Fall 2019
NSA and Surveillance Revisited: The State Secret Question
The invocation of the state secret privilege has consistently been used by the National Security Agency (NSA) to avoid submitting evidence to lawsuits initiated by civil groups interested in challenging the constitutionality of their mass surveillance programs. However, as a staggering amount of the NSA’s mass surveillance programs are increasingly criticized for unconstitutional violations of privacy, it is time that the state secret privilege be fully scrutinized. In this essay, I attempt to highlight the legal background of past lawsuits and the arbitrary nature by which the State Secret Privilege was invoked to reverse them. From here, I argue that the changing precedent of state secret grounds based on the Ninth Circuit Court of Appeals’ reevaluation of Fazaga v. FBI in February 2019 is sufficient grounds for the Ninth Circuit Court to accept the Electronic Frontier Foundation’s (EFF) appeal to reopen Jewel v. NSA, finally enabling evaluation of the NSA’s mass surveillance techniques under the due process of law.
The New Iron Curtain: Russo-American Foreign Policy in the 21st Century
This article argues that recent developments in foreign relations between the Russian Federation and the United States of America can be best explained through the lens of Cold War geopolitical strategy. The United States continues to engage in conventional Cold War logic -- primarily security discourse, containment, and power projection -- in order to emphasize its international primacy in light of Russia’s increasingly competitive foreign agenda. This article focuses first on foreign policy arrangements in Eastern Europe, especially in Ukraine, and on ongoing challenges of Western integration in the region. Secondly, this article addresses the unique relationship between the Trump Administration and Putin’s Kremlin, and suggests a changing dynamic of negotiation between the states based on aggressive national interest and Russian skepticism towards United States’ primacy. Analyzing contemporary Russo-American relations through the lens of Cold War logic altogether elucidates potential new challenges and strategies for American foreign policy.
The Importance of a Press Beholden to None
This paper discusses the viability of a federal shield law, a type of legislation that is designed to protect the rights of journalists and the press in preventing confidential sources and information from being revealed in court. Specifically, this paper looks at how the press are beholden to state shield laws and have never received the protection of a federal shield law, despite some press members’ arguments that there should indeed be one under the protections of the 1st Amendment. I make the case that there should indeed be no federal shield law, and that a federal shield law would actually damage the strength of our democratic American institutions. I defend such a statement by explaining that a federal shield law effectively allows the federal government to define who is a member the press, endorsing a select few to the detriment of others who would not enjoy the same legal privileges.
The Implications of Affirmative Action in a Racially Divided World
While the United States abolished slavery 150 years ago and segregation theoretically came to a conclusion 50 years ago, this country is still racially polarized, although now in more discrete ways. It is important to recognize the underlying principles and forms of legislation that contribute to this racial divide and work towards bridging this gap. Affirmative action legislation is a vehicle for helping to reduce racial tensions in this country. This is a pressing issue in today’s society, as demonstrated through the most recent ruling on Harvard College’s usage of this practice in their admissions, but it is also one that must not be dealt with hastily. This article evaluates both historical case law to provide a background context and focuses on a more recent decision in an attempt to illuminate the necessity of implementing affirmative action practices in both the academic and work setting.
How the Equal Rights Amendment Can Harm the Women It Aims to Help
For women in the modern day, equal rights means universal access to reproductive care, equal employment access, and freedom from gender discrimination in education. In the past years, renewed support for the Equal Rights Amendment has made its ratification a genuine possibility, and as Virginia readies itself to vote on the amendment, concern has mounted over the backlash the bill could cause against women . While the Equal Rights Amendment poses a victory for women, it also does away with the legal protections they enjoy. Considering that separate state legislative initiatives can and already have created many of the benefits that the Equal Rights Amendment proposes, the question becomes whether women should sacrifice these valued legal protections in order to attain nation-wide equality with their male peers--equality they could instead achieve state-by-state. While national equality holds great value to women, the Equal Rights Amendment is not the catch-all amendment to preserve reproductive care, employment equality, and education parity for women.
Adjudicating Harmony: The Impact of Cultural Values on the American and Japanese Legal Systems
This essay will examine the legal systems of Japan and the United States from a cultural standpoint. The discussion begins with a brief description of the concept of “legal culture” and the inherent connection between culture and the judicial process. The content takes a deductive approach by laying out cultural differences between the two countries and applying these differences to more specific institutional intricacies. The essay concludes that although Japan’s 99.9% conviction rate seems to lead to the belief that the nation disenfranchises defendants, its overall inquisitorial system is better suited to address institutional legal inequality. Specific legal areas in which America could adapt specificities of the Japanese model to address structural injustice in the judicial system are also offered. Several limitations of the Japanese legal system are also discussed.
Resisting the Majoritarian Impulse: From Judicial Restraint to Responsible Judicial Engagement
In American jurisprudence, “liberal” jurists are often portrayed as judicial activists, while “conservative” jurists are often described as practitioners of judicial restraint. Whereas judicial activism promotes using the judiciary to achieve social goals, judicial restraint presumes that acts of government are constitutional, and thus courts should be reluctant to overrule the will of legislative majorities. Both judicial philosophies are flawed. While judicial activists are rightly criticized for “legislating from the bench,” adherents of judicial restraint are misguided in placing majoritarian considerations ahead of constitutionalism. The debate over judicial philosophy in American constitutional law, however, is much more complex than a two-sided clash between judicial activism and judicial restraint. In fact, there is a third type of judicial philosophy — responsible judicial engagement — which effectively balances the competing forces of judicial activism and judicial restraint while maintaining a strong commitment to the U.S. Constitution. This article argues that the federal judiciary has a duty to practice responsible judicial engagement and to refrain from potentially dangerous judicial restraint and judicial activism.
Where the Indiana Supreme Court Lost its Roots in Liberty
In Johnson v. St. Vincent Hospital, an Indiana medical malpractice case decided in 1980, the Indiana Supreme Court interpreted whether the flat medical malpractice damage cap of $500,000 was constitutional. Among other arguments, the Indiana Supreme Court addressed if the cap on damages violated Art. I, § 20, of the Indiana Constitution which guarantees “In all civil cases, the right of trial by jury shall remain inviolate” (emphasis added). The Indiana Supreme Court decided the flat medical malpractice damage cap in Indiana did not, in fact, violate a Hoosier’s right to a jury trial. When comparing the analysis of the Indiana court to that of others around the United States, the Indiana court’s reasoning appears to depart from our Constitution’s “spirit of liberty.”[6]
Big Pharma, Big Pockets, Big Verdicts
The American public anxiously awaits the outcome of the National Prescription Opiate Litigation, a multi-state litigation case that aims to hold the pharmaceutical industry accountable for their role in creating the national opioid crisis. Several years of discovery and consolidation have culminated in MDL 2804, a federal lawsuit expected to produce a blockbuster global settlement after careful analysis of tort law and liability in relation to the marketing and sale of prescription opioid products. While MDL 2804 is reminiscent of the $200 billion verdict in the Master Settlement Agreement with tobacco companies for their responsibility in the smoking-related national health crisis that ravaged the country in the 1990s, a closer examination reveals that the regulation – and thus, approval – of prescription opioids and drug industry marketing techniques requires a more nuanced legal approach. Consequently, any settlement reached in MDL 2804 must take into account the relationship between the U.S. Food and Drug Administration (FDA) and the pharmaceutical industry, accounting for not only drug company negligence in driving the nationwide opioid crisis, but also public nuisance laws.
Disregarding the Gap: The Perpetuation of the Multiple Disadvantages for Working Black Women
This article seeks to understand the legal constraints around wage discrimination against black women. By analyzing two major wage discrimination cases brought on by black women, this study hopes to comprehend why intersectional workplace discrimination is not precedent under the law. Furthermore, this article will offer suggestions for how to legally aid black women in the struggle for pay equality. The article will identify and explore two major policies proposed to Congress that might remedy wage discrimination if approved.
Workers’ Compensation Law: A Frightening Reality For the Unlucky Few
Workers’ Compensation Law is not a particularly popular area of discussion in America. Many people are unfamiliar with its intricacies, and this paper gives a brief introduction to the workers’ compensation system in Indiana. Furthermore, we discuss the rationale behind the program, and highlight some strengths and weaknesses. Through a concise economic analysis we highlight potential incentives in workers’ compensation laws that endanger employees and benefit employers. We argue the essential rationale behind workers’ compensation has merit, but employees who are injured in the workplace due to an employer’s negligence should have their right to a common law jury trial reinstated.
Reviving “ in Loco Parentis”: A Neuroscientific View
In the eyes of the law, college-age students are viewed as adults. However, recent developments in neuroscience reveal that college-age students are in fact much less developmentally mature than adults. College years are a particularly vulnerable time for young people due to the changes that occur in their brains. During this period, they are at risk of developing mental illnesses and harming themselves. This article suggests that, in light of this evidence, universities should assume legal responsibility to protect their students from harm by reviving in loco parentis.
The Good Behavior Clause and the Tenure of Judges
Justice Brett Kavanaugh, in the wake of sexual assault allegations against him, called the confirmation process “a national disgrace.” Those words should be acerbic and jarring to legal scholars who view the Supreme Court as a cornerstone of low-profile stability in comparison to Congress and the executive. In all, Supreme Court justices have occupied a vaulted and legitimately respected chamber in recent years though that relative calm and peace has been disrupted by an overarching trend towards greater political polarization. In the wake of the latest Kavanaugh accusations, the question becomes: how politically immune are judges after nomination and confirmation?
U.S. State Marriage Laws Say “I Do” to Child Marriage
This essay will survey the current child marriage laws in the United States. The essay begins with a brief overview of child marriage laws and how they came about. The essay then remarks on three key areas in which America lacks the necessary provisions to safeguard the rights of children: state laws, immigration programs, and the legal system. The essay concludes by offering that although the United States seeks to eradicate child marriage globally, its efforts and rhetoric have been lackluster and at times internally inconsistent. Throughout the essay, a variety of recommendations are offered by which to bridge the gap between America’s rhetoric and laws surrounding child marriage.
Preserving Federalism Through Responsible Interpretation of the Interstate Commerce Clause
In 1995, the U.S. Supreme Court struck down The Gun Free School Zones Act of 1990 as unconstitutional in its landmark decision in United States v. Lopez. In the majority opinion, Chief Justice William H. Rehnquist explained that the law exceeded Congress’s authority to legislate under the Interstate Commerce Clause of the U.S. Constitution. This decision marked one of the few instances in recent history in which the Court engaged in a responsible interpretation of the Commerce Clause. This article argues that the U.S. Supreme Court should continue to responsibly interpret the Commerce Clause to hold Congress accountable to its limited, defined powers under the Constitution. Doing so is imperative to protecting our nation’s foundational commitment to federalism and state sovereignty.
When Companies Vote
This essay discusses the topic of personhood in business, specifically how rights attributed to people in the Constitution and expounded upon in the Bill of Rights are incorporated to companies, helping to expand their business powers and protect owners and investors from liability for actions of the company. Companies have already successfully been protected under the 1st, 4th, and 14th Amendments, among others. In this paper I conclude that the current interpretation of companies and their protections under the “rights of personhood,” specifically in reference to the case Citizens United v. FEC and their 1st amendment protections, have expanded the rights of companies beyond what the founders had intended.
Decreased Crime, Increased Racism: Why Implicit Bias in Policing is a Serious Issue
Implicit biases are defined as any unconsciously held set of associations about a social group. In the United States, these unintentional thoughts and beliefs help explain police discrimination within the criminal justice system. Even though crime rates in this country are actually decreasing, the current issue is not centered on trends in crime rates but on the identity of the players representing these statistics. After close examination, it becomes evident that these are racial minority communities that fall victim to biases in policing. These implicit racial biases plague the criminal justice system and have served as an impetus for large-scale public outrage and social protest. It is important to both recognize that implicit biases create extensive problems in this country and simultaneously work towards developing feasible solutions that can institute a positive structural change.
A Story Left Untold
Law professor David Forman is an expert on indigenous and environmental issues, particularly those that pertain to indigenous Hawaiians. In a short interview, he spoke on various failures of the legal system in following its duty to protect indigenous culture and rights, from cases on gathering rights to the illegal desecration of sacred lands. First documenting the past failures of abuses, we established what seemed already obvious in the shortcomings of the law for indigenous peoples. We then discussed the areas in which Hawaiʻi is beginning to make progress, before finally establishing the necessity of actively confronting injustice in order to further establish the rights of indigenous Hawaiians in a system that has left them in the dark.
Balancing the Rights of the Accused with the Rights of Victims
Despite research acknowledging the importance of alternatives to in-court testimony for child victims, there is no national standard for these practices. By applying Supreme Court decisions and case law from around the country with research on the topic, a national standard can be reached to ensure that every case using alternatives to in-court testimony satisfies the defendant’s right to confront and considers the victim’s emotional well-being. Psychological studies have shown the impact of in-court testimony on the long term mental and emotional recovery of children, and empirical studies have shown that children testifying out of court doesn’t increase the chances of a guilty verdict. Given that laws are written to protect vulnerable populations, a procedural standardization of alternatives to in-court testimony would protect both child victims and defendants by ensuring the defendant’s rights are met and the child isn’t unnecessarily traumatized.
The Legislation Behind the Armenian Genocide
For decades, a divide stood between Muslim Turks and Christian Armenians in the Ottoman Empire. Towards the start of World War I, the Ottomans carried out a quiet genocide of its Armenians, a war crime that was camouflaged not only by the atrocities of World War I but also by insidious legislation that covered up the crimes. Hiding under claims of necessary deportations and false promises, here is how the Ottoman Empire slaughtered tens of thousands of innocents.