The Columbia Undergraduate Law Review (CULR) is Columbia University's premier undergraduate legal publication. CULR publishes long-form pieces by undergraduate students from across the globe in its print journal as well as original pieces by Columbia and Barnard undergraduates in its online journal and its roundtable, current events, and podcasting initiatives.
The goal of CULR is to provide Columbia University and the public with opportunities for the discussion of law-related ideas and the publication of undergraduate legal scholarship.
Latest Print Journal
Volume XX Issue II: Spring 2024
Featured Articles from our Online Division
The 2021 Northwest heat dome, a record-breaking weather event with temperatures reaching up to 120°F, resulted in over 650 deaths and hundreds of heat-related illnesses in the United States and Canada. Hitting the Pacific Northwest from late June to early July, the heat dome also had catastrophic effects on infrastructure, agriculture, wildlife, and flora. In response to the crisis, Multnomah County of Oregon sued seventeen fossil fuel companies, including ExxonMobil, Shell, BP, and Chevron in the Oregon Circuit Court. The county alleged that the defendants “rapaciously [sold] fossil fuel products and deceptively promote[d] them as harmless to the environment” even though they knew that their products would emit carbon pollution into the atmosphere and “would likely cause deadly extreme heat events like that which devastated Multnomah County.”
On November 11, 2021, North Dakota adopted new state legislative boundaries, completing its decennial redistricting cycle. While the map was largely uncontroversial, three districts drew intense scrutiny for their indigenous population compositions. A few months later, a coalition of tribes and Native American residents filed suit in the federal District Court of North Dakota, contending that the new boundaries diluted their collective voting power. In the ensuing case, which became known as Turtle Mountain Band of Chippewa Indians v Howe, the state vehemently rejected these accusations, offering myriad explanations in defense of their new lines. Most prominently, North Dakota argued that the coalition’s desire for another majority-minority seat would exceed the requirements imposed by the Supreme Court’s Thornburg v Gingles decision, which grants racial minorities certain protections in the redistricting process. In November 2023, Chief Judge Peter Welte comprehensively refuted this assertion, holding that the state’s legislative maps discriminated against two tribes. In its opinion, the District Court addressed how North Dakota failed to properly apply the Supreme Court’s precedent, noting how the legislature prevented “Native American voters from having an equal opportunity to elect candidates of their choice.” While many may interpret this decision as a straightforward application of Gingles, the ruling implicitly undermined future attempts to dilute indigenous voting strength. By emphasizing how geography, low turnout rates, and discrimination impact indigenous voters, the court demonstrated how tribal nations are entitled to districts that better accentuate their political concerns.
On June 27, 2023, The United States Supreme Court ruled to expand and reinforce state authority over registered corporations within a state’s respective jurisdiction. Per Mallory v. Norfolk Southern Railway Co. (2023), even if a lawsuit pertains to events occurring outside the state in which a corporation primarily operates, a corporation may be sued in said different state. As an attempt to determine the constitutionality of Pennsylvania state law under the Fourteenth Amendment’s Due Process Clause, the case’s ruling concerns Pennsylvania’s contested Consent-by-Registration law. Consent by registration requires that corporations must agree to be sued in the state in which they are conducting business, prior to beginning operations. Thus, as was the case for Norfolk Southern Railway Co., even just as much as a railway built going through any territory in the state would obligate the firm to appear in the state’s court.
In a time marked by a rapidly changing sociopolitical landscape, the concept of “evolving standards of decency” has become increasingly pertinent, serving as a cornerstone for evaluating what is considered to be “cruel and unusual punishment” as noted in the United States Constitution. Among these practices, few are as contentious and deeply ingrained in the American legal system as the issue of capital punishment. By examining the historical context and legal precedence of capital punishment as well as its relevance today, it is asserted that, despite the Supreme Court's ruling in Gregg v. Georgia (1976), which upheld the constitutionality of the death penalty when used carefully and judiciously, abrogating Furman v. Georgia (1972), the evolving standards of decency render the application of capital punishment to be unconstitutional.
On June 30th, 2023, for the first time, the Supreme Court essentially ruled that it is acceptable for people and businesses to discriminate against same-sex couples. Through their decision in 303 Creative LLC v. Elenis, the Court explored the intersections between anti-discrimination law in public accommodations and the Free Speech Clause of the First Amendment – and ultimately prioritized free speech. 303 Creative LLC v. Elenis infringes on civil rights laws using the First Amendment by potentially encouraging discrimination against LGBTQI+ Americans and weakening laws that have protected all Americans from discrimination.
President Biden has made antitrust enforcement a chief priority of his economic policy, dubbed “Bidenomics.” Signing Executive Order 14036, better known as “The Executive Order on Promoting Competition in the American Economy,” President Biden has directed the Federal Trade Commission (FTC) and the Department of Justice (DOJ) to take action towards reining in anti-competitive practices. This Executive Order (EO) includes more than 72 initiatives for multiple federal agencies, in what the Biden Administration hopes will “tackle some of the most pressing competition problems across our economy.” As a direct result of this EO, the DOJ’s Antitrust Division filed a Section 2 Sherman Antitrust Act offense (the actions a company takes to attain or keep monopoly power) against Google for allegedly “monopolizing multiple digital advertising technology products.” This is the first time in over twenty years that the DOJ has brought a Section 2 Violation of the Sherman Act. While the Biden Administration, DOJ, and FTC may be focused on curbing anti-competitive conduct in the technology sector, they may have overlooked a key yet recent contributor to monopolistic practices: the education sector, more specifically, the education testing non-profit: The College Board.
Since the Reagan era, inequality across the United States has reached an all-time high, with clashes over the issue increasingly erupting into the forefront. Over the past few years, however, various attempts to mitigate and even alleviate these economic inequalities have been unsuccessful. One of the main proposals to alleviate economic inequality has been the addition of a wealth tax. A wealth tax is distinct from other taxes such as capital gains taxes and federal income taxes because it seeks to tax unrealized income, meaning that it seeks to tax gains in wealth that aren’t realized from the sale of capital.
Affirmative action policy in higher education has been the center of extensive debates, drawing in both passionate advocates and critics who significantly influence discussions on college admissions policies. Consider a scenario where two equally-qualified students, distinguished by their racial background, compete for a coveted spot in a prestigious university. While one might assume that this situation leads to a fair evaluation of both individuals, affirmative action introduces a unique dimension by providing an advantage to a student from a marginalized community. This fact sparks controversy, raising questions about whether affirmative action effectively achieves its intended goals of promoting diversity and addressing historical inequalities or if it establishes an admissions standard that unfairly impacts certain students more than it benefits others.
On September 26, 2023, the Federal Trade Commission (FTC) and 17 states filed a lawsuit in the U.S. District Court for the Western District of Washington against Amazon.com, Inc. accusing the company of violating antitrust law by inhibiting the growth of its third-party sellers and causing inflated prices of consumer goods on and off its platform. In the 172-page complaint filed to initiate the first federal lawsuit against Amazon, plaintiffs asked the court to “put an end to Amazon’s illegal course of conduct, pry loose Amazon’s monopolistic control, deny Amazon the fruits of its unlawful practice, and restore the lost promise of competition.” Compared to previous lawsuits by states and private parties, the FTC’s suit is of particular importance because the Commission has more mandated authority to reign in monopolistic practice in its founding history and statutory language. Amazon's operations clearly constitute a violation of federal antitrust law, and courts must interpret the FTC's lawsuit as a meritorious challenge of exclusionary conduct. If the district court holds Amazon’s anti-competitive business strategies as lawful under Section 5 of the FTC Act, the FTC’s regulatory purpose and authority will be severely undermined—calling into question the effectiveness of existing laws for antitrust enforcement in the age of digital commerce.
Tuberculosis (TB) is the leading infectious disease killer in the world, causing 1.5 million deaths annually, according to the Centers for Disease Control and Prevention (CDC). In 2022, 8,300 TB cases were reported in the United States, which was a slight increase from the year before. Within public health policy, treatment of TB patients has become subject to both the judgment of medical practitioners and public health officials given the highly contagious and dangerous nature of the disease. Should it be determined that the patient has active, communicable TB, and could potentially pose a danger to public health, public health officials are legally entitled to detain the patient in a quarantine facility, which may last anywhere from a few days to months until treatment is completed. Known as emergency detention, in such cases, public hearings are not required, raising concern about questions of due process and liberty interests, or an individual's right to do anything in accordance with due process.
Standing before the Supreme Court in 1969, Associate General Counsel to the National Labor Relations Board (NLRB) Dominick Manoli would transform national labor relations in a single oral argument. Overturning two decades of labor law precedent, Manoli argued that the NLRB no longer needed to hold employers to a “good faith” standard when dismissing union representation, implying in such sentiment that the position of the NLRB had changed in between the filing of the brief and his oral argument. Manoli ultimately struck down the Board’s long-held position, based on precedent established in Joy Silk Mills v. National Labor Rel. Board (1949). This position—the Joy Silk doctrine—held that an employer was obligated to recognize and bargain with a designate representing a majority of their employees—unless the employer had a “good faith” doubt of that majority, as stated in Section 8(d) of the National Labor Relations Act of 1935 (NLRA). Yet, Manoli’s actions, which resulted in NLRB v. Gissel Packing Co., Inc. (1969), replaced the Joy Silk bargaining orders with Gissel bargaining orders, which can only be applied in much more extreme and restrictive conditions.
It is an absurd truth that the Gilded Age economy of the late nineteenth and early twentieth century (when homes lacked electricity and running water) closely resembles the twenty-first century economy dominated by social media and technology firms. In the Gilded Age, the Trust Movement constructed an economy rife with market concentration and devoid of real competition. As legal scholar Tim Wu writes, “The Trust Movement envisioned an economy with every sector run by a single, almighty monopoly, fashioned out of hundreds of smaller firms, unfettered by competitors or government restraint.” As a result of the increasing market power wielded by a few firms, consumers were harmed substantially, and small businesses could hardly survive. Just in the years 1895 to 1904, at least 2,274 manufacturing firms combined to form 157 corporations, nearly all of which completely dominated their respective industry. Eliminating competition enabled monopolists to charge prices that greatly exceeded those under a free market. Consequently, wealthy businessmen began to earn millions of dollars annually while their workers earned under $2 per day on average. Across the last few decades, antitrust enforcement has greatly declined due to the strategic and legally invalid undermining of antitrust precedent that was first successfully achieved in the late 1970s, which has caused the current U.S. economy to once again resemble the Gilded Age economy.
Over the past six months, Polish citizens have grown increasingly concerned about the European Union‘s attempts to counter democratic backsliding in Eastern Europe by withholding funding from their nation. With the post-Covid inflation rate topping 18.4 percent in February (the highest recorded number since December 1996) and the national economy wavering under the burden of the war in neighboring Ukraine, Poland’s hopes for rehabilitation have been resting in the promised 270 billion PLN from the EU’s recovery budget – a stimulus package designed to boost member states. Especially in light of the estimates published in the European Commission’s fall economic forecast prognosing that economic growth in EU countries will decrease in 2023 compared to 3.3% recorded in 2022, this sum holds unparalleled investment potential. Yet with the country failing to restore judiciary independence, it is considered to be in violation of a horizontal principle – a fundamental direction within the bloc’s politics of social and economic development – and has been repeatedly refused the money. In response, the right-wing ruling party – Prawo i Sprawiedliwość (in English, Law and Justice) – has read the situation as “liberal blackmail,” opening a debate on whether the union’s call was justified. Despite looming ethical questions, when examined with application of European Union law, namely Article 6 of the Common Provisions Regulation and Article 47 of the European Union Charter of Fundamental Rights, and within the framework of turbulence in the Polish judicial system, the threat of restraining funding shall be considered a part of legally tenable protocol.
Across the globe, the historical practice of trading goods has significantly adapted to the digitalization of common spaces. This has largely increased the efficacy of domestic and foreign trade by opening new forums for communication and increasing the productivity of business by reducing trade costs. Recently, however, upper-level courts have been faced with a series of cases considering the implications of the production and consumption of goods online. In 2021, Mason Rothschild created and sold one hundred digital “METABirkins.” According to Rothschild, these were images of the iconic Hermès “Birkin” covered in digital “fur” rather than leather, as a social commentary against animal cruelty in high fashion manufacturing. Hermès then sued Rothschild for “asserting trademark infringement, dilution, cybersquatting, and unfair competition.” Hermès Int’l v. Rothschild is the first case focused on the interaction between non-fungible tokens (NFTs) and trademark law. The court was introduced to a whole new digital dynamic of trademark infringement and ultimately found that the NFTs linked to digital images of the Hermès “Birkin” were infringing on Hermès’s trademark rights. The New York Law Journal explored this case and described NFTs as “data added to a file that creates a unique signature…very hard to recreate and can be sold in digital form.” The invention of digital spaces designed to facilitate the buying, selling, and trading of products has opened the doors of uncertainty with consideration for the legal intersection of NFTs and trademark law. The case has more significant implications for determining the line exists between artistic expression and trademark infringement for digital assets. Using the criteria for infringement established in Rogers v. Grimaldi, the question of trademark infringement will be highly fact-specific, centered on questions like the strength of the asserted marks, the intention behind the uses, and consumer impressions of the product.
For centuries now, a separation between church and state has been argued. The place of religion within the U.S. school system has often been debated and precedent has remained unchanged for several decades. In 2022, however, a single U.S. Supreme Court case overturned nearly six decades worth of precedent which established a clear separation between religion and schools. In turn, states like Texas, Alabama, and Florida have taken the court’s rulings to extremes. Several states are now requiring that the Ten Commandments be posted in all public school classrooms. The state of Alabama has attempted to pass legislation that would require all public schools in the state to provide both the equipment and time to students who wish to pray aloud. Under past precedent, these actions would have been a violation of the Establishment Clause. With the abandonment of such precedent, the Establishment Clause’s role in the American school system has become very unclear. The complete upheaval of past precedent has caused a ripple effect in the American school system, further marginalizing students of minority religious groups around the county.
Among the twinkling stars in the night sky, an invisible threat looms closer to us than we might think. Encircling our planet is a swarm of unregulated debris that not only threatens the future of scientific advancement, but undermines the very laws meant to govern our cosmic neighborhood. Only 27,000 out of over 100 million pieces of space debris – most of which are small meteoroids or discarded remnants of human-made objects – are currently accounted for by the Department of Defense’s Space Surveillance Network sensors. So, what happens when a piece of debris traveling at an average speed of 15,700 miles per hour in low Earth orbit collides with a satellite or spacecraft, and perhaps more importantly, who is responsible for the damage?
As the United States continues to grapple with the meaning and interpretation of its Constitution, issues relating to abortion, affirmative action, and, most recently, the issue of healthcare for incarcerated individuals have grown increasingly contentious. The same originalist approach that has been deployed to challenge the landmark Roe v. Wade ruling could also be used to curtail the healthcare rights of those who are incarcerated, thus directly contravening the provisions of the Eighth Amendment and disregarding the legal precedents established by the 1976 Supreme Court decision in Estelle v. Gamble. The constitutional right to healthcare for incarcerated individuals, as established through Estelle v. Gamble, maintained that failing to provide "adequate medical care" violated the Eighth Amendment's prohibition of cruel and unusual punishment. The case involved a respondent state inmate who claimed he had been subjected to "cruel and unusual punishment" following inadequate back injury treatment. The district court dismissed the prisoner's pro se complaint, which had previously maintained that an "allegation of inadequate medical care was insufficient to be classified as a cause of action" under the Eighth Amendment. Nonetheless, the U.S. Court of Appeals of the 5th Circuit reversed and reinstated the complaint, ultimately granting the defendants' certiorari petition and establishing that denial of healthcare equated to "cruel and unusual punishment." Ultimately, the notion of "deliberate indifference" set a legal definition that prohibits ignoring the plight of prisoners who require healthcare, translating into a mandate meant to provide all persons in custody with access to medical care. Beyond healthcare, Estelle's significance lies in that the Court contended that prison conditions could amount to "cruel and unusual punishment," proposing a more focused approach to providing care for incarcerated individuals.
Marking a turning point in legal history, the ruling in the recent Supreme Court case Allen v. Milligan has been hailed as both “historic and significant” by Deuel Ross, the plaintiff’s attorney. On June 8, 2023, this case, which revolved around an Alabama congressional redistricting map drawn by a Republican-dominated legislature, was brought out of the lower district court. In a state where one in four voters are Black, yet only one Black representative held a position out of the seven representatives, the fairness of the district lines was under question. An analysis of the population distribution within the lines found that Black voters were dominant in one sole district, whereas the rest of the Black population was meticulously spread out in other districts. The areas with the most Black residents had more voting power than the single district, which prevented Alabama from having more than one Black representative. In Allen v. Milligan, in a 5-4 ruling, both conservative and liberal judges upheld Section 2 of the Voting Rights Act of 1965 (VRA) in an attempt to alleviate the effects of racial discrimination. The Court found that, given Alabama’s racially polarizing voting, the map had to be redrawn. Although served with a glimpse of hope, the Court declined the request from Black Alabama voters and organizations for the lines to be redrawn with the intention of having proportional Black representation. Thus, while the discriminatory effects were addressed, they were not alleviated. By using an outdated method to determine the districting of lines while viewing the Constitution as a “color-blind” document, the Court failed to fully address a critical and ongoing issue that the VRA has originally intended to solve.
As climate-induced migration intensifies, individuals and communities are relocating around the world due to the increasingly dangerous effects of climate change. Those affected by this phenomenon, often referred to as “climate migrants” or “climate refugees,” frequently find themselves without formal legal recognition. This oversight deprives them of the protections that these frameworks allege to offer, leaving many vulnerable amid this global dilemma. While climate migrants navigate a treacherous path, it becomes evident that society’s legal safeguards fall short. The inability to formally recognize climate refugees and the absence of effective resettlement mechanisms highlight these deficiencies, as do gaps in equitable climate justice compensation and the enforcement of international cooperation. To address these issues, there is a pressing need for new legislation tailored to the intricacies of climate-induced migration—laws that prioritize clear resettlement strategies, fair compensation measures, and enhanced global collaboration, all reinforced by stringent enforcement. Beyond merely protecting climate migrants, these reforms are essential to bolster the resilience and well-being of the global community facing an unparalleled environmental crisis.
he address of the fake charity “American Cancer Society of Michigan” led to a rented mailbox on Staten Island in New York City—hundreds of miles away from Michigan. Beginning in 2014, this rented mailbox became the “home” to seventy-six fake charities, all approved by the Internal Revenue Service (IRS), under which the regulatory system for U.S. charities falls. Despite warnings from the real American Cancer Society about these sound-alike groups, the IRS approved them anyway. Ian Hosang, who created the seventy-six fake charities, is accused by New York prosecutors of operating a charity fraud that stole over $150,000 through soliciting donations for supposed cancer charities. Many of these fake charities started with the words “American Cancer Society,” “American Cancer Foundation,” and “United Way,” despite Hosang’s lack of affiliation with the actual American Cancer Society and United Way.
As the Atlantic Hurricane season continues through the summer to the end of November, communities in the Southern United States are readying themselves for what the National Oceanic and Atmospheric Administration (NOAA) has suggested will turn out to be a “near-normal” season. While stocking up on emergency items and tracking the paths of the hurricanes coming their way, some households are also bracing themselves for a more complicated storm of events that may follow hurricane season – the steps towards gaining financial recovery and aid. These very steps and their uneven responses between bodies of applicants reflect and magnify the inadequate measures taken by government agencies involved with natural disaster response, such as the Federal Emergency Management Agency (FEMA) and Department of Housing and Urban Development (HUD), to alleviate crisis, thus highlighting their culpability for disparate impact.
In both the United States and European Union, protection of personal data is an essential right. Transatlantic data exchanges are projected to form the foundation of over $1 trillion in yearly trade and investment for multinational companies. Despite its lucrative potential and the United States’ reliance on transatlantic transfers of personal data for national security, the legality of such transfers has yet to be clearly outlined. Since the Court of European Justice’s ruling in Data Protection Commissioner v. Facebook Ireland Limited and Maximillian Schrems (colloquially known as Schrems II), the EU-U.S. Privacy Shield has been deemed invalid and companies with U.S. and EU presences have been left without necessary compliance regulations that allow them to legally transfer data internationally. When the Court invalidated the EU-U.S. Privacy Shield, it failed to replace it with a clear alternative. This has created challenges for international businesses and governments as none of the parties know to whom to defer for regulatory compliance inquiries. While on July 10, 2023, the EU Commission and the Biden Administration agreed upon an EU-U.S. Data Protection Framework, it is unlikely that this agreement will be legally binding. Should the Court of Justice of the European Union (CJEU) overturn this framework, all policy proposals must start over. The debacle not only highlights differences in data protection standards and surveillance practices between the two regions but also the inadequate commonplace of international organizations deciding on ‘legal’ frameworks without judicial approval.
After deliberating for three hours, a small committee in Oklahoma made a decision that would irrevocably blur the lines of what constitutes the separation of church and state. The ruling – the approval of a state-funded Catholic charter school – was the first ever approval of a taxpayer funded religious institution in United States history. Following the verdict, many have called into question whether this decision is an act of “religious freedom” or a violation of the fundamental rights granted by the first amendment. The school, St. Isidore of Seville Catholic Virtual School, which is set to open next fall, is unconstitutional on the grounds that it violates the Oklahoma Constitution, the United States Constitution, and the Oklahoma Charter School Act. Further, previous court case precedents such as Locke v. Davey (2004) and Zelman v. Simmons-Harris (2002) clarify how this decision oversteps boundaries regarding governmental entanglement in religion.
In 1954, the Supreme Court unanimously ruled that separate cannot be equal in Brown v. Board of Education of Topeka, thus commencing a nearly century-long mission of advancing equitable education in the United States. This past June, the Supreme Court turned its back on its legacy by ruling affirmative action policies unconstitutional in Students for Fair Admissions, Inc v. Presidents and Fellows of Harvard College and Students for Fair Admissions, Inc v. University of North Carolina. Having emerged in the tail-end of the Civil Rights Movement, affirmative action policies were developed to rectify the consequences of historical discrimination against people of color by enabling employers and schools to consider race favorably among applicants. Although affirmative action has existed since the 1800s, it took its current form through an Executive Order by President John F. Kennedy in 1961 (Order 10925) in an effort to promote equal opportunity in employment. Universities soon began voluntarily applying affirmative action policies to their admissions during and after the Civil Rights Movement. Since then, affirmative action has served as a bedrock of equality initiatives and has proven itself to be an unparalleled tool to achieving diversity.
In the winter of 2008, the United Nations General Assembly submitted a request for an advisory opinion from the International Court of Justice on whether “the unilateral declaration of Independence of Kosovo” was in accordance with international law. The representatives of Serbia argued that Kosovo’s independence not only violated the historical and territorial integrity of Serbia, but also that the declaration as a political action from the “Assembly of Kosovo” had contravened the regulations set forth by UN Security Council Resolution 1244 (1999). Among other things, the opponents of independence were concerned that if Kosovo “unilaterally declared independence” based on the notion of self-determination through the means of secession, other regions and territories worldwide would be emboldened to pursue similar political aspirations, thus infringing the Helsinki Final Act of 1975, which gave precedence to territorial integrity over self-determination. Yet, based on the legal history of much of the last century, and several post-1990 legal cases: (i) Kosovo had a legal right to independence based on an existing precedent, namely federal units declaring independence after the dissolution of Yugoslavia; and (ii) the declaration did not breach the sovereignty of Serbia since the relevant UNSC Resolutions did not explicitly prohibit it.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” These words comprise the Free Exercise Clause of the First Amendment, a legal principle that influenced the United States since its creation and that promises a citizen the right to practice a religion of their choice. This clause and the Establishment Clause, which prohibits the government from “making any law respecting an establishment of religion,” have guided the approaches to religion and government taken by American lawmakers. Over the years, American courts have adjudicated over the question of where to draw the line between government actions and freedom of religion, for example, the debate over whether it is appropriate to utilize government funds for education at religious schools and to keep government funds from supporting religious institutions.
In Las Cruces, New Mexico police officers are taught not to seize jewelry or computers but flat-screen TVs. [1] Whether it be cash or cars, officers are instructed to take assets that are profitable, easy to sell, or of direct use to the police department. These seizures are possible through a process called civil asset forfeiture, where law enforcement is able to seize property on the basis of “probable cause” that the property was involved in criminal activity. [2] Civil asset forfeitures, or in rem forfeiture proceedings, operate against the property itself and not the owner. Owners are considered claimants, and criminal charges or warrants against claimants are not required for law enforcement to seize a claimant’s property. [3] Without this burden on the government, civil asset forfeitures have allowed for the recovery of stolen artwork, enforcement of prohibition, and busting of multiple drug trafficking operations. [4] In addition to civil forfeitures, the two other types of asset forfeitures are criminal and administrative forfeitures. Criminal forfeitures require criminal convictions and are filed against the owner of the property whereas in administrative forfeitures, no convictions are required and the property is forfeited without filing a case.
Across the country, there is a little-noticed but pervasive and egregious delay happening in government crime labs. Over 100,000 known sexual assault forensic evidence specimens, also known as rape kits, are currently sitting on shelves untested across the United States, some of which have remained there for decades. [1] Despite the fact that this DNA evidence could be used to find perpetrators and press charges, there is an alarming lack of due process when it comes to the justice system’s failure to test so many rape kits, leading some advocates to argue for reform on constitutional grounds. Ultimately, it is essential to eliminate the statutes of limitations on felony sex crimes and institute a new law requiring that rape kits are tested within a reasonable amount of time as determined by the courts.
Featured Roundtable Contributions
Privacy law stands at the intersection of individual rights, government regulation, and societal norms, shaping the landscape of healthcare, reproductive rights, and personal freedoms. In today's world, where advancements in technology and shifts in political landscapes continuously redefine the boundaries of privacy, grasping the significance and dynamic applications of privacy law is growing increasingly crucial. This roundtable explores three distinct realms where privacy law exerts its influence: gender-affirming healthcare, abortion rights, and government surveillance.
The role of international organizations in regulating and enforcing global conventions and agreements is both potent and tenuous. On the one hand, institutions such as the United Nations and the European Union are backed by the power of legal jurisdiction over all states that subscribe to their authority. On the other hand, because this authority stems from the states themselves, the institutional capacity to meaningfully intervene and adjudicate in state matters is, to a certain extent, perpetually unsettled. This constant tension between legal mandate and practical capacity defines many international organizations. One of the many sensitive issues these organizations and conventions must tackle is the question of limits to the right to privacy, which has become a flashpoint in recent years due to the COVID-19 pandemic given the unprecedented level of data sharing and public health monitoring that states have undertaken to address the public health crisis.
The adjudicative capacity of human judges, and hence the outcome of a process of legal dispute resolution, can be impacted by a great number of circumstances – the judge’s reliance on intuition, their personal beliefs, and even how long ago they last ate. [1] The proposition of (metaphorically) seating Artificial Intelligence (AI) on the bench is thus, prima facie, attractive, because, surely, computers can be more objective than human beings. A commonly held view by proponents of using AI in an adjudicatory role is that algorithms are more objective because they are thought to overlook ancillary characteristics like gender and race, which are generally not relevant to the legal question at hand, and towards which humans hold implicit biases. [2] Moreover, using AI in an adjudicatory capacity could potentially help in lowering the costs of administering justice, and streamline dispute resolution; indeed, this was the motivation behind Estonia’s use of AI to resolve certain small-claims cases. [3] AI then seems like a panacea to the twin ills of inefficiency and non-objectivity in judicial decision making. However, there are compelling pragmatic and principled reasons, both pragmatic and principled, against involving AI in the judicial decision making process.
Concerning the responsibilities of medical professionals and the rights of their patients, medical law primarily covers issues of negligence, ethics, and confidentiality. [1] With its far reaching scope, medical law has long been addressed, beginning with the Hippocratic Oath in the Greek classical period. [2] This oath addresses several concerns of medicine, particularly focusing on a doctor’s duty to care for their patient to the best of their ability, uphold doctor-patient confidentiality, and instruct future generations of doctors. [3] Though the Hippocratic Oath remains valuable in the medical profession, medical law in the United States has been particularly shaped by landmark cases on negligence, medical malpractice, and confidentiality. Such cases set important precedent both for medical jurisprudence as well as for the medical profession as a whole.
In 1735, Peter Zenger was put on trial for publishing newspapers critical of the New York colonial governor. His lawyers defended him on the grounds that truth and veracity superseded libel, stating “the exposing of public wickedness…is a duty which every man owes to truth and his country.” [1] Zenger was acquitted, and thereby set a precedent for freedom of speech and liberty of the press in the annals of American history. However, at the turn of the century, anxieties over a war with France complicated the issue, and the precedent was ignored by the now-infamous Alien and Sedition Acts. Passed by the Federalist in 1798, the acts were a series of four laws designed to fracture their political opposition by criminalizing any perceived criticism or subversion of the government. The logic used to justify these civil oppressions was the exigent circumstances of a potential war—that age-old societal plague that has captivated our fascination and horror for millenia, the harbinger of revolution, empire, and atrocity.
As the mental health crisis in the United States grows, the U.S. Census Bureau reveals that clinically significant symptoms of depression and anxiety have more than tripled since the coronavirus pandemic began. [1] The question of what legal protections exist for those with mental illness within the realm of healthcare is more prevalent than ever. There are certain protections in place through the ADA for individuals suffering from mental health illnesses such as blocking employers from discriminating against individuals with mental illness conditions, right to privacy of medical information, and providing accomodations when needed. [2] Since the inception of the ADA, there have been great strides in the implementation of the ADA’s provisions within covered entities. However, many barriers still existed despite the implementation of the ADA. Stemming from inadequate provisions in the policy itself, the ADA failed to mandate parity between mental and physical disability benefits.
The legal history of the recognition of labor rights consists of judicial balancing between employers’ business interests and laborers’ interests in fair labor practices. In post-revolutionary labor combination cases, union members were fined because English common laws were still in use––under which making labor combinations was an indictable offense. [1] In the case Commonwealth v. Hunt (1842), seven journeymen in Massachusetts were charged for forming a union. [2] The Massachusetts Supreme Court established that labor combinations were not inherently illegal unless an organizations’ goals or practices were themselves fraudulent, false, forceful, or otherwise “criminal or unlawful.” [3] Later, The Supreme Court In re Debs (1895) upheld the federal government’s ability to use injunctions against labor strikes. [4] In 1894, employees of a railroad car manufacturer went on strike and disrupted business in the Chicago area. [5] Strike leaders refused to halt their activities after an injunction was issued in federal court. On appeal, the Supreme Court sided with the employers to protect the public’s interest in interstate commerce. [6]
Integral to a strong republic is the existence and protection of its secrets. Failing to safeguard sensitive information could endanger the safety and security of a nation, as well as that of its citizens. Throughout history, nations across the globe have kept secrets — whether they involve the preservation of military strategies, intelligence, or covert communications, making sure that a country’s secrets stay secret is critical to the establishment and conservation of their power.
In order to understand the legal means that allow us to keep our governments accountable for environmental damage, it is crucial to have a holistic perspective on the evolutions and historical foundations of environmental law.
Environmental litigation is based on a recently established legal framework. Indeed, most major environmental statutes were passed between the late 1960s and early 1980s, with the most significant pieces of legislation passed during the Nixon administration. [1] On January 1, 1970, Nixon signed the National Environmental Policy Act, an important first step in the emergence of national environmental goals and policies. Later that year, Nixon created the Environmental Protection Agency (EPA), which has since become a key institution in environmental law. Two of the most important laws governing the EPA were passed by Congress over the next two years: The Clean Air Act of 1970, which directs the EPA to set standards for what kind of pollutants may be released into the air, and the Clean Water Act of 1972, which instructs the EPA to set standards for what pollutants may be released into lakes, streams, and rivers. Although this legal framework is fairly recent, it has been quite static: the US has gone almost 30 years without major new environmental legislation. This inactivity, attributable to the growing partisanship of the environmental issues, means that while the climate crisis is rapidly accelerating—the last five years in human history were the five hottest on record—we are currently handling environmental crises with decades-old legislation.
The perception of humanitarian intervention has recently shifted from a mere subset of international law governing the use of force to a legitimate, legal reason for war. Using humanitarian intervention as a justification for foreign interference has become increasingly commonplace in the international arena. However, despite its widespread application, the use of this justification remains highly controversial; critics point out that the humanitarian label runs the risk of masking the hidden geo-political motivations of nations.
The beginning of the Biden Administration was characterized by a distinct shift away from the immigration policies of the Trump Administration. Namely, President Biden’s recent temporary guidelines for Immigration and Customs Enforcement (ICE) sought to redefine the grounds for deportation. These provisions centered around deporting individuals who recently crossed the border, pose a threat to national security, or have committed “aggravated felonies.”
We are the only country with a written constitution that does not prohibit discrimination based on sex,” Congresswoman Jackie Speier (D-CA-14) noted before the House of Representatives on Wednesday, March 17. Speier spoke moments before the body voted on H.J. Res. 17, an effort intended to remove the ratification deadline on the Equal Rights Amendment (ERA). The three-sentence resolution will reach its 98th birthday this year. After Virginia ratified the amendment in 2020, it finally has the required thirty-eight states to theoretically pass.
In the midst of a global pandemic, signs of hope have started to emerge from beneath the shadow of COVID-19. SARS-CoV-2 has killed millions and fundamentally changed the world, but there is cause for optimism with the development and implementation of life-saving vaccine technology. Faced with an unprecedented public health crisis, experts agree that the quickest way for the world to return to normal conditions involves vaccinating as many people as possible, establishing herd immunity, and decreasing the transmission of COVID-19.
Across the United States, states have taken steps to address homelessness, ranging from the enforcement of state supreme court decisions to the passage of sweeping legislation. At the same time, individual state legislatures have become battlegrounds for homelessness rights in states that attempt to reduce the visibility of homeless individuals rather than address the systemic issues behind the rise in homelessness. To this end, many states have resorted to indirect anti-homelessness legislation, including laws and ordinances that ban loitering and begging. This Roundtable addresses state laws on homelessness, the intersection of judicial activism and homelessness, the 19th century roots of UK law on homelessness, and the path toward decriminalizing homelessness.
Abortion is one of the most intimate and difficult choices many women make at least once in their lives. Indeed, almost one in four American women have an abortion by age 45. Opponents of abortion, however, claim that Americans have long opposed this medical practice and frame Roe v. Wade as an “anomaly.” However, the history of abortion in the United States reveals how common and necessary the procedure has been. This Roundtable explores abortion law prior to Roe v. Wade, the Roe v. Wade case itself, abortion law following Roe v. Wade, and the future of abortion law.
U.S. legislative acts pertaining to health care rights have historically limited undocumented immigrants’ access to such benefits. While alternative paths to access are available at the moment, they are far from sufficient for undocumented immigrants seeking treatment. This Roundtable explores the existing healthcare rights of undocumented immigrants, barriers to further access, and the effect of the COVID-19 pandemic on these rights.
The International Criminal Court (ICC) is an autonomous international tribunal that is authorized to condemn individuals responsible for genocide, crimes against humanity, war crimes, and crimes of aggression. Established by the Rome Statute in 2002, the ICC is the first and only international court with such jurisdiction. One hundred and twenty-three countries have signed on to the Rome Statute, which establishes the court’s jurisdiction, structure, and telos to “guarantee lasting respect for the enforcement of international justice.” This Roundtable explores the role of the ICC in international law, its promising aspects and shortcomings, and the future of the institution.
Diversity is an exalted concept for many reasons, ranging from its practical relevance to operational performance, to its broad promise of social inclusion. It is this latter appeal that has rendered diversity, in the eyes of many, a veritable democratic ideal. This Roundtable explores how affirmative action became such an explosive national debate, beginning with Bakke, continuing through Harvard College, and projecting into the future.
While platforms such as Google, Facebook, and Twitter have resisted being labeled as publishers, their decisions over what and what not to moderate increasingly mirror the domain of editorial organizations. Compounding the issue is these companies’ outsized influence as intermediaries, and even gatekeepers, for human expression. In general, legislators have exempted social platforms from responsibility for what their users publish. This Roundtable will explore the development of the law that cements this protection: Section 230 of the Communications Decency Act of 1996.
This Roundtable focuses on Harris Funeral Homes. We first provide a history of Title VII and the Equal Employment Opportunity Commission, then proceed to contexualize Harris Funeral Homes by drawing upon related LGBTQ+ discrimination cases, and finally conclude with analysis and its implications.
The question of executive power has plagued the United States since its inception. Historically, power has been vested in the legislature, but modern presidents have bucked precedent by using executive orders to establish government agencies, skirt laws which they disagree with, and to issue unprecedented immigration policies.
This roundtable discussion will present the legal history and analyze recent court cases pertaining to executive power so that we might present a reasonable picture of its future. The Founding Fathers originally imagined the United States as a nation with strong national legislature with power primarily vested in state governments.
It is important to recognize the structures responsible for this dramatic shift from state-local rule to national rule and from legislative governance to executive governance if we are to properly prepare for the repercussions of those realignments. If we are not careful during this liminal phase, unnecessary power may become vested in offices where it does not belong, putting American democracy and life as we know it at risk.
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Boasting the largest incarceration rate in the world, the United States’ treatment of its nearly two million prisoners has been the basis for legal scrutiny since the country’s inception. The vagueness of the Eighth Amendment of the U.S. Constitution has allowed for constant redefinition of how “cruel and unusual punishment” towards prisoners is understood throughout America. For instance, in the Supreme Court case Estelle v. Gamble (1976), a prisoner’s work-related injury caused him to be punished and denied adequate medical attention. As a result, the court ruled that the prisoner’s constitutional rights had been violated, creating the precedent that the deprivation of necessary services or items to prisoners also qualified as cruel and unusual. More famously, the highly contentious issue of capital punishment has been either permitted or prohibited in prisons across state lines due to rulings regarding the Eighth Amendment; the absence of widespread legal consistency allowing for the injection of moral beliefs in decisions. For far too long, the ambiguity of the phrase “cruel and unusual punishment” has wrongfully protected many American prison systems from legal accountability for a multitude of mistreatments against prisoners–-including, but not limited to–a lack of basic worker’s rights and subjugation to solitary confinement.
Held v. State of Montana is a landmark climate case, decided in August of 2023, in which it was ruled that youth in the state of Montana have the right to a “stable climate system” and that Montana has the duty as a state to act forcibly to reduce climate emissions. While Held marks a turning point for climate justice in Montana, it throws into sharp focus the historic inaction of state governments when it comes to climate change. Its calls for Montana to protect the climate system for the sake of its citizens are important but do not adequately address the processes that would need to occur to thoroughly mitigate this problem in the present and the future. When it comes to litigation against the government, we need to ensure that the victories in the courthouse are eventually preserved in the law, protecting them from changing administrations and securing their place in influencing the country’s future.
In 2012, Canada enshrined the terrorism exception to state immunity in the Justice for Victims of Terrorism Act (JTVA), an amendment to the State Immunity Act (SIA) which enables private plaintiffs to bring civil cases against states deemed sponsors of terrorism. These are currently the Islamic Republic of Iran and the Syrian Arab Republic. On June 27, 2023, Iran sued Canada before the International Court of Justice (ICJ), alleging that this legislation violates customary international law. The normative implications of the court’s future ruling are not limited to Canada. Although the United States has not accepted the jurisdiction of the ICJ, Congress passed the Justice Against Sponsors of Terrorism Act (JASTA) in 2016, which plaintiffs can utilize to bring claims against Iran, Syria, North Korea, and Cuba. Based on “the restrictive theory of state immunity,” precedent relative to the ICJ and various national courts, and international legal requirements including state practice and opinio juris, the terrorism exception to state immunity as presented in the JTVA seems to violate customary international law when terrorist activities are acta jure imperii.
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Featured Episode: Know Your Rights: How To Avoid The Copyright Cost of Being a Black Creator (Part 1)
by Madison Brianna Garrett and Saiya Palmer
In this inaugural episode of the "Low of the Land" Know Your Rights edition, Madison Brianna Garrett interviews Jasmine Johnson Parker, an Adjunct Professor at the Emory University School of Law teaching Entertainment and Social Media Law, concerning the modern implications of intellectual property law for Black creators on social media platforms. Tune in to the first part of this two-part series to learn more about the extent to which intellectual property law has been shaped by the power of social media content creation as well as to hear Professor Parker’s advice on how Black creators can best protect their online content.
Healthcare has long been a contentious issue in American law. Questions concerning jurisdiction, who bears the burden of insurance, and issues within it ought to be handled (if at all) have plagued the American public consciousness for decades. Everything changed, however, with the passage of the Affordable Care Act (ACA). The ACA was a carefully negotiated, bipartisan solution to deficiencies in the then current system which revolutionized health care as we know it.