Wellesley College Pre-Law Society Law Review Journal Spring 2019

Volume 4 Volume Volume Volume 761 3 Volume 2

1/15/2015

Number 1

The Wellesley College Law Journal Fall 2017 Spring 2019 Spring 2017 Fall 2018 2016

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

Letter from the Editors​………………………………................................... ​2 Letter from the Presidents​…………………………………………............... 3 “The Color Line” in 21st-Century China...................................................... 4 Yongxi Pan ’2​1 EU Data Protection Policies and Citizen Concerns​……………………..… ​1​4 Doris Li​ ’20 The Destructive Force of Capitalism on Women’s Advancement in Music .........................................………………………………………………….... ​2​2 Dominique Mickiewicz ’22 “Sign on the Dotted Line:” Policy Debate on Mandatory Arbitration Clauses​………………………………………………………………………. 25 Stephanie Song ’20 Transgender Individuals and The Military: A Debate ​……………............ 40 Rebecca Zlatkin ’19 American Citizens Made Alien ​…………………………............................ 54 Josephine Kim, ’20 Legal Realism and the Effect of Experience: An Analysis of the Judicial Philosophy of Oliver Wendell Holmes, Jr. ​……………………………........ 58 Angela Coco ’19

Letter from the Editors Welcome to the Wellesley College Pre-law Society Law Review Journal: Volume 7!

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 Catherine Digennaro ’19, Editor-in-Chief Angela Coco ’19, Editor

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Letter from the Presidents As Presidents of the Wellesley College Pre-Law Society, we are honored to uphold and further our mission in administering to Wellesley’s pre-law community. We are thrilled to present one of our largest projects of the semester: the Wellesley College Law Review Journal. A special thanks to our editors, Cathy Digennaro and Abby Yuhan Wu, for their effort in compiling these articles and creating the final product, as well as to members of e-board who have aided the process.

Over the past semester, the Pre-Law Society has worked closely with Wellesley’s Career Education Center and Emma Cutrufello, the advisor for Government, International Affairs, & Law. Together, we organized events with the purpose of guiding students through the law school application process. These included “Learn from the Lawyers,” where a panel of Alumnae lawyers (and one judge!) returned to tell us about their experiences in the legal profession! We also had free LSAT test prep workshops from TestMasters, as well as various bonding events for Society members. Next semester, the new presidents will 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. In the future, we hope to bolster our continuously growing presence on-campus and beyond, and we invite you to join our community, the community that has given us so much over the last four years.

All the best, Angela Coco ’19 and Stacey Kim ’19, Co-Presidents 3

“The Color Line” in 21st-Century China Yongxi Pan ’21 As the starting point of his grand sociological blueprint and lifelong activism, W.E.B. Du Bois’s work The Philadelphia Negro probes into the living conditions of black men in the city of Philadelphia during the late 1890s. The everyday mental and physical experience of black folks serve as direct proofs of the overwhelmingly powerful havoc that color prejudice has wreaked on them. Du Bois then debunks the prevailing public opinion which attributes the “Negro problems” in the city such as crime, poverty, and ignorance to the inherent inferiority of black people. The genuine cause for these issues, he argues, is instead the malignant social environment contaminated by racial prejudice and segregation. Later, in his renowned work The Souls of Black Folk, Du Bois further breaks down the race problem by stating “the problem of the twentieth century is the problem of the color line.”

Here, the term “color line” presents a vivid manifestation of the established system of racial discrimination dividing the two races in contemporary American society. Sometimes, this color line is visible on the maps of the Southern cities, where neighborhoods are segregated according to skin color. However, in most cases, the line hides behind a veil, penetrating economic, political and social aspects of life. Altogether, Du Bois’s writings call out racial equality as a boon for both racial groups and the betterment of society. He implores readers to ponder over the question of ethnic and racial diversity within a specific environment. How can different racial and ethnic groups coexist in an environment harmoniously and peacefully? More importantly, in what way it is beneficial to the environment’s development?

Du Bois diagnoses the 20th century as an era plagued by the hierarchical color line. He would not have imagined that until today, the same problem still lingers on a global scale. In today’s Guangzhou, the economic center of Southern China, countless African migrants are 4

experiencing deep-rooted racial prejudice on a daily basis. Similar to the plight of black men in the 20th century, these African migrants are constantly accused of bringing crime, disease, poverty, and chaos that disrupts the order of the city. These issues are dubbed as the “African problems” by local people in Guangzhou. Though Du Bois’s original analysis deals with the race relations in 20th-century America, the value of his theoretical framework extends beyond specific social contexts. In this essay, I will employ Du Bois’s approach of combining descriptions of the everyday life of the racial group and the theory of the color line to analyze the racial tension in present-day Guangzhou. I will then explain the history and basic living conditions of African migrants in China and, lastly, I will utilize the theory of the color line to resolve the issue.

Against the backdrop of Chinese economic reform and the worldwide trend of economic globalization, Guangzhou started to open up for foreign commerce and trade in the late 1990s. Its rapid development soon attracted thousands of Africans, predominantly from West Africa, to flock to the city and settle. By the year 2012, more than 100,000 Africans lived in Guangzhou, which is now internationally known as “Chocolate City” or the “Capital of the Third World”. The two areas where the African community aggregates and flourishes, Xiaobei and Guangyuanxi, are now locally known as “Little Africa” and “Guangzhou’s Harlem.” The continual influx of Africans has helped build up a compact and vibrant racial enclave amid the metropolis, with numerous halal restaurants and African-oriented shops operating alongside the streets.

This group of immigrants possesses diverse class backgrounds. Some of them already had business experience before migration, and some are from the lower class who saved money to make their long trip happen. In search of better economic opportunities and financial growth, they mainly work as traders and manufacturers, actively engaging in local markets and factories

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and shipping commodities such as clothes and jewelry back to their home countries. The most successful among them even own unique brands and run chain stores.

Interestingly, aside from proper trading, a big part of African migrants’ business activities involves illegal conduct such as counterfeiting, smuggling, and underground banking. Though illegitimate, such activities proved to be fairly profitable. In addition, they save the migrants the trouble of gaining a valid visa status under harsh visa policies. However, in recent years, the economic environment has deteriorated. Low-end globalized trading is losing its market in both China and the migrants’ home countries. Many migrants find themselves struggling on the verge of bankruptcy and are considering going back to Africa.

Beyond the diminishing economic opportunities, African migrants are also alarmed by their deadlocked relations with local people and authorities. Walking on a foreign land may be easy, but settling down and fitting in denote real challenges. They often find themselves rejected by taxi drivers and store sellers. They can hardly befriend and collaborate with local Chinese people at work and in life. Their children have little access to local educational resources. Such hardships can be partially explained by the language barrier that is obstructing effective communication between the two races, yet there is a much more profound underpinning that determines the living conditions of the migrants: the subjective racial prejudice held by the majority of local people against African migrants. Present everywhere in the migrants’ life, this racist sentiment has the most aggravating impact on their career prospects and quality of life.

More importantly, it gives rise to the invention of widely disdained “African problems” such as poverty and unrest.

Given the intricate mechanism of color prejudice, I will apply Du Bois’s theory of the color line which breaks down the entire mechanism into four primary forms of manifestation: physical dwelling, the political relations, the economic relations, and intellectual contact and 6

commerce. In the following section of my essay, I will discuss each of these four aspects respectively and explore their combined impacts.

In term of physical dwelling, as described above, the African community gathers in Guangyuanxi and Xiaobei. These two neighborhoods are only two miles away from each other and both located in the Yuexiu District, a relatively old district in Guangzhou. Xiaobei is near Xiaobei Station, the central train station in the district, which provides African immigrants with quick access to transportation. In Guangzhou, though most people are aware of the cultural uniqueness and exoticism embodied in Little Africa areas, many are intimidated by the negative image associated with the African community and thus choose to stay away from the area.

Moreover, in 2015, the local government carried out a year-long “beautification” program of Little Africa, which aimed to rebuild the “dirty, messy, and bad” area into one that is more attractive and sanitary for visitors (Marsh 2016). As a result, the streets were repaved, street markets were wiped out, special signage celebrating foreign trade was torn down, and restaurants catering to African people were ordered to close by 10 pm. Along with this came a sudden and major job loss. A large number of immigrants who originally sold food on the street were forced to start shops or depart the area. While this program accomplished its goal of beautifying the neighborhood, it also drove away the neighborhood’s vigor and liveliness. Ironically, though this program claimed its goal as improving the area, the actual burden was borne by Little Africa’s residents whose concerns were never central to the government’s concern.

This leads me to the next form of contact––the political relations. Though China conveyed a welcoming message toward foreign traders on the political stage, its stringent visa policies lead foreign traders to believe that China still prefers them to come, trade, and leave. A large number of African migrants in Guangzhou currently live on a business visitor’s visa which requires re-registration in Hong Kong every thirty days. Even for those who have married 7

Chinese women and built their homes in Guangzhou, the possibility for them to attain residency rights and citizenship stays rather slim. Such troublesome and unfavorable visa policies render it very hard for many migrants to update their visas in time. Consequently, those with expired visas can only resort to underground businesses that do not require an application process and valid immigration status.

In response to the prevailing illegitimate practices among African businesspeople, the local government introduced a heavier police presence in Little Africa as a part of the “beautification” program in 2014. Since then, the police have been lurking on every corner of the area all day long demanding African immigrants’ passports, sometimes even at midnight by shouting and knocking on the migrants’ doors. Those who do not carry identification with them are handcuffed and taken back to the police station for further investigation (Anon 2018).

Deeply frightened and insecure, many immigrants decided to leave. In fact, since 2014, the number of Africans in Guangzhou declined steadily. Those who choose to stay are largely disheartened. Since the visa policies remain unchanged, they are forced to continue illegal activities with extra caution. However, the underlying issues concern two critical points.

First, the treatment African migrants received from the Chinese government is antithetical to the welcoming image the government displays. Coming to the purported promised land, African migrants find themselves with no institutional support and instead are treated with sheer carelessness and aloofness. Once they arrive in this foreign land, they are left on their own to tackle mounting difficulties. Due to the language barrier between African migrants and the Chinesespeaking population, they are deprived of the power of discourse to voice their own needs. Second, the local government’s method of scrutinization of Africans is of sheer brutality. The unchecked authority of the police bothers and frightens African people. Even law-abiding migrants are exposed to constant harassment. Confronting such circumstances with no proper method to protect 8

themselves, African migrants are pushed to conditions where they resort to group protests or even violent riots.

In July 2009, a major conflict between African migrants and police in Guangzhou broke out.

Two Nigerian men were severely injured from jumping off a building to flee from Chinese immigration authorities. Later, the African community mistakenly received the message of the two men’s death, and hundreds of them went to gather in front of the police station demanding a reasonable explanation, which eventually developed into a riot that shut down eight lines of traffic and a thoroughfare in the city for hours (Tam and Zhai 2009). In 2012, an African migrant mysteriously died after being held in police custody for a taxi fee dispute (Taylor 2012). These incidents earned Africans the infamy of aggression and barbarism among locals, whereas few realize that such tragedies are a direct outgrowth of the gravely deprived political power of African migrants.

Regarding the economic relations, though a few Africans have exhibited hard-earned financial growth, there are minimal occupational choices open to the African community. Research conducted by Adams Bodomo shows that over 95 percent of African immigrants work as businesspeople or traders, and the remaining 5 percent either as artists or homemakers (2010:699).

This is odd given the uniformly high educational levels of the African community, among which about 40 percent have received at least tertiary education, and some even have a Ph.D. degree (Marsh 2016). The qualification of the community fails to bring its members opportunities to work in large Chinese companies and institutions. In addition to the language barrier, racism enacted upon the African migrants’ has caustic effects on their success in seeking jobs.

Finally, when thinking about intellectual contact and commerce, I inquire into the interactional patterns between the two races to uncover how local citizens view and treat the racial minority group and how well Africans are included and integrated into the local life. The answers to 9

these questions are not very optimistic. As illustrated earlier, Chinese people hold various ingrained stereotypes toward African migrants such as inherent aggressiveness, barbarism and criminal mindsets. Such biases further lead Chinese people to rashly attribute certain urban problems including crime, disorder, and poverty to the African community. On China’s biggest web search engine Baidu, for instance, the most common trending words attached to the phrase “Africans in Guangzhou” are “AIDS” and “unrest”.

Nevertheless, some of these accusations rest entirely upon unchecked rumors and subjective prejudice. Years ago, a claim that blamed Africans for the soar in the crime rate of Guangzhou took up multiple major media platforms. Local people then harshly criticized the aggregation of Africans in the city and claimed themselves as the victims of the “black invasion” (Chiu 2017). Only months later did the local police step forward and debunk this claim, stating that the crime rate within the African community had been even lower than that within the community consisting of the external labor force from other provinces in China. For other specific types of “African problems” such as disorder and poverty, the public opinion treats the inherent aggressiveness and inferiority as the sole cause, failing to recognize that African people’s lifestyles and behaviors are owed principally to their treatment in the city. With limited access to political and economic power, they are placed in a desperate situation which, in most circumstances, destine the undesirable results.

Lacking a comprehensive recognition of their own racial prejudice and its impact, local people exert pressure on the government to implement harsher measures against African migrants.

Nevertheless, the more unfriendly the institutional and public attitude toward Africans becomes, the more desperate and isolated Africans are, leading to more conditioned and poorer career prospects and expedients. As this vicious circle perpetuates itself, local people become increasingly reluctant to accept and assist the immigrants, who, in turn, gradually give up on the thought of fitting in.

According to Yang Yang’s research, few African migrants in Guangzhou view China as their home.

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“China is not my place. I come here just to make money. Nothing else. Once I get the money I want, I will leave” (2010:7).

The tension between the two races are nowadays manifests in many blatant daylight acts of exclusion. For example, in July 2018, numerous hotels and apartments in the Yuexiu District including the Tokai Hotel and the Waifiden Apartments posted bold notices that stated they were not allowed to receive guests from African countries. Though the local government later revoked the notices after the incidents raised international attention, the intention behind the original notices remains unexplained and the people behind went unpunished (Bossons 2018).

Overall, racial discrimination and oppression suffered by Africans in Guangzhou deprive them of fundamental political and economic rights and aggravate their unfavorable situation in this foreign city. Bearing their critical survival on their shoulders, they also endure painful mental suffering resulting from local people’s denial, disdain, and distortion of their characters and dignity.

Naturally, mutual dissatisfaction between the two races arises and escalates, sometimes even into massive riots and conflicts. Color prejudice and “African problems” act as reciprocal cause and effect to the detriment of everybody. The seemingly protective mechanism of the color line, in fact, bars both racial groups from achieving well-being. Local people must confront chaos and deal with the disorderly economic environment, and African migrants struggle in making their ends meet and securing their basic rights.

The only way out of the present predicament is mutual change, allowing both racial groups to swallow their hostility toward each other and learn to accept and appreciate differences. For African migrants, it is crucial to elevate the communities’ legal awareness and learn to utilize amenable ways to voice their opinions. For local people in Guangzhou, they should bear a part of the responsibility for causing the so-called “African problems.”

Furthermore, they should educate themselves on the profound meaning and benefits behind the 11

cultural exchange and globalized trading enabled by the influx of the African community.

Instead of showering abuse on the minority group, local people should adopt a more welcoming attitude and try their best to assist and guide the newcomers. This has the potential to then influence the government’s attitude and trigger genuine, effective social change. At the end of the day, racial cohesion across the color line constitutes the final answer to the question of how to sustain racial diversity in a way that promises societal progress and unity. As Du Bois suggests, “Only by a union of intelligence and sympathy across the color line…shall justice and right triumph” (Du Bois n.d.).

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Works Cited Bodomo, Adams. 2010. The African Trading Community in Guangzhou: An Emerging Bridge for Africa—China Relations. The China Quarterly, (203), 693-707. Retrieved December 10, 2018 (http://www.jstor.org/stable/27917803).

Bossons, Matthew. 2018. "‘Not Allowed to Receive African Guests’: Discrimination at Guangzhou Hotels." SupChina. Retrieved December 10, 2018 (https://supchina.com/2018/08/08/not-allowed-to-receive-african-guests-discrimination-atguangzhou-hotels/).

Chiu, Joanna. 2017. "China Has an Irrational Fear of A "Black Invasion" Bringing Drugs, Crime And Interracial Marriage." Quartz. Retrieved December 11, 2018 (https://qz.com/945053/china-has-an-irrational-fear-of-a-black-invasion-bringing-drugs-crimeand-interracial-marriage/).

Du Bois, W.E.B. n.d. The Souls of Black Folk. Retrieved December 10, 2018 (https://drive.google.com/file/d/0B4Dxx9YSe9GdTVktNjVqMEZsR3M/view).

Marsh, Jenni. 2016. "The African Migrants Giving Up on The Chinese Dream." CNN. Retrieved December 10, 2018 (https://www.cnn.com/2016/06/26/asia/africans-leavingguangzhou-china/index.html).

Tam, Fiona, and Ivan Zhai. 2009. "Africans Protest in Guangzhou After Nigerian Feared Killed Fleeing Visa Check." South China Morning Post. Retrieved December 10, 2018 (https://www.scmp.com/article/686919/africans-protest-guangzhou-after-nigerian-fearedkilled-fleeing-visa-check).

Taylor, Adam. 2012. "African Migrants Rioted in China Today After A Man Died in Police Custody." Business Insider. Retrieved December 10, 2018 (https://www.businessinsider.com/riots-africans-china-guangzhou-2012-6).

Yang, Yang. 2010. "African Traders in Guangzhou, China: Routes, Profits, and Reasons." Cuhk.edu.hk. Retrieved December 10, 2018 (http://www.cuhk.edu.hk/ant/PostgraduateForum2011/Econ/YANGYang.pdf).

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EU Data Protection Policies and Citizen Concerns Doris Li ’20 On May 25, 2016, the European Union enacted the most comprehensive privacy regulation to date to unify data protection laws across its member states: the General Data Protection Regulation (GDPR) (1). Historically, EU nations employed country-specific approaches to protect data privacy: the German state of Hesse was the first European state to enact a data protection statute in 1970, followed by Sweden in 1973 (2). Austria, France, Ireland, and the UK, among other countries, continued the trend by adopting broad statutes that provided general privacy rights within public and private sectors, in compliance with the 1995 EU Data Protection Directive (3). The ratification of the GDPR was a response to EU citizens’ privacy concerns: in a 2015 Eurobarometer survey conducted with 27,980 respondents in the 28 member states, 67% of respondents were concerned about their lack of control over the information they released online, and 31% felt they had no control at all over their online data (4).

However, this essay will argue that EU data protection policies have not adequately responded to citizens’ privacy concerns, using the case study of the GDPR. European privacy frameworks have unsuccessfully addressed citizens’ privacy concerns for two reasons: first, citizens’ concerns about their lack of knowledge of how their data is processed is exacerbated through the ambiguity of privacy policies—a concern left unmitigated by GDPR policies made inaccessible by their legal jargon (5). A secondary concern that arises from this general lack of understanding is that personal data is not adequately protected. A limitation with this topic, then, is that because citizens may not understand the privacy frameworks in the first place, there is little survey information on what the public feels is wrong with the framework or how it can better address their concerns. It may also be difficult to measure EU-wide concerns about 14

privacy policies because of the diversity of EU citizens’ opinions. Thus, another reason these data protection policies have not responded to citizens’ privacy concerns is that the inherent inflexibility in having a European framework does not cater to issues which vary by country and culture (6). Researchers Caroline Miltgen and Dominique Peyrat-Guillard show that even countries which are geographically similar, such as European nations, display significant differences in their privacy concerns (7). Although data protection is a salient international issue prompted by rapid technological developments, perhaps the best approach to European data protection reverts to the historical one, with each member state enacting policies that best respond to their citizens’ culturally based needs.

EU data protection policies have failed to respond to citizens’ concerns about the lack of clarity within the policies, leading to a large consensus that personal information does not receive the protections it merits. This is unsurprising, given that only two out of ten respondents in the 2015 Eurobarometer survey said they were consistently informed about how their data was being collected and used (8). More than eight out of ten respondents felt they did not have complete control over the data they provided to online services (9). While the majority of Europeans were familiar with key EU privacy protections, such as citizens’ right to access data they have provided to entities, their knowledge levels dropped when questioned about more complex aspects of protection, such as the protections around cross-border data transfers.

Additionally, only a third of survey respondents stated they understood online entities’ privacy statements, a problem left unsolved by the GDPR: researchers Thomas Linden, Hamza Harkous, and Kassem Fawaz found that the post-GDPR privacy policies implemented and displayed on websites have 28% more words and 33% more sentences their pre-GDPR counterparts, rendering them more difficult for users to read and comprehend (10, 11).

Confusing and complex data privacy policies not only lead to concerns about clarity regarding 15

citizens’ protections, but also may contribute to citizens’ distrust of the EU’s privacy framework overall. A survey conducted by the London School of Economics found that on a 7-point scale, with 1 being strongly approve and 7 being strongly disapprove, EU citizens ranked the adequacy of their governments’ data protection policies at a 5.9 (12). Users and consumers are not the only citizens who lack complete understanding of data protection policies—service providers that must comply with the GDPR have also been left in the dark. Although the GDPR makes clear that all websites must have privacy policy statements, the required content within these statements are ambiguous. This is especially true for cookie consent notices, as the GDPR does not clearly articulate what types of cookies can be used (13). Thus, EU data protection policies have not addressed citizens’ privacy concerns regarding the ambiguity of such policies, leading to further concerns about whether the EU government can be trusted to adequately protect personal data.

A counterargument to the idea that concern over the ambiguity of EU privacy policies has been left unmitigated by updates to such policies (e.g. the GDPR), contests the concerning aspect of ambiguity altogether. Surveys show that although citizens are not aware of concrete actions that must be taken to address their privacy concerns, they are abstractly aware of the significance of data protection (14). Because citizens know about the overarching ways in which their data can be breached, such as identification (ID) fraud, it may not matter if they understand the detailed, complex policies that still aim to protect their abstract values. Thus, the public can generally support the principles of the EU’s privacy framework through evaluating the outcome of such principles, without necessarily having understood the principles themselves.

For instance, 85% of organizations surveyed by the UK Information Commissioner’s Office said the enactment of the UK’s Data Protection Act of 1998 increased consumer trust (15).

Regardless of whether consumers understand their rights under the DPA, they feel less 16

concerned about the information they release to corporations because they assume the DPA will protect it. However, the stronger argument remains that EU protection policies’ lack of clarity is a concerning aspect for citizens, as confusion surrounding privacy policies leads to deeper and perhaps unwarranted concerns. For instance, the number of people who are victims of ID fraud is small in comparison to the number of people concerned about the threat of ID fraud, perhaps due to the disproportionate amount of media coverage that the issue has received (16).

Companies that have enacted privacy policies are actively working to counter fraud—for instance, compliance with the GDPR’s articles should prevent or reduce the impact of data breaches, mitigating the risk of fraud (17). However, consumers may not be aware that these policies serve to address their ID fraud concerns. While there is little data about citizens’ specific critiques of the EU privacy framework (most likely due to their lack of comprehension of its policies), the constructive criticism they can provide merges towards clarification: survey results show that citizens desire greater education about the privacy principles that protect them (18).

Such education would address citizens’ underlying concerns about the principles’ lack of clarity and decrease the worries that stem from not knowing how their data is protected, such as disproportionate concerns about ID fraud.

Another reason EU data protection policies have unsuccessfully responded to citizens’ privacy concerns arises from the European aspect of such policies: the culturally based differences in citizens’ privacy concerns cannot be adequately addressed with a European-wide privacy framework. From their studies of citizens in seven EU countries, researchers Miltgen and Peyrat-Guillard show that European citizens have diverse concerns about the disclosure and protection of their personal data based on their geographic roots (19). Europeans especially have distinct views on situation-specific privacy protections: in response to queries about whether people should be monitored for potential terrorist threats when they fly on airplanes, citizens in 17

Hungary and the UK had the highest amount of support for unconditional monitoring of travelers’ personal data (53% of respondents in both countries), whereas those in the Czech Republic and Finland ranked the lowest with 23% and 21% of respondents agreeing with the provision (20).

Additionally, in a case study comparing Greek and French citizens, Miltgen and PeyratGuillard found that trust in private and governmental entities to protect data is high in Greece and low in France. In the latter country, citizens are concerned about whether governmentenacted privacy regulations are effective, and believe individuals are responsible for their own privacy protections through methods such as withholding or withdrawing data (21). Researchers can correlate these opinions with the characteristics of each country’s culture: according to the individualism-collectivism (IDV) dimension of national culture, Greece is a more collectivist nation (with an individualism score of 35) than France (whose individualism score is 71) (22).

Citizens in collectivist states have been shown to be more willing to self-disclose data and less concerned about the repercussions of disclosure (23). These cultural sentiments can then be translated into preferences about which privacy concerns are legitimate enough to merit policy responses. While citizens in Spain’s individualist society may be concerned about the collection of personal data for any purpose outside of individual-based reasons (e.g. collecting data for security questions, an activity whose individual-level usefulness becomes clear when users lose their passwords), those in Greece’s collectivist society may value data collection which aims to keep their communities safe (e.g. monitoring biometric data, location data, or metadata to catch criminals). Thus, Europe-wide data protection policies cannot adequately respond to citizens’ privacy concerns, as the diversity of such concerns when placed in context is impossible to accommodate with one framework.

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While citizens’ concerns may be disparate across EU member states, citizens still harbor universal concerns that can be addressed by EU privacy frameworks. For instance, the same study by Miltgen and Peyrat-Guillard found at least four of the same concerns emerged from their survey of the seven EU countries. Countries agreed that data disclosure is a matter of public concern, secure protection is lacking, personal control of data is important, and individual responsibility to protect data is also significant (24). Overall, they shared the concern that public and private entities may use personal data in ways that citizens do not know about and/or cannot control (25). Privacy policy frameworks such as the GDPR are meant to address these overarching, universal concerns, whereas deeply contextual issues such as when to monitor citizens’ data for potential terrorist threats are left for each member state to address. However, these situational issues are still subject to EU data protection laws, which are general enough to be malleable to context (and therefore restrictive): for instance, collecting a plethora of personal data from citizens to monitor for potential terrorist attacks does not fit well with Article 5(1)(c) of the GDPR, which states that entities must identify the minimum amount of data required to fulfill their purposes and only hold and process that specific amount of information (26). Any amount and type of data could be construed as necessary for national security purposes.

Although this general regulation of the GDPR may respond to the privacy concerns of a collectivist nation, it does so at the expense of individualist citizens’ preferences in countries such as Spain. Thus, the stronger argument remains that EU data protection policies have not successfully responded to EU citizens’ privacy concerns, which are too diverse to be encompassed under one framework.

As technology and data processing assumes an increasingly greater role in both European and global societies, EU citizens’ privacy concerns that arise from data collection has created an environment ripe for policy-based protections. Past privacy policy frameworks as well 19

as the recently enacted GDPR have aimed to address these concerns, but have largely failed to do so. Many citizens do not understand their own legal protections, and subsequently do not know whether their data is adequately protected against issues such as ID fraud and impermissible data use. However, not all citizens are uniformly concerned about the same issues: researchers have shown that citizens in the EU’s individualist and collectivist societies, for instance, have disparate concerns that cannot be simultaneously addressed by the same policy framework. In the democratic countries of the European Union, citizens’ reservations about data protection should translate into policies that mitigate these concerns. However, attempting to do so with a general data protection regulation not only marginalizes the differences in privacy concerns that arise from diverse cultural values, but is made difficult by citizens’ fundamental lack of understanding of the policies enacted to protect them.

Works Cited [1]

Degeling, Martin, et al. “We Value Your Privacy...Now Take Some Cookies: Measuring the GDPR’s Impact on Web Privacy.” 2018, p. 2.

[2] Cate, Fred H. “The EU Data Protection Directive, Information Privacy, and the Public Interest.” Iowa Law Review, 1995, p. 431.

[3] Ibid.

[4] Special Eurobarometer 431: Data Protection. European Commission, 2015, p. 6, Special Eurobarometer 431: Data Protection.

[5] Hallinan, Dara, et al. “Citizens' Perceptions of Data Protection and Privacy in Europe.” Computer Law & Security Review, vol. 28, no. 3, 2012, p. 263., doi:10.1016/j.clsr.2012.03.005.

[6] Miltgen, Caroline Lancelot, and Dominique Peyrat-Guillard. “Cultural and Generational Influences on Privacy Concerns: A Qualitative Study in Seven European Countries.” European Journal of Information Systems, vol. 23, no. 2, 2013, p. 107., doi:10.1057/ejis.2013.17.

[7] Ibid.

[8] Special Eurobarometer 431: Data Protection, p. 7.

[9] Ibid, p. 9.

[10] Hallinan, et al., p. 269.

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[11]

Linden, Thomas, et al. “The Privacy Policy Landscape After the GDPR.” 22 Sept.

2018, pp. 1–18.

[12] Hallinan, et al., p. 267.

[13] Degeling, et al., p. 13.

[14] Hallinan, et al., p. 270.

[15] Social and Market Strategic Research, “Report on the Findings of the Information Commissioner’s Office Annual Track 2010: Organisations”, ICO, London, 2010. http://www.ico.gov.uk/w/media/documents/library/Corporate/Research_and_reports/ annual_track_2010_organisations.ashx.

[16] Hallinan, et al., p. 268.

[17] “Personal Data Breaches.” Guide to the General Data Protection Regulation (GDPR), UK Information Commissioner's Office, 2018, ico.org.uk/for-organisations/guide-to-the-generaldata-protection-regulation-gdpr/personal-data-breaches/.

[18] Ibid, p. 270.

[19] Miltgen and Peyrat-Guillard, p. 103.

[20] Hallinan, et al., p. 267.

[21] Miltgen and Peyrat-Guillard, p. 114.

[22] Hofstede, Geert. “National Cultures in Four Dimensions: A Research-Based Theory of Cultural Differences among Nations.” International Studies of Management & Organization, vol.

13, no. 1-2, 1983, p. 52., doi:10.1080/00208825.1983.11656358. The IDV-COL dimension of national culture, developed by Professor Geert Hofstede, is a measure of the levels of individualism (preference for individuals and their families) and collectivism (preference for larger groups than immediate family members) of a group or society. For instance, a society’s position can be indicated by whether its members define their self-image with “I” or “we.”

[23] Miltgen and Peyrat-Guillard, p. 114.

[24] Ibid, p. 113.

[25] Ibid.

[26] “Principle (c): Data Minimisation.” Guide to the General Data Protection Regulation (GDPR), UK Information Commissioner's Office, 2018, ico.org.uk/for-organisations/guide-tothe-general-data-protection-regulation-gdpr/principles/data-minimisation/.

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The Destructive Force of Capitalism on Women’s Advancement in Music Dominique Mickiewicz ’22 Prior to the 1800s, feudalism, characterized by a hierarchy of land rents and taxes, was the dominating economic system. The industrialization of the 19th Century dawned the beginning of capitalism, which boasted limited government intervention, greater global trade, and the mounting voice of individuals over the supply, demand, and prices of goods. However, only the contributions of men were considered important, resulting in the perspective and work of women to be ignored and undermined. In this paper, I will explore how the economic shift towards capitalism exploited women by analyzing how women were hypersexualized to sell products, barred from entry into musical institutions and other male-dominated fields, and required to give up their femininity in order to be successful within their careers.

Capitalism introduced the market system in which the prices of goods and services are determined by the supply and demand of the populace, frequently leaning in favor of male preferences. Men led businesses, controlled the workforce, and ultimately determined what was in demand and who supplied it. In order to sell goods to meet the desires of men, women’s bodies were hypersexualized and used to imply that if a man bought a certain product he would be happier and not only gain an ideal life, but the attention of an ideal, pretty, and subservient woman. Today, “[t]he bodies of girls and women are on display in movies, television, and advertising” and are used to sell everything from magazines and perfumes to music (Lorber, p.5). Music video trends demonstrate how male artists highlight women in minimal clothing often performing suggestive dances set to lyrics of subordination and unequal status in relationships. Music producers and record labels want to sell the lifestyle of their artists, and that includes reducing women to their physical features and treating them as objects.

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While capitalism offered women jobs in factories, the conditions they worked in were dangerous and dirty, and the harassment they endured from their supervisors was appalling. Yet, as capitalism grew, so did the oppression and misuse of women in the workforce. Today, women in fields such as music, math, science, and politics are discriminated against in the hiring process, harassed by fellow coworkers and “... often receive lower pay for the same or comparable work, and they are frequently blocked in their chances for advancement…” (Lorber, p.4). Barriers to entry in music continue to hinder female representation in musical institutions, orchestras, and performance careers. Women musicians always “...remained less employable than men” significantly discouraging women from choosing careers in music (Bowers and Tick, p.8).

Finally, in order have successful careers, women are asked to give up their femininity and take on traits associated with the male gender such as aggression and confidence. Women are often caught in between fulfilling their obligations in domestic roles as mother and wife and pursuing independent careers. Today, barriers to entry and gender discrimination continue to prevent women from advancing to higher positions and many struggle to balance relationships, independence, and work life. There is a great “....imbalance in the amount of housework and child care a wife does compared to her husband,” and women are not compensated for their domestic responsibilities (Lorber, p.4). Women are in constant conflict between retaining their femininity and appearing strong and masculine, while men are never asked to give up love or family for their careers. This situation demonstrates the blatant double standard mounting from privilege and power.

Some academics argue that women musicians benefitted from the “...patronage shift from a feudal to a market economy” because many of them became music engravers, publishers, and mainstream singers (Bowers and Tick, p.7). Additionally, due to the increase in capitalistic interaction and trade, it is argued that the First Wave Feminist movement was spread more 23

effectively, mobilizing a large number of women. However, “[f]irst wave feminist goals were to get equal legal rights for women,” and while women did obtain the right to vote, they were unable to fight against gender discrimination or unequal pay (Lorber, p.2). “The principal music professions were also closed to them” and women were only allowed to learn a limited range of instruments and unable enroll in musical institutions or professional orchestras (Bowers and Tick, p.5). Their work as composers was not taken seriously and their music often remains unplayed and unappreciated today.

Despite capitalism bringing a growth of factory jobs and increased trade, the economic system still favors the dominance of men. Women’s work is still underpaid, undervalued, and ignored. This trend continues as women struggle to push past barriers and discrimination in the capitalistic workforce.

Works Cited Bowers, Jane and Judith Tick, eds. Women Making Music: The Western Art Tradition, 1150 -1950.

Urbana and Chicago: University of Illinois Press, 1986.

Lorber, Judith. Gender Inequality: Feminist Theory and Politics. Fourth Edition. New York and Oxford: Oxford University Press, 2010.

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“Sign on the Dotted Line:” Policy Debate on Mandatory Arbitration Clauses Stephanie Song ’20 On October 25th of 2017, Robert “Beto” O’Rourke from the 16th congressional district of Texas introduced Bill H.R. 4130 into the House. H.R. 4130 is an Act titled as the “Mandatory Arbitration Transparency Act of 2017 (1). The purpose of the Bill is to amend title 9, United States Code, with respect to arbitration. The bill was referred to the Committee on the Judiciary and the Committee on Energy and Commerce (2). The Mandatory Arbitration Transparency Act of 2017 attempts to tackle the issue of employment disputes and predispute arbitration agreements which employers make mandatory for their employees to sign and follow. This paper will define “arbitration” in private commercial context as, “the private, voluntary agreement to have dispute resolved by a private actor whose decision is presumptively binding on these parties” (3). An employment dispute in Bill H.R. 4130 is defined as a “dispute between an employer and employee arising out of the relationship of employer and employee as defined in section 3 of the Fair Labor Standards Act of 1938” (4). What most employees don’t know who sign these agreements that are hidden in-between stacks of onboarding papers is that they have essentially waived their right to sue their company. These arbitration agreements are especially potent because they also contain confidentiality clauses, otherwise known as non-disclosure agreements that protect the identity of the employer. Bill H.R. 4130 is specifically aimed at prohibiting “predispute arbitration agreements with confidentiality clauses” to expose employers who are hiding these disputes within their company (5). These disputes often arise from employees of Fortune 500 companies and mostly companies in the private sector who have experienced tortious or unlawful misconduct from within the company.

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Unfortunately, Bill H.R. 4130 was not passed. Nevertheless, the policy debate on making arbitration agreements more transparent continues. On March 22nd of 2018, Bill S. 2591 The Arbitration Fairness Act of 2018 was introduced to the Senate. This bill is set to protect the rights of “consumers and employees have little or no meaningful choice whether to submit their claims to arbitration” who often are not aware that they have forfeited their rights (6). The Arbitration Fairness Act of 2018 states that “Mandatory arbitration undermines the development of public law because there is inadequate transparency and inadequate judicial review of arbitrators’ decisions” (7). In light of recent news of Google and Facebook ending their policy of using private arbitration to settle sexual harassment claims, there has been a significant increase in discourse on this issue (8). As the #MeToo movement rises, more women have been speaking up about their experiences of sexual harassment in the workplace. The movement now is putting pressure on members of Congress to abolish arbitration clauses from US workplaces. Often times, mandatory arbitration agreements unequally affect victims of sexual harassment in the workplace more than those who have just been discriminated against for other reasons. This paper will explore the perspectives of the policy debate of mandatory arbitration agreements and the future of their existence.

In order to understand the policy progressions, the stands of US government, and the complexities of arbitration agreements, it is necessary to delve into the context of Supreme Court precedents. One of the main reasons why bills are being introduced into the House and the Senate is that the Supreme Court has ruled on arbitration agreements to be perfectly legal.

The three cases explored in this essay attempt to explain the history of the Supreme Court decisions on arbitration agreements.

A fundamental Supreme Court case from 1991, Gilmer v. Interstate/Johnson Lane Corporation, had a significant 7-2 majority ruling in favor of the employer. The petitioner 26

Robert D. Gilmer was required by his employer, Interstate/Johnson Lane Corporation, to register as a securities representative with the New York Stock Exchange (NYSE) and several other stock exchanges. His employer, a North Carolina based stock brokerage, is the respondent.

Within the registration contained an arbitration agreement that stated Gilmer, “agree[d] to arbitrate any dispute, claim or controversy….[and it] is required to be arbitrated under the rules constitutions or by-laws of the organizations with which [he]register” when required to by NYSE rules (9). Gilmer’s employer terminated him at age 62. After he was fired, he filed a charge with the Equal Employment Opportunity Commission (EEOC) and sued his employer in the District Court arguing that he was discharged in violation of the Age Discrimination in Employment Act of 1967 (ADEA). However, “NYSE Rule 347 provides for arbitration of any controversy arising out of a registered representative’s employment or termination of employment” (10). The ruling says that “[the] respondent moved to compel arbitration, relying on the agreement in Gilmer’s registration application and the Federal Arbitration Act (FAA).

The court denied the motion because the petitioner’s suit under Title VII of the Civil Rights Act of 1964 is not foreclosed by the prior submission of his claim to arbitration under the terms of a collective-bargaining agreement and because it concluded that Congress intended to protect ADEA claimants from a waiver of the judicial forum” (11).

To simplify the court progressions, the District Court sided with Gilmer by the reasoning of the above paragraph. The respondents appealed, and the Court of Appeals reversed the District Court’s decision. Gilmer v. Interstate/Johnson Corp. went to the Supreme Court on certiorari. The Justices decided with a 7-2 majority that age discrimination claims were subject to compulsory arbitration in accordance to arbitration agreement in the securities registration application (12). The decision made by Supreme Court at the time carried relatively conservative tone over the justice system. By siding with the employer, the holding made in this case by the 27

Supreme Court translates to a dangerous precedent for the future of arbitration agreements.

Given the background and social class of the petitioner, it is concerning. If an old white male working in finance can’t win his case, it would be difficult for anyone to see a successful outcome in the justice system.

Another Supreme Court case that has an unfavorable outcome for the employee deals with arbitration agreements specifically on sexual harassment. In the 2001 case of Circuit City Stores Inc. V. Adams, the petitioner is a man named Saint Clair Adams who has been harassed by his co-workers due to the fact that he is gay. The facts of this case are the following: “Saint Clair Adams, who was hired as a sales counselor, signed an employment application with Circuit City. A provision in Adams' application required all employment disputes to be settled by arbitration. In 1997, Adams filed an employment discrimination lawsuit against Circuit City in California state court. Circuit City then filed suit in Federal District Court, seeking to enjoin the state-court action and to compel arbitration of Adams' claims under the Federal Arbitration Act (FAA). The District Court entered the requested order. The court concluded that Adams was obligated by the arbitration agreement. In reversing, the Court of Appeals found that the arbitration agreement between Adams and Circuit City was contained in a "contract of employment," and thus not subject to the FAA under section 1 of the Act. Section 1 of the FAA excludes "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce" from the Act's coverage (13).

The petitioner’s argued that his “contract of employment” is included in the FAA exception. However, the Supreme Court thought otherwise, and overturned the lower court’s ruling. Circuit City Stores, Inc. v. Adams is a monumental case for the businesses and employers because it allows business to use extend arbitration to nearly all employment contracts (14). It is critical to understand that this ruling from the Supreme Court has a domino effect for the 28

widespread use of arbitration clauses in the workplace. Even after ten years have passed since the ruling from Gilmer v. Interstate/Johnson Corp., the opinion of the Court remains conservative.

Time has progressed seventeen years from the past, yet no progress has been made regarding to arbitration agreements. In 2018, in the case of Epic Systems Corporation v. Lewis, the Supreme Court ruled in a 5-4 majority for the employers in this class action case. Epic Systems Corporation v. Lewis is a class action case consolidated with Ernst & Young v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc.,. Both cases dealt with the relationship between the FAA and the National Labor Relations Act (NLRA). The facts of the class action case are summarized as following: “Epic Systems Corporation (Epic) is a Wisconsin-based healthcare data management software company. Epic has an arbitration agreement that requires its employees to resolve any employment-based disputes with Epic through individual arbitration and to waive their right to participate in or receive benefit from any class, collective, or representative proceedings. In February 2015, former Epic employee Jacob Lewis sued Epic in federal court individually and on behalf of similarly-situated employees and claimed that they had been denied overtime wages in violation of the Fair Labor Standards Act of 1938. Epic moved to dismiss the complaint and cited the waiver clause of its arbitration agreement. The district court denied Epic’s motion and held that the waiver was unenforceable because it violated the right of employees to engage in “concerted activities” under Section Seven of the National Labor Relations Act (NLRA). The U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision and added that the waiver was also unenforceable under the savings clause of the Federal Arbitration Act (FAA). That clause provides that arbitration agreements are to be enforced unless there legal or equitable grounds that would render a contract unenforceable. Finding the waiver of collective 29

proceedings illegal under the NLRA, the appellate court held that the arbitration agreement was unenforceable under the FAA” (15).

The issue at hand is “does the National Labor Relations Act prohibit enforcement of an agreement requiring employees to resolve disputes with the employer through individual arbitration under the Federal Arbitration Act?” (16). The petitioner argued that the Federal Arbitration Act cannot be not applied to class-action claims because these kinds of lawsuits are protected under the National Labor Relations Act under a provision that preserves the right to unionize (17). The Court’s five conservative Justices disagreed with the petitioners, and held that neither the National Labor Relations Act (NLRA) nor the the Arbitration Act saving clause override Congress's instructions in the Federal Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced. Therefore, the 5-4 majority decision hands over another win private businesses and employers who use arbitration agreements. The Court sided with the employers, and gave US employers the ability to prohibit workers from joining together to sue companies over issues such as discrimination, wage theft, and other workplace misconduct. The majority opinion written by Justice Neil Gorsuch states that “the NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace enter the courtroom or arbitral forum” (18). It is apparent the Supreme Court holding from this case in 2018 is a major hindrance in progress to abolish arbitration agreements.

These three Supreme Court precedents in the past twenty-seven years set a stage for an unconvincing probability of any change to occur within the Justice System regarding arbitration agreements. As of 2018, the Supreme Court rules that businesses and employers may use arbitration agreements for alternative dispute resolution, including arbitration agreements in employee contracts, and prohibit workers from filing class action suits for company misconduct.

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Considering the Supreme Court’s explicit opinion on arbitration agreements, it makes sense that the only hope for any breakthrough on this issue would have to be through the House or the Senate. Therefore, It brings the focus back to the public policy debate at hand.

This subsequent section will examine the intricacies of the “pro/for” and “con/against” arguments of the use of arbitration agreements. The analysis will begin on the side of the companies, businesses, and employers who want continue the use of arbitration agreements, and for it remain a legal option. In a capitalist society, a privately owned company’s ultimate goal to maximize their profits. Employers use arbitration because it is a faster and less expensive process than using the court system (19). For a company, the economic rhetoric makes sense; court cases often are lengthy and have many fees attached to them. This would decrease the productivity of the firm and take a bite out of their profit margins to spend on court and legal fees. In general, “larger organizations with more sophisticated human resource policies and better legal counsel are more likely to adopt policies like mandatory arbitration that protect them against legal liability” (20). However, what companies don’t tell the public is that the arbitration firms have an economic incentive to decide in favor of the employers who eventually will become “repeat players” of arbitration services (21). A crucial motivations to use arbitration firms to settle disputes is that it keeps employment claims from reaching a jury. In a court system, “juries are considered more sympathetic to workers’ claims, and more willing to award millions of dollars in damages in these cases” (22). Even when the arbitration firms do not rule in favor of the employer, the arbitrators help cut major costs in damages that a plaintiff could claim. A recent study conducted in 2011 analyzing 3,945 arbitration cases from 2003-2007 originating from the American Arbitration Association (one of the top arbitration firms in the United States) found that “for plaintiffs with salary levels below $100,000 the mean award amount was $19,069...for plaintiffs with salary levels between $100,001 and $250,000 the mean award amount was 31

$64,895, and for plaintiffs with salary levels over $250,001 the mean award amount was $165,671” (23). It should be noted that there was a substantial amount of missing data on the salary variable, with the variable only being reported in 37 percent of cases that reached an award. In general, there is not much data and evidence publically available on these cases due to the fact that the cases are highly privatized. In spite of that, for more statistical evidence on the damage awards from arbitration, “the employee win rate amongst the cases was 21.4%....[and] in the cases won by employees the median award amount was $36,500 and the mean was $109,858, both of which are substantially lower than award amounts reported in employment litigation” (24). We can concur that from these statistically significant numbers that due to the capitalist society that employers and employees exist in, arbitration favors employers production costs by decreasing the amount of legal fees and damages a company or employer must pay.

Employers prefer to claim arbitration because research shows that arbitrators are biased towards employers who pick the same firm or arbitrator to handle their cases (25). A study done

by Lisa Blomgren Amsler from Indiana University Bloomington has coined this concept as the “repeat player effect” (26). Her study showed that employers were nearly five times more likely to win their case if the arbitrator had handled past disputes involving the employer (27).

Arbitration additionally has practically no oversight, “whereas arbitrators apply the ‘law of the shop,’ judges apply the law of the land” (28). There are no required written opinions, there are scarce options to appeal the decision, let alone any attempt to overturn a decision (29).

Furthermore, there is a prediction of greater success for repeat employers participate in arbitration. The logic behind the game they play is simple: Arbitrators may be biased in favor of employers out of hope of being selected in future cases. This bias may be heightened by the employer typically paying the entire arbitrator fee and by the limited experience of employees with arbitration. Repeat employers may develop expertise in identifying, and then selecting, employment arbitrators who tend to favor employers in their decision-making. 19 Lacking equivalent repeat player 32

experience, employees will be less likely to be able to identify and then reject the proemployer arbitrators (30).

In this symbiotic relationship, it could not be more clear that arbitration firms rule more often than not in the favor of the employers. A single arbitrator has the complete autonomy to determine the winners and losers. Likewise, the arbitrator has the “liberty to determine how much evidence a plaintiff can present and how much the defense can withhold” (31). To deliver favorable outcomes to companies, some arbitrators have twisted or outright disregarded the law, as interviews and records show.

Even worse, there is a lack of record on how widespread mandatory employment arbitration has become. Calling the issue surrounding arbitration agreements a “privatization of the Justice System” is just scratching the surface to how secretive employers and arbitration firms have been to conceal misconduct within their company. Cynthia Estlund of NYU School Law describes the issue of confidentiality, “The Black Hole of Mandatory Arbitration.” She argues, “given the lack of written, publicly available decisions and the relative secrecy of arbitral proceedings, the diversion of legal disputes from courts to arbitrators threatened to stunt both the development of the law and public knowledge of how the law is interpreted and applied in important arenas of public policy” (32). Because of mandatory arbitration agreements, firms have little reason to worry if they or other employees violate the law (33). Firms really only have to worry about “reputational sanctions which are among the most powerful deterrents to illegal or legally questionable conduct” from the general public versus actual bureaucratic action (34).

In comparison to federal courts, who keep public records of lawsuits filings, and basic information about cases, if the company requires the employee to sign a nondisclosure agreement, any news of the hearing, which company, and the settlement amount will almost never see the light of day. Which is why employers and their legal counsel enjoy to use the 33

“double whammy” of including a mandatory arbitration agreement and a nondisclosure agreement in an employee contract (35).

Employers wish to continue their practices of arbitration agreements because the privatized Justice System lets the firm’s accountability plummet. The entire process of claiming arbitration cut production costs for the company so that arbitration firms are biased in favor of the employer. To proceed in the two perspective analysis; the next section will focus on the cons of arbitration agreements to settle employee disputes, and the viewpoint of the employees. It is important to differentiate in this section the priorities of profit maximizing firms versus the people who work for them. From the above section, the ethics and morals of companies becomes clear in analyzing why they choose to partake in arbitration agreements. Companies have little regard to the misconduct that happens within their firms and want to spend the least amount as possible to resolve disputes. Although it economically makes sense for firms, we must evaluate what consequences that has on their employees. Generally for employees who sign arbitration agreements, there is a zero or negative sum outcome if they become the plaintiff and choose to go through with an arbitration claim. To begin with, most employees are incredibly discouraged from even filing a complaint. “Mandatory arbitration has a tendency to suppress claims. Attorneys who represent employees are less likely to take on clients who are subject to mandatory arbitration, given that arbitration claims are less likely to succeed than claims brought to a court” (36). A recent statistic shows approximately 60 million American workers are subject to mandatory employment arbitration procedures, however only 1,880 mandatory employment arbitration cases are filed every year nationally (37). Not only are the odds already stacked against employees, accessibility to low income plaintiffs is an enormous problem because of the fees that one must pay in order to have proper legal representation. In Colvin’s empirical study, “82.7 percent [of plaintiffs in these cases] had salaries under $100,000” (38). For these reasons, it is 34

apparent that cases are rarely reported and potential plaintiffs are heavily discouraged from taking any legal action.

Granted that those who claim arbitration have the financial means to find a lawyer who will take their case, there is a significant probability that the employee plaintiff will lose in an arbitration hearing. Statistics show that the employee win rate is a scrapping 21.4% of cases which is no doubt lower than employee win rates reported in court litigation trials (39). If a plaintiff is able to make it through all the obstacles set up by the employer and arbitration firm, the employee will receive substantially lower award amounts reported in employment litigation.

Most outcomes occurs in this pattern because in arbitration hearings there is no sympathetic jury who are more willing to award millions of dollars in damages to the plaintiff (40). Taken together, employers and arbitration firms have the odds stacked against the employees who attempt to get any justice through the twisted and unregulated legal system of arbitration.

The question now becomes; what does one who experiences impropriety or a violation of their rights at their company do? American citizens should have the Constitution to protect them, be that as it may the highest court in the land should uphold their rights of Title 9 or Title 7. Unfortunately, the Supreme Court precedents from the past thirty years prevail otherwise. The conservative majority of the Court has always overcome the ethically responsible minority.

Supreme Court holdings allow businesses and employers to use arbitration agreements for alternative dispute resolution, include arbitration agreements in employee contracts with nondisclosure agreements to protect the reputation of the company, and prohibit workers from filing class action suits for company misbehavior. The last hope is the avenue of legislation which is where this policy debate stems.

Recently in February of 2018, all 56 state attorneys general (including the five US territories) wrote a letter to Congress urges congressional leaders to vote on the Arbitration 35

Fairness Act of 2018. Specifically, the state attorneys were asking Congress to agree that “the culture of silence that protects perpetrators at the cost of their victims” are enforced by not having sexual harassment cases go to court (41). To quote their letter, “While there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims. Victims of such serious misconduct should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process” (42). Especially in the context of a sexual harassment claim, someone’s rights should not be violated and invalidated by the use of arbitration which is reinforced by the capitalist society we live in. “This secretive system also has the potential to hamper the #MeToo movement. Women are coming forward, often for the first time, with stories of widespread sexual harassment at work, only to discover that they’ve been shut out of the court system because they signed an arbitration agreement” (43).

In this political climate, it will be interesting to see if any progress can be made in the House or the Senate. The Trump Administration carries a conservative reputation in the Executive Branch and in the Senate. One can easily assume that the leaders of our country are heavily influenced or part of the “old boys club” that still exists today. Let us not forget that 60 million American workers are subject to mandatory employment arbitration procedures, and we can only hope for the future advancement of our country that this policy debate can give back the rights to American workers who have faced unjust, unethical behavior in the workplace (44).

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Works Cited 1. United States, Congress, Mandatory Arbitration Transparency Act of 2017 .

2. Ibid 1.

3. Rutledge, Peter B. Arbitration and the Constitution. Cambridge University Press, 2014.

4. Ibid 1.

5. Ibid 1.

6. United States, Congress, Arbitration Fairness Act of 2018.

7. Ibid 5.

8. McGregor, Jena. “Google and Facebook Ended Forced Arbitration for Sexual Harassment Claims. Why More Companies Could Follow.” The Washington Post, WP Company, 12 Nov. 2018, www.washingtonpost.com/business/2018/11/12/google-facebook-endedforced-arbitration-sex-harassment-claims-why-more-companies-couldfollow/?noredirect=on&utm_term=.597d58575724.

9. Supreme Court of the United States. Gilmer v. Interstate/Johnson Lane Corporation. 13 May 1991. Westlaw.

10. Ibid 8.

11. Ibid 8.

12. Ibid 8.

13. Supreme Court of the United States . Circuit City Stores, Inc. v. Adams. 21 Mar. 2001. Oyez.

14. Ibid 8.

15. Supreme Court of the United States. Epic Systems Corp. v. Lewis. 21 May 2018. Oyez.

16. Ibid 13.

17. Supreme Court of the United States. Epic Systems Corp. v. Lewis. 21 May 2018. Westlaw.

18. Ibid 15.

19. Campbell, Alexia Fernandez, and Alvin Chang. “There's a Good Chance You've Waived the Right to Sue Your Boss.” Vox.com, Vox Media, 7 Sept. 2018, www.vox.com/2018/8/1/16992362/sexual-harassment-mandatory-arbitration.

20. Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts Is Now Barred for More than 60 Million American Workers.” Economic Policy Institute, 27 Sept.

2017, www.epi.org/publication/the-growing-use-of-mandatory-arbitration/.

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21. Silver-Greenberg, Jessica, and Michael Corkery. “In Arbitration, a 'Privatization of the Justice System'.” The New York Times, The New York Times, 1 Nov. 2015, www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justicesystem.html.

22. Ibid 19.

23. Colvin, A. J. S. (2011). An empirical study of employment arbitration: Case outcomes and processes[Electronic version]. Retrieved Dec 11, 2018, from Cornell University, ILR School site: http://digitalcommons.ilr.cornell.edu/articles/577 24. Ibid 23.

25. Ibid 19.

26. Amsler, Lisa Blomgren. “Employment Arbitration: The Repeat Player Effect.” Employee Rights and Employment Policy Journal, vol. 1, 1997, p. 189.

27. Ibid 26.

28. Roma, Elizabeth. "Mandatory Arbitration Clauses in Employment Contracts and the Need for Meaningful Judicial Review." American University Journal of Gender, Social Policy & the Law. 12, no. 3 (2004): 519-544.

29. Ibid 19.

30. Ibid 23.

31. Ibid 21.

32. Cynthia Estlund, The Black Hole of Mandatory Arbitration, 96 N.C. L. Rev. 679 (2018).

Available at: https://scholarship.law.unc.edu/nclr/vol96/iss3/3 33. Ibid 32.

34. Ibid 32.

35. Ibid 32.

36. Ibid 20.

37. Ibid 20.

38. Ibid 23.

39. Ibid 23.

40. Ibid 19.

41. Schmidt, Derek, et al. “Mandatory Arbitration of Sexual Harassment Disputes.” Received by Hon. Paul Ryan, Speaker of the House; Hon. Nancy Pelosi, Minority Leader; Hon. Mitch McConnell, Majority Leader; Hon. Charles E. Schumer, Minority Leader; Hon. Kevin McCarthy, 38

Majority Leader; Hon. Steny Hoyer, Minority Whip; Hon. John Cornyn, Majority Whip; Hon. Richard J. Durbin, Minority Whip , 1850 M Street, NW Twelfth Floor, 12 Feb. 2018, Washington, DC. 42. Ibid 41.

43. Ibid 19.

44. Ibid 20.

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Transgender Individuals and The Military: A Debate Rebecca Zlatkin ’19 Gender identity and sexual orientation in the military has long been a controversial subject.

The Constitution generally provides the President and the Executive branch with authority over the armed forces, and their policies regarding LGBTQ service members have long sparked debate amongst the American people. The rights of transgender individuals to serve in the military has become a hot topic since President Donald Trump called for a transgender ban. This would mark a regression from the many changes in the U.S. government’s policy towards LGBTQ service members which occurred during the Obama administration.

While the Constitution does not specifically mention transgender people, proponents of transgender service members have asked the courts to use strict scrutiny to consider whether the ban violates equal protection, substantive due process, and the First Amendment of the Constitution. The Fifth Amendment's Due Process Clause requires the United States government to practice equal protection (1). Proponents of removing barriers which prevent citizens from joining the military argue that this is not a matter of requesting special treatment.

Rather, this is a push for all service members to be held to the same standards and be treated like everybody else.

While this paper focuses on the current policy debate over the rights of transgender individuals in the military, it uses policies which affect the broader LGBTQ community to frame this issue. Additionally, the author of this paper recognizes that, until recently, few political scientists focused directly on the politics of the transgender community. As one academic points out, “this coincides with the relatively marginalized status of transgender issues within the broader lesbian, gay, bisexual, and transgender (LGBT) movement throughout the years” (2).

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According to a 2009 publication from the National Center for Transgender Equality, transgender is defined as “an umbrella term for people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth, including but not limited to transsexuals, crossdressers, androgynous people, genderqueers, and gender non-conforming people” (3). The term transgender can be used broadly.

Initial victories for the military’s transgender community revolved around the broader LGBTQ community. Until its repeal in 2011, the U.S. policy on gays’, bisexuals’, and lesbians’ ability to serve in the military was known as DADT or “don’t ask, don’t tell.” This policy resulted from a Department of Defense directive number 1304.26 incorporated during the Clinton Administration. Under the section titled “Provisions Related to Homosexual Conduct,” a compromise was made for members of the armed services who engaged in homosexual acts.

The legislation held that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability.” However, it additionally specified that “applicants for enlistment, appointment, or induction shall not be asked or required to reveal whether they are heterosexual, homosexual or bisexual” (4).

Under DADT, service members were forbidden to discuss their sexual orientation. They were also not to be asked about it. Author Kellie Wilson-Buford writes in her book about the effect of DADT. She states, “though intended to make sexual orientation a nonissue, DADT had the adverse effect of legalizing a basic inequity that the Constitution was supposed to guard against. By preventing gay service members from sharing their experiences, the policy of DADT shielded itself from scrutiny and interrogation and propagated an atmosphere of suspicion and

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fear for service members whose most innocent gestures often became the means for their courtmartial” (5).

However, the LGBTQ community played a large role in the 2008 election of President Barack Obama. According to authors McThomas and Buchanan, “in that year, during candidate Obama’s promises of inclusion and civil rights for all, the largest percentage of GLB voters sided with the Democrats” (6). Then, a few years later, President Barack Obama signed into law the Don't Ask, Don't Tell Repeal Act of 2010 which ended nearly two decades of the DADT policy. Upon its repeal, Clifford L. Stanley, the U.S. Undersecretary of Defense for Personnel and Readiness under Obama stated in a press conference, “it remains the policy of the Department of Defense that sexual orientation is a personal and private matter, to treat all members with dignity and respect and to ensure maintenance of good order and discipline.

There will be zero tolerance for harassment, violence or discrimination of any kind” (7). When the law later went into effect in September of 2011, Clifford elaborated in a memo which stated that “sexual orientation may not be a factor in accession, promotion, separation, or other personnel decision making” (8). It would seem that progress for the LGBTQ community was stemming from, of all places, the military.

Throughout Barack Obama’s presidency, changes were made in military policy towards acceptance and accommodation of the LGBTQ community. In the decades prior, the Pentagon considered transgender people to be sexual deviants and ousted them from service. After the repeal of DADT, advocates continued to demand further protections of the military’s most marginalized constituency by, for example, expanding benefits to same-sex partners of military personnel and allowing transgender people to serve openly in the military.

In May of 2014, Obama’s Defense Secretary Chuck Hagel stated that he was open to reconsidering the ban on transgender people serving openly in the military. During an exclusive 42

interview on ABC’s “This Week with George Stephanopoulos,” Hagel asserted that he felt "every qualified American who wants to serve our country should have an opportunity if they fit the qualifications and can do it." He added that transgender issues are "an area that we've not defined enough" (9).

Vice President Joe Biden went on to affirm his support and interest in promoting the LGBTQ community in a speech given to the Human Rights Campaign, which is the largest LGBTQ civil rights advocacy group and political lobbying organization in the United States. In a 2014 speech, he said, “I will not be satisfied till everyone in the lesbian, gay, bisexual, transgender community is afforded the dignity, the freedom and the equality that my father spoke so clearly of because that's the only way. Only when you do that will we be a whole nation” (10). Biden called transgender rights “the civil rights issue of our time.”

Then, in July of 2015, Chuck Hagel’s successor, Secretary of Defense Ash Carter, released a statement on the Department of Defense’s (DoD) transgender policy. In this statement, he calls “The Defense Department's current regulations regarding transgender service members … outdated.” He continued by saying these policies were “causing uncertainty that distracts commanders from our core mission.” He concluded by explaining future steps the DoD would take to ensure all members of the military are treated equally, with dignity and respect.

Carter’s two directives were as follows: first, he aimed to study implications of the inclusion of transgender military personnel. The other directive was “that decision authority in all administrative discharges for those diagnosed with gender dysphoria or who identify themselves as transgender be elevated to Under Secretary Carson, who [would] make determinations on all potential separations” (11).

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Each of these developments eventually culminated into one major victory. In 2016, the Pentagon lifted its ban on transgender troops serving openly in the military. Carter states in his brief, “effective immediately, transgender Americans may serve openly and they can no longer be discharged or otherwise separated from the military just for being transgender. Additionally, I have directed that the gender identity of an otherwise qualified individual will not bar them from military service or from any accession program” (12). This announcement further eliminated barriers preventing able-bodied transgender Americans from serving in the armed forces. It was a step towards changing any policies which differentiated transgender members from their peers.

This was an attempt to prevent different treatment of military service members based solely upon their gender identity, rather than upon their ability to serve.

In his statement, Carter went into detail about a yearlong study by the RAND Corporation on the effects of the inclusion of transgender service members as the basis for which he had issued his directive. He explained that eighteen countries already allow transgender personnel to serve openly in their militaries. These countries include America’s close allies such as Australia, Israel and the UK. Carter concludes this directive by saying, “based on its analysis of allied militaries, and the expected rate at which American transgender servicemembers would require medical treatment that would impact their fitness for duty and deployability, RAND’s analysis concluded that there would be “minimal readiness impacts from allowing transgender servicemembers to serve openly” (13). And in terms of cost, RAND concluded the health care costs would represent “an exceedingly small proportion” of DoD’s overall health care expenditures” (14).

Following this policy announcement, transgender people already serving in the military were able to do so openly and were no longer at the risk of being involuntarily separated, discharged, or denied reenlistment or continuation of service just for being transgender. Carter’s 44

implementation plan for the policy included a promise that in the next 90 days after the ban was lifted, the DoD would issue both a commanders' guidebook for leading currently-serving transgender servicemembers, and medical guidance to doctors for providing transition-related care if necessary to currently-serving transgender servicemembers. Carter also explained that in the nine months following his announcement, the services would conduct comprehensive training with the force – from commanders, to medical personnel, to the operating force and recruiters based on newly issued guidance and training materials. He concluded that in no more than one year after his announcement, "[t]he military services will begin accessing transgender individuals who meet all standards – holding them to the same physical and mental fitness standards as everyone else who wants to join the military" (15).

These changes in the DoD’s policies regarding transgender eligibility for service marked what many had hoped would be a lasting victory in the civil rights and liberties of the LGBTQ community. But, not everyone agreed with the decision to lift the ban; the Obama administration’s changes were challenged on July 26, 2017. In the early morning hours, President Donald Trump tweeted in a series of three posts, “after consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow… transgender Individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming… victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you” (16). This tweet marked a reversal of a policy from the Obama White House.

Around one month later, President Donald Trump issued a Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security. In this memo, Trump writes, “[a]ccordingly, by the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States under the Constitution and the laws of the United States 45

of America, including Article II of the Constitution, I am directing the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above” (17).

Trump then finished by issuing a directive to Secretary Mattis, United States Secretary of Defense, to determine how to address transgender troops currently serving openly in the military. Trump also called for the Department of Defense to halt some transition-related healthcare.

The Constitution provides the President his authority to direct policy. However, it also conditions that this is separate from the constitutionality of the policy itself. Presidents are politicians and they frequently blend their political talk with legal instructions. If a policy is challenged, the constitutionality must be determined by the courts (18). Katherine Shaw writes in the Texas Law Review about how Presidential speech should be interpreted by the Court. She cites DADT as an example of one way that speech has been interpreted. For instance, in the case of Log Cabin Republicans v. Obama, Shaw writes “the district court relied on a single presidential speech as support for the conclusion that, contra the representations made by the Departments of Justice and Defense, DADT did not advance national security interests” (19). In this case, she explains that the court used the president’s statements as admissions. The president is commander and chief of the military and the court used his admission to contradict the government’s assertion about potential national security and overall military readiness interest in DADT. Donald Trump’s announcement about the ban was met with multiple lawsuits questioning its constitutionality. GLAAD, GLBTQ Legal Advocates & Defenders are 46

representing plaintiffs in Doe v. Trump and Stockman v. Trump. Lambda Legal, along with OutServe-SLDN, represents plaintiffs in Karnoski v Trump. Each of these cases were filed in federal trial courts by current and would-be service members. All three court blocked the government from enforcing the policy. Now, the Department of Justice has asked the Supreme Court to review all three of these cases.

For those opposed to allowing transgender service members, Trump’s ban was a victory.

After Trump’s initial tweets and memorandum, Secretary Mattis, announced that after an extensive review of military service by transgender individuals, he and a panel of senior military leaders and other experts determined that the prior policy, adopted by Secretary Carter, posed too great a risk to military effectiveness. He wrote, “I firmly believe that compelling behavioral health reasons require the Department to proceed with caution before compounding the significant challenges inherent in treating gender dysphoria with the unique, highly stressful circumstances of military training and combat operations” (20). This contradicts the aforementioned RAND study, which was cited by proponents as reason for allowing transgender people to serve openly.

Since that second memorandum, a petition for a writ of certiorari before the U.S. Supreme Court was issued by U.S. solicitor general Noel Francisco on November 23, 2018.

Trump v. Karnoski is currently pending. Following initial victories of transgender members of the military in the lower District Courts, Francisco argued that the justices should step in immediately because of the risk that allowing transgender individuals to serve in the military would create. Ordinarily, decisions of the District Courts make their way to appeals before being petitioned in the Supreme Court, but he argued that the government can’t afford to wait for the courts of appeals to issue their rulings and then appeals to the Supreme Court because the old

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policy poses “too great a risk to military effectiveness and lethality” (21). Those in favor of the ban assert that the addition of transgender individuals could harm the security of our nation.

Karnoski v. Trump was filed on August 28, 2017 in the U.S. District Court for the Western District of Washington challenging Trump’s attempt to reinstate a ban on open service for transgender people. The plaintiffs in this case included nine transgender individuals (the “Individual Plaintiffs”) and three organizations (the “organizational Plaintiffs”). The individual Plaintiffs are Ryan Karnoski, D.L., Connor Callahan, Staff Sergeant Catherine Schmid, Chief Warrant Officer Lindsey Miller, Petty Officer First Class Terece Lewis, Petty Officer Second Class Phillip Stephens, Petty Officer Second Class Megan Winters, and Jane Doe. Karnoski and Callahan both aspire to enlist in the military. Schmid, Muller, Lewis, Stephens, and Winters all currently serve openly in the military. Jane Doe currently serves in the military, but is not openly transgender. The organizational plaintiffs are the Human Rights Campaign (which represents LGBTQ Americans), and Gender Justice League, an organization committed to fighting for the human rights of LGBTQ people (22).

According to the Supreme Court of the United States, the issue in this case is “whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions” (23).

The constitutional provisions involved in this specific case include the First Amendment and the Fifth Amendment. The First Amendment guarantees that “congress shall make no law abridging the freedom of speech, or of the press.” The Fifth Amendment to the Constitution provides, “no person shall be deprived of life, liberty, or property, without due process of law.”

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This case argues that the policy that Secretary Mattis announced earlier this year was unconstitutional after an extensive review of military service by transgender individuals.

The initial decisions of the district courts have prevented the military from adopting the new policy proposed by Secretary Mattis. The military has been forced to maintain that prior policy from the Obama administration for nearly a year. In its petition, the Trump Administration has acknowledged that “absent this [Supreme] Court’s prompt intervention, it is unlikely that the military will be able to implement its new policy any time soon. Accordingly, the government is filing this petition and two other petitions for writs of certiorari before judgment to the Ninth and D.C. Circuits.”

Regarding the court’s immediate review of a case and according to Supreme Court rules, “this Court will grant certiorari before judgment ‘only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court’” (24). The petition by Noel Francesco argues that this case satisfies that standard. The petition justifies that further stating that the issue of this case is of imperative public importance because it involves “the authority of the U.S. military to determine who may serve in the Nation’s armed forces.” The petition argues an immediate grant of certiorari is warranted in order to ensure that the district court’s injunction is not in place for longer than necessary (25). The petition further argues the district court decisions were wrong, the injunctions overbroad and that the respondents’ constitutional challenges to the Mattis policy lack merit.

According to one CNN article, the conservative court motivates the creation of this petition. It states, “Francisco has moved aggressively at times to get cases before a Supreme Court that is more solidly conservative with the addition of Justice Brett Kavanaugh” (26). What will happen next is unclear. An article for Time magazine explains, “the timing of the 49

Administration’s effort to get the Supreme Court involved in the issues at an early stage could hardly be worse for Roberts and other justices who have sought to dispel perceptions that the court is merely a political institution, especially since the confirmation of Justice Brett Kavanaugh” (27).

According to the SCOTUS blog, “the service members in the three cases are scheduled to respond to the government’s appeals on December 24; the justices are likely to announce in early to mid-January whether they will take up the cases.” The author, Amy Howe, explains that petitions for certiorari before judgment are not granted often. However, the courts will consider the Government’s request. As for next steps, Howe writes, “Because the three cases hail from different parts of the country, two of the requests go to Justice Elena Kagan, who handles emergency requests from California and Washington, while the third goes to Chief Justice John Roberts, who handles emergency requests from the District of Columbia” (28).

This is not the first time that the Administration has asked the courts to interfere with the appeals process. In January, it petitioned the Supreme Court to fast-track cases challenging the Trump administration's plans to end DACA, or Deferred Action for Childhood Arrivals.

However, that request was denied—although recently the Justice Department asked again.

The reality is that the environment for the transgender community is hostile under the Trump administration. Despite recent victories under the Obama administration, citizens who identify as LGBTQ and wish to serve in the military continue to be at risk. As many efforts as the Obama administration made to increase inclusion for targeted individuals and protect them from discriminatory practices, the current administration appears to be making strident efforts to deny those individuals basic freedoms and rights guaranteed under the constitution.

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Works Cited 1. Schaefer, Agnes Gereben, Radha Iyengar Plumb, Srikanth Kadiyala, Jennifer Kavanagh, Charles C. Engel, Kayla M. Williams, and Amii M. Kress, Assessing the Implications of Allowing Transgender Personnel to Serve Openly. Santa Monica, CA: RAND Corporation, 2016. https://www.rand.org/pubs/research_reports/RR1530.html.

2. Carter, Ash. “DoD Transgender Policy Changes.” U.S. Department of Defense, June 30, 2016. https://www.belfercenter.org/publication/dod-transgender-policy-changes 3. Tadlock, B. (2014). Issue Framing and Transgender Politics: An Examination of Interest Group Websites and Media Coverage. In Taylor J. & Haider-Markel D. (Eds.), Transgender Rights and Politics: Groups, Issue Framing, and Policy Adoption (pp. 25-48). Ann Arbor: University of Michigan Press.

4. McThomas, Mary, and Robert J. Buchanan. "President Obama and Gay Rights: The 2008 and 2012 Presidential Elections." PS: Political Science and Politics 45, no. 3 (2012): 442-48. http://www.jstor.org/stable/41691359.

5. Transgender Terminology. Washington, DC: National Center for Transgender Equality; 2009.https://static1.squarespace.com/static/566c7f0c2399a3bdabb57553/t/566ca7fadf 40f3a7317eff4d/1449961466623/2009-NCTE-Understanding-TransgenderTerminology-Factsheet.pdf 6. DoD Directive 1304.26, December 21, 1993, Incorporating Change 1, March 4, 1994. https://biotech.law.lsu.edu/blaw/dodd/corres/pdf/d130426wch1_122193/d130426p.p df 7. Robson, Ruthann. "District Judge Holds Transgender Military Ban Subject to Strict Scrutiny." Constitutional Law Prof Blog (blog), April 14, 2018. https://lawprofessors.typepad.com/conlaw/2018/04/district-judge-holds-transgendermilitary-ban-subject-to-strict-scrutiny.html.

8. Wilson-Buford, Kellie. "Policing Sex and Marriage, 1976–2000." In Policing Sex and Marriage in the American Military: The Court-Martial and the Construction of Gender and Sexual Deviance, 1950–2000, 201-34. Lincoln; London: University of Nebraska Press, 2018.

9. National Defense Research Institute. "The History of “Don’t Ask, Don’t Tell”."

In Sexual Orientation and U.S. Military Personnel Policy: An Update of RAND's 1993 Study, 39-68. RAND Corporation, 2010.

10. News Release, RAND Corp., Impact of Transgender Personnel on Readiness and Health Care Costs in the U.S. Military Likely to Be Small (June 30, 2016), https://www.rand.org/news/press/2016/06/30.html [https://perma.cc/DMZ8EXT5].

11. Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Tex. L. Rev. 71, 76 (2017). https://texaslawreview.org/wp-content/uploads/2017/11/Shaw.pdf 12. Transcript; Presenters Clifford Stanley; Major General Steven Hummer, U.S. Marine Corps; Virginia "Vee" Penrod and Jeh Johnson, July 22, 2011; Defense Department 51

13.

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Special Briefing from the Pentagon; Archives of the U.S. Department of Defense. http://archive.defense.gov/transcripts/transcript.aspx?transcriptid=4858 Clifford L. Stanley, Repeal of “Don’t ask, don’t tell,” Memorandum, September 20, 2011, Office of the Under Secretary of Defense. Archives of the Department of Defense, http://archive.defense.gov/home/features/2010/0610_dadt/USD-PRDADT_Repeal_Day_Memo_20Sep.pdf Raddatz, Martha. Interview with Chuck Hagel. "This Week with George Stephanopoulos," ABC News, Secretary of Defense Chuck Hagel: Military's Transgender Policy 'Continually Should Be Reviewed', May 11, 2014. https://abcnews.go.com/blogs/politics/2014/05/secretary-of-defense-chuck-hagelmilitarys-transgender-policy-continually-should-be-reviewed/ Sherman, Mark and Gresko, Jessica. "Trump Administration Seeks Quick Supreme Court Ruling on Transgender Military Ban." Time Magazine, November 24, 2018. http://time.com/5462519/trump-administration-supreme-court-transgender-peoplemilitary-service/ Biden, Joe. “Remarks by the Vice President and Dr. Biden to the Human Rights Campaign Los Angeles Dinner.” Obama White House Archives, Office of the Vice President. March, 23. 2014. https://obamawhitehouse.archives.gov/the-pressoffice/2014/03/23/remarks-vice-president-and-dr-biden-human-rights-campaign-losangeles-di Carter, Ash, "Department of Defense Press Briefing by Secretary Carter on Transgender Service Policies in the Pentagon Briefing Room” U.S. Department of Defense Archived Transcript No. NR-272-15. June 30, 2016. https://dod.defense.gov/News/NewsReleases/News-Release-View/Article/612778/ Carter, Ash. "Statement by Secretary of Defense Ash Carter on DOD Transgender Policy” Archived Transcript from U.S. Department of Defense News Release. July 13, 2015. https://dod.defense.gov/News/Transcripts/TranscriptView/Article/822347/department-of-defense-press-briefing-by-secretary-carter-ontransgender-service/ Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 5:55 AM) [hereinafter Tweet, https://twitter.com/realDonaldTrump/status/890193981585444864 [https://perma.cc/R7DP-DXVN].

Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:04 AM) https://twitter.com/realDonaldTrump/status/890196164313833472 [https://perma.cc/HB8H-XDZ6] Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 6:08 AM), https://twitter.com/realDonaldTrump/status/890197095151546369 [https://perma.cc/52YQ-DDN5].

Memorandum on Military Service by Transgender Individuals, 82 Fed. Reg. 41,319 (Aug. 25, 2017) https://www.whitehouse.gov/presidential-actions/presidential-memorandumsecretary-defense-secretary-homeland-security/ 52

23. Mattis, James, “Military Service by Transgender Individuals,” Memorandum for the President, February 22, 2018, Office of the Secretary of Defense. https://media.defense.gov/2018/Mar/23/2001894037/-1/-1/0/MILITARYSERVICE-BY-TRANSGENDER-INDIVIDUALS.PDF 24. Amy Howe, Government returns to Supreme Court on military transgender ban, SCOTUSblog (Dec. 13, 2018, 6:56 PM), http://www.scotusblog.com/2018/12/government-returns-to-supreme-court-onmilitary-transgender-ban/ 25. Cole, Devan, and Ariane De Vogue. "Justice Department Asks Supreme Court to Let Transgender Military Ban Take Effect." CNN, December 13, 2018. https://www.cnn.com/2018/12/13/politics/justice-department-scotustransgender/index.html 26. Karnoski et al v. Trump et al, No. 2:2017cv01297 - Document 233 (W.D. Wash. 2018). https://law.justia.com/cases/federal/districtcourts/washington/wawdce/2:2017cv01297/249424/233/ 27. “Trump v. Karnoski; Petition for a Writ of Certiorari Before Judgement,” November 7, 2018. https://www.supremecourt.gov/DocketPDF/18/18676/73010/20181123102318117_Trump%20v.%20Karnoski%20Pet..pdf

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American Citizens Made Alien Josephine Kim ’20 Congress passed the Alien Registration Act on June 29th, 1940 during a climate increasingly overrun by the “Red Scare.” Essentially, the Act made any behavior that supported or taught overthrow of U.S. government illegal. Moreover, it required all alien residents over the age of 14 to submit their personal political, occupational, and status information. While this legislation aimed to crush opposing political powers, it uprooted American citizens of Japanese heritage, and even non-related parties, such as Korean Americans. Notably, the Act was employed as a method of social control at the cost of violating citizens’ rights of free speech and citizenship. In this essay, I will explore the troublesome interpretation of Japanese identity and Korean Americans’ citizenship during Japanese colonialism.

Communism was regarded by the western society as mysterious and fearsome as the Black Plague. It could infect and spread to anyone with the slightest connection. Given that Japan was a Central Powers actor, anyone with Japanese heritage had their identity questioned, including American citizens. As explored by Coutin, the legality of the body is submitted to the interpretation the leading authority(1994). Indeed, the power of law has more or less become grounded in its authority to categorize and define someone or something. In this case, authorities unofficially agreed that possessing Japanese heritage was synonymous to being “alien.” The fear of communist connection was so powerful that even the officiality of American citizenship was written over. Even more problematically, people with Koreans heritages were also regarded as “aliens” because the Korean peninsula was occupied by the Japanese at the time.

The Alien Registration Act of 1940 was enacted to exercise power over potential threats.

This attitude of prevention poorly disguises the adoption of the “managerial model” seen in 54

power-sensitive systems of order (Kohler-Hausmann, 2014). Instead of locating guilt for specific crime and administering legal consequences, the “managerial model” prefers to mark and sort people into groups in order to better supervise their activities. Indeed, the vast majority of those sent to Japanese internment camps had not committed any crimes, yet were being corralled up to be watched as if they were criminals. Koreans likewise were to intended to be marked in this way. Fortunately, most Korean Americans evaded such sorting because they took to the streets to protest the alien registration (Kim, 2008).

In the early 20th century, Korean Americans not only organized anti-Japanese, “free Korea” social movements, but also contributed to the World War I and II effort. Some were quick to emphasize their differentiated identities as Koreans by volunteering to serve as Japanese translators (Kim, 2008). In light of their active socio-political participation in the U.S., their need to publicly protest to avoid the devastating consequences of the Alien Registration Act is profoundly troubling. Essentially, this performance of loyalty to the United States was the only thing that stood in the way of life and death. Korean Americans had to prove that they deserved protection. The exchange between law and society has always existed, but the experiences of Koreans proving their American loyalty vividly portrays this unstable relationship between rights and citizenship.

Although Koreans were no longer required to register as “alien status” by the national government, some were still impacted by local authorities. For example, the governor of Hawaii insisted that Koreans still would have to comply to the Act. Consequently, Koreans fled the island to the west coast of North America (Kim, 2008). There was a visible gap between “law in the books” and “law in practice”. Law is sometimes subjected to an individual’s interpretation to the extent of the idea behind it can be violated (Kairys, 1998). In other words, individual powers can be so valued in a democratic system that the powers of collective authority are disregarded.

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Kairys also extends this idea to the freedom of speech, which has evolved in definition over the history of the United States. He argues that Freedom of Speech is a core part of national identity, yet it is practically absolved the moment higher powers are threatened by this right, (1998). In the context of the “Red Scare” sentiment bubbling over, it was the silence of one’s belief that seen as dangerous to American democracy, rather than the expressed belief. Thus, a declaration for a comprehensive identification via the Alien Registration Act was legislated. Can the freedom of speech be reinterpreted to the freedom to speak or not to speak? Can the act of not disclosing information be interpreted as an alternative declaration of speech? Apparently, the Alien Registration Act of 1940 demonstrates that the right to silence was just as feared as the right to speak. Whether such an interpretation is acceptable or not, it is important to realize that the citizenship rights of Americans was not able to uphold its guarantees and offer protection from the unjust law.

Taken together, the Alien Registration Act of 1940 illustrates the controversy that exists behind questioning one’s identity alongside one’s fundamental rights, such as freedom of speech and citizenship. This is an unpleasant historical challenge democracies should be held accountable to. If it is believed that both freedom and diversity can be celebrated, then the distinction between order and social control must be made clearer. Furthermore, ideology should be acted upon by preventing the legislation of undemocratic law. What is at stake is the true meaning of a democracy. Did the democratic system not originally boast in open public debates and open ears? How can preservation of freedom overrun the very freedoms that come with birth rights and citizenship?

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Works Cited Babül, Elif M. “The Paradox of Protection: Human Rights, the Masculinist State, and the Moral Economy of Gratitude in Turkey.” American Ethnologist, vol. 42, no. 1, 2015, pp.

116–130.

Coutin, Susan. “Enacting Law Through Social Practice: Sanctuary as a Form of Resistance.”

Contested States: Law, Hegemony, and Resistance, edited by Mindie Lazarus-Black and Susan F Hirsh, Routledge, 1994, pp. 282–304.

Kairys, David. “Freedom of Speech.” The Politics of Law: a Progressive Critique, Basic Books, 1998, pp. 237–272.

Kim, Nadia Y. Imperial Citizens: Koreans and Race from Seoul to LA. Stanford University Press, 2008.

Kohler-Hausmann, Issa. “Managerial Justice and Mass Misdemeanors.” The Stanford Law Review 66, 2014, pp. 612-639, 653-662, 684-693.

Puloka, Deanne. “The Alien Registration Act of 1940.” McKendree.edu, 2009, www.mckendree.edu/academics/scholars/issue13/puloka.htm.

Simkin, John. “Alien Registration Act .” Spartacus Educational, Spartacus Educational, Aug. 2014, spartacus-educational.com/USAalien.htm.

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Legal Realism and the Effect of Experience: An Analysis of the Judicial Philosophy of Oliver Wendell Holmes, Jr. Angela Coco ’19 Introduction In more than twenty-nine years on the Supreme Court bench, Oliver Wendell Holmes, Jr., ruled on cases spanning the whole range of federal law. Holmes viewed law as a practical undertaking and was profoundly influenced by his experience fighting in the American Civil War. These life experiences helped Holmes move American legal thinking towards “Legal Realism,” as summed up in his maxim: "The life of the law has not been logic; it has been experience” (1).

This paper will elucidate legal realism, the judicial philosophy of Oliver Wendell Holmes, Jr., by exploring how Holmes interprets the law and Constitution through a realist lens. In order to discuss how Holmes frames his philosophy, this paper will begin with background. Part I of this paper explores Holmes biographically, covering his formative experience in the Civil War. Part II will explain what legal realism is and how it may have influenced Holmes’ decisions and written opinions. It will also explain how legal realism differs from several other judicial philosophies. In Part III, this essay will review four Supreme Court opinions (majority, concurring, and dissenting) written by Holmes in two main areas of law-- Civil Rights and Free Speech. My purpose in analyzing these opinions, among others, is to illustrate how Holmes’ judicial philosophy informed his moral, political, and jurisprudential outlook. In conclusion, this paper will find that Holmes’ experience in the Civil War led him to adopt legal realism, considering the natural “path” of law, the course of history, as well as “experience” in his judicial reasoning. This is why his decisions often fall on both sides of the political spectrum (liberal v. non-liberal).

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I. Biographical Oliver Wendell Holmes Jr. (1841-1935) was born in Boston, Massachusetts, to the prominent writer and physician Oliver Wendell Holmes, Sr. and abolitionist Amelia Lee Jackson.

During his senior year of college at Harvard in the spring of 1861, President Lincoln rallied volunteers following the firing on Fort Sumter. It was the beginning of the Civil War. Called to action, Holmes enlisted in the Massachusetts militia (the fourth battalion). He received a commission as first lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry.

Holmes took part in numerous campaigns and battles (2).

Between March and the end of August 1862, the Twentieth Regiment was involved in the Peninsula Campaign. This was a persistent but ultimately unsuccessful effort by the Army of the Potomac to march from the Tidewater area of Virginia, through low, swampy terrain, toward Richmond, the capital of the Confederacy, in the hope of capturing that city. Progress through the peninsula east of Richmond was painfully slow: Holmes’s regiment encountered mosquitoes, mud, dysentery, and periodic bloody fighting. After one battle Holmes wrote to his parents: “As you go through the woods you stumble constantly, and if after dark perhaps tread on the swollen bodies already fly blown and decaying, of men shot in the head, back, or bowels” (3).

Holmes had a rough time in the army, suffering wounds at the Battles of Antietam and Chancellorsville, and from a near-fatal case of dysentery. Additionally, in the Battle of Ball’s Bluff, Holmes narrowly escaped death. He was shot in the chest, the bullet narrowly missing his heart and lungs (4). After rising to the rank of Lieutenant Colonel, Holmes retired from the army in 1864.

Holmes’s experiences in the Civil War had a lasting influence on the rest of his life.

Twenty years later in a Memorial Day address, Holmes characterized his generation as having 59

“been set apart by its experience” in the war (5). Holmes took from his Civil War service a realization of the gap between his romantic conception of war and his actual experience as a soldier: “Through our great good fortune in our youth our hearts were touched with fire. We have seen with our own eyes the snowy heights of honor” (6). Nonetheless, in his later life, Holmes wrote essays glorifying the role of the soldier and suggesting that his generation was privileged to have had the opportunity to participate firsthand in the war (7).

The amount of time Holmes spent wounded or sick, recovering from injury or illness, or witnessing the sufferings, woundings, or deaths of friends and acquaintances would have a lasting impact on Holmes (8). This experience caused Holmes to spend many years of his life analyzing the war in retrospect. The relationship Holmes had with the Civil War informed his thought for the rest of his life (9).

In the fall of 1864, Holmes enrolled in Harvard Law School (10). He was admitted to the bar in 1866, and after a long visit to London, Holmes went into law practice at a small firm in Boston. Holmes later served as a Judge in the city. In 1872, Holmes married a childhood friend, Fanny Bowditch Dixwell. Their marriage lasted until her death on April 30, 1929. They never had children, though they adopted an orphaned cousin, Dorothy Upham (11).

Holmes practiced admiralty law and commercial law in Boston for fifteen years. It was during this time that he did his principal scholarly work, serving as an editor of the American Law Review, reporting decisions of state supreme courts, and preparing a new edition of Kent's Commentaries, which served practitioners as a compendium of case law (12). Holmes summarized his hard-won understanding in a series of lectures, collected and published as The Common Law in 1881. He served as Weld Professor of Law at his alma mater, Harvard Law School, until 1882, when he was appointed as an Associate Justice and as Chief Justice of the Massachusetts Supreme Judicial Court. He served on the court until 1889.

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II. Legal Realism Holmes explores and explains his judicial philosophy more precisely through his book, The Common Law (1881). In The Common Law, Holmes begins by rejecting various kinds of formalism in law (13). In the opening paragraphs of the book, he famously summarized his own view of the history of the common law: The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics (14).

Holmes believed that the only source of law was a judicial decision enforced by the state. The “true basis” of the decision was often an "inarticulate major premise” (15). A judge was obliged to choose between opposing legal arguments and the “true basis” of his decision was sometimes drawn from outside the law, when precedents were lacking or were evenly divided. In such a way, the common law evolves because civilized society evolves, and judges share the common preconceptions of the governing class. These views endeared Holmes to the later advocates of legal realism, and made him one of the early founders of this type of jurisprudence.

Along the same vein, Holmes's famous essay "The Path of the Law" in the Harvard Law Review (1897) attacks formalist approaches to judicial decision making and states a pragmatic definition of law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (16). If law is prophecy, Holmes continues, one must reject the view of "text writers" who explain that law "is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not 61

coincide with the decisions” (17). The purpose of the law, Holmes insisted, was the deterrence of undesirable social consequences: "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage” (18).

Radically, Holmes’s efforts to debunk the philosopher’s quest for “absolute” truth or the jurist’s for “natural law” lead him to suggest that the morality of even the greatest human struggles depends entirely on the outcome: I used to say, when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the. . .

[First World] war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct in so far as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view (18).

This account of natural law paints it as nothing more than a dominant opinion. Holmes thereby lays the foundation for a judicial seeking-out and support of such dominant opinions, and, concomitantly, judicial adversity toward “weaker” opinions or entities that appear not to support the strength and growth of the social organism (19).

Following this mindset, Holmes’ experience in the Civil War influenced the way he looked at the law more than just emotionally, but also logistically. Before the Civil War, adjudication as a form of social engineering was a conception widely shared among American judges, though it had fallen out of favor in the late nineteenth century. One of the aspirations of both Holmes and the realists was to revive it (20).

Legal Realism is different from other judicial philosophies such as judicial activism, legal formalism, and pragmatism because of their disparate core tenants. For example, pragmatism considers words and thought as tools and instruments for prediction, problem solving and action, and rejects the idea that the function of thought is to describe, represent, or mirror reality. Pragmatists contend that most philosophical topics—such as the nature of knowledge, 62

language, concepts, meaning, belief, and science—are all best viewed in terms of their practical uses and successes. It also focuses on a "changing universe rather than an unchanging one as the Idealists, Realists and Thomists had claimed� (21). On the other hand, Judicial activism refers to judicial rulings that are based on personal opinion, rather than on existing law, the antonym of judicial restraint (22). These are not the same as the realism that Holmes posits, he simply suffices to say that our lived experiences inform the way one reads and interprets the constitution and legal rulings.

Legal realism was primarily a reaction to the legal formalism of the late 19th century and early 20th century, and was the dominant approach for much of the early 20th century. Legal realists believe that there is more to adjudication than the mechanical application of known legal principles to uncontroversial fact-finding as legal formalism believes (23). Some legal realists believe that one can never be sure that the facts and law identified in the judge's reasons were the actual reasons for the judgment, whereas other legal realists accept that a judge's reasons can often be relied upon, but not all of the time. Realists believe that the legal principles that legal formalism treat as uncontroversial actually hide contentious political and moral choices (24).

Though many aspects of legal realism are seen today as exaggerated or outdated, most legal theorists would agree that the realists were successful in their central ambition: to refute "formalist" or "mechanical" notions of law and legal reasoning. It is widely accepted today that law is not, and cannot be, an exact science, and that it is important to examine what judges are actually doing in deciding cases, not merely what they say they are doing (25). As ongoing debates about judicial activism and judicial restraint attest, legal scholars continue to disagree about when, if ever, it is legitimate for judges to "make law," as opposed to merely "following" or "applying" existing law. But few would disagree with the realists' core claim that judges are

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often strongly influenced by their political beliefs, their personal values, their individual personalities, and other extra-legal factors (26).

III. Supreme Court Opinions On August 11, 1902, President Theodore Roosevelt nominated Holmes to the seat on the United States Supreme Court vacated by Justice Horace Gray, who retired in July 1902.

Holmes was unanimously confirmed by the United States Senate on December 4, receiving his commission the same day. He served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932 (27). It was in this role that Holmes’ legal realism truly came into the limelight.

The core of Holmes’s legal realism was pragmatism, along with a confidence in the progress of history. These ideals were brought into relief by examining the notion that courts must interpret and balance rights. The importance of this weighted judicial balancing is nowhere more evident than in Holmes’s free speech jurisprudence (28).

Schenck v. United States (1919) was a landmark United States Supreme Court case concerning enforcement of the Espionage Act of 1917 during World War I (29). A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that defendants who distributed fliers to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense (30).

In this opinion, Holmes wrote that expressions that were intended to result in a crime, and posed a "clear and present danger" of succeeding, could be punished (31). Prior to the articulation of this doctrine, the content of speech was considered of vital constitutional importance. The opinion's most famous passage is still often quoted:

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The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree (32).

The phrase "shouting fire in a crowded theater" has since become a popular metaphor for dangers or limitations of free speech (33).

However, in Abrams vs. United States (1919), mere months after Schenck v. United States (1919), a majority of the Court upheld the convictions of anti-government, anti-war radicals who advocated violence (34). Holmes dissented on the basis of his clear and present danger test. According to Holmes, free speech fosters a free trade of ideas, and the test of “truth” is its ability to get accepted in the marketplace of ideas, which will happen when the market assesses its needs. Holmes's passionate, indignant opinion is often quoted: Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition...But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas... . The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out (35).

Holmes elaborated on the common-law privileges for freedom of speech and of the press, and stated his conviction that freedom of opinion was central to the constitutional scheme because competition in the "marketplace" of ideas was the best test of their truth (36).

The "marketplace of ideas” concept remains a current and controversial issue concerning American civil liberties today. Jonathan Rauch explores the reason why Americans must protect hateful, silly, or seemingly worthless speech in his book, Kindly Inquisitors: The New Attacks on Free Thought (2013). If Americans are to have a system that provides the best test of truth, all speech must be free. Some expression contributes to the “marketplace of ideas,” in this way, by 65

serving primarily as a bad moral example (37). Rauch believes that, in the long run, anti-hate speech laws actually do a disservice to the marketplace of ideas, rather than preserve it (38).

For Holmes, rights are willed by the dominant forces of an age and community.

Whatever prevails is right, and therefore all political developments are good until they are no longer in popular. Judges themselves, as well as legislators, must reflect the dominant forces in history. Holmes was often willing to show great deference to legislative judgments as the sovereign expressions of popular will. In Lochner v. New York (1905), Holmes dissented (on the grounds of constitutional neutrality) from a majority that held that state economic regulations limiting work hours were unconstitutional (39). He famously claimed: I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law… I think the word liberty in the 14th amendment is perverted when it is held to prevent the natural outcome of a dominant opinion… (40) But this modest conception of the judicial function in a democracy was not Holmes’s final word. Holmes’s jurisprudence suggests that the Supreme Court is to intervene where the legislative branch limits free speech, but not when it limits economic freedom. For Holmes, survival or progress might require activism or restraint, and reliance on either is purely an instrumental—or experimental—question. However, Because of Holmes’ legislative deference, he was progressive in this historical sense, rather than in individual judgments. In this way, Holmes favored “repressive law” in some cases and “progressive law” in others (41).

Racial improvement through eugenics was one outgrowth of early twentieth century progressivism, possessing as it did considerable faith in the ability of science and purportedly scientific administration to solve social problems (42). In one of his most notorious judgments, Holmes wrote the eight-to-one majority opinion in Buck v. Bell that upheld a Virginia compulsory sterilization law (43). Holmes upheld the law on the grounds that those targeted by 66

the law were treated with scrupulous procedural fairness. Decrying those who “sap the strength” of society, and contending, in reference to the affected litigant and her family, that “three generations of imbeciles are enough,” Holmes accepted the eugenic arguments to the point of endorsing them on grounds of public policy (44). Holmes reasoned by analogy, comparing the hardships of sterilization with the sacrifices of soldiers in battle. Referring to the Civil War, he argued that if “the public welfare may call upon the best citizens for their lives,” surely those who “sap the strength of the state” could be called upon for a lesser sacrifice (45).

In his rejection of natural law and natural rights, and with it a liberal constitutionalism of limited state power, Holmes laid the groundwork for the contemporary era of jurisprudence, where judges came to look to their visions of the future more than to documents and doctrines of the past, and thus to take on a new and far more active role in the constitutional order. This conflict between liberal and non-liberal, progressive and regressive decisions are perhaps most clearly shown through Holmes’ Civil Rights decisions.

In Bailey v. Alabama (1911) a black farm laborer named Alonzo Bailey was contracted to work for a year at the rate of $12.00 a month (46). He received an advance of $15.00, which he was to repay by deductions of $1.25 from his monthly pay. Alabama passed a statute in 1903 that provided that breach of a contract “shall be prima facie evidence of the intent to injure or defraud [one’s] employer,” and such intent was itself evidence of a criminal offense (47).

Bailey left his employment after a month without repaying the advance, and was arrested, tried, and convicted for a criminal offense under the Alabama statute. Bailey challenged the constitutionality of the statute in light of the Thirteenth Amendment, and the case was appealed to the Supreme Court of the United States. Counsel for Bailey and an amicus brief for the United States argued that the statute was designed to enslave blacks, since they were habitually required to accept advances in order to repay existing debts or to avoid incarceration for petty 67

crimes. The amicus brief pointed out: “It is common knowledge that Alabama is chiefly an agricultural state and that the majority of laborers upon the farms and plantations are negroes” (48).

The 5-2 majority opinion in Bailey, written by Justice Charles Evans Hughes, avoided the racial implications of the statute, declaring that “we may view the legislation in the same manner as if it had been enacted in New York or Idaho” (49). Hughes concluded that the statute made a breach of a labor contract prima facie evidence of fraud and permitted juries to convict on that evidence alone. This meant that the statute’s “natural operation and effect” was to punish simple breaches of contract, and as such a person who terminated his employment without repaying an advance on a labor contract “stood stripped by the statute of the presumption of innocence, and exposed to conviction for fraud upon evidence only of breach of contract and failure to pay” (50). This was inconsistent with the Thirteenth Amendment, whose purpose was “to render impossible any state of bondage” and “to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit” (51).

Holmes dissented in an opinion that was remarkable in its assumptions about the practice of farm labor contracts and the role of early twentieth-century juries in southern states where blacks were defendants. He stated in The Common Law that contracts could not be regarded as a form of “limited slavery” because a party could breach the contract and paying damages, “If, when a man promised to labor for another, the law made him do it, his relation to his promise might be called a servitude ad hoc with some truth. But this is what the law never does” (51).

However, the presumption of criminal intent in the Alabama statute, along with the inability of black laborers to repay their advances, had the effect of slavery. Holmes conceded that “the liability to imprisonment may work as a motive when a fine without it would not, and 68

that it may induce the laborer to keep on when he would like to leave.” But Holmes maintained that “if it is a perfectly fair and proper contract, I can see no reason why the State should not throw its weight on the side of performance” (52). Holmes did not think a discussion statute’s was necessary. Instead, Holmes believed that the statute did not attach criminal liability for a mere breach of contract: “Is it not evidence, that a man has a fraudulent intent if he receives an advance upon a contract over night and leaves in the morning?” (53).

Holmes felt that juries, through “their experience as men of the world,” could draw inferences from the events of the breach (54). They might conclude, for example: “…that in certain conditions it is so common for laborers to remain during a part of the season, receiving advances, and then to depart at the period of need in the hope of greater wages at a neighboring plantation, that when a laborer follows that course there is a fair inference of fact that he intended it from the beginning” (55). Nor was it relevant to Holmes that Alabama also had a rule of evidence that barred persons charged with fraud from testifying as to their intent: “If there is an excuse for breaking the contract, it will be found in external circumstances, and can be proved” (56).

Holmes was uncharacteristically formalistic in the Bailey dissent, emphasizing formal distinctions. He was also uncharacteristically trusting of juries, suggesting that jurors carefully sifted evidence before presuming fraud from the fact of a contract’s having been broken, a suggestion that did not square with his often expressed skepticism about the impartiality of juries (57). In addition, he pointed out that “Neither public document nor evidence discloses a law which by its administration is made something different from what it appears on its face, and therefore the fact that in Alabama it mainly concerns the blacks does not matter” (58). This language suggested that he was acting as if the statute had been drafted to apply to all contracts

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and that the peculiar circumstances of black labor in Alabama played no part in its inception or its application (59).

This reasoning is explained by Holmes’ judicial philosophy and his emphasis on the natural law and natural rights traditions. For Holmes, law and society are always in flux, and courts adjudicate with an eye to law’s practical effects. Morality has nothing to do with law; it amounts to little more than a state of mind (60). When it came to this Alabama statute, which is clearly a continuation of slave principles, Holmes is looking at it from a legal, pragmatic point of view- rather than morally. In that way, his dissent is actually in keeping with Hughes’ color-blind majority opinion. Holmes’ realist philosophy is further supported by his treatment of United States v. Reynolds (1914) (60).

The Reynolds case involved a practice that was the logical extension of the peonage practices invalidated in Bailey, the criminal-surety arrangement. In the early 20th century, Alabama and Georgia had statutes that permitted persons convicted of minor offenses, and ordered to pay fines, to enter into agreements with sureties by which the surety paid the fine and the convicted person agreed to work a given amount of time for the surety. If the convicted person failed to perform the work, he would be convicted and fined again, in an amount equivalent to the original damages paid by the surety (61).

One person victimized by the criminal-surety system was Ed Rivers. Rivers pleaded guilty to petit larceny and was assessed $58.75 in fines and costs. However, Rivers had no money and was consequently entered into a criminal surety agreement with J. A. Reynolds, for whom he agreed to work for over nine months to pay his fine. When Rivers did not come to work, he was arrested and convicted of failing to honor the contract. Rivers was fined again, and this time his fine was paid by another surety, who hired him for a longer time at a lower rate. The Justice

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Department initiated prosecutions against Reynolds and the other surety and eventually worked their way up to the Supreme Court of the United States (62).

A unanimous Court held that the criminal surety statutes could not constitutionally be made the basis for indictments in cases such as that of Ed Rivers. Holmes joined the majority but added a concurring paragraph spelling out his reasons: … there seems to me nothing in the Thirteenth Amendment or the Revised Statutes that prevents a State from making a breach of contract, as well as a reasonable contract for labor as for other matters, a crime and punishing it as such. But impulsive people with little intelligence or foresight may be expected to lay hold of anything that affords a relief from present pain even though it will cause greater trouble by and by. The successive contracts, each for a longer term than the last, are the inevitable, and must have taken to have been the contemplated outcome of the Alabama laws. On this ground I am inclined to agree that the statutes in question disclose the attempt to maintain service that the Revised Statutes forbid (63).

As Holmes put, the legislature could make “the purchase of the necessaries of life easier by giving special remedies against those who willfully try to avoid paying for them” (64).

In Bailey, Holmes emphasized the fact that the statutes making breach of a labor contract a crime were not race conscious, and that white juries in Alabama would carefully weigh evidence to determine whether black violators of labor contracts had an intent to defraud their employers (65). Holmes agreed with Hughes that the Bailey case was to be treated as if it had occurred in Idaho or New York, and the fact that the labor contract system mainly affected blacks was irrelevant. In Reynolds, however, Holmes began his analysis by reaffirming the principle that a state could make breaches of contracts, including labor contracts, crimes (66).

The problem with the criminal surety practice in Alabama, then, was not that black laborers were fined for violating their contracts. It was that “impulsive people with little intelligence or foresight may be expected to lay hold of anything that affords a relief from present pain.” It was, in short, that onerous surety arrangements would be “the inevitable … outcome” of the criminal

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surety statutes, since the “impulsive” black laborers involved would invariably choose immediate relief from their fines by entering into additional surety arrangements (67).

The motive of the Alabama legislature in passing such statutes, Holmes was suggesting, was thus “to maintain [compulsory] service,” or peonage. The legislators knew that the laborers participating in surety contracts would overwhelmingly be black (68). The legislation was thus race conscious. While Holmes thought that making breaches of contract crimes in the ordinary case (Bailey) was appropriate, since reasonable men knew the consequences of their actions, he thought that adding an “escape” from the ordinary consequences of the state’s having criminalized breaches of labor contracts—incarceration and forced labor on a state chain gang— was inappropriate because black laborers would inevitably accept that escape, through the surety system, and bind themselves to perpetual service by entering into onerous surety arrangements (69).

It was permissible, Holmes felt, for a state to criminalize breaches of labor contracts, even when black laborers were involved, but not permissible for states to take advantage of the laborers by allowing others to stand surety for them. In this case, the Bailey-Reynolds sequence actually shows Holmes’ positivist side in tension with his legal realist interest in in exposing the practical consequences of legal rules (70). His disinclination to recognize limitations on the sovereign capacity of the state was behind his conclusion in Bailey, which explains that states could make breaches of contracts crimes, just as states could imprison persons for debt (71).

Conclusion Holmes has a place in Legal Realist theory in part because of his famous prediction theory of law, his utilitarian approach to legal reasoning, and his insistence that judges are influenced by ideas of fairness, public policy, and other personal and conventional values.

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Holmes placed his opinions into his judicial philosophy and gave deference to the decisions of elected legislatures. He was both liberal and pragmatic.

Because Holmes viewed the natural “path” of law and “experience” as main components of his judicial reasoning, his decisions could fall liberal or non-liberal. This curious dichotomy created a tension, especially between those who considered him a “progressive” judge.

Famously, President Roosevelt was often frustrated with Holmes for making “regressive” decisions that he did not agree with, despite appointing him on the assumption that Holmes would be more progressive (72). Holmes’ judicial philosophy fell almost entirely outside the traditional confines of conservative/liberal.

Additionally, Holmes espoused a form of moral skepticism and opposed the doctrine of natural law, marking a significant shift in American jurisprudence. In one of his most famous opinions, his dissent in Abrams v. United States (1919), he regarded the United States Constitution as "an experiment, as all life is an experiment" and believed that as a consequence "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death” (73).

Holmes’ jurisprudence influenced American legal thinking today and continues to be relevant. He influenced judicial consensus supporting New Deal regulatory law, influential schools of pragmatism, critical legal studies, as well as law and economics. He was one of only a handful of justices to be known as a scholar: The Journal of Legal Studies has identified Holmes as the third-most cited American legal scholar of the 20th century (74). Holmes’ experience in the Civil War led him to adapt a legal realist approach, which broadly informed his moral, political, and jurisprudential outlook. As a result, precedent in the United States continues to live in the shadow of his short, pithy, and prescient opinions.

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Cases Abrams v. United States, 250 U.S. 616 (1919).

Bailey v. Alabama, 219 U.S. 219 (1911).

Buck v. Bell, 274 U.S. 200 (1927).

Lochner v. New York, 198 U.S. 45 (1905).

Schenck v. United States, 249 U.S. 47 (1919).

United States v. Reynolds, 235 U.S. 133 (1914).

Works Cited 1.

Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown and Company, 1881).

2.

G. Edward White, Oliver Wendell Holmes, Jr. (New York: Oxford University Press, 1997), 20.

3.

Oliver Wendell Holmes Jr. to Dr. and Mrs. Oliver Wendell Holmes Sr., June 2, 1862.; Mark DeWolfe Howe, Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 186164 (Cambridge, Mass.: Harvard University Press, 1946), 48-52.

4.

White, Oliver Wendell Holmes Jr., 18.

5.

Oliver Wendell Holmes Jr., “Memorial Day,” address delivered on May 30, 1884.; Mark DeWolfe Howe, The Occasional Speeches of Justice Oliver Wendell Holmes (Cambridge, Mass.: Harvard University Press, 1962), 4.; White, Oliver Wendell Holmes Jr., 19.

6.

Oliver Wendell Holmes Jr., “Memorial Day,” address delivered on May 30, 1884.; Howe, The Occasional Speeches of Justice Oliver Wendell Holmes, 4.; White, Oliver Wendell Holmes Jr., 19.

7.

Howe, The Occasional Speeches of Justice Oliver Wendell Holmes, 4.; White, Oliver Wendell Holmes Jr., 23

8.

Louis Menand, ed., Pragmatism: A Reader (New York: Vintage Books, 1997), xxix.

9.

White, Justice Oliver Wendell Holmes: Law and the Inner Self, 58-62.

10. Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Little Brown & Co.; 2013), 96.

11. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford University Press, 1995), 225.

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12. At this time official reports were scarce and difficult to obtain.; White, Oliver Wendell Holmes Jr., 23-35.

13. Novick, Honorable Justice: The Life of Oliver Wendell Holmes, 207-220.

14. Holmes, Jr., The Common Law. 15. Albert M. Kales,"‘Due Process,’ the Inarticulate Major Premise and the Adamson Act." The Yale Law Journal 26, no. 7 (1917): 519-49. doi:10.2307/787247.

16. Oliver Wendell Holmes, Jr., "The Path of the Law," 10 Harvard Law Review 457 (1897).

17. Holmes, Jr., "The Path of the Law," 10 Harvard Law Review 457 (1897).

18. Holmes, Jr., "The Path of the Law," 10 Harvard Law Review 457 (1897).; William W. Fisher III, Morton J. Horwitz, Thomas A. Reed, eds., American Legal Realism (New York: Oxford University Press, 1993), 3.

19. Oliver Wendell Holmes, “Natural Law” (1918).; Bradley Watson, “The Curious Constitution of Oliver Wendell Holmes Jr.,” National Review, December 16, 2009. https://www.nationalreview.com/magazine/2009/12/31/curious-constitution-oliverwendell-holmes-jr/.

20. Bradley C. S. Watson, “Oliver Wendell Holmes and the Natural Law,” Natural Law, Natural Rights, and American Constitutionalism (The Witherspoon Institute, 2011), 2. http://www.nlnrac.org/critics/oliver-wendell-holmes.

21. Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 193.

22. Gerald Gutek, Philosophical, Ideological, and Theoretical Perspectives On Education (New Jersey: Pearson, 2014), 76, 100.

23. Kermit Roosevelt, “Judicial activism,” Encyclopædia Britannica (January 21, 2019). https://www.britannica.com/topic/judicial-activism.

24. Brian Leiter, "American Legal Realism," The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 2005), 50.

25. Brian Leiter, "American Legal Realism," The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 2005), 50.

26. Leiter, "American Legal Realism,” 60.

27. Leiter, "American Legal Realism,” 60-65.

28. White, Oliver Wendell Holmes, Jr., 1-4.

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29. Gary Jan Aichele, “Oliver Wendell Holmes, Jr.--Soldier, Scholar, Judge,” Twayne’s TwentiethCentury American Biography Series, no. 11 (Boston: Twayne Publishers, 1989).

30. Schenck v. United States, 249 U.S. 47 (1919).

31. The First Amendment did not alter the well-established law in cases where the attempt was made through expressions that would be protected in other circumstances.; "Schenck v.

United States." Oyez. Accessed April 29, 2019. https://www.oyez.org/cases/19001940/249us47.

32. Oliver Wendell Holmes, "Schenck v. United States 249 U.S. 47". Opinion. Legal Information Institute.

33. Holmes, "Schenck v. United States 249 U.S. 47". Opinion.

34. Holmes, "Schenck v. United States 249 U.S. 47". Opinion.

35. Abrams v. United States, 250 U.S. 616 (1919).

36. Oliver Wendell Holmes, Jr., Abrams v. United States, 250 U.S. 616 (1919). Dissent.; Urofsky, Melvin I., and Paul Finkelman, "Abrams v. United States (1919)." Documents of American Constitutional and Legal History, third ed. (New York: Oxford University Press, 2008), 666–667.

37. Holmes, Jr., Abrams v. United States, 250 U.S. 616 (1919). Dissent.

38. Jonathan Rauch, Kindly Inquisitors: The New Attacks on Free Thought (The University of Chicago Press, 2013), 141-143.

39. Rauch, Kindly Inquisitors, 145-150.

40. Lochner v. New York, 198 U.S. 45 (1905).

41. Oliver Wendell Holmes, "Lochner v. New York, 198 U.S. 45". Dissent. Legal Information Institute.

42. Watson, “Oliver Wendell Holmes and the Natural Law,” 2.

43. Bradley C. S. Watson, “Oliver Wendell Holmes and the Rise of Legal Realism,” Progressive Challenges to the American Constitution: A New Republic (Cambridge University Press, 2017), 273.

44. Buck v. Bell, 274 U.S. 200 (1927).

45. Oliver Wendell Holmes, "Buck v. Bell, 274 U.S. 200". Opinion. Legal Information Institute.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

46. Holmes, "Buck v. Bell, 274 U.S. 200". Opinion.

47. "Bailey v. Alabama." Oyez. Accessed April 29, 2019. https://www.oyez.org/cases/19001940/219us219.

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48. Bailey v. Alabama, 219 U.S. 219 (1911).; Full Alabama statute (code 1907) as quoted in Holmes’ dissent: “6845.-Any person who, with intent to injure or defraud his employer, enters into a contract in writing for the performance of any act or service, and thereby obtains money or other personal property from such employer, and with like intent, and without just cause, and without refunding such money or paying for such property, refuses or fails to perform such act or service, must, on conviction, be punished by a fine in double the damage suffered by the injured party, but not more than $300, one half of said fine to go to the county and one half to the party injured; and any person who, with intent to injure or defraud his landlord, enters into any contract in writing for the rent of land, and thereby obtains any money or other personal property from such landlord, and with like intent, without just cause, and without refunding such money or paying for such property, refuses or fails to cultivate such land, or to comply with his contract relative thereto, must, on conviction, be punished by a fine in double the damage suffered by the injured party, but not more than $300, one half of said fine to go to the county and one half to the party injured.

And the refusal of any person who enters into such contract to perform such act or service, or to cultivate such lands, or refund such money, or pay for such property, without just cause, shall be prima facie evidence of the intent to injure his employer or landlord, or to defraud him.”; Oliver Wendell Holmes, "Bailey v. Alabama, 219 U.S. 219". Dissent.

49. Brief for United States as Amicus Curiae, 10, quoted in Alexander Bickel and Benno Schmidt, Holmes Devise History: The Judiciary and Responsible Government, 1910– 1921 (Cambridge University Press, 2007), 862.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

50. Charles Evans Hughes, "Bailey v. Alabama, 219 U.S. 219". Opinion. Legal Information Institute.

51. Hughes, "Bailey v. Alabama, 219 U.S. 219". Opinion.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

52. Bailey v. Alabama, 219 U.S. 219 (1911), 240-2.

53. Holmes, Jr. The Common Law (1881).; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

54. Bailey v. Alabama, 219 U.S. 219 (1911), 247.; Holmes, "Bailey v. Alabama, 219 U.S. 219".

Dissent.

55. Bailey v. Alabama, 219 U.S. 219 (1911), 247.; Holmes, "Bailey v. Alabama, 219 U.S. 219".

Dissent.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

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56. Bailey v. Alabama, 219 U.S. 219 (1911), 247.; Holmes, "Bailey v. Alabama, 219 U.S. 219".

Dissent.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

57. Bailey v. Alabama, 219 U.S. 219 (1911), 248-9.; Holmes, "Bailey v. Alabama, 219 U.S. 219".

Dissent.

58. Bailey v. Alabama, 219 U.S. 219 (1911), 248-9.; Holmes, "Bailey v. Alabama, 219 U.S. 219".

Dissent.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

59. Holmes said in Bailey that: “I take it that a fair jury would acquit if the only evidence were a departure after 11 months’ work and if it received no color from some special wellknown course of events.” Bailey v. Alabama, 219 U.S. 219 (1911), 242.; Holmes, "Bailey v. Alabama, 219 U.S. 219". Dissent.; In 1897 he had written Georgina Pollock that “I think there is a growing disbelief in the jury as an instrument for truth, the use of it is to let a little popular prejudice into the administration of law (in violation of their oath).” Holmes to Lady Pollock, April 11, 1897.; Holmes, J., O.W. Holmes, F. Pollock, and M. De Wolfe Howe.

Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 18741932. v. 1-2. (Belknap Press of Harvard University Press, 1961), I, 74.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 336.

60. Bailey v. Alabama, 219 U.S. 219 (1911), 245-6.; Holmes, "Bailey v. Alabama, 219 U.S. 219".

Dissent.

61. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 337.

62. Watson, “Oliver Wendell Holmes and the Natural Law,” 1.

63. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 338-9.; United States v. Reynolds, 235 U.S. 133 (1914).

64. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 338-9.

65. Oliver Wendell Holmes, "United States v. Reynolds, 235 U.S. 133 (1914)". Concurring.; White, Justice Oliver Wendell Holmes: Law and the Inner Self, 338-9.

66. Holmes, "United States v. Reynolds, 235 U.S. 133 (1914)". Concurring.; United States v. Reynolds, 235 U.S. 133 (1914), 150.

67. United States v. Reynolds, 235 U.S. 133 (1914), 150.

68. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 338-9.

69. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 338-9.

70. Holmes, "United States v. Reynolds, 235 U.S. 133 (1914)". Concurring.; United States v. Reynolds, 235 U.S. 133 (1914), 150.

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71. Holmes, "United States v. Reynolds, 235 U.S. 133 (1914)". Concurring.; United States v. Reynolds, 235 U.S. 133 (1914), 150.

72. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 339.

73. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 340.

74. White, Justice Oliver Wendell Holmes: Law and the Inner Self, 340.

75. R. H. Wagner, “A Falling Out: The Relationship Between Oliver Wendell Holmes and Theodore Roosevelt.” Journal of Supreme Court History, 27 (2002): 114-137. doi:10.1111/15405818.00039.

76. Abrams v. United States, 250 U.S. 616, 630 (1919).

77. Fred R. Shapiro, "The Most-Cited Legal Scholars". Journal of Legal Studies. 29 (1) (2000): 409– 426. doi:10.1086/468080.

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