ULM
Undergraduate Law Magazine IN THIS ISSUE
LEGAL CHALLENGES FACING APPROVAL OF THE WILLOW PROJECT | PAGE 14 DYNAMIC TECHNOLOGY, STATIC ANTITRUST LAW| PAGE 36 MARTHA NUSSBAUM: OPERA AS A MEDIUM | PAGE 42
UNIVERSITY OF CHICAGO | VOLUME 1 | ISSUE 2 | SPRING 2023
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 exploration, 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 Style Manager Aya Hamza Kayla Rubenstein Managing Editors Illustration Manager Senior Isa Rosario-Blake Lia Yufei He Junior Ryanne Leonard Social Media Managers Executive Editors Maimouna Abdulmumin Arjun Chandra-Mohanty Maya Gozieva Lucas Freitag: Legal Analyses Content Managers Iman Snobar Mete Bakircioglu Associate Editors Ethan Donovan Aminah Ghanem: Upcoming Madison Rhee Chicago Policy Divya Mehrotra: Opinion Dohyun “Emily” Park: Two Views Yaser Tahboub: Interviews Staff Writers Ahmed Ahmed Enmanuel Acosta Aparicio Isabel Alia Arias Khristian Bass Sarah Bourkoff Elijah “Ellie” Bullie Lizbeth Herrera Gomez Samuel Espinal Jr. Gianna Grant Emma Huerta Elijah Jenkins Jane Jusko Pietro Juvara
2 | ABOUT ULM
Daniel Kind Juan Leal-Mendoza Jack Martinez Anusha Mehta Rocio Portal Alejandro Sandoval Elizondo Nikulas “Nick” Soska Sanjay M. Srivatsan Nitya Upadrasta Tomas Vallejo Hayes Whorton Tony Yu
Letter from the Editor T
he legal labyrinth: a realm infamously bloated by bureaucracy and cloaked in elitist technicalities. I often ask attorneys for the golden piece of advice they wish to offer their undergraduate selves. The recurrent refrain rings in my ear before again reaching it: “Do not go to law school.” Casting aside personal regrets and discerning whether policy-focused roles better satiate my interests, these conversations routinely lead to questions pressing my motives to the surface. For a person I, in most cases, met only a half-hour ago, this personalized career assessment is an undervalued gesture of mentorship never to be taken for granted. Radiating from every response, though, is a disillusioned air of defeat. The last thing I will ask for, especially of an attorney, is to sugarcoat any difficulty lying ahead. Critical thought must inform the individual choice to attend law school, as the experience often fails to meet students’ of it as a glamorous means or end. Jadedness cultivated by the labyrinth is an issue in itself, but the perennial demand for legal experts burgeons on. Extinguishing even the most tenacious pre-professional passion risks segmenting the diversity of those who ultimately leap in. At The College, we are no strangers to intellectual ferocity, a common trait that keeps me engaged in campus life. Juggling research methods classes, honing practical skills through Registered Student Organizations, and salvaging semblances of social life can, with the same intensity, spiral into burnout. I have seen it happen. I have had it happen. Then, how do we preserve our sanity to put forth our utmost effort to the people and problems we are passionate about? Fasten your purpose. Many attorneys who regret their career choice cite the allure of law school as a societally safe post-graduation option. While the path of least resistance takes you far, I urge myself before you readers to interrogate what it is that makes us want to stay rather than commit elsewhere and enthusiastically continue with anticipation of and despite turbulence. Plugging into outlets beyond curricula is one of the most powerful mediums to reignite academic enthusiasm. Late one night during move-in, my roommate, ULM Staff Writer Emma Huerta, kept me at the edge of our comically red couch when walking me through the contemporary art world’s curatorial side. Her indelible curiosity radiated enough to illuminate the 2:00 AM sky peering in from the window. Without cause, hearing Emma fervently share her desire to make sense of boundlessly fascinating messes is among the salient instances where I feel my commitment to purpose tugged forth. Identifying a purpose is one step, and guarding it with resilience is equally important. Resilience is not exclusively born of hardship but a trait fortified in practice. Ground yourself in the actions that make sense in moving you forward. Continue a frank, ongoing dialogue between your professional goals and value system so they may lend to each other’s fulfillment. Law, as a profession, is over-glamorized and misunderstood. Nevertheless, its constituents commit a grave injustice against the industry if they do not imagine their hard-earned skills as part of a larger prime vehicle uniquely positioned to drive global paradigmatic change on all fronts. As the initial yearning to enter the legal labyrinth wanes after experiencing life within its walls, there may come a time when I, too, extend weary counsel about one of the world’s most inaccessible careers. In the words of my late step-grandmother in Arabic, ‘ ’ (shi’dee hae’lik), roughly translating to ‘brace your might.” Have faith in your abilities as you navigate the labyrinth, not stagnating in pride over past hurdles while shushing fear of the stark passages to come. Take solace in the mentors and peers privileged to watch you stumble and prevail and adopt purpose as your guiding light. Shi’du hae’lkum, Aya Hamza Re-Founding Editor in Chief
LETTER FROM THE EDITOR | 3
TABLE OF CONTENTS LEGAL ANALYSES | 6
Banking Regulations After the Demise of Silicon Valley Bank __________________6 Creation or Copy?: How Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith may Affect Fair Use Law________________________8 Privacy in the Age of Artificial Intelligence__________________________________10 Examining Samia v. United States: Balance between Justice and Rights of the Accused_______________________________________________12 Legal Challenges Facing Biden Administration’s Approval of the Willow Project_____________________________________________________14 Not Blue, Not Red, But Green: A Legal Analysis of FTX Political Donations_____________________________________________________16
TWO VIEWS | 18
Should Los Angeles’ Anti-Camping Laws Continue?_________________________18 Judicial Restraint vs. Judicial Activism____________________________________20 On the Precautionary Principle__________________________________________22
OPINION | 26
The Astonishing Influence of Infographics_________________________________26 Biden Administration’s Expanded Use of CBP One App Raises New Barriers Against Asylum Seekers_____________________________________27 Unlocking Second Chances: The Importance of Prison Rehabilitation__________29 The Legacy of the Insular Cases: How U.S. Territories Remain Second-Class Citizens__________________________________________________30 The 6th Amendment and Shinn v. Ramirez_________________________________31 Arizona v. Navajo Nation: The Relationship Between the Right of Water and Duties______________________________________________32 Sexual Allegations on Supreme Court Confirmations: Lessons from Anita Hill and Christine Blasey Ford__________________________33 Moore v. Harper: Gerrymandering Contradicts the Foundations of Democracy_____________________________________________34 What Gorsuch and Native Law Say About Ideologies in Court________________35 Dynamic Technology, Static Antitrust Law________________________________36
INTERVIEWS | 38
Joey Mogul: Inspiring Community Support for Human Rights________________38 Alan Mills: Uptown People’ Law Center___________________________________40 Grant Wilson: Head of Earth Law Center__________________________________41 Martha Nussbaum: Opera as a Medium___________________________________42
UPCOMING CHICAGO POLICY | 44
Final City Council Changes_____________________________________________44 Shift in our Energy?: Illinois House Uplifted Nuclear Construction____________45 Universal Basic Income: A temporary solution or a permanent necessity? ____46
4 | TABLE OF CONTENTS
MEET THE BOARD aya hamza editor in chief
isa rosario-blake managing editor
ryanne leonard managing editor
arjun chandra-mohanty lucas freitag executive editor executive editor
iman snobar executive editor
aminah ghanem associate editor
divya mehrotra associate editor
dohyun “emily” park associate editor
yaser tahboub associate editor
kayla rubenstein style manager
maimouna abdulmumin social media manager
maya gozieva social media manager
lia yufei he illustration manager
mete bakircioglu content manager
TO LEARN MORE ABOUT OUR STAFF, VISIT: ulm.rso.uchicago.edu/
staff/ ethan donovan content manager
madison rhee content manager
MEET THE BOARD | 5
LEGAL ANALYSES BANKING REGULATIONS AFTER THE DEMISE OF SILICON VALLEY BANK by TONY YU STAFF WRITER
I
n early March, the financial world was shocked by the sudden collapse of Silicon Valley Bank (SVB) and Signature Bank. First Republic Bank’s rapid decline ensued, until it too failed in early May, completing the second, third, and fourth largest bank failures in U.S. history. The recent banking sector turmoil begs the question: what went wrong, and what can regulators do to prevent another crisis?
Timeline of Collapse SVB was a regional commercial bank, primarily serving clients in the tech and life sciences industries, including businesses and their executives. Known for being more friendly to startups than larger banks, it became a key component of the venture capital ecosystem, announcing in 2015 that its customers included 65% of all U.S. startups. From 2019 to 2022, SVB expanded rapidly, and its assets tripled from $71 billion to $212 billion. To fund the high rates it had offered to attract these deposits, it invested in a large portfolio of bonds that were mostly long-term. At the end of 2022, its bond portfolio was worth $124 billion, with $91 billion marked as held-to-maturity, or intended to be held until fully repaid, and $26 billion marked as availablefor-sale, which are intended to be held for long-term, but can be sold for liquidity and/or capital gains. The rate paid by treasury bonds is determined by the Effective Federal Funds Rate (EFFR) at the time 6 | LEGAL ANALYSES
of issuance. When the Fed raises the EFFR, newly issued bonds pay out a higher rate, so older bonds see a fall in price. Therefore, SVB’s bond portfolio, largely consisting of bonds purchased when the EFFR was almost 0%, saw a nearly $20 billion decrease in market value as the EFFR edged near 5% in March 2023. This is an unrealized loss, since if SVB can hold on to the bonds to maturity or at least until rates drop and bond prices recover, they would never have to sell the bonds and suffer the loss. However, as its startup clients began burning through more cash, given tightening credit conditions, they began withdrawing their deposits. In an effort to shore up liquidity, SVB sold $21 billion of its bonds, realizing a $1.8 billion loss. While less than ideal, this loss did not bring down SVB; the $18 billion in cash it did make from the sale was plenty to support normal withdrawals. Yet, the loss did spook investors and depositors. Late morning on Thursday, March 9, SVB’s chief executive tried to reassure clients that the bank was not in immediate trouble, as long as no one spread the word that they were. Ironically, that is exactly what happened. The news spread like wildfire in the small startup ecosystem, through a flurry of phone calls, texts, and tweets. The same day, SVB’s stock plummeted more than 60%, and clients withdrew $42 billion. By Friday, March 10, SVB was on the brink of collapse, and the FDIC took over control of the bank.
Why does this matter? After the 2008 Global Financial Crisis, it might be tempting to assert that taxpayers’ money should not be used to save Wall Street investors lining their pockets with risky bets. But SVB is no Lehman Brothers, and though SVB’s poor risk management is largely to blame for their collapse, there is a fundamental difference between putting customers’ deposits into government bonds considered risk free, and investing in mortgage-backed securities backed by homeowners who had no chance of repaying their debt, as was the case in 2008. SVB’s collapse catalyzed a chain reaction in the banking sector, accelerating Signature, First Republic and Credit Suisse’s woes. The Federal Deposit Insurance Corporation (FDIC) insures deposits of up to $250,000, but the Biden administration has announced that all depositors will be made whole using capital from the FDIC’s Deposit Insurance Fund, which is a pool of mandatory contributions from U.S. banks. In an ordinary bank failure, a significant portion of deposits above $250,000 at SVB would be wiped out, causing countless startups to fail and their employees to lose their jobs. Furthermore, SVB was a key driver of innovation in tech and biotech, and without it, these industries would find it far more difficult to raise capital to fuel their growth. What can regulators do? SVB’s failure was caused by a combination of poor risk management
Regulators should look into measures to shore up depositor confidence, such as reconsidering the $250,000 FDIC insurance limit, which has remained unchanged since 2010 and a crisis of investor confidence. Its balance sheet was full of interest rate-sensitive assets, but no interest rate hedges. Investors were not willing to give it a chance to raise equity, and the ensuing bank run crafted its coffin. Therefore, the regulatory solution must be two-fold: Increased oversight on medium-sized banks should be paired with measures to prevent panicked investors and depositors from forcing a fire sale. An important risk management technique employed by banks is hedging. Since SVB’s bond portfolio falls in value if interest rates rise, it could hedge that risk by buying assets that increase in value if rates rise. Hedging is especially important on the available-for-sale portfolio, which would be the first to be sold in the case of increasing withdrawals. For a period of time, that is exactly what SVB did: At the end of 2021, $15 billion of its $26 billion availablefor-sale portfolio was hedged. But through the course of 2022, it liquidated most of its hedging assets for a gain, reducing the amount of hedges to $560 million at the end of the year. If regulators required banks to
hedge a certain amount of their assets against macroeconomic risks, SVB would have seen substantially smaller realized losses on its bond portfolio. Moreover, banks deemed systemically important, such as J.P.Morgan and Bank of America are required to keep their liquidity coverage ratio (LCR) above 100%. The LCR requirement stipulates that a bank must hold enough liquid assets to cover deposit outflows for 30 days, essentially to protect against bank runs. For banks with less than $250 billion in assets, like SVB, the LCR requirement is 70%. Nevertheless, even a bank with strong risk management and sufficient hedging would find it difficult to survive a bank run of this magnitude: a quarter of its deposits evaporating in a day, exacerbated by a 60% fall in stock price which makes it almost impossible to raise capital through the equity capital markets. Therefore, stronger external protection is required to guard against these bank runs. In the aftermath of SVB’s collapse, the Fed has already established the Bank Term Funding Program (BTFP), which will provide li-
quidity in the form of one-year loans to financial institutions in times of increasing withdrawals, so they would not have to “fire sale” their longterm assets at a loss. Furthermore, regulators should look into measures to shore up depositor confidence, such as reconsidering the $250,000 FDIC insurance limit, which has remained unchanged since 2010, or implementing measures to halt withdrawals before a bank has failed. In the aftermath of these high-profile bank failures, it is generally agreed that the risk management practices of medium-sized banks like SVB must face increased scrutiny. However, regulators should also work on stopping bank runs from the depositor side. The failure of a bank can have lasting effects on the economy as a whole, and regulators must strive to minimize that possibility from both sides.
LEGAL ANALYSES | 7
CREATION OR COPY: HOW ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. V. GOLDSMITH MAY AFFECT FAIR USE LAW by EMMA HUERTA STAFF WRITER
W
e’ve all heard the proverb “art imitates life.” But what happens when the imitation is too close to an original? This is the core question of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a fair use case that has found its way to the U.S. Supreme Court for deliberation. At the center of the dilemma are not only the works of the late pop artist Andy Warhol, but also rock musician Prince and renowned photographer Lynn Goldsmith. In 1981, Prince’s musical popularity was beginning to grow rapidly. Goldsmith was assigned by the publication Newsweek to photograph Prince in her studio. While none of the shots were ever published in Newsweek, Vanity Fair published a 1984 article entitled “Purple Fame,” paying homage to Prince’s hit record “Purple Rain” that released that year and catalyzed his consequential stardom. Vanity Fair licensed Goldsmith’s photograph from her licensing agency—through Lynn Goldsmith, Ltd. (“LGL”)—for $400 “as an artist’s reference” for an illustration to accompany the piece. That artist ended up being Andy Warhol, who produced 16 alterations of Goldsmith’s photograph—known collectively as the Prince Series—with just one being used ultimately in Vanity Fair, with photo credit given to Goldsmith in the publication. Warhol’s silkscreen print and pencil illustration alterations included, but were not limited to, cropping, coloring, and outlining Goldsmith’s original image. Upon his death in 1987, all 16 versions became part of his estate, the 8 | LEGAL ANALYSES
| illustration by lia yufei he / illustration manager
Andy Warhol Foundation (AWF). Although Goldsmith’s image was at stake, she was unaware of the original licensing transaction between her agency and Vanity Fair. And yet, this is just the tip of the iceberg of the legal issues of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. In fact, Goldsmith remained unaware of the licensing of her image until Vanity Fair’s parent company, Condé Nast, published a magazine in 2016 to honor Prince upon his untimely death that year. The company reached out to the AWF to use Warhol’s rendition of Goldsmith’s image, but rather than licensing the one featured in Vanity Fair, they instead licensed one of the 15 other images that Warhol made during
his lifetime for $10,000. The issue with the use of this version was that Condé Nast failed to provide photography credit to Goldsmith. Condé Nast’s licensing of the image essentially notified Goldsmith that other Warhol-altered images of her photo existed, prompting her to register the copyright in the Prince photograph accusing AWF that they were infringing on her rights to the image. In 2017, AWF retaliated by suing Goldsmith in the U.S. District Court for the Southern District of New York, seeking a “declaratory judgment” on her behalf. Put simply, they wanted Goldsmith to legally establish that Warhol did not execute copyright infringement of her image when creating the Prince
How exactly are the courts expected to determine whether a work is “transformative”? Series. Goldsmith countersued, also for a declaratory judgment, but rather stating that the images did perpetuate copyright infringement. This series of motions were ultimately settled in 2019, when the district court granted summary judgment in favor of AWF and against Goldsmith. More specifically, the court stated that “each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince.” This basically determined that the Prince Series was fair use and consequently different enough from Goldsmith’s original photographs insofar as they did not violate copyright or license. The fair use doctrine is a statute of U.S. copyright law, which basically declares that one could use limited parts of an existing work— including songs, photos, artwork, etc.—without violating copyright for purposes such as criticism and reporting. However, the doctrine is quite vague and does not specify what the boundary between “fair use” and infringing use of a work is; the doctrine usually functions on a case-by-case basis. For that reason, the initial district court conclusion of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith rather relies on the precedent set by the 1984 landmark SCOTUS case, Campbell v. Acuff-Rose Music, Inc., which established that a work based on or inspired by an original could be fair use if it is “transformative.” The case determined that “transformative” is applicable if a new work
“adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning, or message.” Although Campbell v. Acuff-Rose Music, Inc. defines fair use regulation to a certain extent and contributed to a resolution to Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the district court decision did not stand for long. Goldsmith appealed the decision to the U.S. Court of Appeals for the Second Circuit, which then reversed the district court’s ruling in Goldsmith’s favor in 2021. In short, the appeals court argued that the district court’s decision made an aesthetic judgment based on what they perceive to be a “Warhol work,” which is not in their legal jurisdiction. According to the appellate claim, the district court did not adequately decide whether the fundamental elements of Goldsmith’s photograph were significantly transformed in Warhol’s works, as per fair use law. The appeal ultimately determined that the essence of Goldsmith’s photo was “recognizably derived” from Warhol’s works. In response, AWF then petitioned for a SCOTUS hearing by proxy of cert, or the approval of four justices to review the case. The petition was granted in March 2022, and the case was argued on October 12, 2022. As it is now being deliberated in the highest court of the land, there are two main legal questions at hand: (1) To what extent can the courts apply fair use doctrine to this case? and (2) How exactly are
the courts expected to determine whether a work is “transformative”? As the SCOTUS is still considering the arguments made for this case back in October 2022, a verdict is due by June 2023. In recent years, district and appellate courts have gradually made narrower and narrower fair-use decisions. Thus, it is possible that the final ruling of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith provides a more specific definition of “transformation” in fair use cases. Whatever is decided could set a precedent for the application of fair use law for years—and artworks—to come.
LEGAL ANALYSES | 9
PRIVACY IN THE AGE OF ARTIFICIAL INTELLIGENCE by FRANK RIVERO
STAFF WRITER
W
hen OpenAI’s ChatGPT, a popular artificial intelligence (AI) chatbot, was released on November 30, 2022, to say the world was captivated would be an understatement. It took the platform only five days to surpass a million users and find applications in marketing, coding, content creation, writing, and beyond. Currently, the platform hosts hundreds of millions of users—notably without the addition of users from countries like China, Russia, and Iran, for all of whom the platform has been blocked and rendered inaccessible to the general populace. Recently, however, another has joined this expanding list. On March 31, just four months after ChatGPT’s release, Italy became the first European nation to ban the AI chatbot. The decision was enacted by an independent government organization known as the Italian Data Protection Authority, or Garante, self-described as “an independent authority set up to protect fundamental rights and freedoms in connection with the processing of personal data.” It ordered OpenAI to temporarily suspend the processing of data from Italian users while it investigates a possible violation of Italy’s strict privacy regulations. Italy’s move to ban ChatGPT is part of a greater trend of governments grappling with the rapid progression of AI technologies and their legal implications as they pervade further into mainstream use. Calls for AI regulation have been universal, but the pace of technological advancement has made it challenging for governments and their legislatures to keep up. AI can 10 | LEGAL ANALYSES
now create realistic art, write essays, and generate code within seconds, raising concerns about job security, data privacy, and equity; as well as the potential for AI to manipulate political discourse with false information. The majority of recent legislation concerning AI has been specifically targeted toward the regulation of generative AI technologies like ChatGPT. Generative AI falls under the general umbrella of ‘machine learning’ and refers to the creation of new content based on preexisting prompts from users. The chatbot’s increased sophistication and development are derived from data largely composed of language models trained on both user inputs and the breadth of information available on the internet. It is this style of machine learning that provoked Italy’s ban of the platform. The failure to prioritize regulatory standards, or any robust means to inform users of potential privacy, ethical, or accuracy concerns, has marked the organization with severe legal implications. Personal data leaks have peppered ChatGPT’s short four-month stint, and in Garante’s investigation, they cited a recent OpenAI data breach that allowed users to access the titles of other users’ presumably private conversations with the chatbot as a motivator for the decision. According to Garante, “there appears to be no legal basis underpinning the massive collection and processing of personal data in order to ‘train’ the algorithms on which the platform is based.” Beyond the algorithm’s methodology and a failure in transparency regarding the collection of user data, Garante also expressed other concerns, namely the absence of user-age verification and widespread information inaccuracy. The agency
claims that the company had failed to respond to their request to verify if users were aged 13 or above. Further, the AI’s reliance on internet-based data sources can lead to the dissemination of incorrect or unverified information, posing challenges for users who rely on its output and potentially resulting in presenting biases as fact without the user’s knowledge. Should OpenAI fail to respond to the situation by April 20, the Microsoft-backed company would face a fine of €20 million, or up to four percent of their current annual revenue. In response to the developing situation, OpenAI said it would attempt to scale back the reliance upon personal information and data in their AI training, replying “[w]e also believe that AI regulation is necessary—so we look forward to working closely with the Garante and educating them on how our systems are built and used.” The implications of this decision have reverberated throughout Europe, as regulators begin to investigate whether ChatGPT complies with their high privacy standards. Individually, many countries within the EU have begun to investigate ChatGPT through their own national data regulators. Regarding this call for broad-based regulation at the regional level, the General Data Protection Regulation (GDPR) in the European Union has commanded strict data protection and privacy provisions since its establishment in 2018. Although not primarily focused on AI technologies, it has become the European de facto AI regulator, aiming to “impose [privacy and security] obligations onto organizations anywhere, so long as they target or collect data related to people in the EU.”
With the exponential pace of technological development, foresight is often clouded by obscurity. Regarding the effectiveness of the legislation, a survey by the International Association of Privacy Professionals (IAPP) has determined that the GDPR has resulted in over €329 million in fines since its adoption. Furthermore, ChatGPT has been identified as a high-risk violator of existing standards for regulators like the GDPR to investigate, and the platform may be subject to mounting fees and fines from a breadth of sources. However, the GDPR and other data regulators’ jurisdiction over the regulation of AI may be eclipsed by a bill nearing adoption. For over two years, the EU has been working on a landmark piece of legislation, the Artificial Intelligence Act (the AI Act), that seeks to regulate the use of AI across Europe specifically. It is expected to be implemented within the next year. The AI Act proposes categorizing different AI tools based on their level of risk, with varying obligations for governments and companies using these tools. The AI Act covers anyone providing a product or service that uses AI, including the public sector and law enforcement, and divides AI applications into three tiers or risk categories. The first category concerns “applications and systems that create an unacceptable risk, such as
government-run social scoring of the type used in China.” Applications of this type are granted no leniency or flexibility and would be subject to permanent bans. The second tier regards ‘highrisk’ applications, with “a CV-scanning tool that ranks job applicants” as a given example. Companies that use high-risk AI tools will have to complete rigorous risk assessments, log their activities, and make data available to authorities. Lastly, any applications not banned or listed as high-risk are to be left without any pressing regulations to uphold. Breaching the AI Act could result in fines of up to €30 million or 6% of global profits, whichever comes first. Yet existing companies will be protected at the outset, as upon the Act’s implementation there will be a grace period of around two years for affected parties to comply with the regulations. However, multiple critics have expressed concerns about the inflexibility of the AI Act, citing the absence of provisions for modifications regarding what constitutes a ‘high-risk’ or bannable AI application. With the exponential pace of technological development, foresight is often clouded by obscurity. By not allowing a means for the Act to
adapt to responding developments, the EU and other regulators may be legally handicapped should a future high-risk sector crop up. Countries, at that point, may have to revert back to their national data protection agencies to supplement the lack. As the Act approaches adoption, it remains to be seen how it will fare in the face of a rapidly evolving technological landscape, and whether regulators will be able to keep up with the pace of change. Nonetheless, it represents a significant step towards the responsible use of AI and the protection of individual rights and freedoms on a global scale.
LEGAL ANALYSES | 11
EXAMINING SAMIA VS. UNITED STATES: BALANCE BETWEEN JUSTICE AND RIGHTS OF ACCUSED by EMBERLYNN ST HLILAIRE
STAFF WRITER
In 1895, U.S. Supreme Court (SCOTUS) Justice Henry Billings Brown encapsulated the essence of the 6th Amendment’s Confrontation Clause, stating that its gravity lies in the fact that it forces a witness “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Since its adoption in the Bill of Rights in 1791, one of the pillars of America’s protections for the accused has been the Confrontation Clause, granting defendants in criminal trials the right to confront witnesses against them. Simply put, it grants and protects the authority of the accused to question witnesses that testify against them in court and any statements they made out of court. Recently, U.S. courts, including the SCOTUS, have been entrusted to put an end to rising conjecture surrounding the Confrontation Clause’s applicability. This is particularly true in cases where there is an attempt to present to a jury a non-testifying defendant’s confession in a trial of multiple defendants even when the names of the other defendants are redacted. The case Samia v. United States has been at the forefront of this dispute. This case was appealed to the SCOTUS for an answer to the outlined question after receiving antithetical answers from lower courts. The oral argument in front of the SCOTUS occurred on March 29, 2023, and, as of May 2023, the case is still awaiting a decision that will likely come out in June. In 2011, Joseph Hunter, an as12 | LEGAL ANALYSES
sociate for Echelon Associates, an undercover international crime operation, was instructed to formulate a team to murder individuals in the Philippines. U.S. citizens Adam Samia and David Stillwell were recruited and agreed to commit murders in exchange for money. Once they traveled to the Philippines, the pair began their work, and on February 12, 2012, they committed the murder of a Filipino real-estate broker by the name of Catherine Lee. A few days later, they began transferring their payments to the U.S. in increments of amounts of less than $10,000 to transfer a total of $32,000. After a leader in the organization tipped the authorities off, The Drug Enforcement Agency arrested Hunter, Stillwell, and Samia all by 2015. The three were all charged with and to be tried jointly for murderfor-hire, conspiracy to commit murder-for-hire, causing death with a firearm during and in relation to a crime of violence, conspiracy to launder money, and conspiracy to murder and kidnap in a foreign country. Prior to trial, the attorney for the U.S. filed a motion calling for the inclusion of a confession made by Stillwell in which he described his and Samia’s participation in the murder to a DEA agent. Because Stillwell chose to not testify, the government wished to admit into evidence a redacted version of the confession void of any mention of Samia by name in order to not violate the Confrontation Clause while still presenting the confession to the jury. The phrase “another person” replaced Samia’s name. However, Samia filed a motion to
be tried independently of the other co-defendants or otherwise have the redacted version excluded in its entirety. Samia maintained that based on the context that he was being tried jointly, the redacted version of the confession still would implicate him and thus violate his 6th Amendment right. After a pre-trial hearing, the court granted the government’s motion and allowed the redacted version of the confession into evidence. In trial, the confession was presented through the oral testimony of a DEA agent, and the jury was instructed to not consider it as evidence against Samia. Despite this, following the testimony of an arrested leader of the Echelon Associates that Samia and Stilwell committed the murder, Samia testifying to the contrary, and the confession being brought up in the government’s closing argument, all three co-defendants were convicted on all counts. Samia was handed a sentence of life in prison with an additional 10 years accompanied by five years of supervised release. Following the conviction, Samia appealed the case to the U.S. Court of Appeals for the Second Circuit who affirmed the trial court’s ruling. Then, Samia appealed to the U.S. Supreme Court which granted certiorari on December 13, 2022. Ultimately, the decision that awaits the American public is pivotal to the functioning of our legal system and the bounds of the rights of criminal defendants. But, it is by no means cut and dry. The Supreme Court has laid out precedent in regard to this matter through the 1968 case Bruton v. United States. There, the Court established that admitting a non-testifying defendant’s confession that
One of the most robust adages in the legal world is ‘you can’t unring the bell.’ implicates their co-defendant sub- spite any instruction from the judge bly to an unredacted confession as stantially prejudices them. It was to ignore it or consider it only for a they would to the redacted version held that the co-defendant, in that specified purpose. Thus, despite the that employed the word “deletion”. case, had his right to confront wit- judge in Samia’s case instructing the The SCOTUS has a battle of innesses against him violated because jury to not consider the confession terests before them. With a right-leanthere was no opportunity to cross-ex- as evidence against Samia, the con- ing court, it would not be far-fetched amine the non-testifying defendant text of the confession surely can lead to speculate a decision against the about the confession despite it be- a jury member to believe that this rights of the accused, a decision that ing entered onto the record. This “other person” Stillwell is referring finds the actions of the trial court in case at hand differs in that the trial to is Samia, and as the two are being question constitutional. And if such court disallowed any mention of tried jointly, it can be deemed unrea- is so, the future of the Confrontation Samia’s name or identity. Instead, sonable to believe a jury would follow Clause looks to be a limited one: a the DEA agent was required to re- that instruction. With this reasoning future in which criminal defendants fer to Samia as “another person”. in mind, Samia’s argument heavily re- are given less protection during their The government argued and the lies on the 1998 case of Gray v. Mary- proceedings. Will the interests of jusSecond Circuit Court of Appeals land. The circumstances in Gray are tice, to put away criminals that are agreed that this act prevented any un- similar to the facts at hand. The dif- one degree of separation away from fair prejudice against Samia. Never- ference between them is that when a confession dominate, or will the theless, Samia maintains that “jurors the lead detective read the confession interest to afford the accused their would immediately infer that Still- in Gray, the court ordered that the rights prevail? This decision will ulwell’s references to ‘another person’ word “deletion” be used in place of timately answer this question and referred to [Samia] himself”. One of the non-confessing co-defendant’s set a standard transforming how the most robust adages in the legal name and a similar limiting instruc- we conduct our legal proceedings. world is “you can’t unring the bell”. tion was given to the jury. The SCOIt’s challenging, some may say al- TUS found that this still violated the most impossible, for jurors to ignore Confrontation Clause and delineattestimony they’ve already heard de- ed that a jury will respond compara-
LEGAL ANALYSES | 13
LEGAL CHALLENGES FACING BIDEN ADMINISTRATION’S APPROVAL OF THE WILLOW PROJECT by JAHLANNY MORROBEL-PEÑA
Alaska’s western North Slope—federally-owned land—that is known for its globally significant intact habitat A coalition of environmental con- Service’s report on the project lacked for wildlife. The site is a habitat for servation and indigenous groups detailed information regarding propolar bears, millions of caribous, and have filed a lawsuit against the Biden tective measures for polar bears. hundreds of thousands of migratory administration over the Willow Oil A marked focus of the Trump adbirds. Alaska Native Communities Project in Alaska’s Western Arctic. ministration was American energy inare also opposed to Willow. Inupiaq On March 13, the Biden adminis- dependence and improving the workpeople, in particular, have lived in the tration approved the Willow Master force. Chad Padgett, State Director Arctic Slope region for thousands of Development Plan, more commonly for the Bureau of Land Management years, relying on its animals, land, and referred to as the Willow Project, an (BLM) in Alaska, emphasized in 2020 water resources to support their cul$8 billion oil venture proposed by that the Willow Project would be an ture, health, and way of life. ConocoPhillips Alaska Inc., Alaska’s important job creator for families in Despite the best efforts from conlargest crude oil producer. The Wil- Alaska and would bring in substanservation organizations, on March low MDP is estimated to produce ap- tial revenue for the state. The Willow 6, 2023 the Biden administration proximately 180,000 barrels of oil per Project expects to create more than announced their formal approval of day, accumulating into over 600 MM 2,500 jobs during peak construction the Willow Project accompanied by cumulative barrels of recoverable oil and more than 300 permanent jobs restrictions on offshore oil leasing in over the next 30 years. ConocoPhil- during operations. Additionally, the Arctic Ocean and across Alaslips had initially proposed to build BLM estimates that the project could ka’s North Slope. Then, on April 3, five drill sites with anticipated well generate between $8 billion and $17 Gleason, who first ruled against the lengths being approximately 22,000 billion in new revenue for the federal project, denied the injunction and feet measured depth, miles of grav- government and the state of Alaska. ruled in favor of the federal governel roads connecting the Willow drill Climate activists, however, view ment and ConocoPhillips by allowsites to the Willow Central Facility the Willow Project as a substantial ing the development of the project to (WCF), a Willow Operation Center setback in efforts to reduce the carcontinue pending court proceedings. (WOC), pipelines, an airstrip, and a bon emissions that cause climate Gleason noted that the developments gravel mine. change. Willow would produce an planned for the coming months “do The Willow Project was originally estimated 70 million metric tons of not include the extraction of any oil approved by the Trump administra- additional CO² in the U.S. and 60 and gas.” Gleason claimed that the tion in 2020, but in 2021, U.S. Dis- million tons internationally. The economic harm caused by thwarting trict Judge Sharon Gleason of the plan also includes drilling on Alasconstruction outweighed the enviU.S. District Court of Alaska threw ka’s permafrost, which will require ronmental harm inflicted by the projout ConocoPhillips’ federal permits using chilling systems to refreeze ect. However, Judge Gleason stated after environmental groups succeed- the ground. This is alarming for a that a major turning point in her deed in arguing against the project. number of reasons. Besides the pocision was “the strong legislative supJudge Gleason vacated the U.S. Bu- tent greenhouse gasses emitted by port at both the state and federal levreau of Land Management’s approv- melting permafrost, the melting of els to proceed with the Winter 2023 al of the project due to insufficient permafrost could potentially release Construction Activities.” information provided by interagency long-frozen pathogens. Additionally, Directly following the approval reviews of the project. Specifically, a thawing ice-filled permafrost layer of the project, a coalition including Gleason vacated the permits because can turn into a slush that cannot supthe organizations of Sovereign Inupiof the Land Management agency’s port the weight of soil and vegetation at For A Living Arctic, Alaska, Wilexclusion of foreign greenhouse above it. This presents a devastating derness League, Environment Ameremissions in its environmental re- environmental problem because the ica, Northern Alaska Environmental view while the U.S. Fish and Wildlife drilling sites will also be located in Center, Sierra Club, and Wilderness 14 | LEGAL ANALYSES STAFF WRITER
Conservation groups are asking the public to get involved by signing petitions and writing to the White House. Society filed a lawsuit against BLM, the US Fish and Wildlife Service, the U.S. Department of The Interior, ConocoPhillips Alaska, and the State of Alaska on April 4. This coalition has also filed an appeal with the U.S. Ninth Circuit Court of Appeals, and a motion for an injunction currently pending appeal with the U.S. District Court, to request a halt to gravel mining and road building on the ConocoPhillips Willow oil and gas project. ConocoPhillips started construction the same day the Biden administration approved the project. However, before approving the Willow MDP, the Biden administration succeeded in tapering the size of the project by reducing the five drilling sites that the plan initially called for down to three sites and negotiating with ConocoPhillips to relinquish oil rights for 68,000 acres on leases it currently holds in the National Petroleum Reserve-Alaska (NPR-A).
Nonetheless, the decision to approve the controversial project could be problematic for Biden as he heads into a 2024 re-election campaign. Especially since approving the Willow MDP directly contradicts Biden’s promise to stop oil drilling on federal lands and the Inflation Reduction Act he signed in August, which invested nearly $370 billion in clean energy and greenhouse gas reduction. Not to mention, the Willow Project undermines President Biden’s commitment to slash climate pollution in half by 2030. Willow is the biggest oil and gas project in the country and is seen as another major loss in the fight against climate change. The development of the project is seen as a major failure by the state and federal government. This disappointment is felt strongly by the executive director of Sovereign Inupiat for a Living Arctic, one of the plaintiffs, Siqiñiq Maupin, who said in a statement that “corporate and political
interests continue to sacrifice places like Teshekpuk Lake and communities like Nuiqsut for their profits.” The oil and gas industry continues to maintain great political power that allows them to exert control over communities like the Inupiat community. The only hope for the protection of the Teshekpuk Lake is the pending lawsuits filed by Sovereign Inupiat for a Living Arctic and the 12 other environmental groups. Conservation groups are asking the public to get involved by signing petitions and writing to the White House. These conservation groups need support from the public as they continue to challenge Willow’s approval in court in hopes of preventing the project’s tragic impacts on local communities and wildlife.
LEGAL ANALYSES | 15
NOT BLUE, NOT RED, BUT GREEN: A LEGAL ANALYSIS OF FTX POLITICAL DONATIONS by AAYUSH GOODAPATY STAFF WRITER The scandals surrounding Sam Bankman-Fried and FTX’s collapse have been myriad and multiplying. The wide range of charges Bankman-Fried and his associates currently face, ranging from wire fraud to violations of the Foreign Corrupt Practices Act (FCPA), reflect the magnitude and consequences of the collapse of the exchange which they founded. The failure of FTX, a Bahamas based cryptocurrency exchange founded by Bankman-Fried, wiped out billions in customer funds. Those in charge of liquidating the firm are left with the unenviable task of attempting to recover consumer funds through Bankman-Friend’s famously unorganized accounting slop. Central to the efforts to recover customer funds and indeed the raison d’etre of FTX as an institution are the millions of dollars donated by Bankman-Fried and his most trusted lieutenants to politicians across the ideological spectrum. Bankman-Fried had advertised his gargantuan political contributions in the name of advancing effective altruism; however, it is alleged that these funds were not Bankman-Fried’s, but rather the funds of customers who did not consent to having their money used in this way. This raises the question: can FTX depositors successfully sue to recover money that has been spent in the form of campaign contributions? The legal case is fairly complex. Take, for example, the donations made by Nishad Singh, a former engineer and executive at FTX who has pleaded guilty to charges including campaign finance violations. Prosecutors have alleged, with recorded communication between Singh and 16 | LEGAL ANALYSES
Bankman-Fried, that Singh was directed to donate to specific candidates and groups to bolster the image of FTX by Bankman-Fried. These contributions can be argued to fall under FEC rule 11 CFR 114.5(b) (1) which demands that any entity that receives such a donation must return the money to the original source. Clearly Bankman-Fried and Singh committed violations of campaign finance law that should result in the restitution of funds; however, the issue can become thorny over the question of who the original source
The complete recovery of such funds depends on the successful prosecution of the ongoing wire fraud cases against Bankman-Fried. of the funds was. Depositors at FTX may argue that the money that was allegedly donated fraudulently was theirs, as prosecutors allege that customer funds were improperly used by executives at the company. However, proving that the money spent by Singh—whose net worth was in excess of half a billion dollars —or Bankman-Fried himself originated in part or entirely from customers could be very challenging. An avenue that could be used by depositors at FTX would be to appeal to the precedent set by the restitution of funds from Norman Hsu v. United States. Hsu, the defendant,
was convicted of pressuring investors in his Ponzi scheme to donate money to his preferred candidates. The fact pattern of the Hsu case mimics that of the Singh case. In both situations, individuals who were independently wealthy made donations to political candidates and campaigns due, at least in part, to the influence of an external actor. Particularly relevant are the damning communications between Singh and political consultants working on behalf of Bankman-Fried in which it is alleged that Singh expressed “discomfort” at the proposed donations but eventually acquiesced after the consultant said that him being “the center left face of our [FTX] spending” meant that he would have to make donations for “transactional purposes”. If it can be proven that Singh was coerced in some way to make donations for “transactional purposes” on behalf of FTX, then depositors would be able to convincingly argue that Singh’s donations were illegal. In addition, the depositors could invoke the judgment in Hsu, where the victims of the Ponzi scheme were awarded restitution rather than the straw donors, to argue that they would be entitled to full compensation. Depositors could argue that the previous guilty pleas by other executives at FTX and by Singh himself prove that the firm was complicit in a number of crimes that would make restitution to Singh or to any other high ranking employee inappropriate. With regards to the donations made by Bankman-Fried himself, depositors and creditors could invoke the precedent set by the case of United States v. Robert Allen Stanford. Stanford was convicted of
fraud in relation to a Ponzi scheme he created and as a result, creditors were able to successfully sue several national Political Action Committees to recover $1 million. Certainly, if FTX as an entity can be proven to be a fraud then creditors and depositors will be on firm legal ground to demand the restitution of Bankman-Fried’s political donations. However, if FTX cannot be proven to be a fraudulent enterprise – and Bankman-Fried is either acquitted
or proven guilty of charges unrelated to the alleged wire fraud such as violations of the FCPA—such a case may be harder to prosecute. While there certainly appears to be a path towards the recovery of a substantial portion of campaign donations made by FTX employees, the complete recovery of such funds depends on the successful prosecution of the ongoing wire fraud cases against Bankman-Fried. In the event of a successful prosecution, the
trustee—who represents depositors in the bankruptcy proceedings— will be armed with the necessary precedent to recover these funds. Note to self: write a section on the prudential questions of chasing smaller donations/ money that may have been donated to other causes by politicians.
LEGAL ANALYSES | 17
TWO VIEWS W
AGAINST
ith the recent surge in homelessness in Los Angeles and other major cities, individuals are forced to by NITYA UPADRASTA take up a life of camping outdoors. STAFF WRITER However, the city’s recent anti-camping laws are an ineffective and inhu- Court declined to review in December nance, stating that “these laws take us mane way to combat this issue. An- of 2019, local governments cannot ban backward, make us less safe, and make ti-camping laws are an exemplification the homeless from sleeping in public homelessness worse.” He also believed of the ‘War on the Poor’. The laws, when “there is a greater number of that the ordinance “criminalizes not so which prohibit homeless people from homeless individuals in [the jurisdic- much an act as the very ‘state’ of being sleeping in public areas, are a violation tion] than the number of available beds unhoused.” Punitive laws put housing of homeless people’s basic human [in shelters].” While it may seem like an even farther out of reach of the homeright to shelter. They are being forced easy solution to sweep people off the less, compounded with the lack of to move from place to place in search streets, in reality, criminalizing an indi- availability of affordable housing. of somewhere to sleep. This leads to a vidual’s right to sleep in public does not Another issue with the implementacycle of constant displacement and in- help them find affordable housing, and tion of the anti-camping laws is the lack stability, making it harder for them to can often actually make it harder. They of measurement. Currently, there is find jobs and housing. will still be forced to find some place to no data that supports the effectiveness The anti-camping laws are a violation sleep. When police do sweeps of home- of the anti-camping ordinance. City of individual rights. It is cruel and inhu- less camps, it can result in arrests and Council member Katy Yaroslavsky mane to force individuals to sleep on misdemeanor charges. In turn, land- proposed that various city departments the streets and risk their safety in order lords are more likely to reject their apart- investigate what kind of housing, temto avoid legal penalties. The Depart- ment applications. The anti-camping porary or permanent, that people have ment of Justice considers camping bans laws are ineffective in addressing the been offered, how many people have unconstitutional when either “a city root causes of homelessness, and sim- become housed since the passing of the fails to provide adequate shelter space” ply serve to push the homeless, who ordinance, what are the demographor “a city unreasonably restricts specific are already in vulnerable situations, ics, and how many citations have been individuals from accessing shelter.” further into poverty and despair. A issued by LA Police Department. AcCities are criminalizing homeless- study by the Los Angeles Homeless cording to an ABC7 article, just this ness by banning camping in public. In Services Authority revealed that there past Wednesday, LA City Council LA, this means prohibiting “sleeping, were 41,980 unhoused people in LA passed this proposal to conduct a review sitting, camping and obstructing the in 2022, up 1.7% from 2020 since the of the effectiveness and financial cost of public right of way within 500 feet of passing of anti-camping laws. Cities are the city’s anti-camping law. According ‘sensitive’ facilities, including schools, not providing an adequate alternative to various homeless services providers, day care facilities, parks and libraries.” or helping the homeless better access city and county officials, there is an inThis is the wrong approach as arresting essential services or permanent hous- sufficient number of outreach workers or ticketing people for camping, when ing, rather they simply push the home- and a lack of interim housing options, they have nowhere else to go, does not less population into areas where they leading to a hindrance in the creation help to reduce or prevent homelessness. will remain unseen. LA City Council of solutions for homelessness. There According to a Circuit Court of member Mike Bonin expressed his are simply not enough shelters, . . . . Appeals decision that the Supreme opposition to the anti-camping ordi18 | TWO VIEWS
Should Los Angeles’ Anti-Camping Laws continue?
A
FOR
2020, the L.A. Alliance for Human Rights, a coalition of business owners and stakeholders, sued the city of Los Angeles over the city’s homelessness crisis. The coalition sued the City and County of Los Angeles under claims that the city had failed to address unsafe conditions for both homeless people and city residents, as homeless encampments have piled up, blocking streets, public parks, and ADA access ramps. Among these complaints, the coalition also argued that the city’s failure to address the homeless encampments violated their Fifth Amendment rights on the basis that “private property [shall not] be taken for public use, without just compensation.” In response to the lawsuit, the city responded with a plan to spend 3 billion dollars on shelters and housing to get people off the streets, yet the solution is not so simple as having enough open shelters. A research survey found that while almost all homeless individuals expressed an interest in housing, “less than one-third would accept an offer of group shelter or a recovery or sober living housing offer.” Constructing permanent housing for 70,000 takes time and resources, and Los Angeles residents are putting pressure on the city government to act quickly. Los Angeles City Council has voted to enforce an anti-camping ordinance under municipal code 41.18, prohibiting homeless people
from setting up encampments or by restricting the areas where homesleeping within 500 or feet of “sensi- less people can set up encampments, tive” areas such as schools, parks, and encouraging them to move into shellibraries, as well as making it illegal ters. Los Angeles is not the only city for them to obstruct the public right with a large homeless population. of way such as streets, ramps, and As of 2022, New York City has over driveways. The ordinance requires 60,000 homeless people and Seattle that law enforcement provide home- has over 13,000. Cities in states such less individuals with housing options as Texas, New York, and Oregon have before clearing encampments and al- also proposed or passed similar legislowing them a chance to leave an area lation dictating where homeless peobefore issuing a citation. ple can live. As a national concern, it While critics have raised mor- is important to consider the benefits al objections to Los Angeles’s an- and risks of anti-camping laws. ti-camping laws, the fact remains that While anti-camping laws are necencampments are burdensome on essary in order to protect the general business owners, residents, and peo- public and encourage unhoused indiple with disabilities while simultane- viduals to move into shelters, it is imously being dangerous and inhumane portant to acknowledge the danger for the inhabitants. Critics argue that of issuing fines against and moving anti-camping laws criminalize the around a city’s most vulnerable popunhoused; however, as of 2022, there ulation. It is important for enforcers have only been two issued citations of the ordinance to offer suitable shelfor refusing to leave a no-camping ter before forcing homeless people to area. Encampments pose risks to move and for the city to continue public health, fire safety, business vi- with its construction of more perability, mental health of inhabitants, manent housing. Anti-camping laws accessibility, and crime rates. Addi- pose the risk of forcing homeless peotionally, many homeless rights activ- ple to move about from one location ists and experts acknowledge that the to another in an inhumane manner. first step to addressing homelessness However, they are ultimately necesis getting people off of the streets. sary for the city to be able to create In a county with nearly 70,000 more humane living conditions for unhoused people, temporary housing individuals experiencing homelessand group shelters are a necessary first ness, while protecting residents’ step to getting people off the streets. rights to sidewalks, safety, hygiene, Anti-camping laws both protect the and ADA accessibility. public and provide an incentive for that initial movement to take place TWO VIEWS | 19
s of 2022, the homeless population in Los Angeles County has reached nearly 70,000, and many by ISABELLE TOWNLEY residents have expressed frustration at the government’s lack of success STAFF WRITER in addressing this issue. In March
JUDICIAL RESTRAINT by SANJAY SRIVATSAN
STAFF WRITER
J
udicial restraint is an approach to judicial review which advocates a more limited role for the courts in settling legal disputes, urging intervention only when necessary. It has a long history, stretching back to the early 19th century, and has been championed by both progressives and conservatives over the course of its existence. Typically, although not necessarily, judicial restraint has been urged by the political faction that found themselves locked out of the Supreme Court majority. In the first half of the 20th century, progressives like Louis Brandeis and Felix Frankfurter were among the most notable advocates of judicial restraint in
vs.
the face of a court that was determined to strike down progressive legislation. In the second half of the 20th century, it was conservatives like William Rehnquist and Antonin Scalia who championed it in the face of what they saw as an activist liberal judiciary. Given the 6-3 conservative majority on the Supreme Court today, we may well see a resurgence of progressive support for judicial restraint. Yet regardless of where one’s political sympathies lie, I will argue that judicial restraint is the need of the hour for two key reasons: it is in keeping with the democratic principles which underpin the American republic and its necessity to ensure the legitimacy of the courts. A hallmark of American democracy is our commitment to the Separation
of Powers, a doctrine that has roots in Aristotle and, more recently, in Montesquieu’s De l’esprit des lois, and is foundational to the American constitution. Judicial restraint ensures that this commitment is kept, as an overextension of judicial authority threatens to usurp those of the legislative and executive branches. There are few better examples of judicial overreach than the Lochner era, named for the (in)famous case Lochner v. New York, where the Supreme Court struck down a minimum wage law in New York for violating freedom of contract under the 14th Amendment. In an even more egregious ruling, the court struck down federal child labor laws in Hammer v. Dagenhart under the rationale that Congress did not have the power to
JUDICIAL ACTIVISM by NIKULAS SOSKA
STAFF WRITER
I
n American politics, the role of the judiciary, and specifically the federal courts, in carrying out their constitutional responsibilities, is subject to ongoing and endless debate. At the center of this discussion is the question of whether judicial review should be intrusive and comprehensive or, conversely, if the courts judges should avoid deciding even the most basic legal issues. More narrowly, should courts strictly adhere to established constitutional norms, common law precedent, and statutory code, or should they function, in some sense, as policymakers and legislators, to decide crucial legal questions. To resolve this debate, or
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at the very least offer some understanding and insight as to how to address it, it is crucial that we focus our analysis on both practical and constitutional matters. These kinds of considerations can only be fully addressed through judicial activism, and so judicial review should be anything but passive and unobtrusive, if we are to conserve the constitutional integrity of our rule of law, and have effective and legitimate legislation. First and foremost, a key criticism of judicial activism is that it is inconsistent with the principles set forth by the separation of powers doctrine, whereas judicial restraint is not. However, activism, in large part, aligns with and maintains the separation of powers. Ideally, congress should stand as “enlightened citizens’’ (in Madison’s words) above
the whimsical and unreasonable passions of dangerous factions within the populace. This notion, however, is a distant aspiration. The current congressional process is characterized by hyper partisan polarization, between ideologically homogeneous parties set against each other. This has resulted in the rise of omnibus legislation which is essentially, when multiple measures are consolidated into comprehensive bills to ensure strong support and secure a sufficient majority for passage. Therefore judicial restraint is a gross violation of the separation of powers. It forces the courts to reaffirm this flawed congressional process, and so the judiciary is essentially an extension of the legislature. Supreme court justices have lifetime appointments, and with such
pass such laws under the Commerce the court and gives greater liberty to the It is a matter of great urgency for rule Clause. In the Lochner years the Court other branches to ignore the rulings of of law in the US for the judiciary to bolwielded the Constitution as a shield the court. A good example is the recent ster it by giving up power, by choosing for economic liberty, and in their activ- case on abortion pills. A federal judge in not to intervene where intervention is ist judgements to this end encroached Texas halted the FDA approval of mife- not an absolute necessity. It is certainly upon the powers of Congress (and pristone, a commonly used abortion plausible, and indeed fair, to argue that state governments) to pass laws that the pill. The decision was widely unpopu- judicial restraint may result in elected people, through their representatives, lar and reversed by the Supreme Court. officials implementing policies you may deemed necessary. Judicial restraint But the damage was done: prominent think imprudent or indeed downright aims to prevent such usurpation, and Democratic politicians, including Ron wrong. But democracy provides the anallows Congress and the President to Wyden and Alexandria Ocasio-Cortez, tidote here, and if an elected Congress exercise the authority they are due as urged the FDA and the White House passes a law that is against the desires of elected representatives of the people, to ignore the ruling even before it was the American people, the people have which the courts are not, and under the overturned. The court’s public approv- a right, and indeed a history, of voting US Constitution. al has also seen a steep decline in recent to elect another that more accurately Courts also have the peculiar feature years, with 58% of Americans now dis- reflects their desires. The judiciary, in of lacking the power to enforce their approving of the court, the highest in contrast, is an incredibly rigid institudecisions. They depend, by and large, two decades. If the court wades deep tion that is by design insulated from on cooperation with the other branch- into matters that are politically divisive, public opinion. If the court errs, the es of government and on public legiti- it is liable to render itself – and its legit- people have little recourse, while they macy for their edicts to carry weight. imacy – yet another victim of political have ample room for recourse when Judicial activism hurts the legitimacy of polarization. their elected officials do.
are supposed to withstand political which may raise red flags to ardent de- pressing issues confronting society. pressures, not be influenced by them fenders of judicial restraint. Nonethe- Historically, judicial activism has prothrough upholding every action of a less, the opinions and judgments of tected individual rights, corrected sopolitically tainted congress. Activism cial injustices, and led to a legal system Activism functions as functions as a necessary check on an that adjusts with an evolving society. inherently problematic congress, it cor- a necessary check on King v. Burwell, for example, was a drarects flawed legislation, and ultimately matic instance of the courts embracing an inherently prob- judicial activism, to correct a glaring defends and upholds the separations of powers doctrine, which is the lifeblood lematic congress, it social injustice. This case involved the of American democracy. Care Act (otherwise known corrects flawed legis- Affordable Another concern that activism addressas ObamaCare), a statute whose literal es, is the failure of legislatures to adapt lation, and ultimately text clearly contradicted the express, to a constantly and rapidly evolving defends and upholds fundamental purpose of the bill. The society. A consequence of the current purpose of the ACA was to expand the separations of congressional process, is a lack of reaccess to healthcare and provide afsponsiveness towards emerging and fordable health insurance coverage to powers doctrine. existing issues, in the way of new and more individuals and families in the effective legislation. Therefore, activUnited States. However, the language ism functions as a necessary response the nine brightest legal minds that the within the ACA indicated that only to these new issues, which legislatures country has to offer, are undoubtedly taxpayers enrolled in insurance plans fail to address. Activism requires judges preferred to a legal system that is vast- through an “Exchange[s] established to make moral and political judgments, ly unreceptive to the newest and most TWO VIEWS | 21
LOS ANGELES ANTI-CAMPING LAWS: AGAINST CONTINUED FROM PAGE 18 hotel rooms, or affordable homes for the people on the streets to go to, and not enough people to coordinate this movement. Thinking back to Texas’s major city camping bans in 2020, the ineffectiveness of such ordinances is apparent. The city of Austin reinstated its camping ban in May 2021, but no new city or state-sanctioned homeless camps or shelters have since opened according to an article published by the Pew Charitable Trusts. Although Austin’s downtown area has significantly fewer visible homeless encampments, Eric Samuels, the head of nonprofit Texas Homeless Network, suspects that the homeless population has increased since the enactment of the law. There are no official
numbers to back his estimates, however, because no official count has been executed in Austin during the pandemic. Samuels claims, “this law has done nothing to help the homeless situation here. And it’s a shame that it’s spreading to other states.” The money that cities spend to enforce these laws could be better spent on providing the homeless with access to housing, healthcare, and other services that would provide long-term solutions to homelessnesss, rather than simply attempting to control visible homelessness. This funding could also be reallocated to provide housing subsidies to low-income and homeless individuals in these cities. Although there are certain locations where legal
bans on camping are useful and necessary such as near schools and daycares for children’s safety, there still needs to be ample alternatives for shelter of the homeless population. It is clear that Los Angeles’ anti-camping laws are misguided and ineffective, serving to fix appearances, but providing no real solutions to the homelessness crisis. Instead of criminalizing the homeless, the city should focus on providing them with the resources they need to get back on their feet including mental health services and affordable housing. This is the only way to truly address the issue of homelessness in Los Angeles.
On the Precautionary Principle IN DEFENSE OF THE PRECAUTIONARY PRINCIPLE by JACK MARTINEZ STAFF WRITER
courts have refined the precautionary principle to strike a perfect balance between scientific innovation and public protection. The principle was first ren the 1950s, German physicians cre- ucts, has since provided the U.S. with fined in the supreme court case Natural ated a new drug to treat everything an admirable balance of scientific innoResources Defense Council v. EPA. In from “colds and coughs to asthma and vation and protection of the American his ruling, Judge Robert Bork argued nervousness.” Called Thalidomide, consumer. Thus, to continue this balthat Congress recognized “the deterdoctors began prescribing it in droves. ance, the precautionary principle must mination of what is ‘safe’ will always Though, only a few months after Tha- be upheld. be marked by scientific uncertainty and lidomide began circulating, patients The precautionary principle, in its thus…set emission standards that will experienced side effects like nerve pain most basic terms, is described as a regprovide an ‘ample margin’ of safety.” and permanent blindness. Even worse, ulatory restriction on any action or Although Judge Bork was discussing newborn babies exposed to the drug innovation which has “scientific unemissions standards in his opinion, his experienced severe birth defects. like certainty about its potential impacts.” ruling changed the nature of the premissing arms and legs as well as death. This means that regulatory bodies can cautionary principle throughout the Although the Food and Drug Admin- only approve products and inventions U.S. regulatory apparatus. Instead of istration (FDA) discontinued the sale are proven to pose no risk of public arbitrarily regulating all innovations of Thalidomide in the early 1960s, harm. Though, risks to the public exwhich contained risk, regulators were Congress felt the need to step in and ist everywhere in daily life. Something now only required to guarantee that created the precursor to regulatory rule as simple as driving a car can create an innovations were able to protect conknown as the “precautionary princi- excess of 43,000 deaths a year. Thus, sumers against significant unforeseen ple.” This principle, which applied rig- to avoid overregulating scientific inCONTINUED ON PAGE 24 orous testing to newly patented prod- novation, regulatory opinions and the 22 | TWO VIEWS
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JUDICIAL ACTIVISM CONTINUED FROM PAGE 21 by the State” would be provided subsidies, and because taxpayers in 34 states enrolled in plans through “Exchange[s] established by HHS,” none of those individuals were eligible. Therefore millions of Americans would still have been deprived of affordable healthcare if the court was to act passively and uphold the poorly written language of the ACA. The courts, however, acknowledged this congressional drafting error, and delivered a judgment that they be-
lieved reflected the established purpose of the ACA, so that individuals enrolled in plans both established by the state and HHS, received subsidies. This is just one instance of judicial activism being used to steer a socially beneficial and moral judgment, and at the same time expose the sort-of archaic and ineffective judicial process that is manufactured through restraint. The debate over judicial restraint versus activism is a complicated one. Yet,
the considerations posed, and the issues raised are important to our society. Therefore it is imperative that we are both thorough and pragmatic in our approach, to reach a conclusive determination as to how the judiciary should function. It is clear that judicial activism, not restraint, makes these considerations, and produces moral and constitutionally legitimate outcomes, so as to safeguard the core of American democracy.
ERRING ON THE SIDE OF CAUTION: A CASE AGAINST THE PRECAUTIONARY PRINCIPLE by PIETRO JUVARA
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t its core, the Precautionary Principle suggests that when it comes to restricting and regulating, it is better to be “erring on the side of caution” and taking action to prevent harm without the burden of proof, rather than wait for evidence. While this approach might seem sensible on the surface, there are several reasons why it is problematic, particularly when applied in the legal system. Firstly, the Precautionary Principle can be extremely difficult to apply in practice. In order to take action based on the Precautionary Principle, decision-makers must first determine what constitutes a potential harm, how much harm is acceptable, and
what level of uncertainty is sufficient to regulate greenhouse gas emissions to warrant action. These are complex from automobiles under the Clean Air questions that often involve subjective Act. The EPA had argued that it did judgments about risk, as well as com- not have the authority to regulate such peting interests and values. An investor emissions, because they were not spein a company may desire an extremely cifically listed as a pollutant under the narrow application of the Principle in Act. The EPA was using long-standing order to maximize their profits, while legal canon expressio unius here, which an administrative agency may push stipulates that items not included in back for the sake of safety. As a result, a list are not under regulatory juristhe Precautionary Principle can lead to diction (or else they would have been harmfully arbitrary and inconsistent included). However, the state of Masdecision-making, which is difficult to sachusetts argued that the EPA should be required to regulate these emissions justify or defend. For example, we see exactly this in under the Precautionary Principle, beMassachusetts v. Environmental Pro- cause of the potential harm that they tection Agency (2006), a case in which could cause to the environment and the Supreme Court was asked to decide public health. While the Supreme Court ultimatewhether the Environmental Protection Agency (EPA) had the authority CONTINUED ON PAGE 25 TWO VIEWS | 23
THE DEFENSE OF THE PRECAUTIONARY PRINCIPLE CONTINUED FROM PAGE 22 consequences. This doctrine, of an ‘ample margin of safety,’ led to the second refinement of the precautionary principle. President Clinton’s Office of Management and Budget (OMB) wrote that “Each agency shall…propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” Under President Clinton’s final tweak to the precautionary principle, regulatory agencies are meant to weigh the dangers of regulation against innovation and only create said regulation if the benefits are lower than the costs. Thus, if the EPA or OSHA find that an innovation is sufficiently more dangerous than advantageous to the public, then it cannot be approved. From this understanding, it becomes clear that the precautionary principle strikes a solid balance between innovation and safety. The cost benefit analysis ensures that products are not arbitrarily regulated against for retaining minor risks. However, if a particular product is found to pose great risk to the general public, regulatory bodies have all the authority necessary to step in and protect the U.S. consumers. Though, some argue that government regulation hampers innovation. While arbitrary innovation certainly reduces companies’ incentives to produce new products, the precautionary principle actually ensures that innovative companies stay afloat. For example, in 2019 a company named Novartis admitted to federal regulators that it had manipulated data to expedite approval for a gene therapy treatment. After the FDA uncovered the lie regulating the product, the company was forced to pay nearly $650 million to families and physicians. Though, Novartis is a relatively weak financial hit when com24 | TWO VIEWS
pared to Johnson and Johnson. After producing a cancerous talc product, the company was forced to pay $6.9 billion in settlements. These cash payouts, combined with the loss of revenue from negative press, can hamper research and development budgets for years. When research and development is underfunded, innovative solutions to complex problems are produced much slower. However, with the precautionary principle, companies are protected from themselves. Instead of paying mil-
With the precautionary principle, companies are protected from themselves lions in settlements, the government asks companies to make their products safer before they are approved. With the precautionary principle, individuals are best protected from harm and companies are best protected from liability. Besides the objection that the principle stifles innovation, opponents to the precautionary principle often assert that it hampers social change. For example, many argue that the precautionary principle is used to deny progress to address climate change. Detractors point out that important legislation and advances in addressing the climate crises are shot down because of unknown “harms” to the public. This argument, sadly misconstrues the effect of the precautionary principle. First, the principle does not hamper important legislation. It’s important to note that the precautionary principle is, simply, a regulatory framework. This
means that it only applies to regulators and not the legislators making the law. Thus, any objection on the basis of legislation is simply outside the scope of what the precautionary principle addresses. Furthermore, the precautionary principle has actually produced many positive advances to protect the climate. When certain products were causing issues with the Ozone layer, regulators stepped in and employed the precautionary principle to get those products off the shelves. Furthermore, the precautionary principle has been employed to create emissions standards seen in cases like Natural Resources Defense Council v. EPA. Therefore, any historian examining the precautionary principle will find an excellent track record of producing positive results for environmental and other social issues. In the U.S., the precautionary principle is the regulator’s equivalent of “better safe than sorry.” By implementing the principle, American regulators are able to protect innovative companies from litigious harm and innocent individuals from physical harm. Therefore, the precautionary principle creates a perfect balance between fostering innovation and protecting the average American.
ERRING ON THE SIDE OF CAUTION CONTINUED FROM PAGE 23 ly ruled in favor of Massachusetts, the case illustrates the difficulty of applying the Precautionary Principle in practice, and the tension that is created when it comes into conflict with a competing argument. In particular, it was not clear how much uncertainty about the potential harm of greenhouse gas emissions was sufficient to justify action under the Precautionary Principle, or how much harm was acceptable before action was required. These are complex questions that required a careful consideration of scientific evidence in Massachusetts that could not necessarily be applied again. Due to the competing interests and values at play in every situation, there is no clear consensus on how these questions should be answered consistently, which weakens the rule of law. Additionally, the Precautionary Principle can have unintended consequences, particularly when it is applied in a blanket or indiscriminate manner. For example, policies that are based on the Precautionary Principle can lead to unnecessary restrictions on innovation and economic growth, which can have significant negative impacts on society as a whole. One notable case in which the Precautionary Principle ultimately resulted in unintended consequences
was the European Union’s ban on genetically modified organisms (GMOs). The EU implemented this ban in response to concerns about the potential risks of GMOs to human health and the environment. However, this ban has had significant negative consequences for the development of new agricultural technologies, which could be used to increase crop yields, reduce the use of pesticides, and improve food security in developing countries. As a result, the Precautionary Principle has been criticized by many experts as a barrier to progress and innovation. Main proponents of the principle argue that it can allow for environmental legislation to be passed without requiring belief in the harms of Climate Change, but this argument falls short considering that evidence of the incoming climate crisis has not significantly improved. Finally, the Precautionary Principle undermines other important legal principles, such as exprssio unius as described above, but also the burden of proof and the presumption of innocence. Under the burden of proof, it is the responsibility of the party making an allegation to provide evidence to support their claim. Similarly, under the presumption of innocence, an individual is considered innocent until
proven guilty. However, the Precautionary Principle can shift the burden of proof onto the accused party, requiring them to prove that they have not caused harm, even in cases where there is little or no evidence to support the accusation. This goes against the fundamental principles of our legal system and can have serious consequences, including false accusations and a lack of due process for those accused. The Precautionary Principle may seem like a good way to protect individuals and the environment, but it can have unintended negative consequences and should be used with caution. Instead, we should focus on evidence-based decision-making and regulations that strike a balance between protecting public health and safety while allowing for innovation and progress. Always erring on the side of caution is just that: erring.
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OPINION
THE ASTONISHING INFLUENCE OF INFOGRAPHICS by HAYES WHORTON
STAFF WRITER he importance and influence of public protest can be interpreted in two ways: as an assertion of the strength of a collective movement, a kind of feat political powers are forced to reckon with, or as an insistence upon a moral position such that the tenacity with which protesters advocate for it justifies others taking up the same position. Public protest always contains some measure of both of these elements, but this balance shifts depending on the protest methods. For example, the traditional labor union strategy of coupling a protest with a strike is a clear demonstration of the power they are willing to exercise to achieve their goals. Digital protest, conversely, appears to sacrifice most hopes of any demonstration of power or leverage by threat of force for the convenience and efficiency of online communication. This may sound like a losing strategy, but one shouldn’t be fooled: the digital age has ushered in a new level of plasticity in our moral convictions. A revolution in secular morality has swept through Western nations, especially the United States, through the proliferation of online forms of protest, best exemplified by the #MeToo movement and the George Floyd protests—two movements which extensively utilized digital protest tactics such as information sharing (e.g., infographics), canceling, and fundraising. Even if the long-term success of these movements remains uncertain, it is impossible to deny that they have had pro26 | OPINION
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found effects on the moral character of the United States. All Americans are shaped by digital discourse, and even those who do not directly engage in this discourse will still be deeply affected through the complicated social web through which morality is constantly mediated. Even if judges do not argue on Twitter, they and their moral affects are surely influenced by the concerns and perspectives of the people around them who are shaped as such. Thus, the question of the degree of influence digital protest can have on judges is really the question of what jurisprudential framework most accurately describes their decision making: are judges more formalistic or interpretive? To understand the impact of digital protest on the courts, we must turn to the branch of legal theory dealing with how judges think and rule according to certain frameworks. In this highly contentious tradition of legal philosophy, arguably the two most important schools of thought are legal formalism and legal interpretivism. These theoretical frameworks lay out accounts of the law from which basic principles can be drawn. Legal formalism, closely related to legal positivism, tends to view the law as constituted by a set of institutions and social facts that maintain its existence such that uncontroversial principles and facts can be utilized to identify the correct ruling in all cases. Accordingly, there exists a hard and unsurpassable distinction between the positive and the norma-
tive. Whether a law would be good, effective, or just has no bearing on what the law actually is; the authoritative feature of the law is simply its logical completeness as determined by its constitutive institutions and social facts. Legal interpretivism instead holds that law is constituted by the ongoing practice of lawyers and judges as informed by the principles they choose to justify an enactment. Moral principles are fundamental to all rulings because they determine what is and isn’t relevant to the case at hand, and the application of these principles is an act of interpretation, not a deduction from indubitable grounds. A battleground case for these two frameworks is Riggs v. Palmer, in which a man who had recently named his grandson as the primary beneficiary of his will was murdered by his grandson so that there was no chance for the will to be changed. The case centered on whether the will should be invalidated so that the murderer doesn’t receive his promised fortune. There existed no clear precedent about what the relevant legal rule was, but strict abidance by the written law would allow the murderer to receive his fortune. The court decided to invalidate the will because it would violate the tenets of universal law (it would be completely unacceptable to allow one to vest himself through crime), rejecting strict abidance by statutory recommendations in favor of a principle that appeared necessary for the coherence of the law CONTINUED ON PAGE 28
EXPANDED USE OF CBP ONE APP RAISES NEW BARRIERS AGAINST ASYLUM SEEKERS by VINCENT LI
STAFF WRITER he Biden Administration’s recent announcement of new border enforcement measures includes requiring asylum seekers to make arrival appointments on the U.S. Customs and Border Protection (CBP) One application before crossing the U.S.-Mexico border. The Department of Homeland Security claims that “this new feature will significantly reduce wait times and crowds at U.S. ports of entry and allow for safe, orderly, and humane processing.” In reality, the app has the opposite effect of making asylum seekers wait in-
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to advocate on behalf of asylum seekers. The expansion of the CBP One app requires asylum seekers to upload their documents and make appointments before crossing the U.S.-Mexico border by themselves. The Biden administration maintains that this new policy will help migrants looking for humanitarian exemptions access an officer more efficiently. However, requiring people to make appointments before entering the U.S. has only transformed the asylum process into a lottery where only those with access to the internet and familiarity with the CBP One app, instead of people with the most
| illustration by lia yufei he / illustration manager
definitely and creating crowds stuck along the border who are confused, frustrated, and subjected to violence. Before this policy, asylum seekers generally only needed to arrive at a port of entry and meet CBP officers for further instructions regarding making asylum claims. Moreover, immigration lawyers used to be able
valid need for protection, will have the opportunity to make asylum claims. The CBP One app’s arbitrariness and inconvenience are manifested by its 2.5 out of 5 rating and numerous complaints on the Apple App Store. Denek Diaz, a Cuban migrant who has encountered frequent technological issues while using the app with
his family, said “We have been trying to get an appointment at the border for more than 10 days, but it always gives a different error. We have even completed the entire process, and when we finish after capturing even the photo tells us that there is no capacity to serve four people.” Diaz is not alone; his complaint is echoed by the majority of users who have the same technological issues with the CBP One app. Asylum seekers have to endure the same notification, “Session expired, try again,” popping up repeatedly in between every step of making an appointment: taking photos of themselves, uploading documents, and waiting for available time slots to show up. CBP One app’s glitches frustrate asylum seekers, forcing them to try desperate measures for a better chance of getting an appointment. Despite their vulnerable financial situation, purchasing smartphones and using data instead of the unstable public WiFi near the border has become prevalent among migrants. Besides paying for expensive products and internet services, some migrants have also spent money on people who promised to help them get appointments on the app. These migrants often only end up being scammed. The CBP One app also has an especially controversial feature: its facial recognition does not recognize people with darker skin tones. While taking a photo of themselves is necessary for making appointments, darkskinned migrants often find their pictures not recognized by the CBP One app, forcing them to stay along the U.S.-Mexico border in confusion. CONTINUED ON PAGE 28
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THE ASTONISHING INFLUENCE OF INFOGRAPHICS CONTINUED FROM PAGE 26 itself. Philosopher Ronald Dworkin to decide what the law actually is, rality. If we can accept that external argues that this is an example of a sort which Dworkin sees as fundamental moral principles are fundamental to of moral judgment being required to the practice of law. interpreting law in order to then apto determine not only what the law This case demonstrates that the ply it, we must acknowledge that the ought to say, but what the law actual- employment of controversial princi- growing influence of digitally-driven ly is. The court suffered from a theo- ples via personal judgements about protest on social morality will be reiretical dispute about what the law is, what is necessary to the law is un- fied in the rulings of the court, and and there existed no recourse except avoidable. Principles are used to our law will evolve alongside our digmoral recourse to sort this dispute determine how to follow rules, but ital lives. out. The positivist account is unable there exist no rule of principles. This to sufficiently explain this dispute be- means they will be left to controvercause it neglects how the court was sial personal choice, which will be forced to utilize extra-legal principles heavily informed by personal mo-
EXPANDED USE OF CBP ONE APP RAISES NEW BARRIERS CONTINUED FROM PAGE 27
“Requiring people to make appointments before entering the U.S. has only transformed the asylum process into a lottery” Algorithm bias has been reported them targets of crime, as criminal immigration policies under the guise continuously. Nevertheless, the CBP groups largely control the near-bor- of “beneficial” technology. Raising has yet to resolve it. In this way, the der region. Ironically, asylum seekers virtual barriers against asylum seekBiden administration exploits the flee their countries for protection ers stains the U.S.’s reputation as the supposed impartiality of technology and find themselves surrounded by protector of human rights. Moreover, to unveil its contempt for migrants’ more dangers near the border. Mi- it is a violation of both U.S. domestic right to have equal opportunity to grants fear being kidnapped, raped, law and international law. The Biden make asylum claims. or tortured every day near the border, administration must immediately In addition to barring people from thanks to the Biden administration’s end using the CBP One app in procrossing the U.S.-Mexico border, the expanded use of CBP One. cessing asylum-seekers. Otherwise, CBP One app only allows migrants All these issues contradict the the administration remains an explicto make appointments in an autho- promises made by Biden during his it advocate of xenophobic sentiments rized area near the border. Conse- presidential campaign. Instead of re- and remains complicit in persecuting quently, migrants from non-Mexican storing “the soul of the nation,” the crowds of asylum seekers stuck near countries must first travel to Mexico Biden administration’s new CBP the border. and stay in the authorized area until One requirement for asylum seekers they get appointments. Trapping mi- essentially continues the legacy of the grants in an authorized zone makes Trump administration’s conservative
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UNLOCKING SECOND CHANCES: THE IMPORTANCE OF PRISON REHABILITATION offering the possibility to learn and by ROCIO PORTAL STAFF WRITER
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s of 2023, prisons are severely tenced when they were a juvenile or overcrowded, holding almost for those that have been in prisons two million inmates in the United for over 20 years could be powerful States alone. Overcrowding in pris- and could start to relieve prison overons is an issue stemming from mass crowding. incarceration that is leading more and There are many non-profit ormore people into correctional insti- ganizations leading initiatives to extutions. The overcrowding problem pand attempts at granting inmates actively diminishes living conditions sentenced to death and life without in prisons, often yielding a struggle parole an opportunity to grow and to provide basic human needs for demonstrate they are not a threat those that are incarcerated. As a re- to the public. One of these organisult of the mass incarceration and overcrowding occurring, the criminal The majority, howjustice system has resorted to looking ever, is more sensifor other measures of punishment rather than finding a viable alternative to claims that tive. However, they have overlooked preclearance drags a solution worthy of consideration: the South backward, rehabilitation. Recently, the idea of second insisting on remindchances for those in prisons who ing us of the racial have been sentenced to death or life without parole has been broached. warfare of before While the preconceived notion that inmates who are granted a chance rather than progressat being released are going to regress ing to future racial and commit the same crime again equality. once free is a valid fear for the people against rehabilitation systems in prisons, it is also important to recognize how meaningful second chances can zations, the Illinois Prison Project be. According to a study from the (IPP), aims to reform the criminal National Institute of Justice, people justice system by providing educaable to participate in employment tion to the American public on isand community service programs sues such as mass incarceration and had recidivism rates 10 to 20 percent- injustice, elevating black voices, and age points below the expected rate, developing strategies to allow those meaning they were less likely to re- in prisons to receive a second chance. turn to prison. This finding is mean- They currently represent 43 people ingful in that it provides a glance at who could have the opportunity to how effective the opportunity for im- grow and leave prison after years of provement can be even after inmates confinement and have freed 90 peoare let out. Offering rehabilitation ple total already. IPP’s work thus programs for people who were sen- far has demonstrated that actively
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improve to imprisoned individuals can be impactful, with their own Education Program Manager being a person who was released after rehabilitation. These efforts have not only proven themselves to be worthy of consideration for greater-scale endeavors in Illinois, but UChicago Law School alumna Heidi Rummel has worked on prisoner rehabilitation in the state of California. Rummel oversees the Post-Conviction Prison Project at USC Law School where she works with law students to advocate for incarcerated persons who were sentenced over 20 years ago and have since not been given the second chance they deserve. Through her work, over 4,000 clients have been aided, and over 200 released after rehabilitation have since attempted to educate others on the benefits of second chances. Often, society neglects that people in prisons facing grueling sentences are also human at the end of the day. It seems difficult to look past somebody’s actions, but groups such as the Illinois Prison Project and the Post-Conviction Prison Project bring awareness to the reality that everybody deserves a second chance. Prisons need to establish rehabilitation opportunities for those incarcerated and sentenced to life without parole or worse, to death. It is not about what they did 20 or 30 years ago, but what they can do tomorrow with the proper attention and the opportunity to improve.
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THE LEGACY OF INSULAR CASES: HOW U.S. TERRITORIES REMAIN SECOND-CLASS CITIZENS reach this decision, the Supreme by ELIJAH JENKINS STAFF WRITER
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nder the Fifth Amendment’s protections to people of color. Ideals Due Process clause, United that were formed during a period in States citizens are guaranteed protec- which Congress believed it would tion by denying the federal govern- be unfit for non-Anglo-Saxons to ment the right to discriminate against receive the full benefits of the ConU.S citizens without a rational basis. stitution. The letter even goes on to In other words, a clause created to point out that the Supreme Court promote equal opportunities to all expressly relied on racist assumptions U.S. citizens—unless you are a U.S about the inferiority of the newly accitizen who lives in a U.S territory. To quired territories and its inhabitants fully understand the interpretation while deciding the Insular Cases. In of this clause, we must first under- today’s society, these racial ideolostand how citizens of U.S territories gies should have no bearing; howevbecame understood as “second-class er, even years later, the Insular Cases citizens.” have continued to remain intact and In 1901, the Supreme Court guide judicial decisions through the started to make a series of decisions act of precedent today. regarding the rights granted to resJose Luis Vaello Madero, the reidents in U.S territories, following spondent, understood the ramificathe aftermath of the Treaty of Par- tions of these cases when he encounis (the agreement that ended the tered legal trouble in 2016. Jose was American Revolution). These series originally born in Puerto Rico but of decisions came to be called The lived the latter part of his life in New Insular Cases. In these decisions, the York. While living in New York, Jose Supreme Court concluded that the began to collect Supplemental SeConstitution’s protections are not curity Income (SSI) benefits from fully extended to unincorporated ter- the government, and, in 2013, when ritories: Puerto Rico, Guam, the U.S. Jose decided to move back to Puerto Virgin Islands, the Northern Mariana Rico, he continued to do the same. Islands, and American Samoa. These In 2016, Jose was notified that he decisions ultimately sanctioned the was unable to continue to receive SSI U.S.’s right to colonization and val- benefits since he now lived in Puerto idated the narrative that inhabitants Rico. Following this announcement, in U.S. territories are to be viewed as Jose was sued by the federal governinferior. ment to recoup $28,081 it “falsely” In 2019, the American Civil Lib- distributed to him between 2014 to erties Union (ACLU) drafted a letter 2016. Jose argued against this lawto Congress urging members to co- suit, claiming it was a violation of sponsor H. R. 641, a bipartisan res- the Fourteenth Amendment’s Equal olution rejecting the use of the Insu- Protection clause. lar Cases in current and future court On April 21, 2022, in United decisions. In this letter, they contend States v. Valleo Madero, the Supreme the Insular Cases are shadowed by Court decided that Congress has the imperialist agendas and racist con- power to deny Jose and residents of cerns about granting constitutional Puerto Rico from receiving SSI. To
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Court ruled Congress did not violate the Equal Protection aspect of the Fifth Amendment’s Due Process clause, concluding that Congress has the power to differentiate treatment of Puerto Rican residents for receiving SSI benefits. In Justice Neil Gorsuch’s concurring opinion, he noted no party sought to overturn the Insular Cases. This failure ultimately allowed the Court to decide on the rights of Puerto Ricans without abiding to the Constitutional rights that protect U.S citizens in the states, since residents among U.S territories are not classified as such through the Insular Cases. Justice Gorsuch even asserted the Insular Cases “deserve no place in our law.” In a similar response, Justice Sonia Sotomayor, in her dissenting opinion, argued there is no rational basis to treat citizens in need who live within a territory of the United States differently from those on the mainland. It has been over a century since the Insular Cases were decided, yet they continue to impact legal decisions today. Ruled in an era that widely accepted colonial expansion and racial supremacy, the powers granted from these decisions have no acceptable relevance to the United States today. The recent decision in United States v. Vaello Madero serves as a reminder of the many injustices currently embedded within the governmental framework of the United States. Despite efforts by organizations such as the ACLU, the Supreme Court has yet to fully separate their judgment from the stains of our country’s past. Until they do so, the Insular Cases will continue to haunt future generations in U.S. territories, perpetuating a cycle of inequality and injustice.
THE 6TH AMENDMENT AND SHINN V. RAMIREZ by AHMED AHMED
cludes federal courts from holding evidentiary hearings, even if the deiven the firestorm the High fendant can “demonstrate, by clear Court ignited this past term and convincing evidence, that he by ending the constitutional right is innocent of the crime charged.” to abortion and radically curtailing This barrier is erected to preserve the states’ ability to regulate firearms, it’s ability of states to punish criminals, understandable how little public at- a right so sacrosanct that it can only tention a case like Shinn v. Ramirez be undermined in cases of “extreme received. With the most reactionary malfunctions in the state criminal Supreme Court since the Lochner justice systems.” In the opinion’s odes to state sovera all but telegraphing their plan to ereignty lies the gutting of a potenrestructure American jurisprudence, a case dealing with the abstruse tial protection for those wrongfully technicalities of legislation from the convicted of felonies. The essence of the Thomas opinion is that because 1990s can appear unimportant. post-conviction counsel is not actually a right guaranteed by the ConstituThat would be entirely wrong. Ramirez is, in fact, remarkably tion, the errors of said counsel - such evocative of the Court’s lurch to the as, say, failing to develop a claim of right on fundamental constitutional incompetent counsel at trial - are on questions. In it, a pair of death row the defendant. Thus, qua an interinmates filed for habeas relief, a way pretation of the Sixth Amendment of exiting imprisonment when the guaranteeing a right to counsel for state has engaged in egregious con- these types of hearings, even failure stitutional violations. Both David evincing complete ineptitude cannot Ramirez and Barry Lee Jones were be used as grounds for habeas relief. While the court’s ruling is dismal, convicted of first-degree murder in Arizona, and both alleged that in- it does provide an out for those who competent counsel during their trials seek to preserve due process for those and post-conviction hearings result- suspected of crimes. While the Sixth ed in the courts not having access to Amendment right to counsel has tracrucial evidence - exculpatory in the ditionally been understood to apply case of Jones, and indicative of men- only during the trial stage of a crimtal disability in the case of Ramirez. inal proceeding, judicial progressives The Ninth Circuit agreed with the should begin to adopt a more expanpetitioners that their incompetent sive understanding of it. The text of post-conviction counsel was suffi- the Sixth Amendment itself, in fact, cient “cause” to hold an evidentiary makes no distinction between the stages; it simply affirms the right of hearing. The Court’s conservative bloc “Assistance of Counsel” in “all crimwould have none of this. Clarence inal prosecutions.” The post-convicThomas, the author of the majority tion hearing is fundamentally an exopinion, argued that when defen- tension of the trial – an opportunity dants fail to present evidence, the to relitigate aspects that, for one rea“Antiterrorism and Effective Death son or another, received less attention Penalty Act of 1996” largely pre- than was warranted. This process STAFF WRITER
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is integral given the various pitfalls of the criminal justice system. Public defenders are often overworked and understaffed, leaving indigent suspects with less-than-adequate defense. As a result, wrongful convictions remain a persistent threat to the integrity of the judicial system. Competent post-conviction counsel is integral to fixing this problem those who are convicted off of faulty evidence or fabricated testimony are owed experts who can effectively uncover such perversions of the justice system. This is the precise type of threat the Sixth Amendment was supposed to guard against, and the Court’s liberals shouldn’t be afraid to argue that. The Constitutional argument that the Sixth Amendment requires the government to provide indigent defendants with attorneys is itself relatively novel, an application of the Sixth Amendment more concerned with the text itself rather than historical precedent. We should make the same adaptation to the post-trial happenings that give innocent defendants an extra opportunity to plead their case. It’s a profound injustice that undermines Constitutional principles to allow that opportunity to be under risk by incompetent counsel. This isn’t an injustice that will be fixed tomorrow. There’s of course no chance of the majority flipping its position on the issue tomorrow, but the decades-long process of reversing the worst excesses of the Roberts Court should include expanding protections for the country’s most vulnerable.
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ARIZONA V. NAVAJO NATION: RELATIONSHIP BETWEEN RIGHT TO WATER AND DUTIES its actions are ‘binding upon those by SEBASTIAN ARNAL STAFF WRITER
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ater is alarmingly scarce for the ty that are held together in a bundle. Navajo Nation. The average In this bundle, they have rights to the person on the reservation uses a mea- land, the timber, the minerals, and ger seven gallons a day, a figure even other natural resources. The sticks more alarming when compared to are theirs to do with as they choose, the national average of 80 to 100 gal- and the federal government plays no lons daily. This is reflected in the fact active role in managing those sticks. However, the Navajo Nation, that the Navajo are 67 times more likely to live without running water due to a treaty promising a “permaor a toilet. Despite this serious need, nent home,” has an implied right to questions about the United States’ water according to Winter v. United responsibility for the Nation’s wa- States. The United States is said to ter rights remain unanswered. These “hold these [water] rights in trust.” rights and responsibilities were ex- The nature of this trust is at the cenplored in Arizona v. Navajo Nation, ter of the question put before the argued before the U.S. Supreme Court. According to Liu, this right to water is one of many sticks. AlCourt (SCOTUS) in March 2023. Although Arizona and other though the United States may hold states were represented in an argu- the Nation’s water rights “in trust,” ment before the Court, they are only it does not have an active duty as its involved in an attempt to block the trustee. Referencing several Tucker Nation from claiming rights to the Act cases, a law not invoked in this main Colorado River, a concern that case, Liu asserts the United States has is actually not in question for this a “general,” “bare trust relationship,” specific case. The real debate is be- with no duty to actively assess and tween the federal government and plan for water needs on behalf of the the Nation. It rests on the question Nation unless Congress has expressly of whether the United States has “an assumed those duties. This straightaffirmative…fiduciary duty to assess forward, albeit complicated, explanaand address the Navajo Nation’s need tion of the relationship may appear for water from particular sources.” In to put the issue to rest. However, according to Shay other words, does the United States have a responsibility to actively assess Dvoretzky, the attorney representthe Navajo Nation’s water needs and ing the Navajo Nation, the United fight for them or is the issue of water States may be claiming to have a bare something the Nation can be manag- trust relationship in this case, but ing on its own? According to Freder- it is acting under a completely difick Liu, the attorney representing the ferent assumption. During his oral federal parties appealing the case, the argument, he explained, “When the United States does not have an affir- United States blocked the Nation mative duty. Using a common under- from intervening in Arizona v. Calstanding of property rights, Liu com- ifornia, it said, ‘the United States pared the land rights of the Nation to is authorized exclusively to reprea bundle of sticks—the sticks signify sent the Indian tribes in litigation different rights pertaining to proper- affecting their property rights,’ and 32 | OPINION
tribes.’” According to Dvoretzky, in January 2022, when intervening in New Mexico litigation, the United States declared itself to be the “legal owner of all water rights recognized for the Navajo Nation, holding these rights in trust for the Nation.” The United States claims the ability to litigate for the Nation’s water rights and legally owns them. With the federal government blocking the Nation from claiming its rights guaranteed under Winter and claiming to hold these in trust, the Nation is stuck in a double bind. While the United States may say it does not have an active obligation, its displays of authority and ownership would certainly suggest otherwise. The facts are that the Nation, in contract with the United States, has a right to water. The people have an undeniable need for water. As a result, the Nation is ultimately looking to claim a legal right to water in the Colorado River. But they must first have their needs assessed and then addressed. Presumably, having granted the Navajo Nation a right to water, the United States, as an implication of their contract, has a duty to secure that right. Unfortunately, the United States has only shown an eagerness in regards to its power as trustee, not its responsibility. It has yet to assess and address the water needs of the Navajo. The Navajo Nation is simply saying the government has a legal responsibility to do so, the existence of which has yet to be ruled on by the SCOTUS. Ultimately, having to prove the responsibility of a trustee in securing rights to something as fundamental as water suggests that the trust relationship itself may be flawed.
SEXUAL ALLEGATIONS ON SUPREME COURT CONFIRMATIONS: LESSONS FROM ANITA HILL AND CHRISTINE BLASEY FORD by LIZBETH HERRERA GOMEZ STAFF WRITER he U.S. Constitution mandates the Supreme Law of the land and, that the president shall appoint thus, become defenders of justice. judges to the Supreme Court (SCO- Being nominated for the SCOTUS TUS) with the advice and consent of is meant to demonstrate the integrity the Senate (U.S. Const. art. 2 § 2, cl. and honor of the judge, for not any2.). In modern context, the president one may take a seat at the most presnominates someone for a vacancy in tigious superior court. And since this the bench, and the Senate sends the Court represents the living embodnomination to the Senate Judiciary iment of justice, the people expect Committee for consideration; the these judges to live up to said ideals. committee holds hearings for the So, men who are held to such high nominee and discovers their qualifi- standards shouldn’t have any sexual cations, judgment, and philosophy. allegations, much less several. AngeTheir recommendation—confirma- la Wright alleged that Thomas made tion or rejection—is then sent to the unsolicited sexual advances toward Senate floor for full debate. When her, and Rose Jourdain was a witness the debate ends, the Senate votes on to Wright’s testimony. Both womthe nomination and, by majority en corroborated Hill’s testimony vote, confirms the nominee. and experience. As for Kavanaugh, While this process is outlined and Deborah Ramirez claimed that the clear, the Senate Judiciary Commit- then-nominee had sexually harassed tee hearings are the most politicized her, and Julie Swetnick claimed that step. This proved to be the case with she saw Kavanaugh exhibit unsavory the SCOTUS nominations of Justice misconduct at a college party. Yet, Clarence Thomas and Justice Brett none of these women were called to Kavanaugh. After being nominat- testify in front of the Senate Judiciaed, both men faced allegations of ry Committee. sexual misconduct. In 1991, ThomEven though Anita Hill and as became the first nominee on the Christine Blasey Ford were the only SCOTUS to be accused of sexual ones asked to testify before the Senharassment; in 2018, Kavanaugh ate, one can’t disregard the weight of was the second. Both Anita Hill and the other accusations. And since Hill Christine Blasey Ford, respectively, was the only one to take the stand, it testified before the Senate Judiciary was her word versus Thomas’, with Committee and generated a public the supporting cast of senators. And frenzy. while specific names were relevant to Both Hill and Ford felt it was these stories, any names could stand their civic duty to report their sexual in for what Thomas and Hill repharassment. Hill accused Thomas of resent: a man wielding great power unwanted advances and lewd com- over a woman. ments. Ford accused Kavanaugh of In the Thomas hearing, Hill was sexual assault. Such heavy charges badgered by the senators. In fact, of sexual misconduct are bad signs Senator Howell Heflin said, “I’ve got for men who are meant to uphold to determine what your motivation
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might be, are you a scorned woman?” In this question, the senator questions Hill’s dignity and her character. And in the face of similar questions, Hill had to maintain her composure and courage, for a failure in either would be used against her. Moreover, since the hearing was televised, it presented an image of a powerful, white man badgering a woman of color. Almost 30 years later, the problem of media optics was avoided with Ford’s testimony. The Republicans on the Senate Judiciary Committee picked Rachel Mitchell, an Arizona prosecutor, to question Ford and, thus, avoided questioning Ford themselves. This was an attempt to correct the Committee’s wrongs in the Thomas hearings, hoping to depoliticize Kavanaugh’s hearing. In the end, Justice Thomas was confirmed with a narrow vote (52-48), and Justice Kavanaugh was confirmed with an even narrower vote (50-48), demonstrating that the future justices didn’t fully escape the sexual allegations unscathed.
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MOORE V. HARPER: GERRYMANDERING CONTRADICTS THE FOUNDATIONS OF DEMOCRACY by ANUSHA MEHTA STAFF WRITER
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he question of gerrymandering, ocratic legislators redistricted to give particularly based on race, is noth- Democrats seven seats and Republicans ing new. When the issue arose in the one in Maryland’s congressional dele1993 U.S. Supreme Court (SCOTUS) gations. Due to this historical refusal to case Shaw v. Reno, the Court ruled that rule on partisan redistricting, the claims gerrymandering solely based on race is of racial gerrymandering may prove unconstitutional and violates the Vot- to be more integral to the outcome of ing Rights Act. However, the Court did the case. The Wake County Superior not establish a test to determine wheth- Court found no evidence of racial gerer gerrymandering is extreme enough rymandering, but the North Carolina to be a violation. This lack of clarity has Supreme Court ruled the maps unconbecome the basis for several lower court stitutional in 2022 due to racial gerryand SCOTUS cases about state redis- mandering. However, on April 5, the tricting maps. Additionally, there is a court overruled itself, citing that “no julack of strict precedents on what consti- dicially manageable standard by which tutes partisan gerrymandering and what to adjudicate partisan gerrymandering the basis for extreme gerrymandering is. claims.” This difference in the ruling Before Moore v. Harper, this ques- may be partially due to the lack of a clear tion came up in the 2019 SCOTUS test about what is egregious enough to cases Rucho v. Common Cause and be considered extreme gerrymandering. Benisek v. Lamone. In the former, the Adding to the complexity of the issue maps favored Republicans; in the latter, is that race is technically allowed to be Democrats. In both cases, SCOTUS considered when redrawing districts; it claimed that the issue is a non-judicial just cannot be the primary or sole reapolitical question and refrained from son. issuing a ruling on the maps. Conse- Opinions differ on whether the Court quently, Moore is the most high-pro- should set a test for what constitutes exfile case on partisan gerrymandering to treme gerrymandering or how much appear before the Court. Its decision race can and should be considered while could have a major impact on state and redistricting. However, voters are generdistrict maps throughout the country, ally united on how they feel about partiallowing those in control of state legis- san gerrymandering: nearly nine out of latures to redistrict to maximize party 10 American voters are against it. Gerrymandering seems like a methseats. In Moore, plaintiffs have claimed od for politicians to game the system. that North Carolina’s Republican-con- They can increase the safety of their trolled legislature has drafted maps that seat and elect more politicians from have racial or partisan bias. According to their party. Rucho v. Common Cause the Princeton Gerrymandering Project, and Benisek are both examples of this. the new maps would yield a 10-4 split in Historically, North Carolina has had a the congressional delegation in favor of relatively even split of Democrats and Republicans. In 2020, the state favored Republicans elected. However, redisTrump by just 1.3%. In Benisek, which tricting in Rucho created 10 Republiwas dismissed by SCOTUS for being can seats and three Democratic seats. a nonjudicial political question, Dem- Similarly, political strategists stated that
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non-gerrymandered Maryland districts would lead to 4-6 Democratic seats and 2-4 competitive or Republican seats in the congressional delegation. However, the maps were drawn with a 7-1 split. Politicians have created a variety of tactics to pack congressional delegations. One gerrymandering strategy, named “cracking,” splits similarly-voting areas into multiple districts so that they’re less able to influence the outcome of a district election. Another strategy, named “packing,” lumps several similarly-voting areas together to minimize the number of seats they can elect. Regardless of the outcome of Moore, it will be a landmark case for state elections and for voters. North Carolina’s state legislature is citing the independent state legislature doctrine, which states that state legislatures are given the power to draw maps by the Constitution and cannot be overruled by courts. If accepted, this theory would give state legislatures enormous, unbridled power to draw maps, likely leading to more egregious and widespread gerrymandering. By artificially making elections less competitive, states diminish the right of American voters to elect officials that represent the needs of themselves and their communities. Thus, both strategies contribute to the general apathy that has seized many voting-age American adults by upholding the idea that votes don’t matter. They also artificially decrease the input of the opposing party on legislation. Moore will help determine whether America will move towards bipartisanship or continue widening the partisan gulf. In a well-functioning democracy, opposing perspectives are needed at all levels of the government to generate discussion, promote bipartisanship, and create change.
WHAT GORSUCH AND NATIVE LAW SAY ABOUT COURT IDEOLOGIES by JUAN LEAL-MENDOZA STAFF WRITER
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ecently, the U.S. Supreme Court has been viewed as a more politicized body, both due to political polarization and its recent appointees. Neil Gorsuch, a member of the Federalist Society and Trump Presidential Appointee, is no exception to this, and the circumstances surrounding his appointment may be symptoms of said polarization. However, Gorsuch, the only current SCOTUS Justice born west of the Mississippi River, is not only making headlines for his relationship to political polarization or his place of birth. His rulings on Native American Law, which many times have put him at odds with his Republican-appointed peers, have surprised conservative strategists and political observers alike. Yet, inspecting Gorsuch’s record explains his motive while also revealing key differences between political and judicial ideologies in America. It’s not just a singular case in which Gorsuch has been making a stir. In 2019, Gorsuch joined the SCOTUS’ four liberal judges to rule in Washington State v. Cougar Den that tribal fuel purchases were protected from state taxes per the Yakama Nation Treaty of 1855, which preceded state law on that matter. While Justice Breyer’s opinion emphasized the nature of the tax in its ruling, Gorsuch’s concurrence instead emphasized that the state had to interpret the treaty as it was in 1855 instead of exploiting its language to overstep their authority. A year later, Gorsuch would be backed by the liberal judges’ opinion in McGirt v. Oklahoma, which ruled that as tribal reservations in Oklahoma were never legally disbanded, crimes
under the Major Crimes Act that happened in tribal lands fell to the jurisdiction of Native courts. That same year, SCOTUS reaffirmed this logic in Sharp v. Murphy. While Gorsuch recused himself from that case due to his involvement in its Federal Appeals hearing in the Tenth Circuit, it did not affect the final outcome of the case, which was agreed upon unanimously by nature of the McGirt ruling. Evidently, Justice Gorsuch actively leans on liberal judges on Native Law rulings, to the dismay of conservatives. Judicial observers, however,
“By artificially mak-
ing elections less competitive, states diminish the right of American voters to elect officials that represent the needs of themselves and their communities.” are not surprised by this. For starters, Gorsuch had consistently ruled in favor of Native tribes since his time in the Tenth Circuit. According to American Bar Association writer John Dossett, Gorsuch’s appointment and prominent position in the SCOTUS has transformed the Court’s awareness and understanding in both Federal Indian Law and the “Western experience, [which] has been lacking on the Court in recent years and is a vitally important perspective.” This phenomenon derives from Gorsuch’s environment
and his judicial views. Gorsuch is a self-described textualist; this doctrine aims to interpret law the way it was supposed to be interpreted literally when it was first written, regardless of outside factors. Textualism differs from Originalism insofar that the former focuses on textual interpretation when the law was written while the latter focuses on how society interpreted the law at its inception; a minor but key distinction to make. Textualist behavior is evident through Gorusch’s judicial opinions. As seen in McGirt v. Oklahoma, he believes that while Native law has been largely ignored or misinterpreted by higher courts from inception, it does not mean it’s any less applicable now, and that misinterpretations should be corrected. This applies even beyond Native law, as Gorsuch’s “textualist/liberal” coalition has been present elsewhere, such as in civil rights cases. Gorsuch wrote the Opinion of the Court for Bostock v. Clayton County, which ruled that the text of the Civil Rights of Act 1964 protected employees from being fired on the basis of their “sexual orientation or gender identity.” Once again, Gorsuch dismayed his conservative/originalist backers and peers through his textualist rulings. Liberal judges in the SCOTUS may arrive at the same opinion through different doctrines, but the coalition is there. As such, judicial doctrines will not always align with political ideologies, creating strange bedfellows and nuanced interpretations in judicial behavior. This is not to say that either guiding framework should be disregarded. For instance, after Trump appointed Amy Coney Barrett in late CONTINUED ON PAGE 36
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GORSUCH AND NATIVE LAW SAY ON COURT IDEOLOGY CONTINUED FROM PAGE 35
“Textualism, originalism, living constituionalism and other judicial doctrines will much better interpret what’s behind judges’ opinions than conservatism or liberalism can ever do.”
2020, the Court’s newfound conser- we see key divisions between politi- judges’ opinions than conservatism vative/originalist majority was too cally like-minded judges, which their or liberalism can ever do. An overlapintense even for Gorsuch, who faced political backers may not have antic- ping motive between judicial and poa major Native Law defeat when the ipated. litical ideologies does not make them Court’s decision in Oklahoma v. Cas- Though there is an important over- equals in the judicial field. tro-Huerta reversed the Native judi- lap between the current liberal and cial autonomy achieved in McGirt v. conservative political divide, judicial Oklahoma. Gorsuch, backed by the doctrines are ultimately the key drivCourt’s three liberals, wrote a scath- er of judicial behavior. Textualism, ing dissent to this ruling, calling it originalism, living constitutionalan “embarrassing” and “ahistorical” ism and other judicial doctrines will ruling to Native law. Even in defeat, much better interpret what’s behind
DYNAMIC TECHNOLOGY, STATIC ANTI-TRUST LAWS by DOHYUN PARK ASSOCIATE EDITOR
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n 1890, the United States Con- 2010. Yet, it does not fully provide gress passed the first antitrust law guidance on how to address mergers of the nation: the Sherman Act. and acquisitions by Big Tech firms, The law prohibits any form of con- resulting in the permission of future spiracy or contract to restrain trade monopoly or a necessary overturn of or monopolize industries, outlaw- FTC’s decision. ing anti-competitive activities. The An anti-competitiveness of a poSherman Act, along with the Federal tential merger or acquisition is genTrade Commission Act and the Clay- erally determined by the change in a ton Act, serves as the foundation for firm’s industrial power to “raise the industrial regulation of the Federal price, reduce output, diminish innoTrade Commission (FTC) and the vation, or harm customers”. Here, Department of Justice (DOJ). Al- it is worth noting that newly arisen though much more than half a de- IT behemoths such as Google or cade has passed since the elements Facebook position themselves as ultiof antitrust regulation have been es- mately complementary services protablished, the United States antitrust viding a non-rival good. Accordingly, law confronts the voice of concern a change in price or output as a result regarding how well-equipped the law of such a Big Tech firm’s M&A transis to respond to fast-growing technol- action is often unobservable. The ogy. Horizontal Merger Guidelines, third and fourth layers of anticomwhich prohibits mergers that could petitiveness evaluation—the impact “create, enhance, or entrench market on innovation and potential harm power,” was most recently revised in on consumers—are where the con-
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tention lies. Take Facebook’s acquisition of Instagram and WhatsApp for instance. Facebook acquired Instagram in 2012 for $1 billion. While the transaction has been approved by agencies at that time, the company faced recent antitrust suits from FTC in 2020 as the increased growth in the user basis of Instagram has placed Facebook in a quasi-monopoly position. Why couldn’t the antitrust regulation withhold the acquisition before Facebook’s market power grew so much? According to FTC’s closing letters of the initial investigation on Facebook’s acquisition of Instagram, it highlights that “no further action is warranted” regarding possible violation of Section 7 of the Clayton Act—which prohibits M&A where “the effect may be substantially to lessen competition or to tend to create a monopoly”—or Section 5 of the Federal Trade Commission Act—which prohibits “unfair or deceptive acts or practices in or af-
“Acquisition of technology companies such as Instagram and WhatsApp by Facebook has not simply allowed the firm’s growth, but also potentially harmed the overall compeitition in the industry and the consumer’s welfare” fecting commerce”. It is possible that Facebook’s initial transaction regarding Instagram did not seem to pose a clear threat to innovation or competition in the social media industry. In 2012, Instagram was still a 2-year-old growing firm that just reached the 27 million user mark in March. Considering that Facebook had already obtained 901 million users in the same month, the addition of Instagram’s users was just around a 2 percent increase in the firm’s user basis. However, what was possibly neglected was how, given the network-based business model of the two firms, the 901 million users could migrate to Instagram, making the next Facebook. Indeed, the ease of attracting large user basis once a network has been established was what prompted Facebook to acquire Instagram in the first place. The acquisition’s impact on consumer welfare was further overlooked. The complementary prod-
uct that connects family and friends worldwide seemed to benefit consumer welfare. However, the massive amount of personal data Facebook collects from users has posed a threat to users’ privacy rights. While whether to share personal data is reserved as an individual’s right under the U.S. Privacy Act of 1974, it has become extremely difficult for a single user to disagree with Facebook’s collection of private information, given their significant market power. As such, the acquisition of technology companies such as Instagram and WhatsApp by Facebook has not simply allowed the firm’s growth, but also potentially harmed the overall competition in the industry and the consumer’s welfare in general. Such harms could have been avoided if antitrust regulations obtained greater adaptability towards the unique characteristics of IT firms that lie outside the realm of the traditional
industry—free of price competition, network-based user base growth, and influence on invisible harm on consumers through data collection. As the technology only grows going forward with the rise of the metaverse and AI, it would be especially important that the antitrust regulation adapts to the dynamic innovation of industrial characteristics, rather than staying static.
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INTERVIEWS
JOEY MOGUL: INSPIRING COMMUNITY SUPPORT FOR HUMAN RIGHTS by SHARON FLOREZ STAFF WRITER
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oey Mogul is a renowned human rights attorney and activist, best known for her work in fighting against police brutality and advocating for criminal justice reform. She is currently a partner at the People’s Law Office here in Chicago. In the fFall qQuarter of the 2022-23 school year, Every quarter it’s taught, Mongulshe visitsed the Professor Susan Gzesh’s “Human Rights: Contemporary Issues” class taught by Professor Susan Gzesh. Joey Mogul spoke to the class to discuss about her recent work with Chicago Torture Justice Memorials and the Chicago Police Torture Center. As part of the reparations demanded by the torture victims and the community, the city has granted the building of a memorial in remembrance of the torture committed by Jon Burge and other police officials. However, the plot of land that they would like to build it on is partially owned by the University of Chicago. Joey Mogul spoke with ULMagreed to talk to ULM in an effort to inspire community support from undergraduate students and the Uuniversity for this necessary reparation. Born and raised in the Chicagoland area, Mogul has focused most of her work on most of Mogul’s work has focused around issues affecting Chicago’s population. In college, Joey Mogul worked at the Southern Center for Human Rights on a death penalty case, in whichwhere two Bblack men were wrongfully accused of killing a white woman. The 38 | INTERVIEWS
opportunity to work on that case was turnedgot back to Chicago. “When a transformative experience for her. I got back in the late ’90s, I started “It really showed the legal system working on one of the Chicago police and sort of the neo-slavery type of torture survivors case, – that of Aarconditions that existed in that small on Patterson. Aaron Patterson was town in Abbeville, Alabama. So that a member of this group of Chicago really spurred me to want to become police torture survivors on death row a lawyer,” she said. known as the Death Row 10. They Her work with the People’s Law had organized themselves, despite beOffice began when she was working ing on death row, to challenge their at the Evanston Shelter for Battered unjust convictions and to try to edu-
Joey Mogul, a native Chicagoan, is a renowned human rights attorney and activist, working towards criminal justice reform | photo by jose more / chicago news cooperative
Women, . It was one of the first or- cate the world, both about the racism ganizations to address supermax of the police torture cases, but as well prisons. This organization met up as the Death Valley,” Mogul said. with the People’s Llaw Ooffice, and Currently, most of her work surlawyers there were some of the first rounds defending people behind bars to challenge the conditions of su- who should be released, trying to get permax prisons. She went to CUNY people medical care while in prislaw school and was offered a job at on— – particularly gender affirming the People’s Law Office once she re- care for individuals who are trans-
“Reach out, call people, get involved. These are amazing historic
times in the city of Chicago, there is so much to be done. . .We absolutely need you in the fights for liberaton. You have roles to play, you have things to offer, jump in, get involved. We need you.” joey mogul
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partner at people s law office
gender or non-binary—– and also representing several survivors of police violence, including several people who have been tortured by Chicago police officers. Criminal prosecutions, she said, were solely based on punishment rather than getting into the root causes of violence. Communities could benefit from healthcare, childcare, education, and youth services. This brings us to the memorial in King. In these Chicago police torture cases, there has been a struggle for justice for nearly four4 decades. PA part of that struggle for the Burge torture survivors was the reparations legislation passed by the Chicago city council in 2015. “It was unprecedented and historic legislation that was passed in response to a multiracial intergenerational grassroots movement that pushed city council and Mayor Emanuel to pass this legislation,” Mogul said. As of today, all but one of the components of those reparations have been fulfilled: – the memorial. The Chicago Torture Survivors and a jury elected to name the design Breathe, Form & Freedom, and t is the name of their design selected by the Chicago Torture Survivors and a jury. They are currently looking to get a piece of land that is at 55th and King. Most of this land is owned by the city, but one plat is owned by the University of Chicago. Mogul and her team The team and
herself are currently working with ing can reach out at Chicago Torture city officials to request the Uuniversi- Justice Memorials or The Chicago ty to provide that piece of land so that Torture Justice Center. There are the memorial could be constructed. many exciting opportunities to sup“I think it’s essential for us as a city port the community in other ways, to be able to mark this racist pattern such as through like with Southin practice that occurred here in the side Together Organizing for Power city,” she told ULMme. (STOP), which is an organization Activists insist that tThe memori- located near that’s close tothe Unial must be built by May 6, 2024, the versity on of Chicago on 61st Street ninth anniversary of the reparations and was started by former University legislation passage. Urgency is cru- of Chicago graduates. cial as the Burge torture survivors’ “Reach out, call people, get inhealth is deteriorating with time. “We volved. These are amazing historic would like the University of Chicago times in the city of Chicago— – there to support this memorial, – to be a is so much to be done. University of respectable and valued community Chicago students, – you are so smart. member. There’s also been struggles You have access to resources, many of for reparations from the University you are very privileged. We absoluteof Chicago, for the roles that the insti- ly need you in the fights for justice. tution played with respect to slavery We need you in the fights for liberaand other racist legacies,” Mogul said tion. You have roles to play, you have told me. There has been a history of things to offer, jump in, get involved. support from institutions within the We need you.” University, such as the Pozen Center for Human Rights, and University faculty including Gzesh, Director of Human Rights Practice at the Pozen Center Alice Kim, American history professor Adam Green. members of the Uuniversity being supportive of these cases such as Susan Gzesh, Alice Kim, Adam Green, and the Pozen Center for Human Rights. Mogul hopes that the University as a wholeof Chicago would want this to be memorialized as well. Students who are interested in help-
INTERVIEWS | 39
ALAN MILLS: UPTOWN PEOPLE’S LAW CENTER by ALEJANDRO SANDOVAL STAFF WRITER
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ptown, as a racially and economically diverse neighborhood, is a microcosm of the struggles for tenants’ rights and prisoners’ rights within Cook County. This is where the Uptown People’s Law Center (UPLC) comes into play. The Uptown People’s Law Center seeks to remedy these issues. UPLC is a Chicago legal clinic focused on tenants’ and prisoners’ rights, directed by Alan Mills, a Northwestern Law alumni and seasoned civil rights’ lawyer. ULM spoke with Mr. Mills has generously shared insights with ULM about the work of the UPLC and its importance within Chicago. The UPLC’s mission is to serve poor and neglected citizens of Chicago and Illinois on issues of housing and prisoners’ rights. Mr. Mills explained that the vision of the UPLC’s work is to supplement “community
organizing and other empowerment prohibiting discrimination against actions that people take in order to tenants with criminal records. MAnd exercise whatever levers of power they many of these tenants came to the can find.” The key issues facing Up- UPLC from previous experience town, and Chicagoans served by the with representation while in prison; UPLC are wrongful eviction, gen- . Mmost of the prisoners’ rights cases trification, wrongful denial of Social undertaken are class action cases cenSecurity, and the conditions within tered around improving unjust conprisons. Key to the UPLC’s histori- ditions and treatment of prisoners cal and current approach to legal aid within Illinois, including challenging is this understanding that the home- excessive use of solitary confinement, less and prisoners are members of the unjust mental health care and mencommunity and deserve dignity. tal correctional facilities, and failure The UPLC’s primary work is tack- to accommodate deaf prisoners, and ling civil rights’ cases by representing challenging the lack of quality water Chicagoans in need against unethical within Chicago prisons. landlords, Social Security bureaucraAnother issue Mills has litigated cy, and unjust prison systems. And entails the poor water quality within this work often converges. For exam- Chicago prisons. On the issue of waple, Mr. Mills explained that much of ter quality, Mr. Mills described: the current work being done by the UPLC is ensuring the enforcement “I personally have toured places like of the Just Housing Amendment, Pontiac, where people have taken off their T-shirts and run them under the water and showed it to me. And you can see the black filth that is there in the T-shirt…You know, you shouldn’t have to be in prison and you can smell the sewage sort of smell out of that water. You shouldn’t worry about being poisoned if you’re put in prison,.”
Executive director of Uptown People’s Law Center and civil rights lawyer, Alan Mills, advocates for fair housing and prisoners’ rights | photo from @alan_uplc / twitter
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Advocacy for prisoners’ rights by the UPLC extends outside of the prison as well. Mr. Mills explained that the unjust conditions of prisons have a severe effect beyond the time of incarcerations, negatively impacting prisoners’ mental and physical health and stunting their ability to reintegrate into society, (often resulting in further recidivism). After all, if community members emerge from prison mentally and physically harmed, how does that help re-integrate them
into society? Demonstrative of this And his brain literally went on phenomena was a moment Mills de- overload. And he had to walk back scribed: by Mr. Mills. out to the car saying, Alan, just get me a cheeseburger, I’ll be out in the car, I “I picked up somebody from a correccan’t handle this.” tional center and maximum security prison…He had spent 10 years in The UPLC works to alleviate these prison, and I picked him up, and he conditions, and to ensure that all wanted something very simple. He members of society have an opportuwanted a cheeseburger because you nity to function and be treated with don’t get cheeseburgers in prison. decency. Food’s terrible. So we went to a Burger Mr. Mills ended by discussing the King. And they started asking me, current state of tenants’ and prisonyou know, do you want a combo meal? er’s rights within Illinois. Illinois, Do you want a number one…Do you despite being considered a well-off want this? Do you want that? And liberal state, has a prison system with he’s like, all I want is a cheeseburger. conditions equal to the worst in the Because when you’re in prison, you country, due to purposeful neglect. don’t get to make any choices at all. Illinois prisons are not modernized. And then when you go into something On that end, there is much work to as simple as a fast food restaurant, to do. Within Chicago specifically, there order a cheeseburger, all of a sudden, are some of the most powerful tenyou’re faced with dozens of choices. ants’ rights, achieved by the organiza-
tion and work of Chicagoans during the Harold Washington administration against the real estate interests in the Ccity cCouncil. The work for tenants’ rights comes in ensuring the enforcement of the rights earned in the past. Mr. Mills explained that tenants often don’t know their rights, and often face an imbalance of power within court. And the UPLC works to correct that imbalance, making sure that tenants have a chance to be protected and to maintain communities against real estate and corporate interests. On both ends, progress has been made, but there is much more work to be done. And the UPLC will continue to be one of the stalwarts of the legal community, invested in protecting and serving Chicagoans and Illinoisans in their times of need.
GRANT WILSON: HEAD OF EARTH LAW CENTER by XANDER DEANHARDT STAFF WRITER
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nvironmental law has often centered around the principle of conservation, the idea that the environment should be protected, but only to the bare minimum extent required for us to not overuse the earth’s resources. Even still, the very presence of eEnvironmental lLaw represented a change in attitude towards the environment. It was the first time lawmakers began to acknowledge that nature had importance or worth of any sort. EAnd ever since, people have been considering the environment more and more important and worth protecting under the law. Earth lLaw is a new philosophy of environmental law that serves as the natural next step for our changing attitudes about protecting the environment. The Earth Law Center (ELC) defines it as: “the idea that ecosystems have the
right to exist, thrive, and evolve—and ronmental law, Grant discusses how that Nature should be able to defend chopping a tree is treated under both its rights in court, just like people can.”. systems: “Charges against you in the The Earth Law Center (ELC), headed current system for chopping down a by Grant Wilson serves as the, its exec- tree are based on the economic value utive director of ELC, and explained of a tree to a property owner. You are that ELC works as a and the subject of violating the property of another huthis interview, is a legal nonprofit that man and the repercussions are transboth pushes for the inclusion of earth actional. Under earth law, and rights law in legal systems around the globe of nature framework, if you cut down and helps governments and companies a tree, you violate the rights of the foralike implement it. est, the legal guardian of the tree. That Grant explains, “Earth law is a phi- said, Earth Law isn’t so much about losophy that challenges the idea that one tree but an entire forest. If you take nature is a human property or resource. a tree respectfully and use it well, that’s It instead argues that nature has intrin- ok as long as you uphold the health of sic value and rights, and that future an ecosystem” Beyond just the rights of generations have the right to a healthy nature, planet,.” Wilson said. Grant identified two other key comTo illustrate where earth law con- ponents of Earth Law: the rights of fuCONTINUED ON PAGE 32 cretely differs from traditional enviINTERVIEWS | 41
“It’s important that as a guardian of nature, you’re transparent and
accountable, and that you can explain every decision you make on behalf of nature.” grant wilson executive director of earth law center CONTINUED FROM PAGE 7
ture in it, and that the mining compature generations and biocultural rights. ny planning to set up their mines there The rights of future generations refers cannott prove that it will not violate the to the right that future generations forest’s right to health. have to a clean and healthy environOn a smaller scale, ELC has a conment. Biocultural rights acknowledge sulting branch that helps companies the importance of nature as an element implement earth law into their strucof the culture of indigenous people and ture. Grant talked about their work strive to protect it on those grounds. with the UK-based natural products So that’s what earth law is. But what company Faith in Nature. They advised does it look like in action? To answer it to give nature and future generations this, Grant talked about the import- seats on the board and in the corporate ant work that the ELC did in Ecuador. structure. Both entities are represented Ecuador included the rights of nature by one or more people. in its 2008 constitution, and ELC has But how can a person represent an since helped them implement it. In the entity that cannot speak? According court case of Los Cedros vs the Govt to Grant, the precedent to represent of Ecuador, during which the Cloud nature with a legal guardian already exForest of Los Cedros was under threat ists: “The Whanganui river was grantof being torn into for mining, the ELC ed personhood and in the settlement, wrote a legal brief on behalf of Los Ce- it was given two guardians to speak on dros, which ultimately won the case. In its behalf ad litem.” He also acknowlthe brief, they invoked the precaution- edged general best practices for repreary principle, stating that there was sig- senting nature: “Generally, you should nificant evidence that setting up a mine always get multiple people speaking on in Los Cedros would damage the na- behalf of nature if you can. With mul-
tiple voices, you can filter for commonalities and filter out bias. Another thing I’d like to see is that you can develop guardians of nature training in universities and law schools, and train people on how to represent nature so that they can do it in corporations and governing bodies. We would be open to partnering with any university interested to make that program. Lastly, it’s important that as a guardian of nature, you’re transparent and accountable, and that you explain every decision you make on behalf of nature.” With climate change becoming continuously more catastrophic, it becomes continuously more important that the systems we use to conduct our lives respond to this reality. Earth law is a way our legal systems can do that, and making these adaptations are what Grant and his team at ELC are fighting for. The work may have very unique challenges, but it is very worth doing.
MARTHA NUSSBAUM: OPERA AS A MEDIUM by KHRISTIAN BASS STAFF WRITER
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artha Nussbaum is a renowned that was one of the architects of the American philosopher who is curriculum of the law school. Martha currently a professor at the Universi- Nussbaum is an incredibly decorated ty of Chicago Law School of which scholar holding awards for her work she has a joint appointment within in the field of both law and philosothe University of Chicago’s philos- phy. ULM had the chance to attend ophy department. She is the current one of Martha Nussbaum’s classes Ernst Freund Distinguished Service as well as speak to her to learn more Professor of Law and Ethics, a dis- about her ideas relating to the law tinction named after Ernst Freund and philosophy, and what we found who was an American legal scholar was a beautiful connection that op42 | INTERVIEWS
era has at its center. Martha Nussbaum’s varied interests when it comes to the fields of law and philosophy can be seen in the classes that she taught in the 20222023 school year. In the Autumn quarter, Nussbaum taught PHIL 55818 Hellenistic Ethics, a class that looked at the different ethical arguments of the three major schools in the Hellenistic Era of the Epicureans,
Skeptics, and Stoics. In the Winter quarter, Nussbaum went more modern with the class PHIL 51404 Global Inequality where she combined readings in law and economics with philosophic tests on global justice to discuss the many inequalities that exist within our world. In the Spring quarter, when ULM was able to attend her class, Nussbaum taught Phil 21102/31102 Opera as Idea and as Performance. Opera as Idea and as Performance is a class that Martha Nussbaum taught alongside Anthony Freud, the General Director of Lyric Opera of Chicago. The style of this class was that the first half was the discussion around opera to discuss many philosophical and historical trends that were happening at the time of the opera, and then in the second half of the class, Nussbaum brings in a guest speaker that ranges from singers to directors, usually based in Chicago. These discussions are designed to connect the content with the people who make the art possible and allow the class to be able to see the things that go into these works especially relating to the message that any given opera is based on. The first half of the class that ULM attended was centered around the opera Don Carlos by the composer Giuseppe Verdi. This opera is centered around a love triangle between Don Carlos, his father, King Philip II, and Elisabeth during the Spanish Inquisition. While the substance of this opera was very fascinating, what was just as fascinating were the political and philosophical themes that this opera touched on, such as the story’s showcasing of the abuse of power within politics and a critique of authoritarian rule and oppressive political regimes. The opera also showcases the public-private relationship that
is implicitly explored through King need them most. When words give Philip II, who is torn between his up music takes over.” These operatic personal life and duties as a ruler. pieces are meant to be so much more This all was more than just a dis- than just music, they are messages cussion about an opera though, it that convey emotion, law, and philoswas a showcase of what opera can be. ophy through this medium. It is something that acts as a conduit The second half of the class was a between the story of a time of which discussion with Barbara Gaines, who something must be told, such as the was the Artistic Director of the ChiSpanish Inquisition, with the philo- cago Shakespeare Theater until this year. Barbara Gaines in discussion with Nussbaum talked about the various things that go into the creation of a play or opera, mostly relating to the many ideas of keeping up with the times in terms of the messages. The panel of Nussbaum, Gaines, and Freud were then able to talk about how the messages of these operas must be kept most relevant by making the changes necessary, and how the art form has been struggling in the modern era, as it became apparent that the biggest challenge that opera faces that is staying afloat in a time where opera is dwindling. The core of this class and the discussion with Nussbaum is that opera is a very valid medium to connect with the many spheres. While this may seem disconnected from the law, it turns out that this medium of opera that Nussbaum is teaching is heavCurrent professor at University of Chicago ily tied into law. Law to Nussbaum and renowned philosopher, Martha Nuss- is heavily tied in with philosophy as baum | photo by jeff brown / the new yorker both relate to these many parts of besophical and historical aspects of the ing human, and opera allows for this time. This opera was meant more careful dissection. ULM in attending to entertain but to tell a story that this class was able to understand the means to connect with its audience point of view of Nussbaum as opera, in a more beautiful way. These stories while it may seem outdated, is able to are meant to be able to talk about the be so fluid and changing that its mohard issues, and give something for tives of spreading messages through the audience to learn from. This all song is anything but a disconnection was most beautifully put by Anthony from the law. As such, in a time when Freud, when he concluded this half opera attendance is dwindling, why of the class with the ideas that “Op- not go see a local show and support era defies logic and encompasses it all. this old but beautiful and changing Words are always failing us when we medium. INTERVIEWS | 43
UPCOMING CHI FINAL CITY COUNCIL CHANGES by ELIJAH BULLIE STAFF WRITER
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ust five days before the 2023 Chi- 30, Alderman Anthony Beale of the cago Mayoral Runoff Election Ninth Ward said, “You should be begins, there is yelling in City Hall. ashamed of yourselves. This is not It’s not from protestors. It’s not transparency. This is not indepenfrom journalists. It’s not from con- dence. This is a corrupt process.” stituents at all; the representatives are Beale was an outspoken advocate for shouting on the council floor. In an mayoral candidate and election rununprecedented move, the Chicago off contender Paul Vallas. Had Vallas City Council breaks from mayoral been elected to office, he would have control and votes in favor of creating had no authority to change the apmore committees and independently pointments made by the council. The move to expand the council appointing the leaders. Although the authority over committee selection committee tally from 19 to 28 less has always legally been delegated to than a week before the election is the council, it’s customary for the viewed by some as a power grab by council to defer to the sitting Chi- the council, as they seek to assert cago mayor. As former Mayor Lori their authority and independence Lightfoot calls for order on Thursday from the mayor’s office. Supportmorning before a highly competitive ers of the decision argue that it will election weekend, the Windy City’s increase transparency and accountCouncil reclaims its power over com- ability in the city’s decision-making process, ensuring that committee mittees in a 34-10 vote. While the vote passed by a clear leaders are chosen based on their margin, the timeliness of the change qualifications and experience, rathhas drawn criticism. Typically, mo- er than their political connections. tions to alter the structure, size, or However, opponents of the decision function of the City Council will worry that it could lead to inefficienalign with the inauguration of the cies and delays in the city’s adminismayor. This synchronization allows tration, as committee leaders may not the mayor-elect to hand-pick candi- be aligned with the mayor’s priorities dates for committees who are best and initiatives. Additionally, some suited to deliver on the agenda prom- have expressed concern that the deised during their campaign. The cision could lead to a power struggle unusual decision to make legislative between the council and the mayor’s changes at the end of the mayoral office, creating further fractures in an term has prompted an outcry from already divided city. those who call this motion manipThe committee selection process ulative. During hearings on March is an essential aspect of local govern44 | UPCOMING CHICAGO POLICY
ment, and it remains to be seen how this decision will impact the city’s political landscape. But this decision could have significant consequences, as committee leaders may not reflect the contemporary will of the people of Chicago. The choice to retract committee authority from the mayoral office may also undermine Mayor-Elect Brandan Johnson. Because the nine new committee heads have already been appointed, Johnson will not have the option to appoint personnel who will reliably advocate for his platform, a luxury previously enjoyed by the Chicago mayor. This change to the function of the City Council represents an effort to get back to the foundational roots of the city council, possibly bolstering the spectrum of interests in Chicago constituents. “We came up with a fair and equitable plan for the most diverse leadership in Chicago history,” said Alderman Marty Quinn of the Thirteenth Ward after being named head of the new Committee of Executive Appointments. As the direction of Chicago’s leadership hangs in the balance, this change to the City Council signifies an optimistic step to accommodate a larger breadth of voices in a city divided.
ICAGO POLICY SHIFT IN OUR ENERGY?: ILLINOIS HOUSE UPLIFTED could’ve been a Midwest solar enerNUCLEAR CONSTRUCTION
gy leader,” in criticism of the state’s nuclear bailout (Gearino, Chase, and nuclear reactors across the state, a Bruggers 2021). The Exelon bill was plan projected to save billions of dol- also supposed to increase energy sector job growth, but the results from lars for consumers. These moves are supposed to bring that have not been consistent with its Illinois closer to reaching its 2025 predictions. The $694 million dollars goal of having 25% renewable energy. that the new bill pledges towards nuHowever, due to a series of misman- clear energy will primarily be going aged policies from the mid 2010s, to bail out two of Exelon’s failing power plants (Clifford 2021). Critics like Learner say that ExExelon continues elon is leveraging the 2025 and 2035 to get $235 million a clean energy standards Illinois has year, while the solar signed onto, as well as the fact that the majority of Illinois gets their support has been energy from nuclear power, to pull stripped away. . . money from the government. Steve Illinois could’ve been Cicala, a non-resident scholar at the Energy Policy Institute at the Univera Midwest solar en- sity of Chicago said, “when this runs out, they’ll be doing the same ‘pay us ergy leader or the plant gets it’ dance.” However, Jack Darin, the director of the Sierhoward learner executive director of ra Club’s Illinois chapter, said that environmental law and given the amount of construction repolicy center quired to build wind and solar farms, these new pieces of legislation are renewables wouldn’t be ready in time about recouping losses from the Ex- to take the place of the nuclear plants elon bill of 2016. This bill gave one if they shut down (Clifford 2021). energy company money to build up nuclear power plants, and it currently operates the six functioning plants in the state. Howard Learner, executive director of the Chicago-based Environmental Law and Policy Center said “Exelon continues to get $235 million a year, while the solar support has been stripped away… Illinois
by VEDA SWAMINATHAN STAFF WRITER
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or some, the rise of nuclear energy marks the end of nonrenewable sources as countries and cities alike turn towards this energy source. For others, this shift can have disastrous implications, marking the beginning of a dangerous path in energy experimentation and divestment of money from “safer” renewable sources. The Illinois House of Representatives has recently passed a bill that signals a shift towards the expansion of nuclear energy within the state. This bill lifts the previous restrictions the state had placed on nuclear energy (Adams 2023). In the past, Illinois has been one of the states with the largest nuclear generating capacity, with more than 58% of electricity coming from nuclear power in 2020 (“U.S. Energy Information Administration,” 2021). This bill comes after several reporting agencies, including the PJM Interconnection in Northern Illinois and Midcontinent Independent System Operator (MISO), found that there would be at least a 20 percentage points increase in the net load of their frameworks over the next 15 years and a massive increase in demand for new energy over the next 20 years (Potomac Economics 2022, 100; Adams 2023). The state is trying to balance meeting its carbon free goals with maintaining grid reliability for all citizens. To do this, the bill proposes opening several new
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UNIVERSAL BASIC INCOME: A TEMPORARY SOLUTION OR PERMANENT NECESSITY? by IMAN SNOBAR EXECUTIVE EDITOR
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or liberals, Universal Basic In- nomic hardship during COVID-19. come is a financial utopia, for Upon approval, 5,000 families were conservatives, it’s another way to give selected from the city-wide lottery ‘undeserving’ citizens welfare hand- to receive the 500-dollar stipend for outs. But for constituents, it’s their a year thereafter guaranteed. Yet, this last saving grace through constant base level of income is only the tip of financial hardships post-pandemic. the iceberg for the pilot program. The City of Chicago and the greater Social scientists at the UniversiCook County area have begun one of ty of Chicago from The Inclusive the largest pilot programs of its kind Economy Lab and the Crown Famto supplement citizens with a prima- ily School of Social Work, Policy, and ry necessity: cold hard cash. Practice are using rigorous evaluative To understand why the City of measures to examine the outcome Chicago has instituted this pilot pro- of this program. These tactics ingram, we first have to understand clude surveys, in-person interviews, the concept of UBI. Universal Basic Income has become a popularized This program is social welfare proposal where all citjust the beginning izens within a specific population consistently receive a guaranteed of a more streamsource of income in the form of a lined social service stipend. Typically, UBI provides everyone with a stable source of income program. . .restoring to ensure that individuals can make faith in an economy ends meet for specific needs including food, goods, clothes, and rent and government that among others. has been clawing Chicago Mayor Lori Lightfoot for a positive upturn implemented the Chicago Resilient Communities Pilot program to do from financial ruin. just that. The criteria for the program were the following: and economic, labor, criminal, le1. You reside in the City of Chicago gal, and educational data both for AND recipients and households that were 2. You are 18 years of age or older rejected alike ultimately to observe AND the wants and needs of this program. 3. You have experienced economic The program already seems quite hardship related to COVID-19 AND favorable among Chicagoans, with 4. Your household income level falls over 100,000 completed applications at or below 250% of the Federal Pov- from Chicago residents alone. erty Level The University of Chicago’s asOne application per household sessment is ongoing, and is integral was accepted. Priority was given to to the future of the pilot program, as constituents who were homeless, stated by Lori Lightfoot. For Cook lived in poverty, or experienced eco- County more broadly, Cook Coun-
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ty Board President Toni Preckwinkle has vowed to make this program permanent, drawing from funds like cannabis sales once federal funds were exhausted stating, “We trust that participants will use this assistance to build a financial foundation for themselves and their families”. The University’s research is not only a guide for the current program but can be utilized as a tool to expand this program even state-wide, though that seems quite ambitious presently. Their primary report can be found here. The positive impact of Universal Basic Income within Chicago is already shining, as residents have begun sharing their stories like students such as Danica, “I am so happy about this program…I don’t have to worry about my financial issues anymore and I can focus on something that’s gonna push me ahead in the future. Something that’s gonna benefit, like, it’s not gonna benefit me right now, but it’s gonna benefit me in the long run, which would be going back to school”. This program is just the beginning of a more streamlined social service program, to efficiently deliver assistance to those who need it, while simultaneously restoring faith in an economy and government that has been clawing for a positive upturn from financial ruin.
UPCOMING CHICAGO POLICY | 47
ULM is a Registered Student Organization at the University of Chicago under the Center for Leadership and Involvement’s purview. Our active status is in keeping with policies adherent to established procedural standards. ULM operates under no-prior review. The opinions expressed in the magazine are not necessarily those of the University of Chicago. ulm.rso.uchicago.edu @UChicagoLawMagazine