits speech. They repress what they think an approach to content regulation of as misinformation.” She notes 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.”

ADAM CHILTON: CONSTITUTIONAL RIGHTS ENFORCEMENT CONTINUED FROM PAGE 49

“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.

INTERVIEWS | 51

MEIGHAN PARKER: UCHICAGO LAW PROFESSOR

by RACHEL BOLTE STAFF WRITER

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or 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-

52 | INTERVIEWS

size-fits-all solutions to social issues. and talk to the trusted leaders and If not properly implemented, Parker ask, ‘What are you all seeing on the says, telehealth and other technolo- ground? What do you all need?’ It’s gy-based interventions can “exacer- having that openness and deference bate some existing health disparities.” to the leaders of the communities to By centering telehealthcare around say, yes…we [healthcare providers] are trusted faith- and community-related experts in the medical field, you all are organizations, issues such as medical the experts in your community. And mistrust and the digital divide, which we can talk to each other and work disproportionately impact Black together to figure out what the particcommunities, can be mitigated. To ular needs of the community are and address the digital divide, for exam- how healthcare providers can help.” ple, Parker explains that the “requisite Though she says that “in my ideal technology, the internet, the comput- world, your zip code would not deer or the app on the phone, and [the termine whether you have access to knowledge of] how to use the technol- care – period – and whether you have ogy [are all necessary] in order to have access to quality care,” she acknowla virtual doctor’s appointment.” Lo- edges real challenges in the future of cating these technologies in a church equitable democratization of healthcreates a social and technical support care. Foremost, she “grapples with a system between members and ideally cultural question…of why access to fosters a more informed and commu- healthcare is a political issue,” tempernity-based perspective in patients and ing her legal analysis of the situation practitioners. with her background in religion and While her article expands on in- ethics. In addition to social challengterventions projected to be specifical- es, significant legal practicalities stand ly effective in Black churches, she em- in the way of a full democratization phasizes the potential for scalability of healthcare. Tensions between reliin Black communities and expansion gious institutions and their healthcare to other marginalized and vulnerable partners -- especially over divisive socommunities. She draws on her per- cial and legal issues such as abortion sonal background, “being from Ala- and medical aid in dying -- and the bama, and going to primary school as growing share of the healthcare marwell as high school in a rural area,” to ket held by religiously-affiliated care look forward to further work in this providers are subjects for Parker’s fufield. Regardless of the demographics ture work. By focusing on “how our of a given area, she believes that a bet- different belief systems and ethical ter way to expand access to healthcare questions can shape health care law is by forming partnerships between and policy,” Parker hopes to move tocommunity-based organizations and wards creating a legal framework that healthcare providers. She says, “It is allows for each individual and their important for healthcare providers community to access quality healthto go to the communities they serve care.

INTERVIEWS | 53

UPCOMING CHI BEYOND LIKES AND SHARES: ILLINOIS LEGISLATION ENSURES FINANCIAL STABILITY FOR CHILD INFLUENCERS

by ROCIO PORTAL

ing a trust fund for child influencers, parents must also keep records of the decade or two ago, making a minutes the child was featured in vidliving off of social media would eos for, the earnings accrued from the have sounded unusual, but recently it videos, and the amount deposited in has become increasingly common to the trust fund based on those minutes. hear of people, even children, who are While the law does protect children, influencers. With the meteoric rise of it is not rigid and strictly enforced, child influencers found on platforms rather it just provides a foundation such as Instagram and TikTok, there for what the child is entitled to as an comes valid concerns regarding the influencer. Failure to comply with the possible misuse and exploitation of conditions set forth by the bill, howtheir labor and earnings by guardians. ever, leaves the legal guardians vulnerIn an effort to battle these concerns, Il- able to civil liability once the child is linois has introduced Senate Bill 1782 sixteen. The child could file a lawsuit which has become effective as of Janu- against their parent for several reasons, TREASURER

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ary 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- | illustration by ana estupinan 54 | UPCOMING CHICAGO POLICY

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 creCONTINUED ON PAGE 56

ICAGO POLICY ED BURKE, POLITICAL CORRUPTION AND AN UNCERTAIN HOPE FOR CHICAGO AND ILLINOIS’S FUTURE

by SEBASTIAN ARNAL

STAFF WRITER

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llinois 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 threatening to block a fee increase powerful position he held as chair of at the Field Museum unless former the Finance Committee “which con- alderman Terry Gabinski’s daughter trol[led] most of the city’s important was given an internship. Gabinski’s legislation.” He was described as the daughter never ended up taking a job “most powerful and longest-serving at the museum. member” in of the Chicago City The trial benefited a great part Council by the Chicago Sun-Times. from wiretapping and the undercovAnd now, after a 54 year career er work of former alderman Danny as a Chicago politician, Ed Burke Solis. Solis’s recordings show Burke was found to have used his politi- saying things like “If we’re not signed cal positions of power for extortion up, we’re not going to do heavy liftand bribery, often by withholding ing” and “The cash register has not political assistance based on wheth- rung yet.” Danny Solis’ cooperation er business-owners solicited Burke’s with investigators came after his own private law firm specializing in ap- corrupt behavior was discovered. Sopealing property taxes. As chair of lis traded different political favors in the Finance Committee, the renova- exchange for “Viagra and massage tion of the Old Post Office building parlor visits on demand” as well as in downtown Chicago required his weekend use of a farm for his son’s backing. He was found guilty of us- graduation. ing this powerful position in an unSolis is also said to be key in the trisuccessful attempt to force the devel- al of former state congressman Mike oper to hire his private law firm. He Madigan, the longest serving state was similarly unsuccessful with the house speaker in U.S. history. Madiowners of a Burger King in his ward. gan, “known as the ‘Velvet Hammer’ As alderman, Burke had aldermanic for his quiet but forceful use of powprerogative over requested permits er”, was indicted back in March 2022 for the renovation of the Burger King for schemes that involved illegally and explicitly refused to allow it to go bringing work to his private law firm. through unless his law firm was so- The indictment also alleged “Madilicited. In a third such case, business- gan...sought jobs, contracts and man Charles Cui, seeking a permit money for Madigan’s associates from for a sign outside his building, did ComEd between 2011 and 2019 and hire Burke’s law firm. Cui was found that Madigan took official action to guilty of bribery in the same trial. He help ComEd pass favorable legislaalso never got the sign he wanted. tion.” How Madigan’s trial plays out In the fourth such “scheme” Burke CONTINUED ON PAGE 56 was found guilty of “operating,” UPCOMING CHICAGO POLICY | 55

BEYOND LIKES AND SHARES. . . CONTINUED FROM PAGE 54 ating change as the first child labor law their education without a legal right to extend protections into the digital to the money they are earning. Thus, world in that it is calling attention to protective policies, such as Senate Bill a prevalent but relevant issue; children 1782 are hoping to begin scathing the have and continue to be posted with- surface of a deeper issue by at least out their consent whilst providing providing children the ability to gain monetary gain to their families, and compensation if nothing else. in the process, parents overlook the This legislation begins to build reality that they may be dipping their a financial foundation for children at hands in child labor without necessar- a young age if their parents comply ily meaning to. Though there are no with the demands, while also providimmediate and direct results from the ing security against any possibility of bill yet due to its very recent effective their exploitation on social media. date, there is a great possibility that Additionally, it lends a “safety blanthis bill will set a precedent and oth- ket” of sorts by offering the option er states across the country will fol- for a lawsuit in the event that the bill low suit. The most prominent reason was not particularly followed in their states may tag along in creating their household and they are left wanting own version of Senate Bill 1782 is due compensation once of age. Building to ongoing discourse regarding child a trust fund for a child as an effect influencers and how they are more of parents posting online could be vulnerable to loss of privacy, infinite life changing as it can help the child and unrestricted working hours, and transition into adulthood by providperhaps even being taken away from ing any money that may be necessary

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.

ED BURKE, POLITICAL CORRUPTION, AND . . . CONTINUED FROM PAGE 55 is up in the air, though, as his trial has and Chicago politicians known for been delayed until October 8 in order their vast political power be indicted to wait for the U.S. Supreme Court’s in connection to political corruption ruling in James E. Snyder v. U.S., re- represents a shameful political histogarding whether a federal bribery law ry. That both these politicians also set refers to just bribery or whether it historic records in political longevity also includes gratuities. The ruling is adds to this shame. However, perhaps expected this June. the end of their political careers and While Madigan’s fate may be up their federal indictments signal hope in the air, there remains the more on the horizon for cleaner Illinois important question of what this all and Chicago politics. Such hope is means for Chicago and Illinois po- supported by the findings of the Unilitical corruption. Madigan has been versity of Illinois at Chicago’s most characterized as “the biggest power recent Anti-Corruption Report. broker in state government for gener- The report finds that federal convications” while Ed Burke has been de- tions involving political corruption scribed as the “most powerful alder- continue declining in Chicago and man” in Chicago. That two Illinois Illinois since Chicago’s peak in 1988 56 | UPCOMING CHICAGO POLICY

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.

OCCUPATIONAL LICENSING IN ILLINOIS

by YOO-BIN KWON

STAFF WRITER

R

ecently, 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-em- | illustration by lia yufei ployed individuals.

Standard- tional industries. This especially af- come population in the United ized programs involving various fects lower income populations, who States, can be denied opportunities state-sponsored classes ensure li- do not have the spare time for delays to acquire licenses for over 100 differcensed individuals meet a high level in licensing for jobs that they need as ent professions. This prevents these of consistency and ethical behavior, soon as possible. HB 2394, if imple- ex-felons from properly reintegrating which in theory protects consumers mented effectively, would be a mas- into their local communities, recidiand industries. Although the correla- sive step towards fixing these issues vism continues,and crime rates fail to tion between the rigour of licensing and improving the job opportunities decrease. These problems contribute programs and quality of service from present in the state of Illinois. to the continuing population decline licensed businesses have proven to However, there are still problems of Illinois, which ranks the fourth be weak overall, state governments with Illinois’ occupational licensing highest state in rate of decline per still value the structure occupational that are left unanswered by HB 2394. year, negatively impacting the state as licensing provides. However, such li- For one, the required classes for li- a whole. censing is not without its faults, with censing are both long and expensive: Given such ongoing issues, it the main one being the lack of acces- the average license requires around is the hope that House Bill 2394 is sibility for the general public. The 234 days of education and costs up merely the start of a long-term oplong and arduous process currently to $20,000 in tuition. Most low-in- eration in improving occupational in place for the state of Illinois, in come workers looking for better job licensing in Illinois. which applicants have to wait more opportunities do not have the time than half a year to receive licenses, or capital to invest into such classes. prevents a significant portion of the Another issue is that ex-felons, who population from breaking into voca- are a significant part of the low-inUPCOMING CHICAGO POLICY | 57

BASE CAMP MIGRANT TENT SITES officials deemed the site in Brighton Park safe and suitable for housing as STAFF WRITER many as 2,000 migrants. However, n November 7, 2023, the Chica- Governor Pritzker still canceled congo city council approved plans struction of the camps all together, to turn a vacant lot into migrant tent citing environmental concerns after camps. The plan was to convert the the Illinois Environmental protecland into a winterized base camp ca- tion Agency review of the city’s enpable of holding about 1,500 people. vironmental assessment declared that However, the site could not contin- there had been “insufficient soil samue to be used as the site of a migrant pling and remediation.”

One week after this development, camp beyond November 1, 2024.

This announcement was a huge the city council put plans in place to move in the direction of being more relocate the camps to Morgan Park, inclusive and protective of Chicago’s at the site of a former Jewel Osco migrants. Chicago as a sanctuary store and on 115th and Halsted, with city has a reputation for welcoming a similar end date this year. The camp refugees. However, Texas has been would have to shut down in Octosending migrants to Chicago and ber to continue a previous retail and other Democratic-led sanctuary cit- housing development project called ies nationwide as part of Governor Morgan Park Commons. On DeGreg Abbott’s “Operation Lone cember 11, 2023, the city of Chicago Star.” From October 2022 to Febru- once again halted the plans for the ary 2024, over 35,000 migrants have migrant camp construction before it arrived via Texas buses and airplanes. even began, putting it on the “backThis influx of migrants creates a cri- burner.” With the Morgan Park site sis of managing the safe intake of put on hold and the permanent canasylum seekers, as there is very little cellation of the Brighton Park site coordination in the resettlement of construction, it seems as though the refugees, and a lack of available space city of Chicago will not be building in existing shelters. Thus, the tent migrant tent camps any time in the camps would have been a temporary near future.

As of February 13, 2024, city ofsolution to the lack of space in refugee shelters. On November 28, 2023, ficials say that 12,947 asylum seekers construction of the camp in Brighton are staying at one of Chicago’s 26 acPark began on 38th and California, tive city-run shelters. This major polbefore an environmental assessment icy change sheds light on the failures had been completed. Migrant advo- of the city’s planning in dealing with cates were concerned about the site migrants. The announcement of tent being built on a previous zinc smelt- camps was accompanied with a lack ing site, which had raised concerns of details, transparency, and community engagement. Residents and adabout pollution.

The environmental assessment vocacy groups had been raising condid in fact reveal soil contamination, cerns about the camps’ conditions, and therefore construction was halt- the impact on local neighborhoods, ed until the contaminated soil could and the overall decision-making probe removed. In early December, city cess.

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by NITYA UPADRASTA

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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 CONTINUED ON PAGE 61

CROWN ACT

by ANUSHA MEHTA

STAFF WRITER

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n July 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 opportunities for BIPOC students. cultures, hair is believed to be an ex- In 2021, Illinois passed the Jett Hawtension of the self and/or a symbol of kins Act, which banned hairstyle disstrength. crimination in Illinois schools. The In the wake of the Black Power CROWN Act expands these protecmovement in the 1960s and 1970s, tions to employment, housing, finannatural black hairstyles became a sym- cial transactions, and public accombol of black liberation, pride, and ac- modations. Since the Crown Act has ceptance. Although the Civil Rights been spearheaded by the crown coaliAct was passed in 1964 and created tion, the letter of the law is similar for the Equal Employment Opportunity both California and Illinois. In IlliCommission (EEOC), discrimina- nois, it amends the Human Rights Act tion against Black individuals contin- to recognize that race includes traits ued. Black natural hair and protective historically associated with race, such hairstyles were routinely discouraged as hair texture and protective hairor banned in the workplace for being styles. Under California’s CROWN “unprofessional.” These types of dress Act, a Black job applicant in Califorcodes have been used to discriminate nia successfully sued a company that in the hiring of Black individuals, as asked him to cut his dreadlocks to be well as deny them promotions. One hired. This demonstrates how this act study found Black women’s hair was expands potential legal avenues for BI2.5x more likely to be considered un- POC job applicants and workers who professional. In 2020, another study have been discriminated against due found that Black women with nat- to their hair to seek remuneration. ural hair were considered to be less State Senator Mattie Hunter professional, less competent, and less (D-Chicago) stated “So much of our likely to be recommended for a job identity has been wrapped into our interview as compared to black wom- hair, and the way we wear it has been en with straightened hair and white judged for centuries. The CROWN women with straight/curly hair.

Act shouldn’t have been necessary in This has also been used to dis- the land of the ‘free,’ but its implecriminate against BIPOC children mentation will protect people from in schools. A Brookings Institution petty discrimination.” Discrimination study in 2021 found that Black stu- against natural hair is racial discrimidents are more likely to be suspended nation that cuts to the core of personfor “discretionary” reasons, including al identity and culture. The Crown dress code and long hair violations. Act is a long-overdue step forward For example, Jett Hawkins was sent towards addressing the insidious ashome from school when he was four pects of systemic discrimination that years old for having braids, which work as loopholes around current dissparked the Jett Hawkins Act. Dress crimination acts. However, like most codes that enforce short hair for boys employment discrimination laws, it discriminate against Indigenous boys. can be difficult for applicants to prove Forcing Indigenous boys to cut their that their natural hair was the reason hair or be suspended is an extension of they weren’t hired. More reforms still colonialist beauty standards. This type need to be made in order to address of systemic racism leads to a decrease systemic racism in employment and in instructional time and educational education.

UPCOMING CHICAGO POLICY | 59

THE REVERSAL OF BILL SB1909: CRISIS PREGNANCY CENTERS IN THE STATE OF ILLINOIS

by MIRIAM FREEDMAN

imitate abortion clinics in their brand messaging, while their true objective lies in promoting—at times forcehe question of reproductive fully—birth and rejecting abortion rights has pervaded the social and as a viable option. From a safety and political spheres of the United States security standpoint, crisis pregnancy since the 19th century, only made centers are equally as deceiving. Wommore widespread after the overturn- en will give the organizations their ing of Roe v. Wade in June 2022. With personal and identifiable information, individual states holding legal power assured that it will be withheld from over reproductive rights, the Illinois the public, only to discover that the Constitution alone determined Illi- information is shared with the pubnois access to abortion clinics and al- lic. In fact, pregnancy crisis centers go ternative pregnancy options. Notably, beyond their own places of business, the Illinois Supreme Court was ahead resorting to sidewalk consultations as of the curve, already passing a 2019 a secondary political scheme. Even at statutory protection for abortion in abortion clinics, pro-life organizations the state. This protection outlines will pretend to be workers and advise the right to one’s own reproductive patients on their options outside of health, whether that be to continue the entrance. With Illinois law priorwith a birth or to have an abortion. itizing reproductive rights, these crisis The clause also recognizes that a fe- pregnancy centers have been identified tus, egg, or embryo does not have in- as a clear threat to legal transparency. dependent rights in Illinois. The state To combat the false advertisconstitution’s leniency reflects in the ing of crisis pregnancy centers, the number of abortion clinics, with a SB1909 bill was proposed by the Iltotal of 17 Planned Parenthood sites linois senate and signed into law by in Illinois compared to fewer in other Illinois governor J.B. Pritzker on July states. However, these statistics rep- 27, 2023. This bill, otherwise known resent a different story when put in as the Deceptive Practices of Limited context. Even though Illinois seems Services Pregnancy Centers Act, proto have made significant progress in hibits crisis pregnancy centers from the reproductive sphere, pro-life orga- “engaging in unfair methods of comnizations still hold a large amount of petition or unfair or deceptive acts or power. practices.” The act specifically bars Illinois has three times as many cri- these businesses from interfering with sis pregnancy centers (legally known individuals seeking abortion or emeras limited services pregnancy centers) gency contraception clinics, persuadas it has abortion clinics, and the two ing individuals to enter their limited categories are eerily similar in presen- pregnancy centers, and participating tation. Crisis pregnancy centers may in/performing any pregnancy-related sound like a valid course of action for services. women seeking abortions or alternaA mere hour after the law was tive pregnancy care, but they are quite passed, a nonprofit public interest the opposite. These fraudulent centers law firm, known as the Thomas More 60 | UPCOMING CHICAGO POLICY STAFF WRITER

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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 lawmak- act as a reliable course of action against ers must look to new opportunities of fraudulent reproductive healthcare enforcement against crisis pregnancy providers. However, the effectiveness centers. For the time being, Illinois’ of the consumer fraud act heavily Consumer Fraud and Deceptive Busi- relies on the cooperation of Illinois ness Practices Act (815 ILCS 505/) citizens, specifically those with direct can still apply to the conflict at hand. experiences with Illinois pregnancy In a WTTW interview on the final crisis centers. Aside from this act, the ruling, Raoul directly references this 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.

FILING ELECTRONIC ORDERS OF PROTECTION

by ADVAITA SOOD

or household member” of the petitioner. This includes those related by STAFF WRITER blood, who share a child, currently or n August 2016, the Illinois House formerly married or in a dating relaof Representatives and State Sen- tionship, and share or shared a houseate passed House Bill 6109, which, hold. effective January 1, 2017, established The criteria for abuse that must a pilot program to allow individuals be met to grant an order of protecto electronically file petitions for tem- tion is defined by the IDVA as “physporary orders of protection. Prior to ical abuse, harassment, intimidation, the bipartisan Bill, a petitioner had to interference with personal liberty or physically appear in civil court to file willful deprivation.” If the criteria for an order of protection. Then, in is met and an order of protection is May 2022, the Illinois General Assem- issued, the order of protection may bly codified the option to e-file orders impose a range of measures and reof protection in state law, adding that strictions on the respondent depend“a county with a population above ing on the case. For instance, it may 250,000” must “offer the option of bar the respondent from entering the a remote hearing to a petitioner for a shared residence, order them to stay protective order, stalking no contact away from the petitioner and their order, civil no contact order, or order children, mandate that they receive of protection.” The new law amend- counseling or pay child support etc. ed the Illinois Domestic Violence Act If the respondent violates any of the (IDVA), Code of Criminal Procedure, mandates established by an order of the Stalking No Contact Order Act, protection likely, they would likely the Civil No Contact Order Act and face criminal penalties. became effective January 1, 2023.

Furthermore, the new law allowAn order of protection is a court ing for online petitions for orders of order issued on behalf of a member of protection also extends to Civil and a household to prevent domestic vio- Stalking No Contact Orders, which lence perpetrated by another family apply to respondents who either do member. The IDVA describes a wide not have a required relationship with range of people who may petition, but the petitioner or have no relationship the overarching rule of thumb is that with them at all. As their names sugthe person against whom the order of gest, such orders primarily require protection is being sought (known as the respondent to stay away from the the “respondent”) must be a “family petitioners and also result in criminal

I

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.

UPCOMING CHICAGO POLICY | 61

BASE CAMP MIGRANT TEST SITES CONTINUED FROM PAGE 58 Morgan Park site, Brandon Johnson mention of future plans was a promand Alderman Ronnie Mosley of the ise for “dedicated efforts and an open 21st Ward released a joint statement, line of communication.” writing “in the event that we move Asylum-seekers deserve clarity forward together in addressing this regarding policies about their basic humanitarian crisis with a base camp rights and fair treatment. The abrupt at the site, we remain committed to scrapping of the tent camp plan raisour collaboration and shared plans es questions about the protection of for capital improvements, commu- migrants’ rights and the importance nity development and support for of a humane and comprehensive aphousing, health and safety for resi- proach to asylum. Chicago’s lack of dents of the 21st Ward.” This vague preparedness and coordination could statement does not reveal how the have long-term consequences for city plans to move forward in deal- both the city and those seeking refing with the refugee crisis. The only uge. As the city revisits its strategy for

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62 | UPCOMING CHICAGO POLICY

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.

UPCOMING CHICAGO POLICY | 63

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