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

Volume Volume Volume641 3 Volume 2

1/15/2015

Number 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.”

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.

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.

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

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.

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.

(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

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

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

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

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.

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>.

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.

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

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.

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

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

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

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

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.

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.

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

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

“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

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).

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

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.

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).

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

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

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

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

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

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

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.

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.

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.

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

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

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

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

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.

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

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

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,

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

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.

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,”

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

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

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.

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

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

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

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

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

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).

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.

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

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

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).

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

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

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/.

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;

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

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

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

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

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).

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

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

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.

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,

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

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

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

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

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;

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

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

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

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.

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

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

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,

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,

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

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?

How many number of copies were made, if any?

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

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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[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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