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Volume Volume Volume641 3 Volume 2

1/15/2015

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The Wellesley College Law Journal Fall 2017 Spring 2017 Fall 2018 2016

Copyright@ The Wellesley College Pre-Law Society prelawsociety@wellesley.edu 1


Letter from the Editors……………………………….........................

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Letter from the Presidents…………………………………………....

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The Philosophy of Language and Hearsay: A Speech Act Analysis of State v. Dawkins (2004)………………………………..................................... 4  Stacey Kim ’19   Memo: The Fight for Marriage Equality Continues………………… Arielle Schoen ’19

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The Changing Character of Campaign Ads ………………………... Angela Coco ’19

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Prison Policy on Transgender Inmates in the United States………. Ninan Pollack ’20

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First Amendment Rights: Case Analysis of Minersville School District v. Gobitis (1940)………………………………........................................ Olivia Feldman ’21

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The Framing of the Fourteenth Amendment: Abolitionist and Moderate Considerations………………………………..................................... Margot Lipin ’20

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Innocence Ignored, Death Penalty Privilege Lost…………………. Maggie King ’21

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Environmental Law and Policy: The Enduring Question of Standing of Sierra Club v. Morton (1972)……………………………….......................... 67  Casey Martin ’22   The Right to Counsel in an Underfunded, Overworked Public Defender  System………………………………................................................... Arielle Schoen ’19

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Unearthing the Undisclosed: Exposing the Lithuanian Double Genocide Megan D’Alessandro ’21 and Corinne Muller ’21

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The Copyright War: Analyzing the Debate Between Technology and Copyright Law in the Digital Age………………………………......................... 97  Beryce Garcia ’20, Anna Kawakami ’21,   Elizabeth Jimenez ’19 (Davis Scholar), and Justine Duan ’20   Applying the Fourth Amendment to the Internet of Things………. Yuhan Wu ’19

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America’s Energy Crisis: The Shrinking Sand Reserves of the American Fossil Fuel Hourglass……………………………….................................... 127  Kailani Barreras ’22                                                  

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Letter from the Editors  

Welcome to the Wellesley College Pre-law Society Law Review Journal: Volume 6!     Published twice a year, the Wellesley Law Review Journal is a place for students, professors,  and alumnae to publish their thoughts on social issues, policy, politics, and general law. The Wellesley  College Pre-law Society Law Review Journal is an entirely student-run organization. All articles are  selected, edited and published by the Review’s Executive Board, elected by the Society on a yearly  basis.   We encourage students to write and submit papers, analysis, and opinion pieces on topics  that are important to the writer at the moment. In this issue, we received and published articles  covering a broad range of topics across STEM, social sciences and humanities disciplines. We hope  you enjoy reading and learning from these thoughtful writings.     Yuhan Wu ’19, Editor-in-Chief   Angela Coco ’19, Editor    Catherine Digennaro ’19, Editor            

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Letter from the Presidents   As Presidents of the Wellesley College Pre-Law Society, we are honored to uphold and  further our mission in administering to Wellesley’s pre-legal community. Therefore, we are thrilled  to present one of our largest projects of the semester: the Wellesley College Law Review Journal. A  special thanks to our editor-in-chief, Abby Yuhan Wu, for her effort in compiling these articles as  well as to select editors/members of e-board who have aided the process such as Angela Coco and  Cathy Digennaro. We are honored to share these well researched and thoughtful articles from the  Wellesley community with all of you.   Over the past semester, the Pre-Law Society has worked closely with Wellesley’s Career  Education Center and Emma Cutrufello, the career advisor for Government, International Affairs, &  Law. Together, we organized events with the purpose of guiding students through the law school  application process. These included our bi-annual “Tea With a Lawyer” where a panel of Alumnae  lawyers and law students return to tell us about their experiences entering into the legal profession, a  “Student Summer Internship panel” where Wellesley students shared their internship experiences  with their peers, a free LSAT test prep workshop from TestMasters, and various bonding events for  Society members and the greater Wellesley community. Next semester, we will to continue to work  closely with the Wellesley College Alumnae Attorney Network to spark discussions, make  connections, and educate students about post-graduation opportunities in the field of law.   On behalf of the Pre-Law Society Executive Board, we extend our thanks to Wellesley Career  Education, Emma Cutrufello, and the Society’s alumnae. Our goals for Spring 2019 will be to  continue our events to foster community and to expand the readership of this incredible Law  Journal. In the coming months, we hope to bolster our continuously growing presence on-campus  and beyond, and we invite you to join our community.     All the best,   Angela Coco ’19 and Stacey Kim ’19, Co-Presidents 

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The Philosophy of Language and Hearsay: A Speech Act Analysis of State v. Dawkins (2004) Stacey Kim ’19   

The legal concept of hearsay is, at its core, an inquiry into the philosophy of language. As a preventive measure against the admission of false evidence, the hearsay rule prohibits a witness from  quoting out-of-court statements to prove the truth of an asserted matter. However, some instances  of hearsay may be admissible as evidence, including statements offered to show the effects on the  listener and the declarant’s then-existing state of mind. In this regard, I argue that speech act theory  is useful in determining whether or not an out-of-court statement falls under the hearsay rule  exception. By analyzing the murder case, State v. Dawkins (2004), in which the defendant appealed on  hearsay grounds, I will apply speech act theory to the witnesses’ testimonies, and argue that they are  admissible according to the effects on the listener and the declarant’s then-existing state of mind  exceptions.   In the first section, I will present the facts of the case and expound on the context of each  out-of-court statement contested by the defendant. Second, I will offer a brief overview of the  hearsay rule, which forms the legal framework of the defendant’s appeal argument. Then, I  reconstruct this argument in the following section. By explaining the hearsay rule exceptions and  applying speech act theory to these exceptions, I lead up to my objection to the defendant’s appeal.  Finally, I conclude by evaluating the validity and soundness of my own objection.  I. Facts of the Case  On April 13, 1995, a passerby discovered a body floating in a North Carolina lake. Police  found the disposed body wrapped inside a trash bag and weighted with chains and an anchor. They  4 


eventually identified the body as that of Wendy Dawkins (“the victim”). After an autopsy attributed the victim’s death to a gunshot wound to the back of her head, police arrested the victim’s husband,  Philip Ray Dawkins, Jr. (“the defendant”), who faced speculations of domestic abuse from family  members and other witnesses. The Richmond County Grand jury thereby indicted the defendant for  first-degree murder, and the jury found him guilty on all charges. When the jury sentenced the  defendant to life imprisonment without parole, the defendant appealed on the grounds of  improperly admitted hearsay evidence, specifically those that insinuated him as a domestic abuser.  The defendant referred to three instances of hearsay in his appeal:   The first instance involved the testimony of the victim’s aunt, Bonnie Thomas. During the  trial, Thomas testified that the victim had given her photographs depicting the victim with a black  eye. According to Thomas, the victim told her “to keep [the photographs] and if anything should  happen, to give them to the police” (State v. Dawkins, 2). For purposes of referring to this statement  in later sections, I shall call this specific utterance the “photograph statement.” The second instance  of hearsay occurred when witness Samuel Hamilton testified that the defendant had told the victim  he “had killed [a girl] in Rockingham, and buried her in a barn on his mother’s property…” (State v.  Dawkins, 3). When the victim later asked about the murder, the defendant “told her if she ever  mentioned [the killing] again, he’d kill her and put her in that same barn” (State v. Dawkins, 3). Both  of these out-of-court statements will henceforth be referred to as the “barn statement.” The third  testimony that the defendant disputed as improper hearsay came from witness Alden Ford. After  noticing the victim wore black eyes and bruises on her body, Ford inquired about the victim’s  physical condition. Ford testified that the victim replied, “[the defendant] put them on her” (State v.  Dawkins, 3). This last testimony shall be called “the bruise statement.”  

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After the trial court entered the photograph, barn, and bruise statements into evidence, the defendant claimed that the court erred on its hearsay ruling. In the defendant’s point of view, each  of these three statements should have been excluded on the grounds of out-of-court statements  offered for the truth of the matter asserted. I will argue against this view in section six, but before  then, we must first scrutinize the hearsay rule itself to better understand the legal backdrop of this  case. An overview of the hearsay rule is thus addressed in the next section.  II. The Hearsay Rule  According to Federal Rules of Evidence 801(c), “‘[h]earsay’ is a statement, other than one  made by the [witness] while testifying at the trial or hearing, offered in evidence to prove the truth of  the matter asserted.” Because the original declarant of a hearsay statement is unavailable for  cross-examination, hearsay statements pose risks of ambiguity, insincerity, faulty memory, and  misperception in their recollection during trial, and can therefore deter a jury from the truth  (Morgan, 178). For State v. Dawkins, this is especially true since the original declarant of all three  statements is a deceased victim, and all three statements were presented by the witnesses for their  truth propositions. Thus the defendant appealed to this hearsay rule in his argument, which I shall  now reconstruct in the following section.  III. Defendant’s Appeal Argument  Asserting that the trial court failed to withdraw the photograph, barn, and bruise statements  from evidence as hearsay, the defendant argued the following in his appeal:  1. If X is an out-of-court statement offered to assert the truth of Y, then X is inadmissible  hearsay. 

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2. The photograph statement is an out-of-court statement offered to assert the truth of the defendant’s physical abuse towards the victim.  3. The barn statement is an out-of-court statement offered to assert the truth of the defendant  murdering and burying a girl, and threatening to do the same to the victim.  4. The bruise statement is an out-of-court statement offered to assert the truth of the domestic  violence that the defendant inflicted on the victim.  5. Therefore, the photograph, barn, and bruise statements are all inadmissible hearsay. [From  1-4]   Despite its validity, the defendant’s argument is unsound. In section six, I object to the  truths of premises two, three, and four, and argue that the challenged hearsay statements count as  admissible evidence under the effect on listener and state of mind hearsay exceptions. However,  because my counter-argument relies on an understanding of speech act theory and its application to  the hearsay rule exceptions, I will first explain these concepts separately. While the next section  introduces the hearsay rule exceptions, the fifth section will explain how speech act theory can be  used to determine these exceptions.  IV. Exceptions to the Hearsay Rule  Despite the hearsay rule definition, some utterances made outside the courtroom are  admissible as evidence. For instance, statements offered to show either the effects on a listener or  the declarant’s state of mind at the time of the utterance constitute exceptions to the hearsay rule. In  other words, as long as the testimony of an out-of-court statement is not offered to prove the truth  of what is asserted, the statement is allowed to enter into evidence.  

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Both the effects-on-listener and declarant’s state of mind exceptions can be best explained through examples. The effect on listener rule refers to out-of-court statements offered to prove the  causal connection between the utterance of a statement and the listener’s reaction to its utterance  (“Rule 803”). For instance, a statement from a husband to his wife admitting that he was cheating  on her is only admissible as evidence if the statement is offered to prove why the wife divorced her  husband. If the statement is offered to prove that her husband actually cheated, then it violates the  effect on listener rule. The effect on listener rule can also be related to the declarant’s state of mind  exception, for an utterance might affect a listener’s state of mind. According to Federal Rules of  Evidence 803(3), the state of mind exception pertains to statements made to show a declarant’s  “then-existing state of mind (such as motive, intent, or plan), or emotional, sensory, or physical  condition (such as mental feeling, pain, or bodily health” (“Rule 803”). For example, if a drunk man  shouted inside a bar, “I am the President of the United States,” then the out-of-court statement  could be offered to show that the drunk man believed he was the President, but not that he actually  is the President.   Therefore, the testimony of an out-of-court statement must always be analyzed within the  context of which it was said in order to determine the purpose of its offering in trial. For this reason,  speech act theory, which considers these linguistic contexts, becomes particularly useful in  determining whether or not a statement is excluded from the hearsay rule. The next section argues  that speech act theory can guide us in this precise venture.   V. Speech Act Theory and Its Relation to Hearsay Exceptions  As a linguistic approach to identifying speaker meaning, speech act theory can be applied to  hearsay problems, and help determine the admissibility of an out-of-court statement. Speech act 

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theory observes that in uttering a sentence, a speaker not only expresses a particular state of mind in a communicative context, but also engages in some performative function, such as “warning,  promising, [and] marrying” (Langton, 296). The three main attributes of a speech act that allow for  these performative functions are the locutionary, illocutionary, and perlocutionary forces. While the  locutionary force concerns itself with the grammatical and syntactical properties of language, the  illocutionary force corresponds to the speaker’s performative act in saying something (Searle, 30).  For example, in asking, “Can you pass the salt?” a speaker performs the act of a request (Searle, 36).  This illocution may influence a listener into performing something else, such as reaching for the salt,  which is called the perlocutionary effect. The illocutionary acts themselves are therefore helpful in  understanding how speech act theory relates to the exceptions in hearsay rule.  Among the several types of illocutions, the three most relevant ones to State v. Dawkins are  the assertive, commissive, and directive illocutionary acts. An assertive illocution is a statement  representative of some state of affairs, which in principle could be true or false (Searle, 12).  Examples include statements that insist, claim, state, describe, or hypothesize. Because of their  propositional nature, assertive illocutions reveal a state of mind of belief. On the other hand,  commissive illocutions reveal a state of mind of intent. Statements such as promising, threatening,  and vowing are all commissive illocutions because they commit the speaker to perform some course  of action (Searle, 14). Referring to a course of action is also involved in directive illocutions, where a  speaker directs the listener to perform some command, challenge, or order (Searle, 13). Due to its  commanding purpose, a directive illocution indicates a state of mind of desire. Now that we are  equipped with this understanding of speech act theory, we can turn to its application to the legal  realm of hearsay.  

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If counsel can show that an out-of-court statement is being offered to prove either a declarant’s state of mind or its effects on the listener, then that statement is no longer inadmissible  as hearsay. Because assertive, commissive, and directive illocutions correspond to a speaker’s belief,  intent, and desire, respectively, speech act theory allows us to probe into speaker meaning, and  thereby uncover the hearsay declarant’s state of mind. Moreover, if counsel proves that the hearsay  statement’s illocutionary act has been performed successfully, then a perlocutionary effect on the  hearer automatically follows, thereby fulfilling the effect on listener exception. Therefore, speech act  theory is effective in determining instances of hearsay and lack thereof.    VI. Objection to Defendant’s Argument  Knowing how to apply speech act theory to hearsay statements, we can finally present a  counter-argument to the defendant’s appeal. I object to the truths of the defendant’s second, third,  and fourth premises, which argued that the witnesses testified the photograph, barn, and bruise  statements in order to prove the truths of the matters asserted. I argue that each of the  aforementioned statements fall under the hearsay rule exceptions because they either point to the  perlocutionary effects of the defendant’s utterances towards the victim, or reveal the victim’s state of  mind in relaying these statements to the witness. My counter-argument is reconstructed as follows:  (1) If a statement is not offered for its truth assertion but rather for showing the effects on the  listener or the declarant’s state of mind, then it is admissible as evidence under the hearsay  exception.  (2) The photograph statement is not offered to show the truth of the physical abuse depicted in  the photographs, but rather to show the victim’s apprehensive state of mind. 

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(3) The barn statement is not offered to show the truth of the defendant’s murder of a girl and threat to enact the same harm to the victim, but rather to show how the perlocutionary  effects of the threat led to the victim’s anxious state of mind.  (4) The bruise statement is not offered to show the truth of the domestic violence between the  defendant and the victim, but rather to show the victim’s fearful mental condition.  (5) Because they are not offered for the truth of their matters asserted but rather to show the  effects on the listener or the declarant’s state of mind, the photograph, barn, and bruise  statements are therefore admissible as evidence under the hearsay exception rules. [From  1-4]  Because it is logically impossible for my premises to be true while the conclusion false, my  counter-argument to the defendant’s appeal is valid. To prove the soundness of my argument, I will  evaluate the rationale behind my premises in the next section.  VII. Evaluation of Argument  The premises in my argument derive their truths from the previous discussions on hearsay  rule exceptions and their application to speech act theory. In State v. Dawkins, the hearsay testimony  of the witnesses are admissible under these hearsay exceptions. This section will therefore apply  speech act theory to analyze each of the photograph, barn, and bruise statements in relation to the  hearsay exceptions, and to prove the soundness of my argument.  Regarding the second premise, or the photograph statement, the victim’s utterance to the  witness “to keep [the photographs] and if anything should happen, to give them to the police” is a  directive illocation. In stating this sentence, the victim requests the witness to give the photographs  of her physical injuries to the police. The photograph statement therefore implies “[I request for you 

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to] keep [the photographs] and if anything should happen, [I request for you] to give them to the police.” As explained in section five, uttering directive illocutions entails a state of mind of desire. In  the victim’s case, her desire to inform the police and hold her abuser accountable (should any  horrific event arise) reflects her apprehensive mental condition at the time of the utterance. Thus the  identification of the victim’s utterance as a directive illocution consequently shows that the  photograph statement was not being offered for the truth of matter asserted, but rather to indicate  the victim’s mental state under the state of mind hearsay exception. The defendant’s second premise  is therefore false.   Unlike the photograph utterance, the barn statement is a commissive illocution whose  perlocutionary effect instilled in the victim a fearful state of mind. The witness who testified the  barn statement claimed that the defendant told the victim he had “killed [a girl] in Rockingham, and  buried her in a barn on his mother’s property…If [the victim] ever mentioned [the killing] again,  he’d kill [the victim] and put her in that same barn.” This is a commissive illocution, which section  five established as revealing a state of mind of intent. Because commissive illocutions are  commitments to pursue a course of action, the barn statement can be rewritten as “...if [the victim]  ever mentioned [the killing again], [he sweared to] kill her and [threatened to] put her in that same  barn.” This has the perlocutionary effect of producing a variety of emotions in the victim, such as  fear, uncertainty, contempt and worry. In response to her husband’s threat, the victim may no longer  initiate conversations with the defendant or feel safe in the marriage. The testimony of the barn  statement therefore shows the emotional effect that the defendant’s threat had on the listener,  instead of the truth of threat asserted and the murder of the girl the defendant claimed to  accomplish. The application of speech act theory thus helps us determine the admissibility of the 

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barn statement under the effect on listener and state of mind exceptions. It logically follows then that premise three of the defendant’s argument is false.  Lastly, the bruise statement uttered by the victim is an assertive illocution. By stating that  “[the defendant] had put [the bruises] there,” the victim implies, “[I claim] he had put them there.”  Although assertive illocutions can be either true or false propositions, the testimony of the barn  statement is not offered to prove the truth of previous beatings, but rather to confirm the victim’s  harmed mental condition. Assertive illocutions reflect a state of mind of belief, so by saying that  “[the defendant] had put [the bruises] there [on me],” the victim believes that her husband is the  direct cause of her physical pain, which relates to the then-existing physical, emotional, or mental  state of mind hearsay exception, as explained in section four. Even though the victim did not  express anxiety or physical pain in explicit words, the scope of the conversation between the witness  and the victim as well as the victim’s asserted belief directly related to the victim’s fearful state of  mind (FindLaw, 3). Whenever a witness offers an assertive statement “for its illocutionary value, its  perlocutionary effects, its locutionary properties, or its associated state of mind,” the assertive  statement is not hearsay (Schane, 117). For this reason, the barn statement cannot be excluded from  evidence as inadmissible hearsay, thereby rendering the defendant’s fourth premise false and the  defendant’s appeal argument unsound.  VIII. Conclusion  By analyzing the validity and soundness of my counterargument against the defendant’s, I  have therefore shown that each of the photograph, barn, and bruise utterances are admissible  evidence to State v. Dawkins. While the state of mind and effect on listener exceptions are most easily  applicable when a hearsay statement expressly declares a mental condition, such explicitness is not 

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required to admit out-of-court statements into evidence. In fact, as this paper has shown, an understanding of speech act theory is all that is necessary to determine instances of these exceptions  and subsequently get away with hearsay.       Works Cited  Langton, Rae. “Speech Acts and Unspeakable Acts.” Wiley, Philosophy and Public Affairs,  Vol. 2 No. 4, Autumn 1993, pp. 293-330. Accessed 12 Dec. 2017.  <http://www.jstor.org/stable/2265469>.   Morgan, Edmund M. “Hearsay Dangers and the Application of the Hearsay Concept.”  Harvard Law Review. The Harvard Law Review Association, Dec. 1948, Vol. 62 No. 2, pp. 117-219.   “Rule 803. Exceptions to the Rule Against Hearsay.” Legal Information Institute. Web.  Accessed 18 Dec. 2017. <https://www.law.cornell.edu/rules/fre/rule_803>.  Schane, Sanford. “Language and the Law: With a Foreword by Roger W. Shuy.” New York:  Continuum, 2006, pp. 1-209.    Searle, John. “A Taxonomy of Illocutionary Acts.” Cambridge University Press, 1979, pp.  1-29.  Searle, John. “Indirect Speech Acts.” Cambridge University Press, 1979, pp. 30-57.   State v. Dawkins. Court of Appeals of North Carolina. 20 Jan. 2004. FindLaw. N.p., n.d.  Web. Accessed 17 Dec. 2017. <http://caselaw.findlaw.com/nc-court-of-appeals/1339589.html>.        14 


Memo: The Fight for Marriage Equality Continues Arielle Schoen ’19      Decided on June 26th, 2015, Obergefell v. Hodges requires all states to issue marriage  licenses to same-sex couples and to recognize same-sex marriages performed in other jurisdictions.  The 5-4 decision struck down section 3 of the Defense of Marriage Act which denied the federal  recognition of same-sex marriages and recognized the right to marry as guaranteed to same-sex  couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth  Amendment.   Because of Obergefell v. Hodges, same-sex marriage is now legally protected within the  United States, or so we thought. Since the historic decision, hundreds of bills have been introduced  in state legislatures in attempts to chip away at the marriage-equality ruling. One significant attempt  to slight those who have fought so long and hard for the ability to marry stems from the “religious  exemption law” in North Carolina. Just prior to the U.S. Supreme Court decision declaring the  legality of same-sex marriage, North Carolina passed a law which allows its judges the ability to  refuse to perform same-sex wedding ceremonies. If judges have a religious objection to same-sex  marriage, they can withdraw themselves from issuing any marriage licenses for gay or straight  couples for at least six months.   Before North Carolina’s exemption law passed, two judges sued a state administrative office  which told them they had to perform same-sex marriages. They had asked for religious  accommodations, but were denied and they resigned as a result. In a separate case, three couples, a  married lesbian couple, an engaged lesbian couple, and an interracial couple, challenged the North  15 


Carolina exemption law arguing that the law uses taxpayers’ money to pay judges who then disregard their duties by refusing to do their job for all individuals who request their services. In September of  2016, the North Carolina Court of Appeals upheld a lower court’s dismissal of the first challenge  therefore dismissing the first suit. That same day, the U.S. District Court for the Western District of  North Carolina dismissed the second case. Both cases were dismissed not for lack of an argument  but because both parties of plaintiffs didn’t have standing to bring these cases to court.   This religious exemption argument and allowance is no surprise considering North  Carolina’s political climate. North Carolina is a state which has remained rather split between  Republicans and Democrats in polls since 1984. However, North Carolina has voted Republican in  the last nine of ten elections, is represented by a majority Republicans in the House, and is only  represented by Republicans in the Senate. To say that North Carolina leans conservative would be  an understatement. Most recently, North Carolina has become a battleground for so many who  struggle to have their identity recognized. The state passed a law, which was later repealed, which  forced transgender individuals to use the bathroom of the gender they were assigned at birth even if  it is not the gender they identify as. This coercive, state violence proves that North Carolina is  capable of standing up for its citizens when they feel unsafe - unfortunately, when they work to  protect the safety and rights of certain individuals, they have rejected the safety and rights of certain  others. North Carolina only works to protect those it has deemed worth protecting while all others  are left to fend for themselves under laws created to silence them.   Some legislatures, namely Florida, Minnesota, South Carolina, and Virginia, have introduced  similar legislation but have not yet passed it. Others have been thrown out entirely. The other state  that has come into the public eye on this issue is Kentucky since the arrest of clerk Kim Davis 

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following her refusal to sign a same-sex marriage certificate. Although Davis was released and her right to refusal recognized, a law signed in April of 2016 removed the requirement that a clerk’s  signature be included on marriage licenses. Although individuals continue to protest recognizing the  equal rights of all individuals, legislature is being created constantly so that those individuals are  unable to hinder the equality of any other persons. This religious loophole to a Supreme Court  designated right for all offers a long-term solution for anyone who does not wish to marry a  same-sex couple. One component of the wrongdoing by the exemption law is the fact that it bars  certain individuals from rights given to all individuals in the Constitution. The exemption law allows  minorities to experience discrimination by non-minorities and therefore reinforces oppression by  prohibiting LGBTQ+ individuals from experiencing the law in the same way that non-LGBTQ+  individuals experience it. Another facet to the problematic nature of the exemption law is that it has  revealed that anyone who does not wish to comply with a law which recognizes someone else’s  rights can plead an inability to comply as a result of religious differences. This law offers the option  of dismissing one’s rights or dismissing any given law due to a religious accommodation.   North Carolina’s religious exemption is wrong for more reasons than one. It eliminates equal  protection of the law and due process for all because it allows magistrates to treat individuals  differently based on their religious beliefs and the identity of the individual. The law prioritizes the  identity of some while threatening the equal rights of all others.          

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Works Cited Langton, Rae. “Speech Acts and Unspeakable Acts.” Wiley, Philosophy and Public Affairs, Vol. 2  No. 4, Autumn 1993, pp. 293-330. Accessed 12 Dec. 2017.  <http://www.jstor.org/stable/2265469>.   Morgan, Edmund M. “Hearsay Dangers and the Application of the Hearsay Concept.”  Harvard Law Review. The Harvard Law Review Association, Dec. 1948, Vol. 62 No. 2, pp. 117-219.   “Rule 803. Exceptions to the Rule Against Hearsay.” Legal Information Institute. Web.  Accessed 18 Dec. 2017. <https://www.law.cornell.edu/rules/fre/rule_803>.  Schane, Sanford. “Language and the Law: With a Foreword by Roger W. Shuy.” New York:  Continuum, 2006, pp. 1-209.    Searle, John. “A Taxonomy of Illocutionary Acts.” Cambridge University Press, 1979, pp. 1-29.  Searle, John. “Indirect Speech Acts.” Cambridge University Press, 1979, pp. 30-57.   State v. Dawkins. Court of Appeals of North Carolina. 20 Jan. 2004. FindLaw. N.p., n.d. Web.  Accessed 17 Dec. 2017. <http://caselaw.findlaw.com/nc-court-of-appeals/1339589.html>.               

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The Changing Character of Campaign Ads Angela Coco ’19    "Eisenhower Answers America" (1952) was the first political campaign ad to be broadcasted  on television, changing the world of political advertising forever and setting the stage for the next 70  years of campaign advertisements. Conceived in 1940 and embryonic in 1948, television as a viable  political force was born in 1952. This paper will look closely at several campaign ads, “Ike For  President” (1952), “Peace Little Girl” and “Eastern Seaboard” (1964), “Nixon Now” (1972),  “Family/Children” (1988), as well as selections from the most recent 2016 presidential election to  uncover a subtle, important change. Using these examples, this paper will conclude that the overall  character of campaign ads, while the purpose and method is decidedly the same, has become less  creative and more explicitly negative over the years.   The spot “Ike For President” from the 1952 presidential election, paid for by Dwight D  Eisenhower, catches the attention of watchers with a catchy tune. The song is upbeat and  uncomplicated, which made it audibly pleasing to a wide range of ages. The message of this ad is to  show that many people in America “like Ike.” Throughout this ad, the “people of America” sing of  their love of Eisenhower, and how they want him over the other candidates: “We don't want John  or Dean or Harry. Let's do that big job right.” Interestingly, all of Ike’s democratic opponents are  portrayed as donkeys: the “Harry” the song refers to is Harry S. Truman, the incumbent president,  “John” was Adlai Stevenson’s running mate, John Sparkman, and “Dean,” the final donkey, was  Truman’s secretary of state Dean Acheson.  

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The animated visuals in this ad were clever and well placed. One moment shows Adlai going away from Washington DC on a donkey, after losing the race to the White House. The high  powered Democrats are represented as donkeys, which symbolized their lack intelligence, while, at  the same time, represented the Democratic party. The ad does not directly mention that Eisenhower  is the Republican candidate, however, it indirectly implies he is a Republican with the presence of an  elephant in the parade of Ike supporters. By not specifying the party as the Republican Party, the  campaign avoids losing voters because Eisenhower is the “Republican candidate.” Ike is for the  people, not for a “party” like his opponents clearly are.   The animated people in this ad, too, represented average, everyday Americans: bakers, chiefs,  happy families, firefighters, farmers, and businessmen. Both men and women are singing in the ad,  which leads the listener to believe everybody, inclusively, truly does want Eisenhower to be president.  While the ad does not mention specific policies or plans for the country, it does make clear that  Eisenhower is the only man for the job and that it was time for all “good Americans to come to the  aid of their country,” as if not voting for Eisenhower made you a “bad” American. It is because of  these factors that I believe that the American people in 1952 would have enjoyed this ad. Going into  the voting booth, the people of America might have been humming :“You like Ike, I like Ike,  everybody likes Ike for president.” I think this ad was successful in introducing Eisenhower as  competitor and in getting the American people to vote for him: he won his election in 1952.    In the 1964 presidential campaign, President Lyndon B. Johnson released the “Peace Little  Girl” spot. The ad begins happily, as a cute little girl counts the petals of a daisy flower, miscounting  the order of the numbers. The viewer is captivated by the adorable girl, and just as she finishes 

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counting, the video pauses and zooms into her eye. In her eye, the viewer can hear a mysterious man counting to ten, and suddenly becomes fearful for the girl. The man’s voice is powerful, sending  chills down the viewer’s spine. At the end of the countdown, an atomic bomb explodes, which  would have shocked America. The spot was intense, as was clearly the intention of President  Johnson. It sent the clear message that if the American people voted for his opponent, Barry  Goldwater, the American nation would not be safe for America’s youth. People would not survive  the presidency of Mr. Goldwater.   The American people in 1964 had pre-existing notions about Barry Goldwater. He was  viewed as a very conservative candidate, who tended to say rash, irresponsible comments about  domestic and foreign policy. Goldwater is never mentioned by name, or even shown, in the spot.  However, the American people would have been aware of the extremist nature of Goldwater, they  would have connected the dots and assumed that Johnson wanted to protect America from the  “crazy” Barry Goldwater. As opposed to Barry, the Democrat’s would look like “sane,” “normal”  representatives and the logical choice for the future of America. LBJ, unlike Goldwater, was not war  and battle hungry.   I can only imagine that Americans in 1964 would have had this explosive image burned into  their minds for a long time, leading to a very successful campaign. It would have struck fear into the  hearts of Americans, as the possibility of nuclear holocaust was a constant worry in the minds of  Americans during the Cold War. At the end of the ad, a narrator is heard saying “The stakes are too  high for you to stay at home.” Before the election, Johnson was leading by a great deal in the polls.  Because of this, people might think they can stay home instead of voting because Johnson would  win anyway. By including that final line in the poignant spot, it would ensure a win.   

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In his 1964 campaign President Lyndon B. Johnson released another effective spot, “Eastern Seaboard.” In the first moments of this ad, viewers can hear the sawing of wood but can not see  where the sound was coming from until about 10 seconds into the ad. When the narrator begins  talking, the viewer sees someone sawing off the Northeast portion on a map of a floating United  States. The northeast is detached from the continent and floats off into the ocean. The ad poses a  question: “Can a man who makes statements like this be expected to serve all the people, justly and  fairly?” This ad is an explicit attack on Johnson’s Democratic challenger Barry Goldwater. It puts an  image to a statement that Goldwater told the Saturday Evening Post in 1963: “Sometimes I think  this country would be better off if we could just saw off the eastern seaboard and let it float out to  sea.”  This ad, though not explicitly, means to say that Goldwater would not make a responsible and  equally fair president. The constant sawing of wood in the background emphasizes with each  movement of the saw indicates how severe ignoring the wants and needs of the Eastern Seaboard  would be. Theoretically, Johnson’s campaign did not need a map and a saw to make this point.  However, the physicality of the ad, with very real sawing sounds, gets his message across and has it  stick with his watchers. Further, if you were a person who lived in the Northeast, you would have  been even less excited to vote for Goldwater after this campaign ad.  “Nixon Now” from the 1972 presidential election, paid for by Richard Nixon, brings back  song to describe how Nixon is the candidate “reaching out” to help Americans make their “dreams  reality.” The song is upbeat, giving a happy impression of Nixon as an individual. The images  displayed are of people having fun, living the “American dream,” and of beautiful American scenery.  The song informs the listeners of the important qualities that Nixon has as a leader, placing 

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emphasis on Nixon as a person, rather than his political affiliation. This style harkens back to Ike’s effective campaign.  With his catchy song, Nixon is shown to make positive change in the lives of Americans  right “now.” Showing a happy Richard Nixon on the campaign trail, shaking the hands of many  happy Americans, proves that Americans are with Nixon. Scenes of Americans and American  couples skipping through water puddles holding hands, and various nature scenes of butterflies and  cattails, only furthers this positive image. The colors in the pictures and video clips are soft and  pleasing to the eye. The ad is trying to imply that, by voting for Nixon over the Democratic  challenger, you and your loved can live a happy prosperous life. Nixon is constantly smiling  throughout the ad in an attempt to display confidence and pride. This spot is effective on the basis  that it personalizes Nixon’s campaign, and gives the impression that he is already supported by all of  America. As a result, Nixon wins the presidency.  In the 1988 presidential campaign, George Bush released the spot “Family/Children.” This  ad is family oriented and projects a good image of George Bush to the American public. At this  point in time, Bush has been Vice President for eight years. Although the country had seen Bush in  an governmental role, the public may not truly know Bush as a person yet. Therefore, this ad hopes  to portray Bush in the context of his family.  The opening moment of this ad has a child running into the arms of Vice President Bush.  The child seems happy, excited and obviously loved. The scenes nearly all have the Bush family and  friends in well dressed clothes at fun “American” events, such as a picnic barbeque. They look like  the “perfect” American family. When Barbara Bush begins to talk about her husband, her love  seems sincere, making her a great character witness. The ad shows that Bush is aged, however not to 

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the point that he should be considered “old.” He seems experienced and well prepared to work in the White House.    The spot mentions how Bush has a big family and thousands of friends, showing he is a  likeable guy, fit to be the leader of a nation. The announcer states, “no one in [the] century is better  prepared to be President of the United States,” while the viewer sees Bush is holding his grandchild  up in the air. The goal of this ad was to show that Bush relates to the common person, that he has a  family that loves and adores him, and that he can focus that love as a positive force for America.  Living in the public spotlight, it is important that the president is morally sound and has experience  dealing with difficult situations. The country already knows he is a leader because of his current  position, but with a large family, there seems to be no surprise that Bush would have had plenty of  practice dealing with chaotic situations (of lesser severity). This ad might possibly imply that the  Democratic challenger Michael Dukakis is not a family oriented man. Similarly to Ike’s campaign,  nowhere does the ad specifically state that George Bush is a Republican. The spot shows his love,  pride and dedication to causes both in and outside of America.   This ad pleasantly painted the picture of a man who wants to be President to better America  for his large family, support system and friends- just like anybody else. Bush wanted to show the  world that if he was supported by his family, and could be supported by the rest of America too, an  even bigger American family.  In contrast, while some political campaign ads in the 2016 presidential election were similar  to the ones described above, most ads took a decidedly negative turn. In the 2016 election, the  competition was fierce and the insults were fiercer. In November 2015, Ohio Gov. John Kasich, one  of Donald Trump’s most aggressive primary opponents, released an attack ad focusing on Donald 

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Trump’s mocking of a New York Times reporter’s physical disability. The ad noted that, while Trump said he did not know the reporter personally, they actually had interacted with each other for  years. This campaign ad had nothing to do with Kasich as a candidate, serving only to attack Donald  Trump. Similarly, about a week before the Iowa caucuses, Ted Cruz’s presidential campaign released  an ad titled “New York Values.” The target was Donald Trump and the ad featured clips of Trump  saying he lived in New York City all of his life so his values are “a little bit different than if I lived in  Iowa” and asking at a rally “how stupid are the people of Iowa.” Cruz won the Iowa Republican  caucuses, narrowly beating Trump and the rest of the field.   In early February, Ted Cruz’s campaign released an ad featuring children playing with a  Trump action figure and ticking off facts, like he gave money to top New York Democrats and  would “take your house with eminent domain and park my limos there.” A voiceover then says “we  wouldn’t tolerate these values in our children, why would we want them in a president?” Again,  solely focussing on Trump and not on Cruz. Clinton did the same in September 2016, the Clinton  campaign in September took some of Trump’s more aggressive comments about women and played  them over clips of girls looking in the mirror. The ad, titled “Mirrors” featured Trump saying “a  person who has a flat chest is very hard to be a 10.” The ad ends with “is this the president we want  for our daughters?” These ads were so much more explicit to the point of verbal violence. In  American history, we have never seen ads as tough to swallow and inherently negative as these.   Through my research, I noticed a common theme: campaign advertisements were either  highlighting individual qualities which would make the candidate more personable or seem better  qualified, or rather as attack ads meant to humiliate or diminish the reputation of the other 

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candidate. While these two modes have, for decades, been the goal, it is not until the 2016 campaign that we see a more mean spirited and less subtle, explicit attack on one’s opponents.   The positive campaign commercials that focus on the character and plans of the candidate  are the best type of spots because they leave the viewer with a positive message about their  candidate and not a negative message toward their candidate’s opponent. In the past, ads that were  indirectly attack ads, ones that never actually mentioned the other candidate by name, seemed very  effective and carefully molded an image of the candidate in the minds of the American people. This  is exactly what the candidates in the 2016 election were NOT doing. Only time will tell the character  of political television ads for the 2020 election, but if history is any indication, the losers will  explicitly attack their opponents (to no avail). Politicians should look back to successful campaigns  of the past and brand themselves as successful, safe, family men or women in order to sway the  average American voter. But, if history is any indication, I do not see a more honest political  campaign culture beginning any time soon.                         

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Works Cited Eisenhower:  1952- “Eisenhower Answers America”: https://www.youtube.com/watch?v=jdq6YM9rD0I  1952- “Ike For President”: https://www.youtube.com/watch?v=Y9RAxAgksSE  Johnson:   1964- “Peace Little Girl”: https://www.youtube.com/watch?v=dDTBnsqxZ3k  1964- “Eastern Seaboard”: https://www.youtube.com/watch?v=9-VPzUazQVY  Nixon:   1972- “Nixon Now”: https://www.youtube.com/watch?v=uMO5DfRIv-k  Bush:    1988- “Family/Children”: https://www.youtube.com/watch?v=LToAmI4r6ms    Kurtz, David. “Goldwater’s ‘Eastern Seaboard’ Comment.” Talking Points Memo (blog), September   19, 2012. https://talkingpointsmemo.com/edblog/goldwater-s-eastern-seaboard-comment.  Ridout, Travis N., and Michael M. Franz. The Persuasive Power of Campaign Advertising. Philadelphia:   Temple University Press, 2011.  Sheinkopf, Kenneth G., Charles K. Atkin, and Lawrence Bowen. "The Functions of Political   Advertising for Campaign Organizations." Journal of Marketing Research 9, no. 4 (1972):  401-405.   Strauss, Daniel. “16 Ads That Mattered in 2016.” POLITICO. Accessed November 16, 2018.   https://www.politico.com/story/2016/11/2016-election-best-campaign-ads-230789.  Wood, Stephen C. "Television's First Political Spot Ad Campaign: Eisenhower Answers America."   Presidential Studies Quarterly 20, no. 2 (1990): 265-283. 

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Prison Policy on Transgender Inmates in the United States Ninan Pollack ’20  Introduction  Ever since same-sex marriage was legalized in the United States in 2015 through the  Supreme Court’s decision in Obergefell v. Hodges (2015), the rights of individuals who identify as part  of the LGBTQ+ community have continued to advance. However, transgender individuals continue  to suffer from high rates of violence and poverty. Approximately, 0.5% of American adults identify  as transgender and transgender individuals compose around 5% of the LGBTQ+ community  (Taylor and Haider-Markel 18). Although Congress passed a hate crimes statute protecting  transgender individuals in 2009 and 17 states have made employment discrimination against  transgender individuals illegal as of 2013, transgender individuals continue to face harassment and  have high levels of unemployment (Taylor and Haider-Markel 3, 4). Since many shelters and  programs that are intended to provide support to people in need categorize individuals based on  their sex, transgender individuals are often either excluded from receiving services or are improperly  identified (Pemberton 165). As a result, some transgender individuals are forced to engage in illegal  activities to support themselves (Pemberton 165). In fact, studies have found that 1 in 6 transgender  people in America have been incarcerated and incarcerations rates increase to 1 in 2 individuals for  the black transgender community (Bright 40).  Researchers estimate that there are currently around 750 imprisoned individuals across state  and federal prisons in the United States that identify as transgender (Brown and McDuffie 281).  Most of the transgender inmates are male to female (MtF), so though they were labeled male when 

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they were born, they identify as women (Brown and McDuffie 281). While the prison system is rife with policies that negatively affect inmates, a few major issues arise with regards to transgender  inmates specifically, including where transgender inmates should be housed, how correctional  officers should treat transgender inmates, and what medical treatment or special care should  transgender inmates receive.  This paper will begin with an overview of both historical and current policies regarding  transgender inmates, outline the current challenges facing incarcerated transgender individuals, and  finally detail contemporary legal and policy issues with the goal of presenting a broad overview of  the state of transgender inmates.  Defining Terms  Prior to diving into the body paragraphs, it is important to define and review a few key terms  that are relevant to the discussion of transgender inmates.   First, there is a crucial distinction between “sex” and “gender.” While “sex” traditionally  refers to the anatomy with which an individual is born, “gender” has come to be seen as a social  construct that categorizes individuals as men or women (Brown and McDuffie 280; Transgender  Offender Manual 4). “Gender identity” describes how an individual understands their own gender  and the way in which that individual wishes to express that gender to others (Transgender Offender  Manual 5). The United States Department of Justice defines “transgender” as “the state of one’s  gender identity not matching one’s biological sex” (Transgender Offender Manual 5). In contrast, a  “cisgender” individual identifies their gender identity as the same as their sex (Transgender Manual  5). Some, but not all, transgender individuals struggle with “gender dysphoria,” which according to  the American Psychiatric Association, is a mental health diagnosis that describes an individual’s 

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“stated desire to be the opposite sex and persistent discomfort with [their] biologically assigned sex” (Schneider 839; Transgender Offender Manual 5). Gender dysphoria is a broad diagnosis that differs  in severity depending on the individual and individuals with gender dysphoria can suffer from a  range of symptoms from depression and anxiety to self-harm and suicidal ideation (Schneider 839).  Lastly, the term “transition” refers to the steps some transgender individuals take to modify either  their gender expression or body in order to match their gender identity (Transgender Offender  Manual 5). The degree to which and how an individual’s transition occurs is up to the individuals  themselves and their doctors, who are guided by the World Professional Association for  Transgender Health’s (WPATH) Standards of Care for the Health of Transsexual, Transgender, and  Gender Nonconforming People (Schneider 839).  Policies Regarding Transgender Inmates Around the United States  There are no national standards that dictate how prison systems should treat and manage  transgender inmates. Therefore, even though the federal government may have certain policies that  apply to federal prisons, there is great variation between the policies enforced in state correctional  centers (Pemberton 162).   Federal Policies. Within the federal government, policymaking with regards to transgender inmates is  carried out by the Women and Special Populations Branch of the Federal Bureau of Prisons, an  agency housed within the U.S. Department of Justice (Transgender Offenders Manual 1). Before  2011, transgender inmates were unable to proceed with their treatment in prison beyond what they  were undergoing prior to incarceration due to the Bureau’s “freeze frame” policy (Agbemenu 5).  However, after a lawsuit in 2010, the Bureau rescinded the “freeze frame” policy and began allowing  inmates to begin treatment once they entered a federal prison (Keenan 2013). During President 

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Obama’s second term, the federal government took a more proactive approach with regards to expanding treatment options for transgender inmates. In 2014, a ban which prevented sex  reassignment surgery for transgender inmates from being covered by Medicare was lifted (Schneider  837). Next, in 2015, the Department of Justice asserted the unconstitutionality of state prisons’ bans  on hormone treatment and sex reassignment surgery in a court brief (Schneider 836). Then, just as  Obama’s presidency was coming to an end in 2016, the Department of Justice published new rules  dictating that federal prisons could no longer determine the transgender inmates’ housing  designation by only looking at the inmate’s biological sex (La Ganga 2016)  Since the beginning of President Trump’s administration, federal policies on transgender  inmates has changed. In May of 2018, the U.S. Department of Justice, helmed by attorney general  Jeff Sessions, announced changes to federal policy concerning how transgender inmates in federal  prisons are housed (Holden 2018). While the Obama administration had made changes to allow for  transgender inmates to be assigned to prisons based on their professed gender identity, the new  orders reverse the Obama administration’s modifications and mandate that “biological sex [should  be used] as the initial determination for designation” (Lopez 2018; Transgender Offender Manual 2).  Only after taking into consideration the transgender inmate’s biological sex, should the federal  prison account for the health and safety of the inmate (Transgender Offender Manual 2). Bureau  policy also directs that, in housing transgender inmates, prisons must “consider whether placement  would threaten the management and security of the institution and/or pose a risk to other inmates  in the institution” and can only place inmates in facilities that align with their gender identity when  “there has been significant progress towards transition as demonstrated by medical and mental  health history” (Lopez 2018; Transgender Offender Manual 2). 

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In addition to policies about transgender inmate housing, the Federal Bureau of Prisons currently outlines how federal prisons should manage transgender inmates’ transition, safety, and  gender expression. First, in order for an inmate to be formally recognized as transgender by a federal  prison and receive consideration for special accommodations, they must meet with a psychologist  from the Federal Bureau of Prisons’ and sign a consent form (Transgender Offender Manual 5). The  Bureau clearly states that transgender individuals who have not been diagnosed with gender  dysphoria can receive official recognition and have access to accommodations and treatment  (Transgender Offender Manual 5). Treatment can range from individual counseling sessions to  support groups depending on the prison (Transgender Offender Manual 13). In terms of medical  treatment and transition care, such as hormone treatment or sex reassignment surgery, prisons can  choose to initiate treatment on a patient-by-patient basis if medically necessary and only after  seeking advice from the Bureau’s psychologist (Transgender Offender Manual 3). All transgender  inmates will be allowed to shower separately from the prison’s general population to maximize the  inmates’ safety (Transgender Offender Manual 10). In order to make transgender inmates feel more  comfortable, inmates are allowed to wear the undergarments that align with their gender identity  regardless of in what type of facility they are housed (Transgender Offender Manual 13). In addition,  Bureau policy stipulates that correctional officers and prison staff will not be punished for using  inmates’ preferred gender pronouns (Transgender Offender Manual 13).  State Policies. In 2009, a nation-wide study on prison policies related to transgender individuals found  that only 31 states had policies that addressed transgender inmates, while the other 19 states had no  policies on record (Brown and McDuffie 283). However, in the past decade, states have increasingly  issued directives to state correctional facilities on how to manage transgender inmates. Although 28 

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states continue to prohibit transgender inmates from receiving transition care in prison, 21 states allow inmates to continue any hormone therapy they may have started prior to incarceration and 13  states allow transgender inmates to begin hormone treatment therapy once they enter the prison  (Routh et. al 656). Only 7 states allow transgender inmates to receive sex reassignment surgery and  in 2017, California was the first state in which a sex reassignment surgery for a transgender inmate  was performed (Schneider 836; Routh et. al 662). The most broadly approved treatment for  transgender individuals is counseling and 37 states allow transgender inmates to sign up for  counseling (Routh et. al 656). Whether or not a treatment is selected for a transgender inmate is  often not determined by the inmate or the prison doctor, rather, the decision is wholly in the hands  of the prison administration (Schneider 842). In general, correctional centers are not mandated to  make available treatment options that go beyond the “minimum standard of acceptable care that is  compatible with ‘contemporary standards of decency’” (Schneider 841, 842). Though treatment  options for and policies towards transgender inmates differ by state for various reasons, trends  indicate that more expensive treatments are less likely to be offered (Routh et. al 656).  Challenges Faced by Transgender Inmates  Transgender inmates are an extremely vulnerable group within the prison’s inmate  population. Because they do not conform to people’s conceptions of gender and subvert the rigid  prison environment, transgender inmates are at risk of violence and harassment from both  correctional officers and fellow inmates (Jenness and Fenstermaker 12; Routh et. al 650).  Transgender inmates who are placed in prison housing that does not align with their gender identity  or transgender inmates who are prevented from receiving transition care are especially susceptible to  experiencing harm to their physical and mental health.  

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Physical Health. One of the most pervasive problems that transgender inmates face is the threat of rape and sexual assault. In 2014, the Department of Justice published a study revealing that 34% of  transgender inmates have been victims of sexual assault in prison (Holden 2018). While prison rape  is an issue for all inmates, 24.1% of transgender inmates have reported a sexual assault compared to  only 1.2% of cisgender inmates (Lopez 2018). More specifically, a 2009 study found that transgender  women inmates who are placed in all-male prisons are raped 13 times more often than cisgender  male inmates (Holden 2018). Because male inmates often rank each other based on their masculinity  to form a prison hierarchy, transgender women inmates that are housed in all-male prisons are often  at the bottom of the totem pole and are in danger of assault (Pemberton 163). Not only can rape  result in emotional trauma but because there is a high rate of sexually transmitted diseases, such as  HIV and hepatitis C, among inmate populations and condoms are unavailable in prison, transgender  inmates that are assaulted may also contract deadly STDs (Pemberton 163).  There are also various physical health consequences that can arise from preventing a  transgender inmate from receiving medical treatment and transition care. A survey conducted by an  LGBTQ+ advocacy group found that though one-third of transgender inmates were undergoing  hormone treatment before incarceration, 44% of those individuals were stopped from continuing  hormone treatment after entering prison (Bright 140). When transgender individuals’ hormone  treatment is immediately halted, they may suffer from hormone withdrawal (Schneider 844). In  addition to causing depression, the hormone withdrawal can lead to unwanted facial hair growth,  nausea and a variety of other physical side effects (Schneider 844).   

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Mental Health. Transgender inmates often struggle with mental health issues because of their nonconforming gender identities, lack of medical treatment, and harmful prison policies. According  to a 2015 report, 80% of transgender inmates suffered “emotional suffering as a result of having to  conceal their gender while locked up” (Bright 140). Transgender inmates may be forced to hide their  true gender identity from other inmates and correctional officers because some prisons prohibit  clothing and hairstyles that do not correspond with the gendered prison norms (Pemberton 167).  While 43% of transgender inmates have been diagnosed with gender dysphoria by either a  civilian or prison psychologist, 30% of transgender inmates have reported that the prison  administration rejected their requests to see a counselor to obtain a gender dysphoria diagnosis  (Bright 141). When transgender inmates do not receive treatment for their gender dysphoria, they  may experience an assortment of mental health issues such as anxiety and depression and they may  engage in self-harm or attempt suicide (Brown and McDuffie 281). In certain extreme  circumstances, transgender women inmates with severe gender dysphoria have attempted  autocastration, wherein they try to sever their own penises (Brown and McDuffie 281). Depending  on the acuteness of a transgender individual’s gender dysphoria, lack of treatment can result in  mental distress and potentially death.  Ongoing Policy Debates  There are numerous ongoing policy debates with regards to the Trump administration’s new  housing policy and the types of transition and medical care that should be available to transgender  inmates. The two groups debating these issues are often LGBTQ+ advocacy organizations on one  side, and correctional officers and conservative politicians on the other. In developing policy, federal 

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and state governments must weigh the arguments of all parties to determine the best policies for both the transgender inmates and the prisons.  Prison Housing Policy. After the Department of Justice released a report in May of 2018 declaring that  prisons will initially determine transgender inmate housing based on the inmates’ biological sex,  many LGBTQ+ advocacy groups expressed concern with the new policy. The first concern is that  placing transgender women inmates in all-male prisons further reinforces prison environments in  which rape of transgender women inmates occurs (Lopez 2018). The concern for transgender  inmates’ safety is founded on the high rates of sexual assault transgender inmates have been found  to experience (Lopez 2018). Another concern is that the term “biological sex” is excessively vague  (Holden 2018). The document published by the Department of Justice fails to define “biological  sex” and it is unclear whether or not the Bureau will be basing their decisions on inmates’ current  genitalia or on the genitalia with which the inmates were born (Holden 2018, Pemberton 163).  Comprehensively clarifying the term “biological sex” is important because if “biological sex”  indicates that the new system is genitalia-based, confusion could arise depending on whether or not  a transgender inmate has or has not undergone sex reassignment surgery (Pemberton 163). The new  policy is also ambiguous in how it does not explain whether or not the transgender inmates who are  currently housed in prisons aligned with their gender will have their housing statuses reevaluated  (Holden 2018). Ultimately, opponents of the policy worry about transgender inmates’ safety and the  potential for improper categorization.  In contrast, those who would support the new housing policy are more concerned about the  safety of the cisgender inmate population, rather than the transgender inmates. These supporters are  in favor of placing specifically transgender women inmates in all-men prisons because they worry if a 

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transgender woman inmate is placed in a women’s prison, the cisgender women inmates would be at risk of violence and sexual assault (McGaughy 2018). Under this line of thinking, since transgender  inmates could pose a threat to other inmates, the prison would be forced to keep the transgender  inmates in solitary confinement to protect the general inmate population (Schneider 862). Therefore,  supporters reason that it would be better for transgender inmates to be housed in facilities that align  with the sex with which the individual was identified with at birth.  Access to Transition and Medical Care. An argument commonly used by groups that oppose transgender  inmates receiving transition care and medical treatment is that the treatments are too expensive.  Correctional officers and politicians have historically complained that the costs of hormone therapy  and sex reassignment surgery are too high and place an excessive burden on the American taxpayer  (Schneider 836, 862). Hormone therapy can cost around $1,000 per inmate, while sex reassignment  surgery is typically around $20,000 (Schneider 866). In addition, these prison administrators and  politicians often characterize the treatments as frivolous (Schneider 836). Opponents of hormone  therapy and sex reassignment surgery also assert that providing hormone treatment or sex  reassignment surgery to transgender inmates would increase violence and disrupt prison safety and  order. In the case of transgender women inmates who are housed with cisgender men, opponents  claim that if transgender inmates are given the hormone therapies or sex reassignment surgeries and  become “feminine,” they will be even more at risk from sexual assault and violence (Schneider 862;  Agbemenu 18).  Groups that advocate for transgender inmates to have access to various transition options  counter the opponents’ arguments by claiming that providing treatments will not drastically increase  prison costs and will not increase disorder or violence in the prison. Although hormone therapy and 

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sex reassignment surgery are expensive, all medical procedures can have a high price tag for a prison, so treatment for transgender individuals should not be considered differently than other medically  necessary procedures (Schneider 866). In addition, when transgender inmates that are not receiving  treatment for gender dysphoria self-harm or attempt suicide, the medical costs that accrue from  hospital stays and emergency care can also be quite high (Brown and McDuffie 281, 288). Lastly,  advocate groups point out that there have been no studies showing that treating transgender inmates  for gender dysphoria will lead to chaos and an increase in violence and sexual assaults has not been  found to occur when transgender inmates are receiving transition care (Schneider 863).   Pushing for Reform Through the Courts  In an attempt to advance the rights of transgender inmates, both advocacy groups and  transgender inmates themselves have challenged numerous policies in court. However, before  transgender inmates can take a grievance to court, because of the Prison Litigation Reform Act of  1995, inmates are required to “exhaust all internal facility grievance procedures” (Routh et. al 653).  As a result of the PLRA, transgender inmates often must overcome numerous obstacles before they  can bring their case to the legal system.  Eighth Amendment. Transgender inmates most often argue that by withholding medical treatment and  transition care, prisons are violating their Eighth Amendment right to be free from cruel and  unusual punishment (Schneider 844). In order for an Eighth Amendment violation to stand, the  courts must find that the prison has expressed “‘deliberate indifference’ to a prisoner’s serious illness  or injury” (Schneider 844). Eighth Amendment claims have found relative success in allowing  transgender inmates to petition the courts to mandate that prisons provide them with necessary  medical care. In the 2014 case of Kothmann v. Rosario, the plaintiff, Sebastian Kothmann, was a 

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transgender male inmate who argued that by refusing to allow him to undergo hormone therapy to treat his gender dysphoria, the Florida Department of Corrections was exhibiting “deliberate  indifference” towards his medical needs and thus was violating his Eighth Amendment rights  (Kothmann v. Rosario). The Court of Appeals for the 11th Circuit ruled in favor of Kothmann,  affirming that by withholding hormone therapy from a transgender inmate with gender dysphoria,  Florida was in violation of the Constitution (Kothmann v. Rosario). Then in the 2015 case of Rosati v.  Igbinoso, the Court of Appeals for the 9th Circuit ruled in favor of a transgender woman inmate who  was seeking sex reassignment surgery to treat her gender dysphoria (Rosati v. Igbinoso). Once again,  the Court found that by refusing to authorize the plaintiff’s surgery, the California Department of  Corrections was breaching the plaintiff’s Eighth Amendment rights (Rosati v. Igbinoso). Although  several district and appellate courts have found that treatment for gender dysphoria is a serious  medical need, the Supreme Court has not yet addressed this issue and there has yet to be  nation-wide consensus on this matter (Agbemenu 2).  Other Constitutional Challenges. Though many transgender inmates have been able to demand treatment  through Eighth Amendment claims, legal protections have so far only applied to transgender  inmates with gender dysphoria, who can prove that treatment is medically necessary for their mental  health condition (Bright 140). Therefore, if an inmate has not been diagnosed with gender  dysphoria, regardless of the circumstances, it is unlikely that their Eighth Amendment claim will be  successful (Bright 149). However, some transgender inmates have attempted to make Fifth and  Fourteenth Amendment claims to push prisons to allow treatment. Some have tried to use the due  process clause of the Fifth and Fourteenth Amendments to claim that transgender inmates have a  “substantive due process right to gender identity” (Agbemenu 14). If a due process right to gender 

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identity was recognized by the courts, then the right of a transgender inmate to receive transition care and express their gender identity would be protected. Others have attempted to argue that the  equal protection clause of the Fourteenth Amendment should grant transgender individuals rights as  part of a protected class so that transgender individuals are legally shielded from discrimination  (Agbemenu 14). However, equal protection clause claims have found little success because courts  have asserted that, unlike race or gender, “[being transgender] is [not] an immutable characteristic  determined solely by the accident of birth” and consequently, transgender individuals are not a  protected class (Agbemenu 14).  Conclusion  It is clear from the evidence presented above that transgender inmates are a vulnerable  community within the prison system. Though opponents argue against housing transgender inmates  based on their gender identity and providing transgender inmates with medical treatment, existing  research indicates that housing based on gender identity and providing medical treatment are  necessary policies that can increase transgender inmates’ safety and reduce risks of mental illness and  sexual assault. With regards to state and federal policy related to transgender inmates, there continue  to be many inconsistencies in policy across the United States. Despite the fact that more states are  creating policies that make it easier for transgender inmates to receive transition care and medical  treatment, the Trump administration’s new housing policy, which could lead to an increase in  transgender inmates being placed in prisons that do not align with their gender identity, was a  setback for transgender inmates’ rights. However, there is hope for transgender inmates in the fact  that, even with the federal government moving away from upholding the rights of transgender  inmates, many states seem to be pushing their policy towards promoting transgender inmates’ health 

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and safety. Finally, the legal system will continue to be a useful tool for transgender inmates to protect themselves from harmful policies and demand transition care and medical treatment. While  transgender inmates have so far mostly failed to successfully make a constitutional claim besides an  Eighth Amendment claim, transgender inmates will foreseeably continue to make Fifth and  Fourteenth Amendment claims in an attempt to broaden legal protections for transgender inmates.  Ultimately, it is likely that transgender inmates will continue to suffer from policies that place them  in harm’s way and deny them treatment until policies are standardized across state and federal  prisons and the Supreme Court identifies transgender individuals as a protected class.                             

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Works Cited Agbemenu, Esinam. "Medical Transgressions in America's Prisons: Defending Transgender   Prisoners' Right to Transition-Related Care." Columbia Journal of Gender and Law 30.1   (2015): 1-48. ProQuest. Web. 20 May 2018.  Bright, Lizzie. "Now You See Me: Problems and Strategies for Introducing Gender Self-  Determination into the Eighth Amendment for Gender Nonconforming Prisoners."   Journal of Criminal Law & Criminology 108.1 (2018): 137-70. ProQuest. Web. 20 May   2018.  Brown, George R., and Everett McDuffie. "Health Care Policies Addressing Transgender   Inmates in Prison Systems in the United States." Journal of Correctional Health   Care 15.4 (2009): 280-91. SAGE Journals. Web. 20 May 2018.  Clark, Kirsty A., Jaclyn M. White Hughto, and John E. Pachankis. ""What's the Right Thing to   Do?" Correctional Healthcare Providers' Knowledge, Attitudes and Experiences Caring   for Transgender Inmates." Social Science & Medicine 193 (2017): 80-89. ScienceDirect.   Web. 20 May 2018.  Holden, Dominic. "Which Prisoners Are Considered Transgender? The Trump Administration   Won't Explain Its New Rules." BuzzFeed. BuzzFeed, 16 May 2018. Web. 20 May 2018.  Jenness, Valerie, and Sarah Fenstermaker. "Agnes Goes to Prison: Gender Authenticity,   Transgender Inmates in Prisons for Men, and the Pursuit of ‘The Real Deal.’" Gender &   Society 28.1 (2013): 5-31. JSTOR [JSTOR]. Web. 20 May 2018.  Keenan, Jillian. "Getting Hormones and Surgery for Transgender Prisoners." The Atlantic.   Atlantic Media Company, 23 Aug. 2013. Web. 20 May 2018. 

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Kothmann v. Rosario, 588 Fed.Appx. 907 (2014) La Ganga, Maria L. "US Prohibits Imprisoning Transgender Inmates in Cells Based on Birth   Anatomy." The Guardian. Guardian News and Media, 24 Mar. 2016. Web. 20 May 2018.  Lopez, German. "The Trump Administration Just Rescinded Obama-era Protections for   Transgender Prisoners." Vox. Vox, 14 May 2018. Web. 20 May 2018.  McGaughy, Lauren. "Trump Likely to Undo Obama-era Transgender Prisoners Policy, Ending   Texas Court Battle." Dallas News. The Dallas Morning News, 26 Mar. 2018. Web. 20 May 2018.  Pemberton, Sarah. "Enforcing Gender: The Constitution of Sex and Gender in Prison   Regimes." Signs: Journal of Women in Culture and Society 39.1 (2013): 151-75. JSTOR   [JSTOR]. Web. 20 May 2018.  Rosati v. Igbinoso, 791 F.3d 1037 (2015)  Routh, Douglas, Gassan Abess, David Makin, Mary K. Stohr, Craig Hemmens, and Jihye Yoo.   "Transgender Inmates in Prisons." International Journal of Offender Therapy and   Comparative Criminology 61.6 (2015): 645-66. SAGE Journals. Web. 20 May 2018.  Schneider, Dan. "Decency Evolved: The Eighth Amendment Right to Transition in Prison."   Wisconsin Law Review 4 (2016): 835-71. Hein Online. Web. 20 May 2018.  Taylor, Jami K., and Donald P. Haider-Markel, eds. Transgender Rights and Politics: Groups,   Issue Framing, and Policy Adoption. Ann Arbor: U of Michigan, 2014. Print.  United States of America. U.S. Department of Justice. Federal Bureau of Prisons. Transgender   Offender Manual. Buzzfeed, 11 May 2018. Web. 20 May 2018. 

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First Amendment Rights: Case Analysis of Minersville School District v. Gobitis (1940) Olivia Feldman ’21  The Gobitis children went to a primarily Catholic public school in Pennsylvania and were  consistently bullied for being Jehovah’s Witnesses by students and teachers alike. When their father  instructed them to no longer salute the flag at school, they were further vilified by the community,  leading to violent attacks on the children and a boycott of the family business. Witnesses believed  that because they were saluting an “earthly emblem” (the flag), the Gobitis children violated the  tenth commandments (i.e., don’t worship false idols). Around 1940s, the mandatory salute laws had  been in effect certain places for over 40 years. A movement was started by J.F. Rutherford wherein  he declared saluting the flag “unfaithful” to god (Tract Society of Pennsylvania). School children  stopped saluting to the flag and started being expelled, creating a series of cases wherein freedom of  religious liberty had to be fought for around the country.   Given that the Gobitis children were required to attend school, they were forced into private  schools and thus denied a free education from the state, creating a subsequent heavy financial  burden to the father. As a result, the father brought forward a case against the school district. In  1938, the court ruled in favor of the Gobitis’ against the school district: District Judge Albert B.  Maris found that forcing children to salute that flag was an unconstitutional violation of their “free  exercise of religious beliefs” (Gobitis, Supp. 271). A year later the school board appealed, but the  court maintained the original ruling. However, despite of the subsequent losses, the school board  appealed again and the case was accepted in 1940 to the Supreme Court.  In a complete turn, the Supreme Court ruled almost unanimously in favor of mandatory  salute laws. The SCOTUS returned an 8-1 decision in favor of the school district. Justice Felix  44 


Frankfurter wrote the majority opinion, noting the "grave responsibility" the Court had in "reconcil[ing] the conflicting claims of liberty and authority" at stake in the case (Hall, 57). He  reaffirmed the nation’s past as a haven for religious asylum seekers and the commitment to freedom  of religious belief all over the country. Frankfurter noted that the right to freedom of religion was  not an “absolute” due to the cases where “national unity is the basis of national security”(Minersville  School District v. Gobitis, 1940). He suggested that states still hold the authority to "select  appropriate means" to foster such unity: sometimes even at the cost of individual liberty (Minersville  School District v. Gobitis, 1940). Frankfurter quotes Justice Holmes, stating: "'We live by symbols.'  The flag is the symbol of our national unity” (Minersville School District v. Gobitis, 1940).  Therefore, Frankfurter contended that “to establish national security, and since we as a public  believe in the flag as a symbol of national unity, the citizens of the US must always pledge to the  flag, as that represents their patriotism” (Minersville School District v. Gobitis, 1940). Consequently,  Frankfurter reasoned that it was a “reasonable exercise” of Pennsylvania's authority to let the school  districts expel “unpatriotic dissenting” students, and the school boards right to expel students for  such dangerous behaviors was upheld (Minersville School District v. Gobitis, 1940).  Although the majority stated that there are many cases in which religious liberties are to be  respected (according to the first and fourteenth amendments), there are of course exceptions when it  comes to the issue of national security. National security and sense of belonging are ultimately the  majorities main argument in this writ, as Frankfurter argued: “Government may not interfere with  organized or individual expression of belief or disbelief… A grave responsibility confronts this  Court whenever... it must reconcile the conflicting claims of liberty and authority…” (Minersville  School District v. Board of Education, 1940). Likewise, the Constitution ensures immunity to those 

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who offend or upset others through their religious expression (Cantwell v. Connecticut). Frankfurter does declare that “so pervasive is the acceptance of this precious right that its scope is brought into  question, as here, only when the conscience of individuals collides with the felt necessities of  society” (Minersville School District v. Gobitis , 1940). Frankfurter continued unto the idea that at  some point, there may be a conflict of religious and secular duties in a citizens life; thus it’s a duty to  salute the flag because it promotes national unity. National unity, according to the supreme court,  supports national security. The majority therefore concluded that the freedom of religion is not an  excuse to disobey the national law and ignore constitutional obligations.  Frankfurter backed up his arguments with other cases that he believed have stymied religious  liberties in the name of national security. He began with the Court’s decision upholding  anti-polygamy laws in Reynolds v. United States (1879), Frankfurter reaffirmed the principle that  religious liberty had never included “exemption from doing what society thinks necessary for the  promotion of some great common end, or from a penalty for conduct which appears dangerous to  the general good” (Minersville School District v. Gobitis , 1940). Frankfurter further listed cases he  feels apply to claims that there is a limit on religious freedoms: Reynolds v. The United States, 98 U.S.  145; Davis v. Beason, 133 U.S. 333; Selective Draft Law Cases, 245 U.S. 366; Hamilton v. Regents, 293 U.S.  245. In all these cases, the “general laws in question,” were upheld in the defiance of someone citing  religious freedoms, “were manifestations of specific powers of government deemed by the  legislature essential to secure and maintain… [a] society without which religious toleration itself is  unattainable ” (Minersville School District v. Gobitis, 1940).  While mandatory salute laws don’t necessarily privilege one religion over another in a  specific sense, it violates the second half of the free exercise clause, “Congress shall make no law 

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respecting an establishment of religion, or prohibiting the free exercise thereof” (Minersville School District v. Gobitis, 1940). When a law is created or confirmed by the courts, it is neither supposed to  privilege or disenfranchise any religious practice, thus plain and simple the Supreme court violated  this section of the constitution by refusing to let the Witnesses have free exercise by choosing not to  salute the flag peaceful and for solely religious beliefs. The ruling justifies in this specific case that  this clause is suspended; to Frankfurter, the free religious will of the people is less important than  securing national belonging.  The only dissenting opinion, Justice Harlan Fiske Stone, concluded that constitutionally  protected civil liberties could not be circumstantially abridged. Thus, Stone decides forcing these  children to denounce their religious obligations in the name of the state was “persecution.” He  follows this up with the thought, "History teaches us that there have been but few infringements of  personal liberty by the state which have… not been directed, as they are now, at politically helpless  minorities" (Minersville School District v. Gobitis, 1940). Justice Stone continued with the idea that  not only are these children being forced to violate their deeply held beliefs, additionally “the state  seeks to coerce these children to express a sentiment which… they do not entertain.” He argued that  the court’s decision violates their absolute freedoms, as the “freedom of the individual” comes from  their compulsions to what they will think, feel, or pray (Minersville School District v. Gobitis, 1940).  Justice Stone offered an alternative solution, suggesting that the state instead requires  education on the history of the nation that he believed would promote national unity without  infringing on the religious beliefs of students. He also encouraged the idea that there is a “reasonable  accommodation” that can be reached “between them [civil and religious duties] to preserve the  essentials of both” (Minersville School District v. Gobitis, 1940). Overall, Justice Stone ultimately 

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aimed to uproot the notion that civic duty must take precedence over religious duty, offering compromise and middle ground to Justice Frankfurter’s form belief of country over individual  freedoms. Stone argued that there is no need to suspend any amendments, and any attempt to do so  would violate them directly, acting as the “evil” that the constitution aims to keep out of American  society. He claimed that Judge Frankfurter was wrong and that the Constitution does not indicate  that “compulsory expressions of loyalty play any . . . the part in our scheme of government.” Thus,  Stone believed Frankfurter was solely violating the rights of the Gobitis children and violating the  fourteenth amendment (Minersville School District v. Gobitis, 1940).  I argue that the case was in complete violation of the Gobitis’ rights. The Gobitis had a clear  religious obligation to not salute the flag. The religious obligation was not on the grounds of  resentment or hatred of the country in any way. Rather, the decision to not salute the flag was based  on their church’s belief that saluting the flag promoted the idea of worshipping false idols.  Frankfurter even noted in his own opinion that the children were not disruptive, rude, or shamed  others saluting the flag at any time (Minersville School District v. Gobitis, 1940). Children peacefully  exercising their religious freedoms was then deemed a national security threat. According to  Frankfurter, the only reason this case was delivered as was that the United States is enthralled so  deeply into Protestant culture and ethics that anything that challenged the value became a threat to  the states.   

I find Frankfurter’s argument interesting. I wonder if the state promoted the free religious

practice, because it seems normal that only non-protestant Christians find themselves in conflict with their beliefs and their “national duties.” I believe Frankfurter delivered such argument because  the U.S. at its core is not free for all religions. Rather, it is a nation whose laws, doctrine and 

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practices have been governed by Christianity for centuries and it is a nation with an intense fear of other religions since the beginning. This nation was built as a haven for the overtly religious right  Protestants. Additionally, compulsory dedication to a nation promotes a clear idea of fascism, an  idea that I am shocked the Supreme Court of the United States would uphold. Religious liberties  aside, forcing citizens to do anything that would take away their free will or freedom of thought is a  complete violation in itself. Even if there was no religious excuse, mandatory salute laws are  inherently unconstitutional within themselves.    Works Cited  Gobitis v. Minersville School District, 24 F. Supp. 271 (E.D. Pa. 1938).  Kermit L Hall, Judicial Review and Judicial Power in the Supreme Court: The Supreme Court in  American Society (Routledge, 2014) p. 57  Tract Society of Pennsylvania, Watch Tower Bible. “Jehovah's Witnesses in the Divine Purpose.”  Watch Tower Bible and Society of New York, INC., 1959,  Minersville School District v. Gobitis (1940), Bill of Rights Institute, Bill of Rights Institute,  2018,  billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court-cases-el essons/minersville-school-district-v-gobitis-1940/.  Minersville School District v. Board of Education (1940), LII / Legal Information Institute, Legal  Information Institute, www.law.cornell.edu/supremecourt/text/310/586.   

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The Framing of the Fourteenth Amendment: Abolitionist and Moderate Considerations Margot Lipin ’20       Abstract: The Fourteenth Amendment to the American Constitution is one of the most recognized features of the  sacrosanct document, as the backbone for legal equality. This essay will explore the substance of the Fourteenth  Amendment as it enacted held profound changes for the meaning of the Constitution, the power of the federal  government, and racial equality. Republicans drafted the amendment and it was ratified by the states during  Reconstruction as part of the remodeling of the American nation as one dedicated to racial justice. Radical abolitionist  principles influenced the drafting of the fourteenth amendment in the ideas of constitutional equality and civil rights  regardless of race, even though the Amendment itself was drafted by men like John Bingham and Jacob Howard, who  were not necessarily wholly committed to racial justice. The history of the framing of the fourteenth amendment and its  origins are complex, given the varied goals of reformers beyond a racial justice agenda. Republicans wanted to preserve  their Congressional power and the power of the national government. Through analyzing congressional documents and  abolitionist writings, this essay will explore the intellectual politics behind the drafting of the Fourteenth Amendment,  and just how radical (or moderate) it was.     Introduction  In the American political and constitutional consciousness, the Fourteenth Amendment is  well-known, but many do not know the true contours of the amendment and the principles that  went into its drafting. The Fourteenth Amendment is the basis upon which the Supreme Court  desegregated schools based on race and legalized same-sex marriage, among other seminal rulings.  Originally, the Amendment was drafted during Reconstruction by Congressional Republicans, as  part of the Reconstruction Amendments designed to free enslaved people and extend constitutional  rights and liberties to them. Republicans such as John Bingham and Jacob Howard employed radical  abolitionist ideas in the drafting of the amendment, even though not all radical abolitionists  wholeheartedly supported the Amendment for its shortcomings with securing the rights of  freedpeople; Charles Sumner was one such abolitionist. The intellectual history of the Fourteenth  Amendment reveals abolitionist and moderate considerations, reflecting the modest commitment of  50 


some Republicans to racial justice, and the willingness of radicals to compromise in order to attain civil rights for freedpeople in the Constitution.    Rights and Equality in the Amendment’s First Section    

In order to analyze the intellectual conflicts at play in the drafting of the Fourteenth

Amendment, it is important to look at the actual to discern its political origins. This essay will focus on the far-reaching first section of the Amendment, which reads: 

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or  enforce any law which shall abridge the privileges or immunities of citizens of the United  States; nor shall any State deprive any person of life, liberty, or property, without due process  of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S.  Constitution, Amendment XIV, Sec. 1.)     This section of the Amendment made integral to the constitution a group of radical, 

egalitarian ideas, for this period. In a speech to Congress in May 1866, Senator Jacob Howard, a member of the Joint Committee on Reconstruction, explained the first two clauses of the  Amendment. Howard theorized that instead of Americans being primarily citizens of the states, the  first section would establish national birthright citizenship which all natural born Americans  received, including freedpeople. All citizens were thus entitled to all “privileges and immunities,”  that came with national citizenship. The Courts first interpreted this clause to be of minimal  importance. Howard and the other drafters saw “privileges and immunities” as somewhat undefined,  but at least constitutive of the rights inscribed in the Bill of Rights (Howard, 1866).     

In the development of constitutional law, the second and third clauses have been the most

legally important, and with good reason: the due process and equal protection clauses established

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equal rights and liberties under the law. Howard saw these clauses guaranteeing “equal justice” as crucial, without which there would be no fair, republican government (Howard, 1866). Howard also  saw equal protection as the means by which to “protect the black man in his fundamental rights as a  citizen with the same shield which it throws over the white man” (Howard, 1866). The notion of  equal treatment under the law was a radical one, not only recognizing the inequities that black  people had endured under formal slavery but those from purposefully racist laws. As stated by  abolitionist Senator Charles Sumner, the equal protection clause was a recognition that “the  protection of colored persons in civil rights is essential to complete the abolition of slavery”  (Sumner, 1866). The abolition of slavery was meaningless without a constitutional guarantee of equal  rights under the law. These central tenets of human rights and equality in the Fourteenth  Amendment were principles emanating from radical abolitionist ideology.    Abolitionist Ideological Influences   

One of the purposes of the Fourteenth Amendment was to restore the true spirit of the

Constitution that had been violated by the institution of slavery and the tyranny of the Southern states, an idea put forth by abolitionists. Ohio Representative John Bingham, the man most  commonly credited with drafting the Fourteenth Amendment, said that the rights provided in the  Amendment would “bear true allegiance to the Constitution and laws of the United States (Sumner,  1866).” The Fourteenth Amendment was the restoration of the Constitution, consistent with the  ideas of the founders, instead of a fundamental change to it. On the preamble of the Constitution,  Sumner declared, “the Constitution was ordained… ‘to establish justice,’ which is Equality… ‘to  promote the general welfare,’ which is the welfare of all; and ‘to secure the blessings of Liberty' to all 

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the people and their posterity,’ which is to give to all the complete enjoyment of rights, foremost among which is Equality” (Sumner, 1866).  According to the drafters, enshrining equal rights under the law in the Fourteenth  Amendment would fulfill of principles of equality and justice initially articulated in the Constitution.  The Amendment’s political theory was “responding to the antebellum crisis of constitutional  legitimacy by requiring an interpretive attitude toward the Constitution that would preserve its  legitimacy on the grounds of the rights-based theory of human rights central to its claims to be the  supreme law of the land” (Heiny, 2007). After the war, radical abolitionists saw an opportunity to  redefine—or restore—the meaning of federal power such that constitutional equal rights and  freedom were central to the vision of the Reconstruction government.  Abolitionists used Lockean notions to link the implementation of formal civil rights for  freedpeople to salient political theory with which Republicans would be familiar. Radical  abolitionists employed John Locke’s political theories that were ubiquitous in the Declaration of  Independence, including the following political theory expounded by abolitionist Theodore Weld:  “legitimate government must protect equal rights. By melding this with the Declaration of  Independence, Radicals came to the conclusion that all persons subject to political power have  inalienable human rights” (Heiny, 2007). Weld’s ideas linked abolitionist notions of  government-provided (racial) equality to recognizable Lockean inalienable human rights. Sumner  also reiterated these Lockean ideas when speaking about the foundation of the Fourteenth  Amendment: “that all men are Equal in rights; and secondly, that Governments derive their just  powers from the consent of the governed; and here is the American idea of a Republic” (Sumner, 

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1866). The Fourteenth Amendment was necessary to institutionalize those Lockean principles of natural rights and consent of the governed to create a true republic.   

The equal protection and due process clauses of the Amendment also incorporated

abolitionist-Lockean principles of radical equality and liberty for freedpeople. The equal protection clause “embodied what abolitionists considered one of the most important concepts in their arsenal.  Lockean social compact, natural rights, and God's endowments combined, were used to create the  maxim that all men are created equal” (Heiny, 2007). Lockean notions created and rationalized  radical abolitionists project of getting equal rights under the law guaranteed by the Constitution, in  the form of the equal protection clause (Richards, 1993). The Amendment’s due process clause came  from similar principles. The due process clause effectively applied the Fifth Amendment’s due  process clause to the states, as opposed to solely Congress. Radical abolitionist Maria Stewart argued  that “the due process clause of the Fifth Amendment [should be]applied to blacks, since it applied to  all “persons.” Under the Fourteenth Amendment, due process now applied to all “persons” (Heiny,  2007). Given that under slavery white slaveholders controlled ‘justice,’ and used racist violence as the  rule of law, under the Fourteenth Amendment’s due process clause there would be a constitutional  provision that legal justice for freedpeople would take the form of due process of law.   

Though freedpeople certainly did not receive the rights entitled to them by the Fourteenth

Amendment, its egalitarian and abolitionist principles cannot be under-emphasized in their import. Radical abolitionists understood the political terrain on which they were trying to gain rights for  freedpeople through the Republican agenda, “ how to use politics to push the Republican Party  toward a more radical direction” (Heiny, 2007). Writing over a decade after the passage of the  Fourteenth Amendment and decrying its conservative interpretation by the Courts, Frederick 

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Douglass maintained that the “[Reconstruction] amendments establish freedom and abolish all unfair and invidious discrimination against citizens on account of race and color, so far as law can  do so. In their view, citizens are neither black nor white, and all are equals” (Douglass, 1886).  Douglass recognized the meaning of the Reconstruction Amendments as providing for the potential  of civil rights and racial equality. Moreover, the Fourteenth Amendment “was plainly intended to  secure equal rights to all citizens of the United States, without regard to race or color, and Congress  was authorized to carry out this provision by appropriate legislation” (Douglass, 1886). Douglass, a  radical abolitionist, lauded the Fourteenth Amendment’s stated purpose: ensuring r the equal rights  and freedom of freedpeople. It was abolitionists like Douglass who “invented the concept of  equality before the law regardless of race, one all but unknown in antebellum American  jurisprudence….They glimpsed the possibility that the national state might become the guarantor of  freedom, rather than its enemy, another idea written into the Constitution during Reconstruction”  (Foner, 1999). Equality before the law was a radical, abolitionist idea. Even more radical was the  idea that the national government would administer that equality, instead of violating it.  Empowering the national government and Congress through the Fourteenth Amendment was not  only an abolitionist principle to ensure the rights of freedpeople, but a political one designed to  strengthen the power of the Republicans.  Preservation of Republican Power   

Republican leaders employed abolitionist ideas in the drafting of the Fourteenth

Amendment, but they also sought to augment their own power. The fifth section of the Fourteenth Amendment gave Congress to enforce the earlier provisions of the Amendment such as equal  protection and due process, but it also augmented Congressional, and thus Republican, power (U.S. 

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Constitution, Amendment XIV, Sec. 5). Garrett Epps argues that while “Abolitionists were an important force in bringing the slavery issue to the forefront...at no time did they control the  political movement against slavery and the Slave Power. That role fell to practical politicians (Epps,  2004).” Abolitionists put equal rights for freedpeople on the Republican agenda in drafting the  Fourteenth Amendment, but Republicans themselves were more committed to dismantling the  power of Southern slaveholders than achieving racial justice.  Abolitionists first employed “Slave Power,” to criticize the disproportionate power of  slaveholders in Congress, but it became mainstream in politics in the 1850s (Epps, 2004). Slave  Power was not manifested through constitutional provisions—such as the three-fifths clause and the  fugitive slave clause—that gave slaveholding states more power in Congress but a ‘conspiracy’ by  slaveholders to extend their power. For Republican leaders, Bleeding Kansas, the Dred Scott decision,  and the violent Caning of Charles Sumner were evidence that slaveholders were yielding  disproportionate political power, Slave Power (Epps, 2004). Epps contends that Slave Power was  integral to Republicans’ drafting of the Fourteenth Amendment, whose aims were “to protect the  federal government against former slave states, to ensure that the new government forged during the  Civil War would be supreme in any future confrontation, and to require that reconstructed state  governments of the South run their internal politics by the North's republican rules” (Epps, 2004).  Thus Republicans were against Slave Power, but primarily to replace it with their own power and  maintain the supremacy of the national government.  Republicans were not all strongly committed to racial justice, a political reality  well-understood by abolitionists In his speech to Congress, Senator Howard rationalized providing  rights and equalities for freedpeople by saying “The colored race are destined to remain among us,” 

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and they (white people) had to find a way to “[get] a long with them” (Howard, 1866); even one of the men who drafted the revolutionary Fourteenth Amendment used othering language in his  explanation of his support. Abolitionists like Wendell Phillips vocally objected to the Fourteenth  Amendment, not only because its ratification by the Southern states allowed them to re-enter the  Union, but because they saw Republicans trying to maintain their own power, with little guarantee of  rights for freedpeople: “Congress separates on a plan which it calls the amendment of the  Constitution,” through which its “leaders know….that they are conducting to the perpetuity of their  party” (Phillips, 1866). Phillips claimed the ratification process was a concession to Southern states  that would continue to violate the rights of freedpeople. He also saw the shortcomings of the  Amendment as reflective of Republicans’ attempt to increase and solidify their own power at the  expense of freedpeople.  Republican Compromise and Black Suffrage   

The final draft of the Fourteenth Amendment did not include black suffrage—which would

later come in the Fifteenth Amendment—because of political compromises. The original draft of the Amendment did include black suffrage: “southern blacks were enfranchised, the right to vote  was tied to federal citizenship” (Heiny, 2007). Ultimately, ‘political rights and privileges’ was  replaced by “privileges and immunities,” which passed through Congress with a small majority  (Howard, 1866). Radical Republicans like Charles Sumner advocated for the inclusion of voting  rights in the Fourteenth Amendment but not enough members of Congress supported it—including  Senator Howard. Howard argued that universal suffrage was “merely the creature of law. It has  always been regarded in this country as the result of positive local law, not regarded as one of those  fundamental rights lying at the basis of all society and without which a people cannot exist except as 

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slaves, subject to a despotism” (Howard, 1866). Howard thus reduced suffrage as a fundamental right for freedpeople, not necessary for their constitutional equality. Howard wanted suffrage to  remain in the power of the states, and only called for “restricted, qualified suffrage for the colored  race” (Howard, 1866). For its Republican drafters, black suffrage was not important enough to the  principles of equal rights to be included in the Fourteenth Amendment.   

The compromise to exclude black suffrage from the Fourteenth Amendment represented its

moderate components, to the anguish of radical abolitionists. Charles Sumner especially decried the lack of political rights for freedpeople in the Fourteenth Amendment. Sumner argued: “Beyond all  question the protection of colored persons in civil rights is essential to complete the abolition of  slavery; but the protection of colored persons in political rights is not less essential; and the power is  as ample in one case as in the other” (Sumner, 1866). Sumner saw black suffrage as central to  freedpeople’s rights and equality under the law. As per the constitution, voting procedures were left  up to the states who could easily deny freedpeople the right to vote, and thus there was no  constitutional guarantee of universal suffrage (until the passage of the Fifteenth Amendment). Thus,  the Fourteenth Amendment retained moderate elements, but “Prominent Radicals acquiesced,  making clear that they were voting for the Amendment out of necessity, and not complicity” (Heiny,  2007). Although radical abolitionists like Wendell Phillips did not support the passage of the  Fourteenth Amendment because of its limitations for the rights of freedpeople, those like Frederick  Douglass and Charles Sumner ultimately supported it because it espoused equal rights for  freedpeople, which was better than nothing.  Conclusion 

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There were a number of interests and intellectual conflicts at play in the drafting and passage

of the Fourteenth Amendment, but it was ultimately moderate, more conservative interpretations that succeeded in the implementation of the Amendment after Reconstruction. In his 1883 writings,  Frederick Douglass decried the erosion of what he saw as the potential of the Fourteenth  Amendment in providing civil rights for freedpeople. Douglass said the regressive Court decisions  that held up racist laws were a “violation of the spirit and letter of the Constitution,” of the United  States. From those courts which have solemnly sworn to support the Constitution and that yet treat  this provision of it with contempt” (Douglass, 1886). The radical abolitionist ideas of constitutional  equality and civil rights were present in the Fourteenth Amendment, but the Courts did not employ  them for the civil rights of black Americans really until the desegregation of schools in Brown v. Board  of Education, in 1954 (Foner, 1999). Since then, the Courts have used the Fourteenth Amendment to  legalize same-sex and interracial marriage, protect victims of domestic violence, promote gender  equality in the workplace, guarantee the right to counsel and uphold affirmative action. Thus while  the Fourteenth Amendment had its moderate components and Court interpretations, recently it has  been applied in ways more aligned with its abolitionist origins: to promote equality and justice.                 

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Works Cited Douglass, Frederick. Three Addresses on The Relations Subsisting Between the White and Colored People of the   United States, Washington, DC: Gibson Brothers Press. 1886.  https://archive.org/details/threeaddresseson00dougrich  Epps, Garrett. “The Antebellum Political Background of the Fourteenth Amendment.” Law and   Contemporary Problems, Vol. 67, No. 3, Conservative and Progressive Legal Orders. Charlotte,  NC: Duke University School of Law, 2004. pp. 175-211.  http://www.jstor.org/stable/27592056  Foner, Eric. “The Strange Career of the Reconstruction Amendments.” The Yale Law Journal, Vol.   108, No. 8, Symposium: Moments of Change: Transformation in American  Constitutionalism. New Haven: The Yale Law Journal Company, Inc. June, 1999. Pp.  2003-2009. http://www.jstor.org/stable/797380  Heiny, Louisa M. A. “Radical Abolitionist Influence on Federalism and the 14th Amendment.” The   American Journal of Legal History, Vol. 49, No. 2. New York: Oxford University Press. April  2007. pp. 180-196. http://www.jstor.org/stable/25470008  Howard, Jacob M. Congressional Globe, 39th Congress, 1st session. 23 May 1866. pp.   2764-2780.https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=072/llcg072.db &recNum=847  Representative John Bingham, Congressional Globe, 39th Cong., 1st sess., 10 May, pp. 2542 - 2544 

Richards, David A. J. Conscience and the Constitution: History, Theory, and Law of the Reconstruction Amendments,“The Second American Revolution and the Reconstruction Amendments.”  Princeton: Princeton University Press. 1993. pp. 108-147.  http://www.jstor.org/stable/j.ctt7zvnh2.7  Sumner, Charles “Equal Rights of All: The Great Guaranty and Present Necessity for the Sake of   Security, and to Maintain a Republican Government”, reprinted in Sumner, Complete Works,  13:115-269.https://archive.org/stream/equalrightsofall00sumn#page/n5/mode/2up     

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Innocence Ignored, Death Penalty Privilege Lost U.S. Innocence Projects and their Essential Role in Exposing a Flawed Justice System  Maggie King ’21     In 2011, Steven A Krieger, J.D. wrote an article titled: “Why Our Justice System Convicts  Innocent People, and the Challenges Faced by Innocence Projects Trying to Exonerate Them.”  Krieger wrote the article with the goal of addressing the lack of “empirical literature” discussing  innocence projects across the United States of America. Nonprofits, Krieger writes, “fill a void  ignored by the private sector and rejected by the government” (Krieger, 2011). Krieger argues that  the private sector ignores projects such as the innocence project due to a lack of profit and the  government rejects projects due to a lack of resources and political pressures. Innocence projects  have proved to be an essential development within the field of capital punishment. In 1992, the first  Innocence Project was founded at Yeshiva University, Cardozo School of Law by Barry Scheck and  Peter Neufeld. There are currently sixty Innocence Projects across the country, most focusing on  specific jurisdictions. Krieger’s article emphasizes that innocence projects “severely lack the  necessary resources to help individuals who have been failed by our criminal justice system”  (Krieger, 2011).  In the United States, professional estimates suggest that 90-99 percent of defendants are  guilty. These numbers seem startling, however, “if that means at least 23,000 innocent people are  wrongly convicted,” Krieger writes, “the results are strikingly inadequate” (Krieger, 2011).  Exonerations in which DNA testing can be conducted, however, suggest that those numbers are  meaningful. At the time of Krieger’s article “there have been 272 DNA post-conviction 

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exonerations in the United States” and hundreds based on non-DNA evidence. Innocent individuals are wrongly convicted for one or more of the following reasons: inaccuracy of eyewitnesses,  perjured testimony, prosecutorial misconduct, inadequate defense representation and police  misconduct (Krieger, 2011).  In 1992, Somerville, Texas endured the gruesome murders of six people, including four  victims under the age of 10. This case is an excellent example of the aforementioned occurrences in  which individuals can be wrongly convicted. Authorities first brought Robert Carter in for  questioning, the 26-year-old father of one of the murdered children, who was seen at the funeral  bandaged and burned. After failing a polygraph, Carter made a statement that he was at the crime  scene, though he was not involved. This statement was the first time Anthony Graves was  implicated in the crime. Authorities suspected three assailants to account for the three murder  weapons - a knife, a gun, and a hammer. The evidence found only implicated Carter; matching  bullets to the crime scene were found in Carter’s closet, his .22 pistol was missing and he had  suspiciously traded in his car. Nevertheless, Anthony Graves was brought in and arrested for capital  murder. Graves was completely bewildered when he was informed of his charges and it was  reported that he astonishly repeated “capital murder” eighteen times when being read his rights and  booked. The only witnesses found were a couple at a gas station who claimed to have seen two black  men purchasing gasoline, which was used to set the crime scene on fire (Colloff, 2010). As Steven  Krieger cites in his 2011 article, inaccuracy of eyewitnesses is a common occurrence in wrongful  conviction cases (Colloff, 2010). The woman at the gas station was able to pick Anthony out of a  lineup, however, her husband could not. Graves also did not match the original sketch elicited with  the help of a hypnotist. Graves had a solid alibi from the beginning. Three people placed Graves in 

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his mother’s apartment at the time of the crime, however, the 51-page report on the case made no mention of his multiple alibis; the three people at home with him, a Jack in the Box employee who  saw him pick up dinner, and a white neighbor who declined to verify because of her race. Later in  trial Yolanda Mathis, who could corroborate Graves’s alibi, was told she could be named a suspect,  which resulted in her inability to testify. This is an example of prosecutorial misconduct due witness  intimidation, another occurrence found in wrongful conviction cases. Three days after the original  arrest, Robert Carter recanted in front of a grand jury saying “they told me they would cut me a deal,  that I could walk if I gave up a name, if I give up a story, and that’s what I did” (Colloff, 2010). The  prosecution, District Attorney Charles Sebesta, faced immense pressure to convict Graves with a  death penalty sentence. At this point, the prosecution’s star witness had recanted, there was no  motive and no evidence against Graves. Carter confessed again to Sebesta, however, Sebesta ignored  and excluded the evidence from trial. Again, this proves prosecutorial misconduct. As Krieger  asserts, “a variety of personal, institutional, and political pressures upon prosecutors can promote  misconduct” (Krieger, 2011). It is clear that Sebesta was under considerable pressure to completely  disregard a complete confession from Carter. Sebesta’s case against Anthony Graves rested solely  upon Carter’s testimony, therefore, he promised Carter life in prison as opposed to the death  penalty. However, Carter refused, but Sebesta was able to corner Carter in trial by asking “all the  stories that you have told have all involved Anthony graves, have they not?” Carter had no choice  but to reply, “they have (Colloff, 2010),” despite both he and Sebesta knew that he had confessed.  Carter continued to write letters confessing and professing Anthony Graves’s innocence, but Graves  was eventually found guilty and sentenced to death. After all of Graves’s appeals were exhausted, the  defense was able to question Carter under oath where he confessed yet again. Under cross 

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examination by Sebesta, Carter said to the District Attorney “I told you...it was all me, but you said you didn’t want to hear it” (Colloff, 2010). Carter continued to proclaim Graves’s innocence even  from the execution chamber. It was immensely clear that D.A. Sebesta was guilty of prosecutorial  misconduct.  In 2002, Nicole Cásarez and her students from the Innocence Network, which works with  the journalism department at Houston’s University of St. Thomas, picked up Anthony Graves’s  case. Beginning with nothing, picking up the case after three rounds of the conviction being upheld  during appeals, Cásarez had no choice but to bring the case to the federal courts. In 2003, the 5th  Circuit Court of Appeals granted an evidentiary hearing. Cásarez’s Brady Violation claim was denied  on the grounds that it would not have affected the original case. The 5th Circuit was, in simple  terms, the end of the line for Anthony Graves. On March 3rd, 2006 a unanimous decision held that  the case hinged entirely on Carter’s perjured testimony. Perjured testimony, as Krieger explains, “is  the leading cause of wrongful convictions in capital cases” (Krieger, 2011). Not only had Carter’s  perjured testimony led to Anthony Graves’s conviction, but two jail informants had belatedly  reported Graves and Carter confessing to the murders while awaiting trial behind bars. It was later  revealed that Robertson, one of the guards who testified, was under indictment and charged against  him for cruelty to horses were never pursued following his testimony. “Had Graves’s attorneys  known of Carter’s statements to the District Attorney,” wrote District Judge W. Eugene Davis, “the  defense’s approach could have been much different… and probably highly effective.” Davis  continued, “perhaps even more egregious than district attorney Sebesta’s failure to disclose carter’s  most recent statement in his deliberate trial tactic of eliciting testimony from Carter and the chief  investigating officer, Ranger Coffman, that the D.A. knew was false (Colloff, 2010).” Charles 

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Sebesta’s blatant prosecutorial misconduct was codified in Judge Davis’s opinion, however it was also proved on national television when Sebesta admitted on a NBC special that Carter did in fact  tell him that he committed the crime alone. Anthony Graves’ conviction was overturned and he was  granted a new trial. However, he remained a murderer and a child killer, thus his bail was set at  $1,000,000. In 2010, the Burleson County district attorney’s office dropped all murder charges  against Anthony Graves and released him from jail, where he was awaiting trial, after prosecutor,  Kelly Siegler, could not create a case. The dismissal order read: “we have found no credible evidence  which inculpates this defendant” (Colloff, 2011). Siegler explained that her “thinking went from  ‘we’re going to get this ready for trial’ to ‘woah, this is going to be hard to get ready for trial’ to  “okay, can we even go to trial’?” Siegler states that she “realized the prosecution’s entire case came  down to ‘carter said graves did it, and by the way, here are some gruesome crime scene  photographs” (Colloff, 2011). Anthony Graves was a free man at last after serving 18 years in prison  for a crime he did not commit.  The State of Texas v. Anthony Charles Graves coincides with the findings in Steven Krieger’s  2011 article: occurrences in wrongful conviction cases are not unprecedented. This case especially  was contingent upon the flagrant prosecutorial misconduct of District Attorney Sebesta. As Krieger  writes, “The institutional culture of prosecutor's offices, where the “professional incentives to obtain  and maintain convictions" and the emphasis on conviction rates as a barometer for professional  advancement, will eventually conflict with prosecutors' role as "ministers of justice” (Krieger, 2011).  D.A. Sebesta would have been at fault for the wrongful death of Anthony Graves had he not been  removed from death row. According to The Washington Post, “4.1 percent of defendants who are  sentenced to death in the United States are later shown to be innocent: 1 in 25” (Gross, 2018).   

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There are too many innocent individuals sitting on death row in this country. The American justice system is deeply flawed, therefore, it is unconscionable that individuals are sentenced to death with  the significant number of wrongful convictions. The United States has lost the privilege to continue  to use the death penalty due to its inability to properly convict those actually guilty of a crime.     Works Cited  Colloff, Pamela. "Innocence Lost." Texas Monthly, Oct. 2010.  Colloff, Pamela. "Innocence Found." Texas Monthly, Jan. 2011.  Gross, Samuel R. "The Staggering Number of Wrongful Convictions in America." The Washington   Post, 24 July 2015,  www.washingtonpost.com/opinions/the-cost-of-convicting-the-innocent/2015/07/24/260f c3a2-1aae-11e5-93b7 5eddc056ad8a_story.html?utm_term=.867baf5b1cea. Accessed 16  Nov. 2018.  Krieger, Steven A. "Why Our Justice System Convicts Innocent People, and the Challenges Faced   by Innocence Projects Trying to Exonerate Them." The New Criminal Law Review, Summer  2011.    

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Environmental Law and Policy: The Enduring Question of Standing of Sierra Club v. Morton (1972)  Casey Martin ’22   

In 1971, the Supreme Court of the United States agreed to hear a claim by the Sierra Club for an injunction against the development of the Mineral King Valley in the Sequoia National Forest  of California. They found in a 4-3 decision that the US Court of Appeals for the Ninth Circuit had  been correct in vacating the injunction granted by US District Court of Northern California on the  basis that the Sierra Club had not adequately demonstrated standing (the right to sue on the basis of  direct harm). Justices Douglas, Blackmun, and Brennan wrote dissents proposing possible alternative  interpretations of standing. If the Court’s majority had accepted the broader interpretation of direct  injury argued by the Sierra Club, this would have greatly enhanced the power of activist groups to  bring cases designed to safeguard the general welfare of the citizenry, and allowed for greater  protection of natural lands. In the end, the Court’s decision in Sierra Club v. Morton refuted the  notion that “general interest” of the public in natural lands is sufficient to prove direct harm under  the Administrative Procedure Act (APA), thereby limiting the influence of environmental groups.  The case originated as an attempt to protect the natural beauty of the Mineral King Valley, a  region of Sequoia National Forest located within the Sierra Nevada Mountains and a  federally-designated national game refuge. The US Forest Service, tasked with the oversight of  national forests, began to evaluate the development potential of the Valley. When, in 1965 they  invited bids for the land, Walt Disney Enterprises won the rights to survey and prospect the land for  a period of three years. The resulting proposal of the company was a $35 million dollar resort that 

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would serve nearly 14,000 daily visitors, as well as a road that would cut through Sequoia National Park.  The Sierra Club, an environmental organization founded by John Muir in 1892, attempted to  hold public hearings and lobby the government to block progress. When they were unsuccessful in  these efforts, they resorted to filing a suit in the US District Court of the Northern District of  California. The plaintiffs sought two outcomes: a declaratory judgment that the proposal violated  federal laws protecting national lands and preliminary and permanent injunctions against the  collaboration of federal officials and Disney. Sierra Club chose to file as a “membership  corporation” and argued that their special interest in the protection and preservation of natural lands  provided them with sufficient standing to sue (405 U. S. 731). The District Court granted the  requested injunctions, causing the defendant, Secretary of the Interior Roger Morton, to appeal.  The arguments which had convinced the lower court, however, proved insufficient in the US  Court of Appeals for the Ninth Circuit. The Court found that §10 of the APA, which gives the right  of judicial review to a "person suffering legal wrong because of agency action, or [who is] adversely  affected or aggrieved by agency action within the meaning of a relevant statute" did not apply to the  Sierra Club. They ruled to vacate the injunctions on the grounds that the Sierra Club had failed to  demonstrate direct and or irreparable injury to any individuals.  By the time the case appeared on the docket of the Supreme Court of the United States, the  controversy largely hinged upon whether the Sierra Club had the “standing to sue” under the  precedent established in Baker v. Carr. (369 U. S. 186). This jurisprudence requires a petitioner to  show that they have a "personal stake in the outcome of the controversy” (Page 369 U. S. 205).  Baker had previously established the right to judicial review on the basis of economic harm; however 

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the issue remained of how to address non-economic injuries which were widely shared rather than localized and individual.  Oral arguments took place in November 1971, meaning that Justices Powell and Rehnquist  did not take part in the final decision given that they were appointed to the Supreme Court in 1972.  The resulting majority opinion held that, while there was in fact damage done to the public in the  form of “impair[ed] enjoyment” of the Valley (405 U. S. 735), Sierra Club as a “membership  corporation” (405 U. S. 731) was not personally harmed. The opinion, written by Justice Stewart,  also pointed out the potential repercussions of a more flexible definition of standing, noting “... if  any group with a bona fide ‘special interest’ could initiate such litigation, it is difficult to perceive why  any individual citizen with the same bona fide special interest would not also be entitled to do so”  (405 U. S. 740). This argument essentially rests on the potential threat of a slippery slope, where the  definition of standing becomes effectively stretched to the point of meaninglessness.  In stark contrast to these arguments and the majority opinion are the dissents of Justices  Douglas, Blackmun, and Brennan. Whereas the majority favored a stricter and historical  interpretation of standing, Douglas defended a much broader definition. He states that  “Contemporary public concern for protecting nature's ecological equilibrium should lead to the  conferral of standing upon environmental objects to sue for their own preservation” (405 U. S. 742).  This sentence carries a very simple idea: inanimate objects should be granted standing under the law.  More practically, activist groups such as the Sierra Club should be granted standing in order to speak  for them. Douglas cites previous examples of inanimate objects or non-persons obtaining the right  to sue, especially regarding how the “ordinary corporation is a ‘person’ for purposes of the  adjudicatory processes” (743). 

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Douglas’s insistence that the merits of the case should eclipse the issue of standing contrasts with the majority stance, yet it carries incredibly interesting implications. If this viewpoint had been  popular, rather than fringe, the current fraught relationship between the environmental movement  and the government would be decidedly different. Indeed, many of the progressive environmental  policies enacted under the administration of Barack Obama might have been pushed through the  courts much sooner had activist groups such as the Sierra Club, Greenpeace, and the Environmental  Defense Fund been able to gain through the courts what they could not through lobbying the  legislative and executive branches. That is to say, if they, as organizations, had acquired the ability to  sue on behalf of the natural resources and animals that they seek to protect.  Equally compelling is Justice Blackmun’s dissent, joined by Justice Brennan. While  Blackmun begins with an acknowledgement of the rationale behind the majority opinion, he also  notes the case’s “important ramifications for the quality of the country's public land management”  (405 U. S. 758) and the necessity to provide precedent for future environmental cases. He reassures  that extending the court’s definition of standing to allow a “well-recognized” and established  organization such as the Sierra Club will not open “Pandora’s Box” and damage the judiciary’s  integrity (759). The Court will retain its proper judgment and discretion, thereby limiting any truly  outrageous claims of standing. In short, he provides a well-reasoned and moderate alternative to  Douglas’ more radical viewpoint.  Although the dissenting opinions are not precedent, they clearly demonstrate the complexity  and continued relevance of standing in our modern judicial system. The divisions in the case can  perhaps be more simply illustrated by the citations found at the end of both the majority opinion 

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and Justice Blackmun’s dissent. Justice Stewart, writing for the majority, finds relevance in a quote from Alexis de Tocqueville, a well-known political scientist and historian, which states,  It will be seen, also, that, by leaving it to private interest to censure the law, and by intimately  uniting the trial of the law with the trial of an individual, legislation is protected from wanton  assaults and from the daily aggressions of party spirit. The errors of the legislator are  exposed only to meet a real want; and it is always a positive and appreciable fact that must  serve as the basis of a prosecution (741).  In other words, Tocqueville believes that the efficacy of the judicial system lies primarily in its  limited scope and application. In contrast, Justice Blackmun provides an eloquent excerpt from the  writing of John Donne, the seventeenth century metaphysical poet;  No man is an Iland, intire of itselfe; every man is a peece of the Continent, a part of the  maine; if a Clod bee washed away by the Sea, Europe is the lesse...any man's death  diminishes me, because I am involved in Mankinde; And therefore never send to know for  whom the bell tolls; it tolls for thee (405 U. S. 760).  If de Tocqueville represents the static and pragmatic view, then Blackmun’s corresponding choice of  Donne speaks to the dynamic and moral undertones of the case. The excerpt centers on the intrinsic  connection between all living things, a contention that what affects one individual can have  widespread consequences for another. The stark contrast between these two texts illustrates the  equally wide ideological difference within the court. Whereas Justices Stewart, Burger, White, and  Marshall adhere to established precedent, Justices Blackmun, Brennan, and Douglas wish to adopt a  more liberal and comprehensive stance, one which addresses the potential fallout of their decision  rather than treating the case as a vacuum. It is essentially a question of whether the law must be  treated as immutable, or whether or not it should be allowed to evolve, and expand over time.  Perhaps the courts will one day redefine the scope of their powers by increasing the availability of  standing, and allowing adjudication of conflict which cannot currently be tried in a court of law. If 

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not, the prevailing definition of standing will continue to restrict action on environmental issues, and enable the continued exploitation and degradation of the planet.        Works Cited     “Black's Law Dictionary - Free Online Legal Dictionary.” The Law Dictionary, thelawdictionary.org/.  Sierra Club v. Morton, 405 U.S. 727 (1972) "Sierra Club v. Morton." Oyez, 30 Oct. 2018,   www.oyez.org/cases/1971/70-34.  “US Supreme Court Center.” Justia Law, supreme.justia.com/.                                

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The Right to Counsel in an Underfunded, Overworked Public Defender System Arielle Schoen ’19   

The Sixth  Amendment guarantees the accused the right to a speedy and public trial, the right 

to counsel,  to  be  informed  of  the  nature of one’s accusation, to be confronted with witnesses of the  crime  in  question,  and  to  obtain  witnesses  in  one’s  favor.  Despite this constitutional protection, the  implementation  of  the  right  to  counsel  is  deeply  flawed.  Although  each  criminal  defendant  has  the  right  to  an  attorney,  as  secured  by  Gideon  v.  Wainwright  in  1963,  depending  on  the  jurisdiction,  it  is  uncertain  when  one  will  be  appointed  counsel,  how  much  time  one  can  spend  with  their  counsel,  and whether or not counsel has the time and resources to properly represent one’s case.   

In March  of  2017,  the  American  Civil  Liberties  Union  filed  a  class  action  lawsuit  against 

Missouri’s public  defender  system. In this lawsuit, five Missouri residents accused the public defense  system  of  failing  to  provide  indigent  defendants  with  their  constitutionally  guaranteed  right  to  legal  counsel.  The  lawsuit  asserts  that  for  more  than  two  decades,  the  state  of  Missouri  has  “failed  to  provide  [its  public  defenders  offices]  the  resources  required  to  adequately  represent  poor  people  accused  of  crimes  in  Missouri,  leading  to  the  actual  and  constructive  denial  of  counsel  for,  and  ineffective  representation  of,  indigent  defendants  across  the  state.”  One  of  the  plaintiffs  in  the  lawsuit  was  charged  with  felony  possession  after  police  found  a  single  prescription  drug  and  then  discovered  he  had  an  outstanding  warrant  for  writing  a  bad  check and had failed to register as a sex  offender  in  his  county.  This  plaintiff  was  held  on  a  $30,000  bond  without  seeing  a  judge  or  his  public  defender  and held without access to his medication and did not meet with his public defender  until he was brought to a courtroom for a bond hearing. Another plaintiff was told he would have to  73 


wait six  months  in  jail  before  his  public  defender could help him. Missouri’s public defender system  is  struggling  to  meet  the  needs  of  defendants  due  to  its  limited  number  of  public  defenders,  overwhelming  caseload,  and  insufficient  amount  of  time  allotted  to  each  defendant’s  case.  In  this  regard,  public  defenders  offices  work  on  a  limited  budget and hire as many public defenders as they  can,  but  it  is  not  enough.  As  a  result,  public  defenders  have  double  or  even  triple  the  number  of  cases  than  the  American  Bar  Association  recommends.  Inevitably,  public  defenders  then  do  not  have  the  necessary  amount  of  time  to  “conduct  interviews,  review  evidence,  or  pursue  avenues  of  investigation  that  could  be  crucial  to  [their  client’s]  defense.”  Ultimately,  it  is the role of the state to  ensure that public defender offices are well funded and adequately resourced.  In  failing  to  provide  public  defender  offices  the  necessary  resources,  the  state  creates  a  barrier  to  the  judicial  system  that  is  unfairly  punitive  for  low-income  defendants.  This  lack  of  resources  in  conjunction  with  an  underfunded,  understaffed  public  defender’s  office  and  unreasonable  bail  amounts  constructs  a  criminal  justice system that neglects indigent defendants. As  it  stands,  the  right  to  counsel  functions  through  the  state,  the  public  defender’s  office,  and  the  defendant.  The  defendant  who  cannot  afford  an  attorney  requests  that  one  be  appointed  to  them  and  is  then  assigned  a  public  defender.  The  public defender’s office is allocated funding by the state  who  sets  a  budget  for  the  office  that  can  fluctuate  each  year  essentially  expanding  or  reducing  the  reach  of  public  defenders.  However,  when  state  legislators  make  budget cuts, funding for programs  that  help  impoverished  defendants  tends  to  get  cut  as  legislators  prioritize  funding  for  healthcare  and  school  programs.  Although  the  right  to  an  attorney  is  a constitutional one, there are exceptions  to  this  rule.  For  example,  some  counties  lack  public  defenders  offices  entirely.  Certain  states  including  Florida  will  provide  public  defenders  after  requiring  an  application  and  application  fee; 

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however, they  will  then  require  that  the  defendant  be  responsible  for  its  cost,  therefore  violating  one’s  fundamental  right  to  an  attorney  even  if  they  cannot  afford  one.  This  is  a  gross  mismanagement of the judicial system and denial of one’s right to a court-appointed attorney.  In  most  states,  the  defendant  is  often  not  assigned  an attorney until after they are arraigned;  this  is a blatant violation of those defendants’ Sixth Amendment rights. In these same states, it is not  necessary  that  defendants  be  accompanied  by  attorneys  to  their  first  court  appearance.  As  a  result,  many  defendants  are  unaware  of their ability to plead not guilty and plead guilty without ever having  received  any  legal  assistance  or  advice  from  their  public defender. If they are able to meet with their  public  defender  before  or  during  their  first  court  appearance,  it  is  likely  that  they will be advised by  their  public  defender  to plead out. This happens for several reasons: one being that public defenders  have,  on  average,  7  minutes  to  spend  with  a  defendant  and  the  other  due  to  the  public  defender  being  overworked  and  underpaid  and  therefore  unable  to  properly  investigate a case. 40% of public  defenders  offices  lack  investigators  entirely.  90  to  95%  of  all  cases  never  make  it  to  trial  and  are  ultimately  resolved  by  plea  bargaining.  Moreover,  a  guilty  plea  can  place  a  defendant  on  probation  which  in  turn  denies  them  access  to  government  assistance.  In  these  ways,  being  arrested  as  a  non-guilty low-income person can have severe financial and emotional repercussions. The state has a  considerable  amount  of  discretion  that  greatly  affects  the  choices  and  outcomes  of  indigent  defendants.  A  dysfunctional public defender system has significant consequences for indigent defendants  and  the  judicial  system  alike.  In  2013,  80%  of  United  States  citizens  arrested  could  not  afford  an  attorney  (Bronner,  2013).  Considering  the  ways  in  which  low-income,  communities  of  color  are  policed  and  surveilled  at  higher  rates  than  both  white  communities  and  communities  of wealth, the 

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criminal justice  system  already  targets  low  income  people  and  people  of  color.  Sentencing  tends  to  differ  based  on  race  with  people  of  color  receiving  harsher  rulings  than  white  people  who  have  committed  the  same  crime.  For  example, a study conducted from 2011 to 2016 by the United States  Sentencing  Commission  reports  that  Black  male  offenders  received  sentences  19.1%  longer  than  that  of  similarly  situated  White  male  offenders  (United  States  Sentencing  Commission,  2018).  Furthermore,  once  an  individual  has  been  introduced  into the prison industrial complex, they face a  higher  recidivism  rate  with  67.8%  of  released  prisoners  being  rearrested  within  three  years  of  their  release  (National  Institute  of  Justice).  For  these  reasons,  it  is  crucial  that  low-income  defendants  have  access  to  adequate  representation  during  their  first  interaction  with  the  judicial  system.  A  stronger  public  defender  system  supported  by  the  state  and  afforded  the  appropriate  resources  would  enable  everyone  the  access  to  a  good  attorney  which  would  in  turn  create  a  more  equitable  judicial system.  The  inadequacy  of  the  public  defender  system  continues  to  plague  the lives of thousands of  individuals  stuck  in  the  prison  industrial  complex.  It  is  the  responsibility  of  the  state  to  maintain  a  public  defender  system  that  properly  protects  the  Sixth  Amendment  rights  of  defendants.  As  it  stands,  through  the  underfunding,  understaffing,  and  overworking of the public defender office, the  Sixth  Amendment  is  being  violated  for  every  defendant  who  has  yet  to  meet  with  their  public  defender,  every  defendant  who  plead  without  the  advice  or  without  the  proper  investigation  by  a  public  defender,  and  every  defendant  who  obtained  insufficient  legal  advice  from  their  public  defender.             76 


Works Cited   Bronner, Ethan. “Right to Lawyer Can Be Empty Promise for Poor.” The New York Times, The   New York Times, 16 Mar. 2013, www.nytimes.com/2013/03/16/us/16gideon.html.    National Institute of Justice, “Recidivism.”,   www.nij.gov/topics/corrections/recidivism/Pages/welcome.aspx.    United States Sentencing Commission, “Demographic Differences in Sentencing.” 24 Jan. 2018, 

www.ussc.gov/research/research-reports/demographic-differences-sentencing.     “Recidivism.” National Institute of Justice, 

www.nij.gov/topics/corrections/recidivism/Pages/welcome.aspx.                                    77 


Unearthing the Undisclosed: Exposing the Lithuanian Double Genocide Megan D’Alessandro ’21 and Corinne Muller ’21     “The study of the various scientific practices underpinning the social reinscription of the human remains resulting from  mass violence (through techniques of identification, classification and display) focuses on the historical configurations  that presided over the birth of physical anthropology, and which are inextricably linked with genocides and crimes  against humanity.”

- Anstett and Dreyfus (2016, p. 5), Human Remains in Society

  Our Experience in Lithuania  The Museum of Genocide Victims in Vilnius, Lithuania is a nondescript building. Hidden  within, however, are records of mass atrocities to which the majority of the world is oblivious; the  narratives told within are excluded from most history books, eclipsed by the histories of countries  larger than the small Baltic State. On March 25, 2018, we walked down the dark, narrow staircase in  the Museum of Genocide Victims, the building that formerly served as Vilnius’ KGB prison. The  hallway was lined with cramped jail cells where political prisoners were tortured physically and  psychologically. Few, if any, prisoners escaped, while most were executed. The cells serve as one of  the only public reminders of the many now-nameless and unidentifiable men who were executed in  the democide committed by members of the Soviet regime in the decades following the second  World War.  As we toured the museum, we reached a single room lined with photographs and a  stained-glass Star of David—the museum’s only memorial to the Lithuanian Jews that perished in  the Holocaust. Throughout our time in Lithuania, our tour guide emphasized the many cultural 

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efforts being made to repair relations between Lithuania and the Jewish community (for example, 2019 has been declared the “Year of the Jew”). Contrarily, both cultural and forensic efforts to make  reparations with Lithuanian Jews have been ineffective as governmental associations and the general  public have evaded confronting the realities of the crimes committed on Lithuanian soil. Forensic  anthropology and bioarchaeology have proven crucial to initiating the national dialogue regarding  Lithuania’s ethical responsibility to restore dignity and identity to unrecognized victims of democide,  and in particular, Jewish victims of the Lithuanian Holocaust.  Jewish History in Lithuania  In 1795, Lithuania fell under Russian power after the separation of the Polish-Jewish  Commonwealth. At the end of World War I in 1918, Lithuania gained independence from Russia  and began to establish itself as an autonomous country. During this century and a half of Russian  rule, Lithuanian Jews, or “Litvaks,” originating from Poland and Germany, formed their own  community within Lithuania. By 1918, Lithuania’s government claimed that approximately a quarter  of a million Jews resided within the country. The Litvak Jews supported Lithuania becoming an  independent state as they anticipated the possibility of being able to form their own autonomic state  within Lithuania. Lithuanians were receptive to this idea, because they were unconcerned with  assimilating Jews into their country and their perceived notion of “nationalism.” Although the  constitution for the newly-independent Lithuanian state was drafted in 1922, Lithuanian Jews were  given no legal power. Later, in 1924, Lithuania abolished the Ministry for Jewish Affairs and Jewish  National Council, thereby denying the Litvaks a legitimate voice within the country.  Nazi Occupation and the Lithuanian Holocaust 

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After a brief reoccupation of Lithuania by the Soviet Union from 1940-1941, Nazi soldiers invaded Lithuania on June 22, 1941. Their initial invasion of Soviet Lithuania in 1941, deemed  “Operation Barbarossa,” was one of the most extensive mass executions of World War II. Within a  month of this initial invasion, led by SS Colonel Karl Jäger and his Einsatzkommando 3,  approximately 20,000 Jews were murdered. By December 1941, almost 137,000 people had been  killed—125,000 of whom were Lithuanian Jews. The Nazis remained in Lithuania until 1944.  Nazi officials assembled ghettos in Vilnius, Kaunas, and Šiauliai for the Jews not killed in the  massacre of 1941. Encouraged by Nazi propaganda, Lithuanian partisans collaborated with the  Nazis in murdering the Jews. Partisans murdered Jewish men, women, and children in rural areas  throughout Lithuania and sent those that remained to ghettos and concentration camps (Campbell,  2015, p. 155). Before Nazi occupation and the Holocaust in Lithuania, there were significant  religious and cultural tensions between ethnic Lithuanians and Jews (Campbell, 2015, p.170). As  Campbell (2015, p. 169) remarks, “genocide in Lithuania also occurred across considerable social  distances. Broadly speaking, Jews were neither intimate with nor culturally similar either to the Nazis  or to ethnic Lithuanians”; Jews never successfully integrated with the Lithuanian community. These  tensions were largely the result of conflicting views of German and Soviet occupation. Lithuanians  resented Soviet occupation and sympathized with Nazi leaders for freeing them from communist  rule. Contrarily, the Jews preferred Soviet occupation to Nazi rule because the Soviet’s communist  ideals provided them with equal opportunities they were denied in Lithuania. Although Jews still  experienced oppression under the Soviets, it was preferable to Lithuanian and Nazi anti-Semitism.  With Nazi occupation, Lithuanians became increasingly angry and suspicious toward Jews for their  apparent Soviet sympathy: “Such sentiments fit well with the Nazi conception of a Jewish-Bolshevik 

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conspiracy, and upon their entry into the country, the Germans further propagated the notion that the Jews were allied with the Soviets and accused Jews of having resisted their advance” (Campbell,  2015, p. 158).  Eugenics and Genocide  During the early twentieth century, the Baltic States were strong supporters of eugenics  research and the study of racial anthropology, particularly for the purpose of supporting a nationalist  or racial state. Lithuania did not become as invested in the eugenics movement until the late 1930s,  and even then, never had the same degree of a eugenics agenda as the other Baltic States of Estonia  and Latvia. In the early 1900s, eugenics was seen as a biopolitical tool—this Baltic notion of  eugenics was directly influenced by the German theory of racial hygiene. Although Lithuania was  overall less supportive of the eugenics movement than the other Baltic States, certain groups within  Lithuania were extreme proponents of the cause. One such group, the Gelež inis vilkas (“iron wolf”),  was banned within Lithuania for its excessively racial and radical fascist actions. Despite these initial  restrictions, however, many of the groups were nonetheless allowed great public or political  presence, often becoming civil servants or members of the military. The violent actions that resulted  from the eugenics movements within the Baltic States and Germany, never before seen on such a  massive or systematic scale, merited the invention of a new term: genocide. After the initial coining  of the term in 1944, the exact specifications of the term have been long debated. The Anthropological  Reader of Genocide defines the term as “the destruction of a nation or an ethnic group [through the]  disintegration of the political and social institutions, of culture, language, national feelings, religion,  and the economic existence of national groups, and the destruction of the personal security, liberty,  health, dignity, and even the lives of the individuals belonging to such groups” (27).  

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In this essay, we will be concentrating foremostly on the last component of this definition. In particular, we will concentrate on the destruction of the lives of Jewish individuals, both through  their deaths, and through the misrepresentation of their deaths in modern and contemporary times.  While aggressive action against the cultural, political, economic, and religious abilities and freedom  of Jewish communities in Eastern Europe did occur, the scope of our argument will focus on the  violent atrocities committed against the Lithuanian Jews.  As defined in “Death by Government” by Rummel (1994, p. 32), “Genocide is directed  against the national group as an entity, and the actions involved are against the individuals, not in  their individual capacity, but as members of the national group.” Genocide can also perpetuate  through preventing births, causing emotional turmoil, or denying a group access to their culture  (Rummel, 1994, p. 34). Despite these clear definitions, there is still confusion determining what  qualifies something as a genocide. For example, the Holocaust was an act of genocide as the  intention was to exterminate an entire ethnic group, yet Lithuanians consider Soviet acts of violence  as symptoms of genocide; however, the intention was not to eliminate or terrorize Lithuanians. In  reference to the Germans, Nazis used racial science and eugenics as reasoning for the Holocaust.  The Jews were considered an inferior race, and the Nazi implemented measures of ethnic cleansing  as a way to preserve Aryanism and racial purity within Germany (Campbell, 2015, p. 119).  Forensic Investigations of Holocaust Victims  After the Holocaust, initial investigations (primarily of mass graves in concentration camps)  by forensic researchers were made in order to find evidence for constructing legal cases against  Nazis and their collaborators. Little to no effort was made to identify victims due to the large  amount of bodies and the difficulties of locating mass graves; as a result, many researchers thought 

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Nazis successfully concealed their evidence (Colls, 2016, p. 166). However, as detailed in “Earth Conceal Not My Blood,” Caroline Sturdy Colls describes modern day excavations of mass graves  conducted with the intent to provide humanitarian justice and relief to victims’ families, as detailed  in her case study of forensic research of graves at Treblinka concentration camp in Poland.  According to Colls (2016, pp. 173-174), initial forensic investigation in the 1940s proved difficult for  investigators due to physical changes in Treblinka’s landscape and lack of other forms of physical  evidence. Reinvestigation of Treblinka used modern technology as well as interviews and  photography to locate mass graves (Colls, 2016, p. 176) in addition to non-invasive search methods  such as remote sensing, drones, ground penetrating radar, and mapping data in order to identify  individuals in burial sites that were previously inaccessible to archaeologists (Colls, 2016, pp.  177-179).   Forensic Investigations in Lithuania. Although reinvestigating Treblinka served as a humanitarian  effort to provide closure for victims’ families, Colls notes that archaeologists were unable to identify  all the victims found in mass graves due to methods of disposing victims’ bodies and incomplete  evidence (Colls, 2016, p. 183). Archaeologists created partial identifications by determining a  biological profile of victims and using objects such as clothes and jewelry to provide insight into the  victims’ lives even if they could not be explicitly identified: “These items, alongside the scattered  remains, dentures, teeth and other items that were recovered, provided the only evidence of  individual and collective experiences in the absence of complete corpses” (Colls, 2016, p. 184). Thus,  archaeologists provide justice for Holocaust victims by combining partial identification of victims  along with objects from their lives to re-instill them with elements of their identities, “...for as long  as victims’ remains stay buried, Holocaust denial debates will undoubtedly continue to focus on the 

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apparent absence of corpses as evidence that the Nazis did not commit the crimes indicated by the historical record and witness accounts” (Colls, 2016, p. 187).  Forensic anthropology in Lithuania was first introduced in the 1950s and 1960s during initial  efforts to recover Holocaust victims. More recent forensic efforts, particularly those beginning in the  1990s, were influenced by humanitarian and and legally-motivated mass grave excavations in Croatia,  Kosovo, and Iraq. Until the 1990s, forensic medicine and “medico-legal structures were under the  auspices of the Ministry of Health” but were eventually placed under the authority of the Ministry of  Justice (Jankauskas, 2015, p. 99). Currently, the Ministry of Justice manages Lithuania’s State  Forensic Medicine Service (Valstybinė Teismo Medicinos Tarnyba – VTMT) located in Vilnius. This  centralization of authority has improved the accessibility and effectiveness of forensic resources  including toxicology, histology, and DNA analysis technology.  Additionally, Lithuania has established a population-specific set of criteria for evaluating  remains of Lithuanian origin. Despite this new forensic system within Lithuania, there are still no  institutionalized forensic archaeologists in the country. One of the biggest obstacles forensic  professionals continue to face in Lithuanian cases is limited resources and the lack of new  technologies, which leads to “unreliable results, which in turn can cause neglect by authorities” due  to their lack of resources and an official system (Jankauskas, 2015, p. 107). For example, the initial  1951-1963 exhumations and investigations of Lithuanian Holocaust victims did not result in any  detailed scientific analysis. After the legal trials convicting the criminals of war, barely any attention  was devoted to the Holocaust until recently within the past fifteen years. Lithuania’s Department of  Cultural Heritage has only very recently taken interest in protecting Holocaust grave sites from illegal  excavations. 

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In 2008, the State Genocide and Resistance Research Centre of Lithuania (Lietuvos Gyventojų Genocido ir Rezistencijos Tyrimo Centras – LGGRTC) acquired new information regarding a potential  mass grave in the forest to the west of Vilnius. Archaeologists from the University dug a small pit in  the indicated area to determine if the site was indeed that of a mass grave; within the 4m2 pit alone,  the remains of 32 individuals were discovered. Forensic anthropologists determined that the  majority of the individuals exhibited gunshot wounds to their skulls. Archaeological artefacts  discovered alongside the remains assisted in confirming that the remains dated to the summer of  1941 and, therefore, most likely originated from the initial mass execution committed by Nazis  under Operation Barbarossa. According to the book Forensic Archaeology (A Global Perspective) in  Lithuania, “parallel questioning of evidence and documentary sources supported these findings – in  July 1941, about 200 hostages (inhabitants of Vilnius, mostly Jews, but also some university  students) were transported by Nazis to this site and executed with machine guns at previously dug  trenches” (Jankauskas, 2015, p. 101). Further evidence was discovered by archaeologists and  anthropologists at the site of the disruption of the burial and commingling of the remains around  the 1960s. Ultimately, at the request of the Jewish community within Vilnius, the remains were  reburied and marked with a memorial, so not to be disturbed any longer.  Forensic Investigations of the Victims of Soviet Democide  After the conclusion of World War II and the Holocaust, Soviet liberators persecuted  Lithuanian political adversaries, imprisoning and murdering them on account of their class, race, and  politics (Rummel, 1994, pp. 79-81). Although Lithuanians consider these Soviet killings acts of  genocide, they are more accurately described by the term democide, which is defined by Rummel  (1994, p. 31; 36) as “the murder of any person or people by a government, including genocide, 

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politicide, and mass murder,” and “...the intentional government killing of an unarmed person or people….it is restricted to intentional killing of people and does not extend to attempts to eliminate  cultures, races, or peoples by other means.” The crimes committed by the Soviets against the  Lithuanians were politically rather than racially motivated.  While genocide is defined by efforts to eliminate an entire ethnic group, democide is any  intentional killing done by the government (Rummel, 1994, p. 38). In Lithuania, however, many  consider Soviet murders acts of genocide. The notion of “genocide” against the Lithuanians, in  addition to the events of the Holocaust, are known as a “double genocide” in modern day Lithuania.  However, critics consider the Soviet genocide degrading to the dignity of Lithuanian Holocaust  victims and their families as it perpetuates Holocaust denial and further notions of anti-semitism  (Norland, 2018).  The difficulty of the endeavor to discover and identify remains of mass killings in Lithuania  is exacerbated by the number of violent events which have occured within the country in the past  two centuries. The cooperation between forensic anthropologists and archaeologists is necessary for  the most effective investigations into the burials of such events. Three sites in Lithuania have proved  particularly insightful to the history of the Soviet regime, as well as crucial for the identification of  many victims of democide. Lithuanian resistance against the oppressive Soviet Regime began as early  as 1944, and continued until the dissolution of the USSR and Lithuanian independence in 1990. The  Soviets maintained the power of their disciplinary system by deporting unreliable citizens and,  inevitably, killing many of those whom they placed in custody and burying them clandestinely.  Unreliable citizens, those who doubted the validity of communism and its leaders, were often  tortured further by bearing witness to the deportation or death of family members. Physical evidence 

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across Lithuania’s territory testifies to these atrocities committed by the Soviet government and its officials within Lithuania.  Forensic excavations at Tuskulėnai, a clandestine burial site in downtown Vilnius, have  revealed the bodies of 767 victims of KGB violence. Records from the headquarters of the Soviet  Committee for State Security disclosed that “from 28 September 1944 until 16 April 1947, a total of  767 people were executed (seven more died before their execution) in the Soviet People’s  Commissariat for State Security prison” (Jankauskas, 2015, p. 103). These records, and the details of  the executions and burials at Tuskulėnai, remained secret during the Soviet regime; their hidden  details only became public knowledge after Lithuanian independence, when the reports were  revealed to officials of the Republic of Lithuania in 1994. After their initial uncovering,  investigations of KGB files continued to divulge new information; as evidence of the extent of the  crimes accumulated, the Lithuanian President issued a decree to hold an excavation of the remains  of the victims of the KGB in Vilnius. Anthropologists, archaeologists, and forensic medicine experts  were assembled to work together on the excavation.  Records revealed that the majority of the individuals were Lithuanian citizens charged with  treason against the USSR and executed at the KGB prison in Vilnius (the current Museum of  Genocide Victims). However, the excavators were tasked with the exhumation and identification of  two individuals in particular: one, an important member of the Lithuanian Roman Catholic Church,  and the other, a leader of the anti-Soviet resistance. The excavation began in 1994; between 1994  and 1995 alone, 706 remains were exhumed, with few personal artifacts unearthed to assist in  identification processes. The forensic scientists at the site operated meticulously: each set of remains  was exhumed individually and given an individual registration number, underwent an initial 

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examination, and then transported to a forensic anthropology laboratory. There, the remains were analysed and given a biological profile composed of their estimated age, sex, stature, specific  individual traits, and pathologies suffered. In addition to this forensic work, non-scientific forensic  work was conducted in the former KGB headquarters, where efforts were made to compile files,  records, and other data that might help coordinate remains with individuals processed through the  headquarters-perhaps kept in its cells- and those individuals’ execution and burial dates.  The forensic teams excavating at Tuskulėnai unearthed 44 separate pits, each containing  1-154 sets of remains. The pits were all located directly under or around a former KGB garage  located on the grounds of a manor used as apartments for members of the KGB. Trees had been  planted above the space to further obscure the location. KGB files disclosed that most of the bodies  buried directly under the garage were executed in the winter, as the garage was the one location on  the site where the ground was never completely frozen during the coldest months. The burial pits  themselves give physical testament to how planned and organized the executions were; may of the  pits were very deep and supported by wooden beams, and the bodies within were stacked on top of  each other, rather than discarded haphazardly, and were often neatly separated by sheets of tar  paper.  The majority of the discovered victims were killed by bullet wounds to the occipital area of  their skulls, and displayed exit wounds through their frontal bone or their splanchnocraniums. The  individuals with these gunshot wound pathologies were killed by as many as up to 6 bullets, the  caliber of which ranged from 5.6-9mm, indicating that multiple types of handguns were used for the  executions. Other skull lesions on the victims’ skulls indicate signs of blunt force trauma by some  kind of blunt instrument, as well as signs of sharp force trauma— in particular, stab wounds. Some 

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of the stab wounds were created by either a pick or ice axe, while other wounds were created by bayonets, as indicated by the specific square-shaped entry wound. Investigators later discovered  records from the site that provided more specific information on the Tuskulėnai executions and  burials. The majority of the evidence indicated that two execution squads were notably responsible  for the mass executions: one squad was led by a man named Vasilij Dolgirev from 1944-1946, and  the other was led by Boris Prikazchikov from 1946-1947. Most of the victims exhibiting sharp force  trauma were executed by Prikazchikov’s squad.  Approximately 50 of the remains discovered at Tuskulėnai were identified through the  method of cross-matching information from KGB files and through the use of video  superimposition. These 50 individuals were the only ones out of the 767 discovered that were given  an identity. The remains from Tuskulėnai were eventually casketed and memorialized in 2004 in a  columbarium. Some efforts to identify the remaining 717 victims continue to be made, but only on  official request. In recent years, DNA analysis technology has improved the effectiveness of  identification processes and will hopefully benefit the efforts being made at Tuskulėnai.  Smaller grave sites at Rietavas and Zervynos in Lithuania have also yielded mass amounts of  victims of Soviet violence. The mass grave at the small town of Rietavas in western Lithuania was  discovered during an unrelated archaeological dig in September 2010. The pit discovered by the  archaeologists was found to be much less organized than those at Tuskulėnai; the bodies within the  grave were positioned disorderly, as though they were more carelessly discarded. Archaeological  artefacts discovered alongside the remains suggested that the individuals buried within the grave may  have been anti-Soviet guerillas. The individuals were identified as one female and four males, aged  20-45, and all were killed by gunshot wounds. Forensic anthropologists determined that due to the 

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placement of entrance and exit wounds, two of the killings may have been suicides. Information from a report by the Soviet People’s Commissariat for Internal Affairs suggests that these deceased  individuals may have died during a special operation in the winter of 1952. DNA analysis was not  possible, as the remains were too degraded for such a method of identification due to their burial in  very humid ground. Portrait superimpositions of the individuals were possible, however, and the  identities of three of the four individuals were confirmed.  A third mass grave site was discovered in south-east Lithuania, at Zervynos. The State  Genocide and Resistance Research Centre of Lithuania (the LGGRTC) obtained a file reporting an  operation by special agents and KGB soldiers, who attacked a bunker in which known anti-Soviet  guerillas were hiding. The soldiers lit the bunker on fire through the use of hand grenades, and the  bodies of the guerillas, who were burned inside, were reportedly buried somewhere in the vicinity of  the bunker. The LGGRTC organized an excavation in the summer of 2012, yet no whole remains  were exhumed; only bone fragments, identified as fragments of the distal end of the tibia and the  talus, were found. A pit in the surrounding forest area was located, and human remains, with  evidence of being highly disturbed by animals, were found. The individuals were identified as four  males, aged 20-30 years. Portrait superimposition was unsuccessful due to the damaged states of the  skulls, but some DNA still remained for testing. Unfortunately, the DNA tests were inconclusive  and no definitive identifications were made; after the forensic investigation proved inconclusive, the  unidentified remains of the guerillas were officially buried.   A fourth site in Lithuania, Dusetos, revealed victims of another mass tragedy, though in the  end, forensic investigation led to the belief that the victims were not those of Soviet violence. The  site in eastern Lithuania was originally hypothesized to be the location of the grave of more guerillas; 

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archaeological excavations were undertaken and 2 male and 2 female individuals were exhumed. Artifacts from soil deposits above the remains, as well as dental attrition characteristics dating to the  Late Medieval-Early Modern times indicated that the remains were in fact over a hundred years old  and most likely not victims of Soviet violence. This case study, just as the one of Napoleon's soldiers  buried in northern Vilnius, testifies to the necessity of reliable technology and forensic methods in  identifying victims of historic crimes (Jankauskas, 2015, p. 103-107).  Modern Day Ethics and Reparations  In 1991 the Lithuanian Jewish Museum was reestablished in Vilnius and renamed the Vilna  Gaon State Jewish Museum in 1997. The 1991 Holocaust exhibition at the museum was the first to  exist in the former Soviet Union; this museum was the first to publicly present any facts on the  atrocities committed within Lithuania.  The Holocaust has only recently been recognized in Lithuania despite the prominent role  Lithuanians had in executing their Jewish neighbors. Starting in the 1990s, increasing research about  Lithuanian-Jewish history became available in addition to public demands for reparations to the  Lithuanian Jews who perished in the Holocaust by Algirdas Brazaukas, the President of Israel  (Sužiedėlis & Liekis, 2013, p. 330). However, anti-semitism in Lithuania displays itself through  modern tensions between Lithuanians and Jews. For example, a study from 2006 found that  between 1900 through 2005, “the number of Lithuanians who asserted that they would not want to  live next door to a Jew rose from 18% to 31%” (Sužiedėlis & Liekis, 2013, p. 338).  The anti-semitism present in Lithuania as well as other nations affected by the Holocaust is a  symptom of growing Holocaust denial in Europe. Although outright Holocaust denial is  criminalized in fourteen European states, trivialization of these events, such as claiming fewer 

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people were killed, and victim blaming the Jews for the events of the Holocaust by comparing modern Jewish-Palestinian relations with the Nazis’ actions, is more common (Whine, 2008, p. 61).  Evidence of Holocaust denial (or trivialization) can be seen in the lack of Jewish and  Holocaust history in Lithuanian museums such as the Lithuanian Jewish Museum, founded in 1944  by survivors of the Lithuanian Holocaust after the end of the Nazi occupation; in 1949, however,  the Soviets liquidated the museum. According to Saulius Sužiedėlis, author of Conflicting Memories: The  Reception of the Holocaust in Lithuania, the Soviet perspective of the Lithuanian Holocaust  “camouflaged” the murder of Lithuanian Jews by the Nazis and Lithuanian counterparts as “the  murder of peaceful Soviet citizens” (Sužiedėlis & Liekis, 2013, p. 327). When the USSR blocked  Lithuania from the West, it also prevented modern perspectives on the atrocities of the Holocaust  from becoming part of the Lithuanian dialog regarding the genocide.  Modern Holocaust denial manifests itself through Vilnius’ Museum of the Genocide Victims  and the National Lithuanian Museum (Mazel, 2014, p. 158). The Museum of the Genocide Victims  was created to acknowledge the victims of the Soviet occupation in Lithuania and contains only a  single room dedicated for Holocaust remembrance despite the nearly complete elimination of  Lithuanian Jews (Nordland, 2018). By suppressing Jewish and Holocaust history, Lithuania engages  in cultural genocide by causing further injustice to victims’ relatives and the modern day Lithuanian  Jewish community.  Even today, most Holocaust victims buried in mass graves are discovered by accident rather  than through intentional searches for human remains, and many of the archaeological investigations  that did occur were focused on learning about the physical structure of concentration camps rather  than the victims (Colls, 2016, pp. 164-165; 167). Without active efforts to locate and identify 

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Holocaust victims, they remain deprived of the human dignity they deserve. Colls cites cultural views of corpses, social and political tensions concerning the Holocaust, and the media’s portrayal of the  Holocaust as major factors for infrequent forensic searches for mass graves (Colls, 2016, pp.  167-68): “When memorials already exist, some people may question why it is necessary to revisit  these places, to disturb them and to revive painful memories” (Colls, 2016, p. 168). It is also  important for investigators to consider the victims’ religious beliefs when excavating mass graves.  For example, Jewish law prohibits the reburial of victims due to the religious belief that reburial  could disturb the body’s connection to the soul (Colls, 2016, p. 169). Thus, archaeologists face  ethical dilemmas; while exhuming and identifying Jewish victims provides justice for them and their  descendants, is it morally acceptable to violate their religious practices?  Besides religious beliefs, Anstett and Dreyfus (2016) discuss the ethical presence of corpses  and skeletal remains in museums and in the media in their novel, Human Remains in Society. When  museums display human remains, it is important for institutions to know the circumstances in which  the specimens were obtained and if it is ethical to display them (Anstett & Dreyfus, 2016, p. 6).  Anstett and Dreyfus (2016, p. 9) acknowledge the role of necro-politics and necro-economy in  forensic anthropology, or the idea that human remains become “goods” after a genocide. Media  portrayal of death and violence make it easier for people to forget that skeletal remains are humans,  not objects, that deserve to be treated with dignity even in death.  Finding Forensic and Cultural Closure  Modern efforts to exhume mass graves of the victims of the Lithuanian Holocaust and  Soviet regime provide justice for the victims and their families also expose the devastation caused by  democide and other forms of mass violence. More forensic efforts have been taken to recognize the 

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events and victims of democide during Soviet occupation, however, than have been taken to recognize those of the Lithuanian Holocaust—while forensic efforts involving the Holocaust  genocide have increased since the twentieth century, there is nonetheless still a lack in cultural and  scientific recognition of these crimes and the impact they have in repairing current  Jewish-Lithuanian relationships. The empirical evidence accumulated by forensic anthropologists  and archaeologists verifies the historical records of these crimes and provides more context to the  victims’ lives and deaths. Forensic anthropology is capable of connecting the living and the dead by  creating a scientific foundation for discovering crimes that have occurred while simultaneously  providing victims and their families with justice and dignity. Although not every individual will be  officially identified and recognized, the support of continued forensic investigation of mass graves  and Holocaust victims by the Lithuanian government is necessary for restoring relations with the  Jewish communities living within Lithuania today.                           

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Works Cited Anstett, É, & Dreyfus, J. (2016). Introduction.: Corpses in society: About human remains,  necro-politics, necro-economy and the legacy of mass violence. In Anstett É & Dreyfus J.  (Eds.), Human Remains in Society: Curation and Exhibition in the Aftermath of Genocide and  Mass-violence (pp. 1-13). Manchester: Manchester University Press. Retrieved from  http://www.jstor.org/stable/j.ctt21h4xwg.6  Campbell, B. K. (2015). The Geometry of Genocide. University of Virginia Press. (pp. 150-181)  Colls, C. (2016). ‘Earth conceal not my blood’: Forensic and archaeological approaches to  locating the remains of Holocaust victims. In Dreyfus J. & Anstett É (Eds.), Human Remains  in Society: Curation and Exhibition in the Aftermath of Genocide and Mass-violence (pp. 163-196).  Manchester: Manchester University Press. Retrieved from  http://www.jstor.org/stable/j.ctt21h4xwg.13  Hinton, A. L. (Ed.). (2002). Genocide: An Anthropological Reader. Malden, MA: Blackwell  Publishing.  Jankauskas, R. (2015). Forensic Archaeology in Lithuania. In Groen, W. J. M., Márquez-Grant, N.,    & Janaway, R. (Eds.), Forensic Archaeology : A Global Perspective. Retrieved from https://ebookcentral.proquest.com  Jankauskas, R. (2009). Forensic Anthropology and Mortuary Archaeology in Lithuania.   Anthropologischer Anzeiger, Vol. 67, No. 4, 391-405. Retrieved from  http://www.jstor.org/stable/29543068  Mazel, A. (2014). Troubled ‘Homecoming’: Journey to a Foreign yet Familiar Land. In Convery   

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I., Corsane G., & Davis P. (Eds.), Displaced Heritage: Responses to Disaster, Trauma, and Loss(pp. 151-162). Woodbridge, Suffolk; Rochester, NY: Boydell and Brewer. Retrieved from  http://www.jstor.org/stable/10.7722/j.ctt6wp8nw.21  Mendelsohn, E. (1983). The Jews of East Central Europe Between the World Wars. Bloomington,  IN: Indiana University Press.  Nordland, R. (2018). Where the Genocide Museum Is (Mostly) Mum on the Fate of Jews.  Retrieved May 14, 2018, from  https://www.nytimes.com/2018/03/30/world/europe/lithuania-genocide-museum-jews.ht ml  Rummel, R. J. (1994). Death By Government. New Brunswick, N.J.: Transaction Printers. (pp.  31-43; 86; 111-122)  Schoeps, K. (2008). Holocaust and Resistance in Vilnius: Rescuers in "Wehrmacht" Uniforms.  German Studies Review,31(3), 489-512. Retrieved from http://www.jstor.org/stable/27668589  Staliūnas, D. (2015). Antisemitism in Lithuania. In Enemies for a Day: Antisemitism and  Anti-Jewish Violence in Lithuania under the Tsars (pp. 63-84). Retrieved from  http://www.jstor.org/stable/10.7829/j.ctt14qrxxb.7  Sužiedėlis, S., & Liekis, Ś. (2013). Conflicting Memories: The Reception of the Holocaust in    Lithuania. In Himka J. & Michlic J. (Eds.), Bringing the Dark Past to Light: The Reception of the  Holocaust in Postcommunist Europe (pp.319-351). doi:10.2307/j.ctt1ddr8vf.16  Whine, M. (2008). Expanding Holocaust Denial and Legislation Against It. Jewish Political Studies   Review, 20(1/2), 57-77. Retrieved from http://www.jstor.org/stable/25834777 

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The Copyright War: Analyzing the Debate Between Technology and Copyright Law in the Digital Age   Beryce Garcia ’20, Anna Kawakami ’21,   Elizabeth Jimenez ’Davis Scholar 19, and Justine Duan ’20     ABSTRACT  The first United States copyright act was passed near the end of the eighteenth century, with  revisions to federal copyright law being passed at a rate of approximately every 40 years. Keeping in  mind the rapid rate at which new technologies and inventions are produced, how does copyright law  “keep up” with those advancements? In addition, what copyright protections, if any, exist to protect  both the content and its authors? This paper examines the conflict between copyright law and  technology as they both change and evolve. In the specific research outlined here, we will review the  history of United States copyright law, or the rights creators have over their literary and artistic  works; this includes books, movies, art, music, computer software, and other inventions. We will  then use multiple cases to show that United States copyright laws are outdated and that changes  must be made so that they can better protect intellectual property, while fostering the culture of  creation and freedom of speech in the digital age.     1. INTRODUCTION  In today’s world, it is easier than ever to access the Internet in order to find, post, use, and  download information, data, and media in massive amounts. However, even though it may seem  simple, almost all of the content that can be found on the web is copyrighted or protected by some  sort of intellectual property law. According to the World Intellectual Property Organization (WIPO),  intellectual property (abbreviated as IP) refers to “creations of the mind, such as inventions; literary  and artistic works; designs; and symbols, names, and images used in commerce.”[1] Broadly defined, 

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IP law includes trademarks, patent law, and our main area of focus: copyright law, which we define as the rights that content creators possess in order to protect their work(s) [2].  2. HISTORY OF UNITED STATES COPYRIGHT LAW   

The first federal copyright statute was passed by the United Kingdom’s House of Commons

in 1710. Known as the Statute of Anne, this law was the first to establish that authors had legal copyrights to their work [3]. To receive copyright protection under this statute, all authors had to  register their works at the Stationers’ Company—a publishing industry that, prior to the enactment  of the Statute of Anne, held a monopoly over regulating the book trade. Once authors had their  names registered, they would receive copyright protection for their work for a period of 14 years, in  addition to another 14 year term if they were still alive after the expiration date. During this time  period of 28 years, only the author and any designated printers had the legal right to print the work.  After the 28 year period, however, the work would enter the public domain and anyone could use  the work without permission.   

When the American colonies were formed, the Founding Fathers adopted the ideas

established in the Statute of Anne and included the Intellectual Property Clause in Article I, Section 8, Clause 8 of the U.S. Constitution [4][5]. The clause gave Congress the right to enact nationwide  copyright laws. The modern copyright law of today reflects similar foundational ideas about  copyright protection, but there are key differences that show the complex nature of modern  copyright law. The Statute of Anne was passed during a time when only literary works, including  novels, poems, and plays, had to be protected. In addition, the only copying mechanism available  was the printing press. The modern copyright law, or the Copyright Act of 1976 in addition to the  several amendments passed afterwards, has the legal responsibility to protect literary, dramatic, 

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musical, and artistic works—including movies and computer software—from copyright infringement [6]. These modern works have followed the proliferation of technology, with many  artists making their works available online for the public to view. The relocation of creative works to  the web has not only granted access to a wider audience, but has also allowed this same audience the  ability to easily copy and reproduce these works of art. Today, copyright infringers could potentially  be anyone with access to a computer. Moreover, the anonymity associated with using a computer  and the sheer number of interactions on the Internet make it more difficult for the federal copyright  agency to track copyright violators and where they may be coming from. To best protect authors  against copyright infringement, the Copyright Act of 1976 established that  Copyright holders have the exclusive right to reproduce, distribute, publicly  perform or display their work, and prepare derivative works based on their work;  [7]  Any created works are automatically protected as long as they are fixed in a  tangible form; [8]  Authors who have registered their works with the U.S. Copyright Office can  bring lawsuits against possible infringers; [9]  Works created after 1978 have a copyright protection period lasting the  author’s lifetime plus an additional 70 years and, [10]  People can use copyrighted work for criticism, news reporting, teaching, and  research under the fair use doctrine. [11]   Between the Copyright Act of 1976 and the complete copyright legislation that must be  abided today, there is one key difference regarding who can be accused for copyright violation. Until 

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1996, those who copied works of other artists were not criminally prosecuted if there was no commercial motive. However, in 1997, the No Electronic Theft (NET) Act became the first law that  criminalized people who committed copyright infringement regardless of whether they intended to  make a profit or financial gain [12]. The act was the first of many that responded to the widespread  use of the Internet starting in the late 20th century. After Tim Berners-Lee created the World Wide  Web (WWW) in 1989, the number of people who began using the Internet increased exponentially.  The software industry took advantage of this new platform, creating programs that could reproduce,  distribute and share copyrighted works on the Internet. The NET Act initially halted the sharing of  copyrighted materials, but technology entrepreneurs quickly seized business opportunities in legally  sharing copyrighted materials.  A year later, Congress passed the 1998 Sonny Bono Copyright Term Extension Act (CTEA),  further increasing the copyright period to what it is today. For those with works copyrighted after  1978, the copyright period was extended to the life of the author plus an additional 70 years. Works  that were owned by corporations, however, had a longer copyright period of 95 years from the year  of the first publication. When the United States Congress passed the first copyright act in 1790, the  original copyright period was a total of 28 years. Although the CTEA is the most recent copyright  extension act passed, it is only one of many copyright extension acts. The timing of this copyright  extension act has led many to associate it with The Walt Disney Company’s copyright protection  over Mickey Mouse. Over time, the CTEA has increased the copyright period in favor of extending  The Walt Disney Company’s ownership of Mickey Mouse. By allowing large corporations like  Disney an extended ownership period over their works, CTEA provides the corporations a 

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monopoly to be the sole profitters from their works. In addition, it also restricts other artists’ freedom of creativity by prohibiting them from recreating these works of art.  In the same year, the 1998 Digital Millennium Act (DMCA) was passed by Congress. This  act updated the federal copyright law in order to meet the demands of the new digital era. The new  act brought the federal copyright law into compliance with the World Intellectual Property  Organization Copyright Treaty as well as strengthened the legal protection of intellectual property  rights in the wake of emerging new information communication technologies, such as the Internet,  and to address the nation’s shift from analog devices to computers and e-commerce.  During the 21st century, there have so far been very few additions or amendments to the  copyright law. In 2004 Congress passed the Intellectual Property Protection and Courts  Amendments Act. This act established civil and criminal penalties for counterfeit labels,  documentation, and packaging in association with copyrighted goods [14]. A year later, in 2005, the  Family Entertainment and Copyright Act was enacted. One part of the Act, the Artist's Rights and  Theft Prevention Act, created criminal penalties for individuals who recorded motion pictures in a  theater or for individuals who distributed unpublished works, such as movies or software. The  Family Entertainment and Copyright Act also included the Family Home Movie Act, which  provided a statutory exemption for DVD players and other home movie players that contain  technology to skip objectionable content [15]. In 2008 the Prioritizing Resources and Organization  for Intellectual Property (PRO-IP) Act was passed, strengthening protection for rights holders and  increasing penalties for infringement of intellectual property rights [16]. Among other amendments  to the Copyright Act, the PRO-IP Act established that registration of the copyrighted material is not  a prerequisite for criminal prosecution of copyright infringement. Additionally, the PRO-IP Act calls 

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for the President of the United States to appoint an Intellectual Property Enforcement Coordinator (IPEC) who is required to develop a Joint Strategic Plan to help combat infringement and  counterfeiting of intellectual property.  The addition of copyright protection amendments and acts do not follow the same timeline  as the advancement of technology. Although copyright protection amendments are passed every few  years, in the past decade, technology has grown exponentially in both its potential for entertainment  and reaching a wider audience. Whether copyright legislation as it stands today can effectively  protect copyrighted material is a question that brings to light layers of complexity.  3. LIMITATIONS ON EXCLUSIVE RIGHTS  There are some provisions that allow people to use copyrighted works without a license  from the copyright owner without the use being classified as infringement. The following are some  examples that fall under those provisions that can “forgive” the use of copyrighted work without  permission of the owner:  Fair use: allows use of copyrighted works for purposes such as criticism, comments,  news reporting, teaching, scholarships, research, and home use. However, to determine  that a copyrighted work has been used within the law, it is necessary to evaluate some  factors, such as:  1.

Was the copyrighted work used for non-profit purposes?

2.

How many number of copies were made, if any?

3.

What amount of text was copied, in case of a text, and was there any recognition of the copyright holder? 

4.

Was there any effect on market potential? 102 


If the factors above reflect a commercial gain or an extensive use of the work without properly recognizing the owner, it is very likely that the user is in infringement of the  copyright laws.  Reproduction by libraries and archives: allows the distribution of copyrighted works  without any direct or indirect commercial advantage, while open to the public.  Exception of certain performances and displays: This refers to the performance of a  work by teachers and students in teaching activities of a nonprofit educational  institution.  Reproductions for blind and other people with disabilities [17]. 

The complete list with a better description of what can be exempt from infringement can be found in Section 107 of the Copyright Act [18]. Exemptions which are not explicitly stated in the Act are  revised, reviewed, and approved by the Librarian of Congress every three years.  One of the most controversial limitations on exclusive rights has been the Fair Use  limitation as a legal doctrine that promotes freedom of expression by permitting the unlicensed use  of copyright-protected works in certain circumstances [19]. In the new digital era, people from all  over of the world can easily connect on the Internet thanks to rapidly evolving technology. New  artists, and people in general, are taking advantage of the latest technology and various social media  platforms, such as YouTube and Facebook, to promote their independent work. With the boom of  these platforms and the accessibility of the Internet, people have been continuously creating videos  and distributing independent works which can be protected under the fair use provision. It is worth  asking if the current copyright law needs to be made more comprehensive given the advantages of  new technology and how it is being used by artists of all kinds to spread, promote, and sell their 

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works. Technology is moving faster, and it is getting far ahead of current legislation and government office capabilities, especially with the U.S. Copyright Office. New laws are required,  but Congress is taking too long to address them due to the lack of consensus between copyright  holders and technology companies on how best to rewrite the law, which is necessary to make the  system work better.  4. THE COPYRIGHT LAW DEBATE  [1]  4.1 High Protectionist vs. Low Protectionist  

In response to the complications associated with copyright law, content creators and

non-content creators offer two strikingly different solutions: 1) strengthen copyright law or 2) loosen or even abolish copyright laws. Coined by Paul Goldstein, a professor at Stanford Law  School and highly acclaimed author of a four-volume treatise on copyright law in the United States,  “high protectionists” are those who agree with more restrictive copyright laws and “low  protectionists” are those who believe in abolishing or reducing the copyright protections [20]. For a  legal issue so complex, why are the answers provided so binary? More importantly, what is the  reason for such great disparity? Perhaps the answer could be traced to the fundamental nature of the  debate in copyright law: corporations and profit vs. freedom of information and creative expression.  Given this underlying theme in the copyright discourse, what are the arguments of high and low  protectionists and how do their opponents counter their points?  4.1.1 Analysis of and Arguments for the High Protectionist Point of View  High protectionists think that copyright law is outdated and that changes must be made to  better protect content creators and their work in the digital age. They think that, especially with the  creation of the Internet, technological creations and advancements make it too easy for individuals  104 


to copy and disseminate copyrighted work. High protectionists fear the consequences of such rapid advancement. By creating a platform which allows people to share and access work as easily as they  could steal it, content creators risk losing more than just money, they lose a sense of originality. The  sense of loss is a consequence of the decrease in scarcity of their work as it continues to be shared  illegally, and as a result, become less valuable. The time and effort authors put into creating their  work becomes devalued, which, without stronger copyright laws, could disincentivize creators from  creating content in the first place. After all, what is the point of dedicating copious amounts of time  and effort into a product that is not guaranteed any sort of protection? Why make something that  others could easily claim as their own without repercussions?  One Internet case that confirmed these fears can be found is A&M Records vs. Napster, one  of copyright law’s landmark rulings. Napster was a popular peer-to-peer file sharing network in the  late 1990s with over 26 million users. It acted as a directory service, showing individuals where and  from whom they could find files that they were looking for. Consequently, it also allowed for  millions of people to share music files, which threatened the music industry. Seeing it as an obvious  case of copyright infringement, the Recording Industry Association of America (RIAA) sued  Napster for over $100 million in damages [21]. Napster tried to defend itself by citing that they had  no control over users’ actions, and Napster’s services simply allowed users to practice their freedom  of speech. The court, however, disagreed. They cited that though Napster was not directly infringing  copyright law, they were still enabling others to do so while profiting from it (a term in copyright  otherwise known as secondary infringement).  With the court ruling in favor of the RIAA, Napster eventually shut down and apologized  for the turn of events. The case and Napster’s network architecture set a precedent for technology 

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companies to innovate the digital industry in ways that would not interfere with the technicalities set by copyright law. One result from this inspiration was the idea of a decentralized file sharing system,  which had no central directories compared to that of Napster’s. This network revolution jump  started even more file sharing companies such as Grokster and and Streamcast [22]. Once again,  these companies were sued in another case known as MGM Studios, Inc. v. Grokster, Ltd. Fortunately  for content creators, the courts still ruled that file sharing companies such as Grokster could be held  liable for copyright infringements by third parties. However, content creators had lost in an earlier  landmark case 17 years prior to MGM Studios, Inc. v. Grokster, Ltd. which is known as Sony Corp. of  America vs. Universal City Studios, Inc. (also known as the “Betamax case”).  In the Betamax case, Sony was sued by Universal City Studios for its creation of the video  cassette recorder (VCR), which allowed individuals to record shows and play them back at a more  convenient time (known as time shifting). Universal City Studios felt this invention was another case  of secondary infringement in that it created a platform that could facilitate copyright violations;  therefore, Sony should be liable for such offenses. This time, however, the court disagreed with the  complaints issued by Universal City Studios. They ruled that the VCR and other similar copying and  recording instruments had “substantial noninfringing uses” and that “[it] does not constitute  contributory infringement if the product is widely used for legitimate, unobjectionable purposes”  [23]. In other words, if a company could prove that a product was not created for the purpose of  facilitating infringement and that the product had other uses, the company was not liable for  copyright violations made by third party users. This ruling was a victory for technology industries as  it provided a “safe harbor” against possible accusations of secondary infringement and allowed for  the creation of other products subsequent to the VCR. As a result, the home video recording 

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industry boomed, movie theaters closed, and technology continued to rapidly expand in unforeseen ways. Websites such as YouTube, Google, and Facebook increased in prominence nationally and  globally. The world was progressively becoming more digital and more interconnected thanks to the  Web and the Internet. But while technology expanded, the law remained mostly unchanged and the  gray area between copyright law and technology started to become grayer.  The ambiguity in copyright law is one of the reasons why high protectionists believe that  copyright law is outdated and needs to be updated to better protect content creators in the digital  age. The stagnant nature of law and the ever changing evolution of technology has made it harder  for content creators to protect their work during cases in which they strongly feel that their work has  been infringed, but the courts rule otherwise. This issue was exemplified in ABC, Inc. v. Aereo, Inc.  Aereo, Inc. is a service that allows its customers to watch shows on television, record those  programs as well as those that will eventually air on the Internet, and transfer them to other  Internet-enabled devices. Even though Aereo, Inc. did not have a license with any of the associated  shows and programs, the court still ruled that they were not infringing on the rights of the copyright  holders due to a similar Supreme Court case which ruled in favor of the copying technology  company [24]. In another example, Viacom sued YouTube (and by extension, YouTube’s owner,  Google) in 2007 for $1 billion for allegedly allowing “brazen” and “massive” copyright infringement  committed by YouTube users who had uploaded videos of Viacom’s copyrighted material—clips of  Spongebob Squarepants and South Park, for example [25]. Known as Viacom International, Inc. vs. Youtube,  Inc., Viacom accused YouTube of theft and willful knowledge of the alleged copyright infringement,  while YouTube accused Viacom of hiring several agencies to post its own copyrighted material to  YouTube under secret user accounts. Different courts ruled in favor of both parties at different 

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times, but, ultimately, the case ended in favor of YouTube with the court stipulating that the company was protected by the “safe harbor” provisions in the Digital Millennium Copyright Act.  With court rulings such as the Betamax case and Viacom International, Inc. vs. Youtube, Inc.,  copyright law cases have implicitly created a standard that high protectionists find problematic: that  online platforms are not responsible for removing or monitoring copyright infringements. Instead,  the creator is solely responsible for finding all of the links to the alleged violation, even if there are  multiple links uploaded online. Courts have consistently come to this conclusion, but such decisions  make it harder for content creators to protect their work [26]. The reason for the difficulty comes  from the fact that current technology allows for millions of people from all over the world to share  content to millions of other users in a matter of seconds. Therefore, it makes the job of detecting  and punishing copyright infringements nearly impossible if the responsibility is solely placed on the  content creator. Additionally, if the copyrighted content is uploaded again without the creator’s  permission, the website itself is not responsible for removing or notifying the creator about the  upload. The creator must request the online platform to take it down again and again until the  person who steals their work decides to stop [27]. High protectionists argue that with such advanced  technology, content creators are more vulnerable to copyright infringements. Moreover, placing the  responsibility solely on them to track each and every copyright violation and make sure that violators  will not offend more than once is simply a burden and nearly impossible to do. Violators, as a result,  are often not punished harshly enough or not punished at all. Such complications only devalue the  message that stealing work is not acceptable and that the creations of artists and authors are not  worth protecting. 

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Additionally, current copyright laws, technological advancements in online platforms and file sharing services, and the subsequent developments that resulted from previous rulings have shown  that it is now easier for third parties to infringe on the copyrights of creators. Piracy, for example,  continues to be a prevalent issue in contemporary times, especially across the globe where  intellectual property laws are not as rigorously enforced as they are in the United States. According  to the U.K.-based Digital Television Research, “U.S. piracy losses will reach $11.6 billion in 2022, up  30% from 2016” [28]. This statistic implies that current copyright laws are more than just social  issues, but economic problems as well. One major principle in macroeconomics tells us that  technology is an output generating factor of production. The more technology is available, the more  we can increase our gross domestic product (the measurement of new and final goods and services  produced in a economy in a given year) and other inputs, but this is only possible when there is a  system of patents and copyrights that encourage individuals to create ideas that are inherently  non-excludable. In the absence of these laws, individuals are disincentivized to produce work,  production decreases, and the economy is unable to grow to its full potential. Piracy and other  similar issues that are outcomes of current copyright laws detract the economy from obtaining  potential output. If piracy can affect the global economy in such a tremendous way, then what about  the livelihoods of those content creators who are affected by piracy and other infringements?  Current copyright laws simply are not doing enough to protect content creators. Without strong  copyright protections, the author is more than just unmotivated—her financial situation is affected  as well. Completely abolishing copyright law means that authors’ work is either free or inexpensive  to the point that it is unsustainable as a main source of income. However, for many creators, this is  their reality. Additionally, if the creator were a small business or artist living in a copyright-free 

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world, her work could easily fall prey to the greedy hands of bigger corporations who would take her work. She would then have no control over who takes her work, how her work is represented, and  how much money she would get from the fruits of her labor. To reduce the strength of copyright  law would be devastating for both large content-producing corporations and smaller individual  artists morally and financially. Without stronger protections, how can content creators maintain their  livelihoods?     4.1.2 Analysis of and Arguments for the Low Protectionist Point of View  On the other end of the spectrum is the low protectionists’ point of view, which asserts the  copyright laws need to be loose or, as some extreme low protectionists believe, abolished. Low  protectionists value freedom of expression, speech, and information. They believe that copyright  laws have become too restrictive to the point of limiting innovation. For example, in the  aforementioned Sony Corp. of America vs. Universal City Studios, Inc., should the court have ruled in  favor of Universal City Studios, the VCR and subsequent inventions with similar concepts would  have been considered illegal. Garage door openers and following technologies might have never  existed if the courts had not ruled in favor of a maker of a universal electronic garage door opener  when it was sued by Chamberlain Group, a garage door company, when they claimed that the  “universal transmitters circumvented access controls when they sent radio signals to open and close  the doors” [29]. (Ironically, the Chamberlain Group now sells universal garage door controllers.)  Replacement toner cartridges might have also seen the same fate if it were not for the court ruling  against Lexmark International, a printer business, who sued a company that made replacement toner  cartridges because it “circumvented access controls in order to function with the printer” [30]. Such 

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cases show that while stronger copyright laws can more adequately protect work, sometimes the protections can become overprotective and restrictive. In effect, artistic creativity, the potential for  new businesses, literary criticism, and other original content derived from previous works become  “suffocated”. So then the question becomes: when an individual who has arguably infringed the  copyrights of another is punished, is the law also infringing on that same individual’s right to  freedom of speech by punishing their desire to create? For low protectionists, the answer is yes.  Low protectionists argue that the field of copyright law is biased, favoring the bigger  corporations over the principle of creation upon which the basis of copyright was originally  founded. They argue that current copyright laws impose an intellectual monopoly, much like the  same monopolies that we associate with other industries. In fact, this is the same conclusion that  was reached by Washington University in St. Louis economists Michele Bodrin and David K. Levine  in their book Against Intellectual Monopoly in which they claimed that such restrictive copyright laws  cause a net loss to the economy for it prevents free competition, thereby limiting innovation [31].  For example, in the Betamax case, though the movie theater business was impacted, the stipulation  of the “substantial noninfringing uses” standard allowed for the prosperity of the home theater  industry. Contrary to what filmmakers thought would be the end of film-making, it instead saved the  film industry due to the success of DVDs and rental stores. In fact, the creation of rental movies  and DVDs was generating the same amount of revenue that a film company would make with a box  office hit. Moreover, cable companies adapted to make a profit off of the time-shifting concept by  allowing their customers access to buy more films so that they could create their own film libraries  in their homes [32]. Such success would not have been possible without the “substantial  noninfringing uses” standard in the Betamax case, which gave technology companies a legal safe 

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haven (known as a “safe harbor” in legal terms) to create. Low protectionists expand on this by saying that should this relaxation be universally applied to all of copyright law, innovation will  flourish and so will our economy. On the other hand, allowing stronger copyright laws makes it  harder to be creative because they allow content creators the ability to make their content expensive  and, hence, inaccessible. Perhaps the biggest proof to this claim is in the aforementioned Copyright  Term Extension Act of 1998 (infamously known as the “Mickey Mouse Protection Act”), which  extended the length of copyright by several more years due to the efforts of The Walt Disney  Company in an effort to protect the beloved and profitable Mickey Mouse.   

In addition to artistic expression, low protectionists believe that such restrictive copyright

laws prevent the flow of information. Low protectionists argue that sometimes it is hard to obtain needed information due to the censorship that comes with intellectual monopoly. Apart from having  to find information along with the creator who made or discovered it, another obstacle that  individuals face is obtaining permission from the creator (due to intellectual monopoly and current  copyright laws protecting it). As a result, what current copyright laws might then foster is a sense of  fear instead of appreciation and celebration for building on previous works because individuals are  then overly cautious of unconsciously violating copyright laws in their attempts to get information.  Having looser copyright laws would get rid of this culture of fear while allowing knowledge to be  more easily spread, which in turn would benefit schools and charities in the long run. After all, low  protectionists affirm that copyright laws should be about an incentive to create and not to restrict.  An example of how copyright law restricts the flow of information can be found in 2005 when  Google launched a project to digitize and index the collections of several research libraries.  

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Google sought to use the digitized books in its search engine by providing search results of two- or three-sentence snippets. Through the Library Project, Google Books helped to preserve  books and also enhanced research by making the books searchable, allowed for data mining or text  mining, and enhanced accessibility for persons who are visually impaired or otherwise print disabled.  In 2013, the Authors Guild filed a separate class action against Google, which is currently on appeal  to the Court of Appeals for the Second Circuit. The plaintiffs in the case objected to the Library  Project, alleging copyright infringement. Based on the limited quotations actually displayed to the  user, Google argued that its use of the books fell under the fair use provision of the Copyright Act  [33]. After conducting a fair use analysis of Google's conduct, on November 14, 2013, a judge  granted Google's motion for summary judgment, finding that Google's use of the copyrighted works  was highly transformative and provided significant public benefits. Similarly, the judge found that  Google was entitled to summary judgment regarding the copies made available to libraries, which  served to provide libraries the ability to engage in fair use activities.   

Lastly, low protectionists acknowledge that many content creators dedicate a lot of time to

their work. However, they would disagree that sharing such work would prevent content creators from creating more work. Economically, they argue that intellectual property, unlike more tangible  forms of inputs like technology, labor, and capital, can never be scarce [34]. For example, if a farmer  lost one of his tractors, then the amount of products he can produce decreases and the value of his  farm diminishes. On the other hand, if Person A were to steal a piece of knowledge or information  from Person B, Person B does not become deprived of that knowledge. In other words, intellectual  property (and more specifically in this case, those works protected by copyright law) is non-scarce. It  may be possible to steal physical creations, in which case the content creator loses. However, the 

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content creator still retains the information and knowledge that was contained in her creations. Additionally, low protectionists acknowledge that piracy and other copyright infringements do in  fact exist. However, that is not enough to stop content creators from making more content. In 2003,  for example, when J.K. Rowling released Harry Potter and the Order of the Phoenix, the fifth installment  of the universally acclaimed Harry Potter series, fans decided to illegally download the book online.  Some even took it upon themselves to share unofficial translations of the book to other individuals  across the globe [35]. However, such offenses did not stop J.K. Rowling from writing three more  sequels afterwards. Therefore, low protectionists claim that copyright infringements do not seem to  really affect the content creators themselves, but rather the publishers and corporations that profit  from also possessing copyrights.    5. CONCLUSION  Our research showed that copyright laws need to be updated in order to protect content  creators, but they should not become too restrictive at the cost of freedom of speech, knowledge,  and creativity. Instead, they should be revised to balance both ownership and innovation, making  them more applicable and appropriate for the digital age. How exactly would that be done? There  are no easy answers, of course, but we have four ideas for possible, partial solutions.  First, Congress should reduce the number of years that copyright protections can cover a  work of intellectual property. The number of years set by current copyright laws is far too lengthy  and hinders human progress. By reducing the protection period, more people can create original  content derived from previous work and increase the speed at which innovation occurs. In addition  to reducing the length of copyright protection, the fair use provision should remain untouched, as it 

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protects people’s right to create. Of course, there are disadvantages to this solution. For example, powerful corporations would definitely use their money and influence to lobby Congress to keep the  protection period the same (or to extend it even more). In addition, change takes time, especially in  the governmental processes in the United States. However, the advantages with reducing the length  of copyright protection far outweigh the disadvantages in that it will allow for the progression of  human creativity and innovation.  A second solution is to develop better software and other technologies to protect copyright  and detect obvious and egregious infringements. For example, in patent law, Amazon recently  created their Amazon Brand Registry to help businesses detect whether third parties were stealing  trademarked designs and logos and whether or not they were pretending to be legitimate sellers of  their product. Programmers and software developers could take inspiration from the architecture  provided in Amazon Brand Registry to develop something similar to detect copyright infringements  for works such as music, videos, literature, art, and more.  Third, the culture and attitude surrounding the use of very popular or common (but  copyrighted) material should change. It may be in the best interest of the public to make popular  files more affordable and accessible; that way, people would be far less motivated to steal those files  and thus end up committing minor instances of copyright infringement. Instead of restricting usage  of these sorts of materials, we should instead allow people to use such materials while  simultaneously holding people accountable for how they use them. This could be done in a couple  of ways, such as introducing a type of pay-per-use system or having users identify themselves in  order to access copyrighted material. The main disadvantages with this solution, however, is that the  price associated with the pay-per-use system might still be unaffordable for certain individuals. 

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Additionally, having to identify yourself everytime in order to access copyrighted material might be perceived as an inconvenience for others. For copyrighted material that companies decide to make  more easily accessible and affordable, the companies with ownership rights should look more into  creative commons licensing and applying so-called watermarks and locks to protected material.  Lastly, copyright laws should be reviewed and revised by both lawmakers and technology  experts together. Specifically, intellectual property lawyers, policy makers, technology experts, and  perhaps even counsel from larger entities that have interests regarding the business of copyrighted  material—entities such as the RIAA or the MPAA—should convene to discuss how best to  implement more comprehensive copyright laws that not only foster innovation but also protect  ownership of copyrighted material. That way, multiple kinds of expertise can be utilized to ensure  that copyright laws are created and edited to better reflect the current technologies we currently have  and are predicted to achieve in the coming years. 

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Works Cited [1] WIPO, www.wipo.int/about-ip/en/. Retrieved 26 November 2017.  [2] WIPO. Copyright and the Digital World. Available from:  www.wipo.int/ip-outreach/en/ipday/2016/ip_digital.html. [26 November 2017].  [3] History of Copyright 2005, accessed 26 November 2017,  <http://www.historyofcopyright.org/pb/wp_ff342f50/wp_ff342f50.html>  [4] Legal Information Institute, accessed 9 December 2017,  <https://www.law.cornell.edu/wex/intellectual_property_clause>  [5] Association of Research Libraries, accessed 27 November 2017,  <www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline#20C>  [6] U.S. Copyright Office, 2017, Copyright Basics. Washington, USA, 1-9.  [7] U.S. Copyright Office, accessed 9 December 2017,  <https://www.copyright.gov/help/faq/faq-protect.html>  [8] U.S. Copyright Office, accessed 9 December 2017,  <https://www.copyright.gov/help/faq/faq-protect.html>  [9] U.S. Copyright Office, accessed 9 December 2017,  <https://www.copyright.gov/help/faq/faq-protect.html>  [10] U.S. Copyright Office, accessed 9 December 2017,  <https://www.copyright.gov/help/faq/faq-protect.html>  [11] Rich Stim, Stanford University Libraries, accessed 9 December 2017,  <https://fairuse.stanford.edu/overview/fair-use/four-factors/>  [12] Indiana University 2014, accessed 9 December 2017, <https://kb.iu.edu/d/aliv>  [13] Steve Shlackman 2017, ARTREPRENEUR, accessed 9 December 2017,  <https://artrepreneur.com/how-mickey-mouse-keeps-changing-copyright-law/>  [14] Mike Masonic 2017, Techdirt, accessed 27 November 2017,  <https://www.techdirt.com/articles/20120215/04241517766/how-much-is-enough-weve-pa  ssed-15-anti-piracy-la> 

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[15] Association of Research Libraries, accessed 27 November 2017, <www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline#20C>  [16] Authenticated U.S. Government Information, accessed 26 November 2017,  <https://www.gpo.gov/fdsys/pkg/PLAW-110publ403/pdf/PLAW-110publ403.pdf>  [17] U.S. Copyright Office, accessed 26 November 2017,  <www.copyright.gov/title17/92chap1.html#107>  [18] U.S. Copyright Office, accessed 26 November 2017,  <www.copyright.gov/title17/92chap1.html#107>  [19] U.S. Copyright Office, accessed 26 November 2017,  <www.copyright.gov/title17/92chap1.html#107>  [20] Paul Goldstein, Duke Law, accessed 10 December 2017,  <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsre dir=1&article=4138&context=lcp>  [21] Hal Abelson, Ken Ledeen, Harry Lewis, 2008. Blown to Bits Your Life, Liberty, and Happiness After  the Digital Explosion. Pearson Education, Inc., Boston, USA.  [21] Hal Abelson, Ken Ledeen, Harry Lewis, 2008. Blown to Bits Your Life, Liberty, and Happiness After  the Digital Explosion. Pearson Education, Inc., Boston, USA.  [22] Hal Abelson et. al, 2008. Blown to Bits Your Life, Liberty, and Happiness After the Digital Explosion.  Pearson Education, Inc., Boston, USA.  [23] Hal Abelson et. al, 2008. Blown to Bits Your Life, Liberty, and Happiness After the Digital Explosion.  Pearson Education, Inc., Boston, USA.  [24] Oyez, accessed 26 November 2017, <www.oyez.org/cases/2013/13-461>  [25] Wikipedia, accessed 20 November 2017,  <en.wikipedia.org/wiki/Viacom_International_Inc._v._YouTube,_Inc. / Reuters>  [26] The Times editorial board 2014, Los Angeles Times, accessed 20 November 2017,  <www.latimes.com/opinion/editorials/la-ed-copyright-online-piracy-20140324-story.html>  [27] The Times editorial board 2014, Los Angeles Times, accessed 20 November 2017,  <www.latimes.com/opinion/editorials/la-ed-copyright-online-piracy-20140324-story.html> 

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[28] Jonathan Berr 2017, Forbes, accessed 30 November 2017 <https://www.forbes.com/sites/jonathanberr/2017/10/31/netflix-amazon-hulu-are-paying-a-steep  price-to-battle-pirates/#554d773f3501>  [29] Hal Abelson et. al, 2008. Blown to Bits Your Life, Liberty, and Happiness After the Digital Explosion.  Pearson Education, Inc., Boston, USA.  [30] Hal Abelson et. al, 2008. Blown to Bits Your Life, Liberty, and Happiness After the Digital Explosion.  Pearson Education, Inc., Boston, USA.  [31] Economic and Game Theory 2008, UCLA, accessed 10 December 2017,  <http://levine.sscnet.ucla.edu/general/intellectual/against.htm>  [32] Wikipedia, accessed 10 December 2017,  <https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.>  [33] Stanford University Libraries 2015, accessed 10 December 2017,  <https://fairuse.stanford.edu/case/authors-guild-v-google-inc/>  [34] Wikipedia, accessed 11 December 2007,  <https://en.wikipedia.org/wiki/Opposition_to_copyright>   [35] Amy Harmon 2003, New York Times, accessed 11 December 2017,  <http://www.nytimes.com/2003/07/14/business/harry-potter-and-the-internet-pirates.html>   

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Applying the Fourth Amendment to the Internet of Things   Yuhan Wu ’19     Consider your home in five years: Before you’re out of bed in the morning, the drapes  open themselves, the shower turns the water to the perfect temperature, and the toaster toasts your  bagel just the way you like. Motion detectors know when you’ve left for work and switch on your  home security system as a robot vacuum begins cleaning your floors. At the office, you realize you  forgot to start the clothes dryer; a simple voice command to your smartphone means the laundry’s  ready when you get home. As you head up the driveway at night, sensors in your smart car alert the  garage door to open and the lights in your home to turn on while the TV tunes itself to your favorite  program.  Welcome to the era of the Internet of Things (IoT). The IoT is a rapidly evolving and  expanding collection of diverse technologies that interact with the physical world. The IoT consists  of “things” (devices) connected through a network to the cloud from which data can be shared and  analyzed to create value such as solving problems or enabling new capabilities). The IoT enables us  to connect “things” like phones, appliances, machinery, and cars to the Internet, share and analyze  the data generated by these “things,” and extract meaningful insights; those insights create new  opportunities, help solve problems, and implement solutions in the physical world (National IOT  Strategy Dialogue Report, 2017).  However, as in many other fields, legislation is unable to keep up with the fast pace of  technological developments in the internet of things and its poses unresolved ambiguities and  concerns on many legal issues. Privacy threats in the IoT are characterized by access, collection, use, 

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and disclosure of personal data in violation of people’s rights and expectations. The scale and volume of data available for collection and use expands the range of opportunities to exploit data  that implicates privacy and therefore increases the probability of realized harm. Furthermore, the  IoT forces fundamental changes in the organization of large-scale industrial businesses, and requires  rethinking basic legal mechanisms for conducting business. The IoT smart devices automatically  entering contract for their users creates problems for the contract law and definition of what  constitutes consent. The prevalence of IoT devices also threatens our traditional sense of boundaries  and challenges the notion of the Fourth Amendment.  While some of the privacy and security concerns about the IoT and wearable technologies  deserve immediate responses, the information technology industry group and government agencies  agree that the responses should not be top down or command and control in nature (National IoT  Strategy Dialogue, 2017). Many observers predict that the expansion of the IoT will bring positive  benefits through enhanced integration, efficiency, and productivity across many sectors of the U.S.  and global economies (U.S. Chamber of Commerce, IoT Cyber Policy, 2017). New bills related to  the Internet of Things focusing on the promotion of private-public sectors collaboration to better  understand the challenges were proposed repeatedly in the U.S. House of Representatives and the  U.S. Senate in the past year (Ferguson, 2016). This paper explains and analyzes the status of Internet  of Things and its relationship with the Fourth Amendment. I argue that IoT challenges the narrow  constitutional definitions of the Fourth Amendment because Fourth Amendment built on  old-fashioned “effects” cannot effectively address a new world when objects that create and  communicate data with other things. 

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"Smart" devices radiate data. From smartphones, fitness trackers, enchanted pill bottles, smart cars, and even smart refrigerators, these objects create extensive data trails revealing personal  information, patterns, and activities. But, what are these data trails for Fourth Amendment  purposes? The Fourth Amendment declares inviolate "the right of the people to be secure in their  persons, houses, papers, and effects” (U.S. Const. amend. IV. ). Are the data trial part of the  "persons," "houses," "papers," or "effects" mentioned in the Fourth Amendment's text? Does  interception of such data violate a person's reasonable expectation of privacy? Do data trails simply  fall outside of the Fourth Amendment's protection?  Law review journals generally argue the privacy law in the United States has not kept pace  with the realities of technological development, nor the growing reliance on the Internet of Things  (IoT). An article argues that the Court must reject its overly narrow trespass approach in lieu of the  more appropriate right to exclude (Ducich , 2018). Another article argued that the Fourth  Amendment built on old fashioned “effects” cannot address a new world where things are no longer  just inactive, static objects, but objects that create and communicate data with other things  (Ferguson, 2016).  The Supreme Court has regularly addressed technological innovations, expanding the  definitions and protections of Fourth Amendment rights in the face of inventions such as  automobiles, telephones, and tracking devices (Kerr, 2011). Two significant doctrinal issues have  arisen in recent cases involving police investigation with new technologies and the potential violation  of the Fourth Amendment. In United States v. Jones 132 S. Ct. 945, 949 (2012), the Supreme Court  resurrected a more property-based conception of the Fourth Amendment centered on the minor  physical intrusion of placing a GPS transponder on a personal effect (a car). In Riley v. California 134 

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S. Ct. 2473 (2014), the Supreme Court addressed the digital and communications capabilities of the smartphone. Both cases provide a window into the Fourth Amendment's past and an opening to its  future. These cases also provide the framework to understand how the Fourth Amendment  currently addresses smart objects and IoT.  The Fourth Amendment protects against unreasonable searches and seizures. Arising from  the Founders’ concern with arbitrary government surveillance, Fourth Amendment establishes  constitutional limits on police power. Conventional wisdom held that the trespass theory of the  Fourth Amendment had been relegated to history. However, in a case that involved the warrantless  Global Positioning Satellite (GPS) tracking of a suspect's car for twenty-eight days, Justice Scalia  re-claimed the trespass theory as a viable Fourth Amendment alternative (132 S. Ct. at 949-52).  Justice Scalia explained that by "physically occupying private property for the purpose of obtaining  information" (placing the GPS on the car), the police conducted a search (132 S. Ct. at 949). The  private property was Jones' wife's car (an effect), and the placement of the GPS device with the  intent to obtain personal information from the device constituted a search. Five Justices concurred  in Jones, but on different grounds. The concurring Justices found that twenty-eight days of  warrantless GPS surveillance for a narcotics investigation should be considered a Fourth  Amendment search because it violated a reasonable expectation of privacy (132 S. Ct. at 949-52). As  a result, now courts facing Fourth Amendment questions about locational data or other information  must analyze both the reclaimed physical intrusion theory and the reasonable expectation of privacy  theory to determine if a Fourth Amendment search has occurred. However, neither theory has been  fully developed to reflect the digital world, and the Court's most recent Fourth Amendment and  technology case Riley v. California 134 S. Ct. 2473, 2484 (2014) only adds to the uncertainty. 

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How should the Fourth Amendment treat direct interception of these data trails? Three distinct approaches emerge from the current doctrinal uncertainty (Ferguson , 2017). First, one could apply  Justice Scalia's physical intrusion/trespass theory announced in Jones. Second, one could apply the  traditional Katz reasonable expectation of privacy test (Katz v. United States, 389 U.S. 347, 360  (1967). Third, and relatedly, one could find that such data deserves no reasonable expectation of  privacy because such a claim to privacy is objectively unreasonable or because it falls within one of  the established exceptions (abandonment, third party doctrine, etc.) (California v. Greenwood, 486  U.S. 35, 39-41 (1987)). In the last case, the data trails would exist outside of Fourth Amendment  protection.  Riley involved the Court's first attempt to reconcile smartphone data and Fourth  Amendment doctrine. The case itself asked whether police need a warrant to search a smartphone  incident to arrest (Riley vs. California, 134 S. Ct. 2473 (2014)). David Leon Riley had been stopped  for driving without a license, and guns had been recovered from his car. Police believed Riley might  be involved in gang violence. In scrolling through the data in Riley's smartphone after his arrest,  police uncovered an incriminating photograph later used against him in trial. Riley moved to  suppress the warrantless search of his smartphone data incident to arrest.  The court concluded that police did need a warrant before searching the smartphone data,  the Court made several statements relevant to how the Fourth Amendment might conceptualize  data trails arising from smart objects. The Court explicitly recognized that data distorts traditional  application of legal precedent based on physical objects. In the context of a smartphone, data  storage allows for vastly more information to be collected about an individual. Data aggregation  allows for a qualitatively more complete picture of that individual to be drawn (Riley vs. California, 

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2014). Finally, the pervasiveness of digital technology threatens to invade "the privacies of life," as actions, thoughts, and patterns become reflected in digital form (Riley vs. California, 2014).  A recent review article insightfully identified and summarized five gaps in the Fourth  Amendment doctrines (Ferguson, 2016). First, Fourth Amendment doctrine remains unsettled as  applied to the Internet of Things. Second, the physical intrusion-trespass analysis from Jones leaves  many IoT effects unprotected from virtual inspection or interception of communication data. Third,  although the reasonable expectation of privacy test is generally sympathetic to the privacy interests  in digital information, its protection is weak and police can easily circumvent it though using the  third-party doctrine. Fourth, it is unclear how courts should treat the stored data in the object. And  lastly, it is uncertain how courts should treat the communication signals emanating from the object.  In conclusion, digital privacy is ripe for the Court's attention, and the Court could use this  opportunity to redefine the law guaranteed by the Fourth Amendment in the age of the IoT. When  considering both the need of smart devices and the Fourth Amendment, there also needs to be a  new theory to protect the data trails we leave behind. Without such a theory, data trails will exist  outside of Fourth Amendment protection, and an intrusive sensor surveillance system will be  created without any constitutional restraints.                  

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Works Cited Andrew G. Ferguson, The Internet of Things and the Fourth Amendment of Effects, 104 Calif. L. Rev. 805   (2016).     Andrew Guthrie Ferguson, The “Smart” Fourth Amendment, 102 Cornell L. Rev. 547, 808 (2017).     Compare Privacy Policy for Nest Web Sites, NEST,   https://nest.com/legal/privacy-policy-for-nest-web-sites/[https://perma.cc/WT85-F2VW].     Elaine McArdle, 2016, “The New Age of Surveillance.” Harvard Law Today, Msnbc.com,   today.law.harvard.edu/feature/new-age-surveillance/.     Intel, Samsung, the Information Technology Industry Council (ITI), National IOT Strategy   Dialogue Report (Oct 3, 2017) http://www.itic.org/public-policy/IoTReportFinal2.pdf     Orin S. Kerr, Foreword: Accounting for Technological Change, 36 Harv. J.L. & Pub. Pol'y 403, 405 (2013).      Ronald Raether et al., The Technology Lawyer and Connected Things, LAW360 (July 28, 2016, 3:36 PM),   http://www.law360.com/articles/822484/the-technology-lawyer-and-connectedthings  [https://perma.cc/ZV7U-QVBH].     Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 213. (Dec. 15, 1890).      Stefan Ducich, These Walls Can Talk! Securing Digital Privacy in the Smart Home Under the Fourth   Amendment, 16 Duke L. & Tech. Rev. 278 (2018).     U.S. Chamber of Commerce. IoT Cyber Policy (Oct 23, 2017),   https://www.nist.gov/sites/default/files/documents/2017/10/23/mattheweggers_slides.pd f.     132 S. Ct. 945, 949 (2012) ("Consistent with this understanding, our Fourth Amendment   jurisprudence was tied to common-law trespass, at least until the latter half of the 20th  century.").     134 S. Ct. 2473 (2014); Adam Lamparello & Charles MacLean, Riley v. California: The New Katz or   Chimel?, 21 RICH. J.L. & TECH. 1, 4 (2014). 

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America’s Energy Crisis: The Shrinking Sand Reserves of the American Fossil Fuel Hourglass  Kailani Barreras ’22  Basic human biology dictates the survival tools the human species requires in order to  subsist: food, water, and shelter. The culmination of these three determinants of human livelihood  have matured in conjunction with society to be defined by the home or community in which one  resides. In contrast to primitive societies, the developed state of modern day America has enabled  these basic necessities to be seen as peripheral factors of prosaic frequency - overlooked because of  their ease of access. To meet the demands set by the residents of these communities, a web of  commerce is established to facilitate trade across these geographically varying communities based  upon their comparative and absolute advantages. Regardless of the distance, they are codependent  units of an integral nation - not self-sustaining fragments of a population divided. If this  interconnectedness defines us as a nation, then we must work to adhere to the responsibilities thrust  upon us in being participants of the ever-growing and aggrandizing community of the United States.  However, the “tragedy of the commons” renders a vivid image of the liabilities that reside in  remaining apathetic in the international concerns posed by global warming and calls for action by  way of policy reform to implement nationally accessible renewable energy plants. The United States  must cease its ever-increasing dependency on non-renewable resources to combat the ramifications  of its prior use by addressing the severe consequences it induced including: the depletion of the  ozone layer, rising sea levels, coral bleaching of the great barrier reef and beyond, through a  multifaceted solution. 

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While a responsibility over the state of the United States’ environment needs to be adopted in order to achieve the highest potential for success in remediating our Earth, we must address a  greater precedent: hesitance to take action because of opposing claims to global warming. The strict  dichotomy of climate change enables polarization amongst both adversaries and fosters acceptance  of radical information disseminated from unreliable sources solely because the readers only question  and refute information that belies their pre-existing opinions but blindly assume facts posed by  complementary prose. What’s worse is that these extreme opinions will seldom adopt a tolerance or  a respect for their opposition that would establish a common ground open for conversation and  exchange of justification of beliefs to allow for the improvement of perceived “fact”. Both climate  change deniers and believers are guilty of this action and have allowed misconceptions to circulate  the country. Regardless of whether or not, an individual accepts climate change as personal  well-founded truths, indicators still suggest that our Earth is at risk of coral bleaching, rising oceanic  acidity, and human-sourced pollution in global ecosystems amongst other threats. This is where  precautionary principle begins to apply. In “The Environment, Information and the Precautionary  Principle”, Ian Wills defines precautionary principle as “the idea that damage to the natural world  should be avoided in advance, and that, when irreversibility is feared, there should be action before  scientific proof of damage is available.” Whether you choose to acknowledge a correlation between  these environmental events and the words climate change, the concept of precautionary principle  should be applied to address the possibility that it could be a very real threat to human livelihood.  While the preliminary topic of concern is unanimously conceding to apply precautionary  principle despite an individual’s stance on climate change, the resistance received from parties with  contending ideology brings about secondary concerns for action hindered due to beliefs tied to 

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respective party affiliates. Many believe that their personal ideology concerning global warming should be contingent with their political leanings. As Kenneth R. Zimmerman detailed in his article  “Decoupling Climate Change and Energy Efficiency: National Policy Options”, “Energy efficiency  and renewable energy do not need and often suffer from association with efforts to reduce or  control climate change.” While an individual’s beliefs may closely align with a certain party ideology,  it is very rare to experience an exhaustive alignment to a sole party. The groupthink phenomenon  can be credited for the biases that result from stereotypes associated with certain beliefs and values.  This is where America’s “political grand canyon” is able to capture the increasing polarization that  results from red/blue state separation and consequently “increased mutual feelings of alienation and  enmity.” However, as Zimmerman proposes, the first step to addressing the need for renewable  energy is to disassociate feelings of party loyalty from the initiative by interpreting the geographical  and cultural context of the vicinity to best cater the message to, (“The New Encyclopedia of  Southern Culture: Volume 8: Environment”). In doing so, achieving a greater level of understanding  becomes significantly more conducive to unanimously addressing the energy crisis in a sustainable  manner by minimizing resistance from chaos induced by political disparity.  The former assertions however, can be deemed void if not enough attention is brought to  the immediacy of the energy crisis as its ramifications have trace effects on the daily lives of  American citizens. Often overlooked are the struggles of our peers whom we do not share direct  communication with but are equally as valued constituents. While not all citizens of America have  bared witness to the significant rise in sea level that has occurred along coastal cities of low  elevations, or experienced instances of severe acid rain-induced algal blooms, decimation of aquatic  ecosystems, deterioration of specialized biomes, or severe weather anomalies, the nation-wide 

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allegiance that we must adopt to address situations within geographically disparate communities is an inherent duty to our country. While the corollary is not immediately evident to citizens across  community boundaries, the tether between all regions of the nation are upheld by this allegiance and  more so in need of constant maintenance to address and prevent the consequences of  environmental carnage and neglect.  The culture of apathy in America has enabled the oversight of the environmental issues  faced by the varying regions of this nation. From this precedent, one can ratiocinate the faults that  lie within environmental regulation of affiliated industries, including but not limited to: corporate  industrialization, transportation-derived pollutants, fossil fuel energy plants, and deforestation  practices are enabled by the lack of urgency that citizens experience in response to knowledge of  these cataclysmic events without immediate effect on their daily lives. While it can be deduced that  the consequences prompted by these industries are largely resultant factors of greenhouse gas  production, there is also no single point of origin of greenhouse gases, meaning that to address the  myriad of responsible sources, no single solution exists. An encyclopedic approach to greenhouse  gas reduction would be most efficient in assigning regulation reform to minimize these emissions  and can be executed by targeting the greatest contributor to the global issue on a national level.  Thus, it seems the dominant and most susceptible industry to target is energy production because of  the growing demand for energy, and increasing dependency upon non-renewable resources.  As populations in modern-day America grow, so do the demands of its inhabitants to sustain  their “energy crutch”. It is the nonrenewable energy sources whose ravages scar the Earth, that act  as catalysts for global contamination of resources, health, abiotic, and biotic components -  threatening human livelihood as well that of the world’s biodiversity. This then poses the question: 

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How do we, as a people, combat the ramifications of global warming brought about by fossil fuel processing to adhere to our energy dependencies, in the form of a long-term, sustainable solution?  Although renewable energy is not a new topic of conversation in addressing the international  energy crisis, it is often disregarded as unfeasible because of inconsistencies in renewable energy  policies, lack of understanding of co-benefits of renewable energy beyond the power sector, and a  negative perception of the time in which benefits will begin to accrue (“Renewable Energy: A  Strategic Policy for Sustainable Development”). The hesitance to delve into the field of renewable  energy (RE) is not found in the lab alongside researchers but rather in the hands of politicians and  economists whose accessibility to a crowd of global influencers enables them to advocate for the  implementation of RE. The preexisting research on RE has yet to be put to use at its fullest capacity  with all underlying factors combined, suggesting that all quantitative research acquired on sample  populations is not an accurate gage of prosperity. Asia’s attempts to prioritize renewable energy  serve as an example of this severe underproduction of potential renewable energy where only an  estimated 6% of the total theoretical potential has been harnessed (“Renewable Energy: A Strategic  Policy for Sustainable Development”). Thus the solution is not solely to switch to renewable energy  but to acknowledge and embrace the benefits of transition given a substantial enough amount of  time for the transition to take effect on a national scale.  The solution does not solely lie within the hands of our researchers nor our politicians, but  rather in the interlocked fingers of their co-dependent erudition. There are copious amounts of  research being conducted to further support the RE initiative to maximize its efficiency and  minimize its cost to humanity in terms of making it a universally accessible source of power. This,  however, is unattainable without the persuasive expertise of politicians who advocate for the cause. 

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The first phase of the proposed solution is to rectify the misconstrued beliefs regarding renewable energy by advertising its use as dissociative from political party ideologies with the  intention of applying precautionary principle under careful consideration for cultural variations.  Once the need for RE has been established, the representative opinion should reflect these  inclinations, and a clarification must be made: Renewable Energy initiatives can only be made  possible under the circumstances that all forms of alternative energy sources are put to use in  correlation with their potential capacity for production and guarded by a Renewable Electricity  Standard. This correlation is outlined in “Increasing Energy Efficiency and the Use of Alternative  Energy”, where 53% of energy is derived from biomass energy, hydroelectric power makes up 31%,  wind power makes up 11%, geothermal energy makes up 3%, and solar energy makes up 1%.  Distributional issues dependent upon geographical limitations set forth by the topography may place  boundaries on certain locations to the forms of energy that they will find accessible. Lastly, the final  step of my proposed solution must be to establish a web of energy trade across geographically  hindered territories - a feat that requires substantial funding for further research. To address the  backlash from opposition, the solution must be proofed by the following questions: How and why  will this solution be successful and supercede all prior attempts to reform energy policy? And more  urgently, how will this remediate the massacre on the environment that has exponentially expedited  the deterioration of our Earth from both perspectives of the well-founded climate change  controversy?  A primary objection that the Renewable Energy Initiative incurs is that renewable energy is  an inherently liberal belief that is tied exclusively to the concern for climate change. This attribution  fosters significant amounts of criticism for RE because of disparity in political inclinations between 

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red and blue states. Citizens of the nation must come to acknowledge that deriving energy from sustainable resources is not a liberal versus conservative value that requires universal  acknowledgement or support for climate change, but rather offers a comprehensive benefit that  takes the form of innovation. It is not a statement on an individual's belief or disbelief in global  warming and does not suggest a betrayal to your political obligations. We must come to the  conclusion that the dichotomy of renewable energy is not an opportunity to assert political leanings  on the national agenda but an issue of greater magnitude than pride or ego and that the  consequential remediation of climate change is not an attack on one’s personal beliefs but an  attempt to better the lives of our neighbors across the country dissociated from the so called theory  of climate change.  As Gary Bryner and Robert Duffy suggest, “energy efficiency and renewables are central to  integrating energy and climate policy” but duly function to contribute economically to the stability of  the country’s energy reserves (“Increasing Energy Efficiency and the Use of Alternative Energy”).  They closely follow this claim with the assertion that the unacknowledged external costs associated  with the production and usage of fossil fuels far outweighs the sticker price reflected in advertised  estimations promoting non-renewable energy. Feasible renewable energy sources include: wind  power, solar power, biomass energy, geothermal energy, and hydroelectric energy - but the potential  for greater dependency on these sources persists as only 8% of the nation’s energy resources are  renewable according to a study from 2011 conducted by the US Department of Energy and Energy  Information Administration. What is more concerning is that the predicted reliance on renewable  energy will only grow to 17% by 2035 should federal tax credits, loan guarantees, and state policies  allow. The explanation for this underproduction of RE is rooted in the expensive price tag derived 

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from higher production costs, and is often the counterargument that arises to protest its implementation. Only, what politicians and economists fail to interpolate into the argument is the  aforementioned external costs that are put towards remediating damage from non-renewable energy  sites.  Beyond the directly associated costs, the investment market may experience substantial  growth in response to greater reliances on RE. Renewable Electricity Standard (RES) policies  “require electric utilities to gradually increase the amount of renewable energy in their power  supplies” with the goal of reaching a certain percentage of renewable energy resources by a given  year (“How Renewable Electricity Standards Deliver Economic Benefits”). This market-based policy  stimulates competition among renewable energy developers and applies the incentive theory to  consequently reduce costs. These RES policies then establish equity in the energy market to enable  renewable energy to compete alongside fossil fuel resources that have consistently “received decades  of subsidies and preferential treatment”, making it a feasible means of energy for all income levels.  In terms of economic potentiality, RE poses a promising future to the United States energy market.  Hindered by the natural structures of the United States topography, renewable energy may  face obstacles posed by the fluctuations between energy capacities of varying alternative resources.  In the case that a city is landlocked, placed at the center of a valley, and far from fault lines, a  majority of the energy must be harnessed from solar power, only the probability of a solar plant  reaching the capability of fulfilling this substantial demand is highly unlikely given that solar power  only makes up 1% of the renewable energy consumption needs (“Increasing Energy Efficiency and  the Use of Alternative Energy.”). To address this issue, a web of power trade would most effectively  extinguish these limitations by maintaining all forms of energy as stored heat energy during its 

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production stages. The process in which alternative energy is harnessed is through the transformation of its source from motion to heat energy, that is then used to heat water that forms  steam and subsequently causes the steam turbines to circulate and power the electric generator,  (“Gather the Wind.”). Davide Castelvecchi, the author of “Gather the Wind”, suggested that these  forms of transactions can occur as varying forms of energy, “other viable energy sources include  facilities that compress air into large underground caverns, that heat fluids or molten salts that later  create steam to turn turbines, or can charge batteries.” Should ample funding allow, the storage and  exchange of harvested energy would make RE the optimal form of energy supply accessible across  all states - thus invalidating the claims that renewable energy cannot sustain large populations or  communities nationally.  The need for reform in energy policy is a predominant disposition across divergent political  backgrounds. However, to justify the need for reform and what improvements can be made, it is  important to acknowledge past attempts at policy reform to specify weaknesses in approaches. The  Green New Deal proposed by Jill Stein is composed of “a four part program for moving America  quickly out of crisis into a secure, sustainable future.” Utilizing the response to the New Deal  programs that helped the United States escape the Great Depression of the 1930’s, the policy  proposal aims to provide similar relief by creating an economy that sustainable, healthy, and just.  More specifically, the “Green Transition” that Stein proposed to “prioritize green research by  redirecting funds from fossil fuels and other dead-end industries towards research in wind, solar, and  geothermal.” Stein’s plan of action however, overlooked the variations in beliefs by assuming that  citizens are unanimous supporters of RE. More so, there is no clarification as to how she will  contest opposition to the plan because she does not convince her audience of its economic viability. 

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In this sense, the Green New Deal is increasingly more unfeasible as a means of remediating the energy crisis. Adversely, the Clean Energy Blueprint weigh benefits and detriments of RE with the  goal of creating “a balanced portfolio of clean energy solutions that will stop wasting energy and also  develop diverse, domestic energy supplies to increase energy security.” While the Clean Power Plan  is a step in the right direction, it is not the final destination in terms of soluble conclusions. The plan  omits to acknowledge a grander scope of transition to complete dependence on renewable energy  because it does not foresee or apply the inevitable advancements in technology that will transpire. By  catering the angle of vision from which the policy proposal will approach the energy crisis, the  solution will account for the audience’s values and incorporate a tentative timeline of action for the  future of America’s energy reserves.  Whether you choose to acknowledge climate change or not, the ravages on the environment  have clearly affected the lives of all species, abiotic and biotic factors alike. It should not be  necessary that we experience the severity of cataclysmic environmental destruction before taking  action, and thus our resolve should should be to engage the precautionary principle, and following  this theme, to remediate the largest contributor to this calamity: the energy crisis. The fossil fuels we  once depended solely upon for sustenance have been exhausted by the gluttonous nature of our  human demands for innovation at a rate that parallels our alacrity for more. The unforeseen  challenges that arose from our rashness and hesitance to remediate our aberration have hindered us  in our ability to initiate a revolution of energy reform. There is a resonant quality to every decision  we make as a society and our solution to the crisis should acknowledge this universal truth to quell  the situation at the root - by changing the perception of renewable energy and eliminating the  obstacles for its implementation. As we drain the Earth of its precious reserves, we drain ourselves 

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of time, and exponentially compound our losses to expedite the decline of our quality of life and capability for life.  Works Cited  Bhattacharya, Anindya. “Renewable Energy: A Strategic Policy for Sustainable Development”.   Institute for Global Environmental Strategies, 2010, Renewable Energy: A Strategic Policy  for Sustainable Development, www.jstor.org/stable/resrep00734.  Bryner, Gary, and Robert J. Duffy. “Increasing Energy Efficiency and the Use of Alternative   Energy.” Integrating Climate, Energy, and Air Pollution Policies, MIT Press, 2012, pp.  101–128. JSTOR, www.jstor.org/stable/j.ctt5vjqhd.8.  Union of Concerned Scientists. “How Renewable Electricity Standards Deliver Economic Benefits”.   Union of Concerned Scientists, 2013, How Renewable Electricity Standards Deliver  Economic Benefits, www.jstor.org/stable/resrep00011.  United Nations Department of Economic and Social Affairs. “A Global Green New Deal for   Climate, Energy, and Development.” Dec. 2009,  www.sustainabledevelopment.un.org/content/documents/cc_global_green_new_deal.pdf.  Zimmerman, Kenneth R. “Decoupling Climate Change and Energy Efficiency: National Policy   Options.” Journal of Applied Social Science, vol. 6, no. 2, 2012, pp. 125–132. JSTOR,  JSTOR, www.jstor.org/stable/23549005.  Wills, Ian. “The Environment, Information and the Precautionary Principle.” Agenda: A Journal of   Policy Analysis and Reform, vol. 4, no. 1, 1997, pp. 51–62. JSTOR, JSTOR,  www.jstor.org/stable/43199403.  Wilson, Charles Reagan. The New Encyclopedia of Southern Culture: Volume 8: Environment.   Edited by Martin Melosi, University of North Carolina Press, 2007. JSTOR,  www.jstor.org/stable/10.5149/9781469616605_melosi.  Castelvecchi, Davide. “Gather the Wind.” Scientific American, vol. 306, no. 3, 2012, pp. 48–53.   JSTOR, JSTOR, www.jstor.org/stable/26014256.  Stein, Jill. “A Green New Deal for America.” JSTOR,   www.gpfl.org/wp-content/uploads/2014/06/GND_Letter.pdf. 

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Wellesley College Pre-Law Society Law Review Journal Fall 2018  
Wellesley College Pre-Law Society Law Review Journal Fall 2018  
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