Analyzing the Indo-China Border Dispute: An International Law Perspective Through the Prism of India

By: ISHAN KUMAR and NAMAN KATYAL

Ishan Kumar is a third year undergraduate student pursuing a Bachelor’s degree in legislative laws. He attends Gujarat National Law University(GNLU) in Gandhinagar, India.

Naman Katyal is a third year undergraduate student pursuing a Bachelor’s degree in legislative laws. He attends Gujarat National Law University(GNLU) in Gandhinagar, India.


Introduction

Two of the world’s nuclear powers, India and China are locked in a border dispute in the Pangong Tso and Galwan Valley areas of Eastern Ladakh along the Line of Actual Control (“LAC”).[1] The LAC is a demarcation line along the Indo-China border based on the differing perception of the border by both sides and functions as the de-facto border between the two nations since both sides have consistently failed to establish a demarcated border due to China’s refusal to recognize the validity of the Simla Accord of 1914 and the Panchsheel Treaty of 1954 in the eyes of international law.[2]

The dispute turned violent for the first time in 45 years at the largely peaceful border on June 15, 2020, when the Indian side suffered a casualty count of 20 soldiers in a melee with Chinese troops.[3] Reports also indicate that the Chinese side lost 43 soldiers.[4] The Chinese have refused to reveal the exact count.[5]

This article analyzes the Indo-China border dispute by evaluating the validity of the aforementioned treaties in international law through an Indian perspective. The authors postulate that a third-party dispute settlement can be a suitable mechanism through which the dispute could be resolved.

Tracing the Roots

The Indo-China border dispute dates back to the nineteenth century with the first treaty signed between the independent forces of the two nations coming into effect only in 1842.[6] Since then, several attempts have been made to demarcate the boundary between the two nations.

The Simla Accord of 1914 established the McMahon Line as the boundary between the two nations.[7] The Panchsheel Treaty signed in 1954 was another historic agreement between the two sides.[8] However, both the agreements failed to resolve the border dispute and as a consequence the Indo-China war occurred in 1962. During this time, the People’s Liberation Army of China annexed parts of India’s Ladakh region.[9]

Sustained attempts to achieve peace and tranquility at the border resulted in several other agreements in 1993, 1996, 2003, 2005, 2012, and 2013.[10] Nonetheless, the tension at the LAC remains unresolved.

Legitimacy of the Simla Accord the Eyes of International Law

The Simla Accord of 1914 was a treaty negotiated amongst the representatives of British India, the Republic of China, and Tibet to define the boundary between Tibet and British India, as well as Tibet and China.[11] Although China participated in the negotiation of the treaty, it declined to sign the convention and the British and Tibetan plenipotentiaries signed it as a bilateral declaration and denied China any privileges.[12] The boundary between Tibet and British India came to be known as the McMahon Line.[13]

China’s refusal to recognize the Simla Accord as a legally binding treaty primarily stems from this very reason. The fact that no Chinese Central Government ever ratified the treaty also features as one of the objections by China in recognizing the Simla Accord as legally binding.[14] Furthermore, China has also lamented that the Accord was “a product of British policy of aggression against the Tibet Region of China”, [15] and therefore an unequal treaty.[16]

China’s contention that the Chinese plenipotentiary refused to sign the declaration, and, in any case, no Chinese Central Government ever ratified the treaty fails on two grounds. Firstly, the collapse of talks was on the issue of settlement of the border between Tibet and China, not Tibet and British India.[17] Subsequently, a bilateral agreement between Tibet and British India duly defined the boundary between both signatories.[18]  China’s assent was not required to demarcate the boundary between Tibet and British India, as Tibet had control over its foreign affairs in 1914.[19] Secondly, the treaty, per Article 11 of the Accord, was to take effect from the date of signature and no explicit provision of the treaty stipulated ratification.[20]

Even if the Chinese contentions are accepted, even then the subsequent action of incorporating the updated map in official records and successive conduct of not raising the dispute for 45 years (until 1959) after the signing of the treaty belie the Chinese claim.[21] The doctrine of acquiescence requires the acquiescent party to raise any objection to the infringement of its rights and failure to do so can be held against it if the objection is raised after long-term acquiescence.[22] In the Pedra Branca islands dispute case, Singapore’s central argument that for 130 years–that Singapore’s exercise of sovereignty over the islands was not challenged by Malaysia–was accepted by the ICJ and the Sovereignty over the islands recognized to belong to Singapore.[23]

Further, China’s argument that Simla Accord was an unequal treaty given the aggressive policy adopted by the British against China also fails to advance the Chinese contention that Simla Accord cannot be recognized as legally binding. Even if a treaty includes provisions that appear unequal, a party cannot invoke the principle of inequality to invalidate the treaty if there is no coercion or use of force.[24] The Simla Accord came into force after exhaustive negotiations which spanned over a period of six-months and were based on an explicit authorization from the Chinese government.[25] This demonstrates that the Chinese government was under no duress from the British and acted without any inhibitions.

Panchsheel Treaty As a Political Document?

The Panchsheel Treaty is a set of Five Principles of Peaceful Coexistence enshrined in the preamble to the “Agreement on trade and intercourse between Tibet Region of China and India” which was signed in 1954.[26] The first principle of the treaty envisaged mutual respect for one another’s territorial integrity and sovereignty. The treaty was signed after meticulous negotiations with almost all aspects of the Indo-China relations being discussed but no border dispute was raised.[27]

All this put the then Prime Minister of India under the impression that there were no border disputes between the two countries.[28] Meanwhile, China continued to term the treaty as a political document for bargaining bilaterally and not a treaty that would be subjected to interpretations by international courts.[29] The Chinese government’s stand of subverting the treaty does not stand ground in International Law as oral declarations made by government functionaries have been held to be valid and binding. For instance, in the Eastern Greenland case, an oral statement given by Norway’s Foreign Minister was considered by the Permanent Court of International Justice to be binding on Norway. [30]

Moving Towards a Resolution

The Indo-China border dispute has now turned at least 65 years old with no significant breakthrough in defining the border.[31] Even the most rudimentary task of exchanging maps to understand the differing perception of the two nations with respect to the LAC has not been concluded.[32] The prospects of a resolution secured through bilateral arrangements look improbable. Other mechanisms to resolve the dispute need to be considered.

One such recourse could be to make use of a third-party dispute settlement mechanism. The third-party dispute settlement mechanism allows a party that is external to the dispute to help the disputants reach a settlement.[33]  A combined reading of Article 33(1) and 33(2) of the UN Charter authorizes the UN Security Council to call upon the parties to a dispute to resolve their differences through means stated in Article 33(1) (which includes third-party means).[34]

In the past, third-party interventions in dispute settlement have yielded positive results. The Rio Protocol of 1942 was signed by the governments of Peru and Ecuador (the disputants) with Brazil, Argentina, Chile, and the United States, wherein the latter four nations would act as guarantors for the former two.[35] This agreement led to the successful demarcation of 95% of the disputed border by 1946.[36] Similar instances include the role of the Pope and Algeria in successfully adjudicating the Argentina-Chile Beagle Channel Dispute and the Iran hostage’s crisis, respectively.[37] [38]

Russia could be asked to mediate between India and China by virtue of it sharing cordial relations with both the countries.[39] India and Russia have enjoyed a longstanding “special and privileged strategic partnership. [40] On similar lines, Russia and China have a plethora of common interests, which prominently includes ending the dynamics of the US-dominated unipolar world.[41] Also, Russia has prior experience of attempting to settle the Indo-China border differences, which could be crucial in restoring peace between India and China.[42]

Conclusion

The uncertainty surrounding the border dispute has adversely affected the bilateral relations between India and China. The Indo-China border faceoff has spiraled into a precarious trade war which could have repercussions on the economies of both nations. [43] The situation calls for a thorough revamping of diplomatic channels to overcome differences and ensure the anti-status quo.

Therefore, the two Asian giants must strive to amicably resolve their territorial dispute to avoid hampering their decades-long ties and international repute. The emerging world order after the advent of COVID-19 outbreak may help China and India to settle the boundary stand-off.

Undeniably, the benefits that accrue of settled land borders between the two Asian powerhouses are obvious and of utmost importance. If ever there is a historic opportunity for the two Asian giants to resolve the contested boundary, it is now.


[1] Bagchi I, “Jaishankar to Meet China FM in Virtual RIC Meet on June 22” The Times of India (June 15, 2020) <https://timesofindia.indiatimes.com/india/jaishankar-to-meet-china-fm-in-virtual-ric-meet-on-june-22/articleshow/76377098.cms> accessed June 15, 2020

[2] Krishnan A, “ Line of Actual Control | India-China: the Line of Actual Contest ”The Hindu (June 13, 2020) <https://www.thehindu.com/news/international/line-of-actual-control-india-china-the-line-of-actual-contest/article31822311.ece> accessed June 15, 2020; Prabhakar Singh, “Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers” 3(2) Chinese Journal of Comparative Law

[3] Krishnan A, “Forgotten in Fog of War, the Last Firing on the India-China Border ”The Hindu (June 14, 2020) <https://www.thehindu.com/news/national/forgotten-in-fog-of-war-the-last-firing-on-the-india-china-border/article31827344.ece> accessed June 16, 2020.; Safi M and Davidson H, “ Soldiers Fell to Their Deaths as India and China’s Troops Fought with Rocks” The Guardian (June 17, 2020) <https://www.theguardian.com/world/2020/jun/17/shock-and-anger-in-india-after-worst-attack-on-china-border-in-decades> accessed June 17, 2020

[4] “Galwan Valley: India and China Downplay Reports of Soldier Release” BBC News (June 19, 2020) <https://www.bbc.com/news/world-asia-53102629> accessed June 16, 2020

[5] “China Suffered 43 Casualties in Violent Face-off in Galwan Valley, Reveal Indian Intercepts” Hindustan Times (June 17, 2020) <https://www.hindustantimes.com/india-news/china-suffered-43-casualties-in-violent-face-off-in-galwan-valley-reveal-indian-intercepts/story-7JhOt8tC6cfC9bx3CUzrTI.html> accessed June 17, 2020

[6] “Ladakhi Letter of Agreement (1842)” (Tibet Justice Center) <https://www.tibetjustice.org/materials/treaties/treaties3.html> accessed June 18, 2020

[7] Gupta K, “The McMahon Line 1911–45: The British Legacy” (1971) 47 The China Quarterly 521

[8] ‘The Five Principles’ (Ministry of foreign Affairs of the People’s Republic of China, 14 June 2014) < https://www.fmprc.gov.cn/mfa_eng/topics_665678/seminaronfiveprinciples_665898/t140589.shtml > accessed 27 June 2020

[9] “India-China War of 1962: How It Started and What Happened Later” India Today (November 21, 2016) &lt;https://www.indiatoday.in/education-today/gk-current-affairs/story/india-china-war-of-1962-839077-2016-11-21&gt; accessed June 19, 2020

[10] Gill P, “India Says There Are Five Treaties to Push the Chinese Army behind the Line of Actual Control⁠ — While Experts Tell Modi to Remain Cautious” Business Insider (May 29, 2020) &lt;https://www.businessinsider.in/defense/news/five-treaties-to-address-india-china-border-issue-experts-warn-modi-to-remain-cautious/articleshow/76085340.cms&gt; accessed June 19, 2020

[11] “Convention Between Great Britain, China, and Tibet, Simla (1914)” (Tibet Justice Center) &lt;http://www.tibetjustice.org/materials/treaties/treaties16.html&gt; accessed June 20, 2020

[12] Mehra P, “A Forgotten Chapter in the History of the Northeast Frontier: 1914–36” (1972) 31 The Journal of Asian Studies 299

[13] Ibid.

[14] Surya P Sharma, ‘The India-China Border Dispute: An Indian Perspective’ (1965) 59 Am J Int’l L 16

[15] Ibid.

[16] “100 Years after Simla Accord, Its Historical Impact Is Still Debated” (Canada Tibet Committee April 28, 2014) &lt;https://tibet.ca/en/library/wtn/12902&gt; accessed June 22, 2020

[17] (n 11).

[18] Ibid.

[19] (n 14).

[20] (n 11).

[21] Green LC, “Legal Aspects of the Sino-Indian Border Dispute” (1960) 3 The China Quarterly 42

[22] I C MacGibbon, “The Scope of Acquiescence in International Law” (1954) 31 Brit YB Int’l L 143

[23] (2003) ICJ 146.

[24] Jiangfeng Li, “Equal or Unequal: Seeking a New Paradigm for the Misused Theory of Unequal Treaties in Contemporary International Law” (2016) 38 Hous J Int’l L 465

[25] (n 14).

[26] (n 8).

[27] Stahnke AA, “The Place of International Law in Chinese Strategy and Tactics: The Case of the Sino-Indian Boundary Dispute” (1970) 30 The Journal of Asian Studies 95, https://www.jstor.org/stable/2942725?seq=1.

[28] Ibid.

[29] Prabhakar Singh, “Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers” 3(2) Chinese Journal of Comparative Law

[30] 1933 P.C.I.J. (ser. A/B) No. 53.

[31] Singh VK, “Resolving the Boundary Dispute” (India Seminar2006) &lt; http://www.india-seminar.com/2006/562/562-vk-singh.htm&gt; accessed July 1, 2020

[32] Krishnan A, “It Took China Just Three Weeks since PM Modi’s Visit to Snub His Efforts to Clarify the LAC. The Neighbours Now Face Yet Another Stalemate in Resolving the Boundary Issue.” India Today (June 11, 2015) &lt;https://www.indiatoday.in/magazine/the-big-story/story/20150622-china-india-lac-modi-visit-xi-jinping-border-dispute-819865-2015-06-11&gt; accessed July 1, 2020

[33] Bilder RB, “International Third Party Dispute Settlement” (2020) 17 Denver Journal of International Law &amp; Policy

[34] UN Charter, art 33(1).

[35] Simmons BA, “Territorial Disputes and Their Resolution The Case of Ecuador and Peru” [1999] United States Institute of Peace

[36] Ibid.

[37] “Chile, Argentina Sign Protocol on Beagle ”The Washingtom Post (October 19, 1984) &lt;https://www.washingtonpost.com/archive/politics/1984/10/19/chile-argentina-sign-protocol-on-beagle/f8e5a9db-f01c-4a5a-9691-f91861c095eb/&gt; accessed July 2, 2020

[38] Howe M, “Wary Algeria Edged Into Pivotal Role” The New York Times (January 26, 1981) &lt;https://www.nytimes.com/1981/01/26/world/wary-algeria-edged-into-pivotal-role.html&gt; accessed July 2, 2020

[39] “Russia as India-China Mediator: How Soviets, Mao’s China Split over India in 1950s-60s” The Week (June 23, 2020) &lt;https://www.theweek.in/news/india/2020/06/23/russia-as-india-china-mediator-how-soviet-mao-china-split-over-india-in-1950s-60.html&gt; accessed July 3, 2020

[40] Center M, “Joint Statement: Celebrating a Decade of the India- Russian Federation Strategic Partnership and Looking Ahead” (Ministry of External Affairs December 21, 2010) &lt; https://mea.gov.in/bilateral-documents.htm?dtl/5118/Joint+Statement+Celebrating+a+Decade+of+the+India+Russian+Federation+Strategic+Partnership+and+Looking+Ahead&gt; accessed July 2, 2020

[41] Wong K-H, “How Will the Coronavirus Outbreak Affect Russia-China Relations? ”The Diplomat (March 14, 2020) &lt;https://thediplomat.com/2020/03/how-will-the-coronavirus-outbreak-affect-russia-china-relations/&gt; accessed July 3, 2020

[42] (n 39).

[43] Misra U, “Explained: Why China Trade Ban Will Hurt India More” The Indian Express (June 22, 2020) &lt; https://indianexpress.com/article/explained/india-china-trade-ban-explained-6465949/&gt; accessed July 2, 2020

Reading Gaslighting Induced Sexual Acts as Rape – Capacity to Consent

By: VEDANTHA SAI

Vedantha Sai is a fifth year undergraduate student reading Law at The National University of Advanced Legal Studies (NUALS), Kochi, India. He possesses a keen interest in Public International Law, Human Rights, International Criminal Law and Constitutional Law.


Introduction

‘Gaslighting’ is defined as, “the action of manipulating someone by psychological means into accepting a false depiction of reality or doubting their own sanity.”[1] In gaslighting, the complexity of consent is magnified. It is necessary to ascertain whether the nature of the relationship between the survivor and the abuser vis-a-vis the survivor’ state of mind vitiates the otherwise prima-facie consent and result in rape? For instance, if one verbally consents under false pretenses in a gaslighting situation, is this true consent? The trouble arises when gaslighting is employed as a psychological maneuver to make (potential) sexual partners partake in sexual acts which they would not have consented to absent the gaslighting.

Gaslighting undermines individual autonomy, which inherently prevents the individual from giving consent. Any consent supposedly given is void ab initio. In relationships, wherein gaslighting leads to sexual acts or intercourse, such acts are non-consensual and amount to sexual assault or rape. Survivors of such gaslighting, therefore, should be entitled to full legal protections and remedies.

The dangerous consequence is that, at the time of engaging in these sexual acts, the survivors themselves, because they have been deceived by the perpetrator, believe that his/her consent is free and legitimate. However, it is only later that they realize that they have been gaslit and have suffered an attack on their autonomy and mistakenly ‘consented’ to certain sexual acts. Are those sexual acts, engaged in whilst being gaslit, consensual or coerced?

The otherwise de-facto consensual sexual act could be converted into a crime of sexual assault, upon the consent being deemed as coerced; hence, vitiated. This psychological maneuver of gaslighting, as employed by the victimizer, blurs the line of consent that resides in the grey area between consensual sexual intercourse and sexual assault.

Cause for Concern – Stakeholder Analysis

Gaslighting-induced sexual relations is highly worrisome for numerous reasons. First, perpetrators believe this to be a ‘workaround’ to evade any allegations of sexual assault by applying gaslighting techniques which would make sexual acts prima-facie appear as consensual. Second, Courts are also likely to be of the view that it was consensual and consent cannot be withdrawn retrospectively. Third, society at large would not view these acts as amounting to rape or sexual assault, as the traditional requirements for sexual assault as laid down by rape culture narrative, such as resistance and saying ‘no’ by the victim, and use of force by the perpetrator, are absent. Lastly and crucially, the key stakeholder in this disputation, the victim, who is placed at a similar level of torment and anguish as any other rape victim, is left remedy-less, despite having far worse mental trauma as in this case it was inflicted by someone who was in a position of trust, such as a romantic or sexual partner and further they would self-blame and self-loathe for having given ‘consent.’

 

Gaslighting an Attack on Autonomy – Vitiates Consent

The distinctive feature of gaslighting is that it always undermines a survivor’s self-trust in his/her epistemic capacities, such as perception, memory, and knowledge and constitutes an assault on the victim’s reality and undermines his/her autonomy. Gaslighting’s apparatus for effectuating the same, are diverse and plentiful and aimed at removing and/or obscuring the survivor’s opportunities for learning about his/her true reality.[2] Thus, any alleged consent that is received at this point of time wherein, the survivor was doubting his/her sanity and did not have a clear comprehension of reality, could certainly not be conceived as one which was unequivocal and voluntary. Therefore, it is argued that any consent provided by the survivor for gaslighting induced sexual acts, cannot be true-free consent and therefore, these acts are non-consensual and would amount to rape.

The question of post-factum revoking of consent does not arise; as per the theory of vices du consentement, defective consent is vitiated in initio.[3] Thus, it is to be understood, that ‘consent’ was never given in initio.

Recent jurisprudence requires such reading

Recently, various jurisdictions, including Australia and Canada, have criminalized Non-Consensual Condom Removal, otherwise colloquially known as stealthing and holding it to amount to rape.[4] To read gaslighting induced sexual acts as non-consensual is consistent with this growing jurisprudence which recognizes the utmost importance of the woman’s dignity, sexual autonomy and consent.

Conclusion

The abuse faced by such survivors cannot be discounted simply because the circumstances of that assault are unique in gaslighting cases. Gaslighting, by undermining autonomy, vitiates consent ab-initio. Thereby, any sexual relations which are resultant products of such emotionally perverse and conniving psychological maneuvers, must be held as sexual assault and the employers of the same ought to be held accountable and justly punished. Survivors of gaslighting deserve the legal protections afforded to other survivors of sexual assault.


[1] This article uses the colloquial term for gaslighting and does not advance it as a formal psychological diagnosis or concept. Gaslighting, Oxford English Dictionary, https://www.oed.com/viewdictionaryentry/Entry/255554.

[2] Natascha Rietdjik, (You Drive Me) Crazy: How Gaslighting Undermines Autonomy (Master’s Thesis), Utrecht University, (June 22, 2018), file:///Users/quentinl8/Downloads/RMA%20Thesis%20Natascha%20Rietdijk.pdf.

[3] George A. Bermann and Etienne Picard, Introduction to French Law, (2008), https://books.google.co.in/books?id=2ULv4NzlAFEC&pg=PA213&lpg=PA213&dq=vices+du+consentement++Introduction+to+French+Law&source=bl&ots=JRP2aaYbMn&sig=ACfU3U0W3NdON5glXtP4MLCCf6Gl3C9muA&hl=en&sa=X&ved=2ahUKEwjJ_tjpwNHnAhXLyDgGHbUbBG4Q6AEwAXoECAgQAQ#v=onepage&q=vices%20du%20consentement%20%20Introduction%20to%20French%20Law&f=false.

[4] Matthew Robinson, Police officer found guilty of condom ‘stealthing’ in landmark trial, CNN (December 10, 2018), https://edition.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html; Alexander Lean, Drawing the Line: Deception and Sexual Consent, Journal of International and Public Affairs, https://www.jipasg.org/posts/2019/4/27/the-politics-of-controlling-labour-in-singapore-continuities-and-fissures-in-migrant-and-citizen-labour-governance; Brianna Chesser, Case in Victoria could set new legal precedent for stealthing, or condom removal during sex, The Conversation (August 16, 2019), https://theconversation.com/case-in-victoria-could-set-new-legal-precedent-for-stealthing-or-removing-condom-during-sex-118343; Alexandra Brodsky, “Rape-Adjacent”: Imagining Legal Responses To Nonconsensual Condom Removal, Columbia Journal of Gender and Law (2017), https://academiccommons.columbia.edu/doi/10.7916/D8708D06.

You Have (Surprising) Friends In Us: Towards An Apolitically Described Judiciary

By: JAMES JOSEPH BERNSTEIN


Justice Antonin Scalia was a judicial titan, championing philosophies such as originalism and textualism. The Justice defined these to mean that the words of the Constitution or statutes, respectively, are to be interpreted not in line with “what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”[1] In short, these philosophies seek to curtail the “looser”[2] interpretive tendencies of judges. Unsurprisingly, this understanding placed Scalia firmly in the reported “conservative” camp on the Court. Moreover, in this bold attempt to advocate for a form of judicial restraint, the late Justice gained many critics. Judge Richard Posner, a fellow Republican-appointee, called Scalia’s dissent in Obergefell v. Hodges “radical” and further said his judicial philosophy “verges on [that of a] majoritarian theocracy.”[3] In other instances, Posner further criticized Scalia’s broader originalist tendencies stating that the philosophy “denies the legitimacy of flexible interpretation designed to adapt the Constitution…to current conditions.”[4] Posner is not alone by any stretch of the imagination: legal scholars, fellow judges, and political commentators alike were quick to assail many of the Justice’s opinions. Broadly, the attacks on the Justice derive from his regular stymying of those in favor of the most socially progressive readings of the Constitution.

However, though much ink has been spilled to highlight Scalia’s conservative jurisprudence, much less has been written about his more progressive leanings – namely, defending the rights of the accused. To call Scalia’s stance on the issue anything less than staunchly in accordance with progressive ends would do a disservice to his opinions. Take, for example, the majority opinion in Kyllo v. United States: on the suspicion that the petitioner was growing marijuana in his attic, agents used “a thermal imaging device” to scan his home and compare the heat emission relative to its neighbors.[5] The evidence acquired during this initial, warrantless, operation ultimately led to Kyllo’s indictment.[6] The Scalia-authored opinion rejected this scheme as unconstitutional. In the decision, Justice Scalia determined that when “the government uses a device that is not in general public use” – such as a thermal imaging device – “to explore…a private home…the surveillance is a Fourth Amendment ‘search’ and is presumptively unreasonable without a warrant.”[7] Consider this view in light of the supposedly “inflexible” interpretative shortcomings of the philosophy that the Justice espoused: would an antiquated, unbending analytical framework fail to accommodate advanced technologies which violate an individual’s constitutional rights? Surely not.

Of course, Scalia’s liberal leanings were not limited to criminal rights. Rather famously, in Texas v. Johnson, Justice Scalia broke from his supposed conservative contemporaries and struck down Gregory Lee Johnson’s conviction for burning an American flag, a “venerated object.” This opinion, by Scalia’s own admission, ran counter to his own personal preference.[8] Nonetheless, the majority determined Johnson’s burning of the flag was “expressive conduct” and “overtly political [in] nature” given that it occurred at the Republican national convention.[9] In then-Chief Justice Rehnquist, writing for part of the minority, stated that “for more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning.”[10] Again, had Justice Scalia had his way – had he truly sought to institute a “radical” regime – or if his philosophy erred towards the most “inflexible” interpretation, one may have expected Justice Scalia to side with the Rehnquist authored opinion: the minority in this case, strangely sans Scalia, represents the one with a supposedly stronger reverence for tradition and two century plus understandings of the flag. Instead, though, we see a more “liberal” Scalia in full effect: overturning not only a criminal conviction but venerating criticism of the state.

Now, to be sure, I seek not to purely defend originalism – nor am I one to say that it is a framework that consistently leads individuals towards the most socially progressive outcomes. To the contrary, many of the criticisms directed at Justice Scalia and his originalist judicial progeny are more than warranted. Yet, to reject his stances as wholly conservative or that it is always unable to adapt in the face of changing circumstances overlooks where critics would, in fact, be in harmony with the Justice’s view (myself included).

In general, then, as fears of the Court growing seemingly more conservative increase, we need to pursue a more nuanced perspective of our understanding of the Court – one that emphasizes a broader understanding of the justices’ jurisprudence instead of placing them within the political spectrum reserved for their peers in Washington. In short, though a conservative-liberal binary may be an attractive route to aid in our anticipation of the Court’s outcomes, doing so fails to adequately capture the panoply of possible opinions that the justices regularly reach. Coincidentally, Justice Scalia’s successor, Neil Gorsuch, exemplified this seemingly apolitical judging with his opinion in Bostock v. Clayton County: the New York Times, doubtlessly surprised by this ostensibly bipartisan decision, praised the “conservative favorite” Justice for his majority opinion.[11] However, to this end, though conservative groups may laud Justice Gorsuch (or others of Justice Scalia’s newly appointed disciples), the judges themselves may perhaps be insulated from the inner workings of the capital – perhaps, it seems, they are not moral arbiters after all but, indeed, legal ones who ultimately operate independent of politics.


[1] See Nina Totenberg, Antonin Scalia, Known for Biting Dissents, Dies at 79, NPR (2016), https://www.npr.org/2016/02/13/140647230/justice-antonin-scalia-known-for-biting-dissents-dies-at-79

[2] See Richard Posner, In Defense of Looseness, NEW REPUBLIC (2008), https://newrepublic.com/article/62124/defense-looseness

[3] See Richard Posner and Eric J. Segall, Justice Scalia’s Majoritarian Theocracy, N.Y. TIMES (2015), https://www.nytimes.com/2015/12/03/opinion/justice-scalias-majoritarian-theocracy.html

[4] See supra note 2

[5] See Kyllo v. United States, 533 US 27 (2001)

[6] See id.

[7] See id.

[8] See Justice Scalia on the Record (ABC television broadcast Apr. 24, 2008)

[9] See Texas v. Johnson, 491 US 397 (1989)

 

[10] See id., (Rehnquist, CJ., dissenting)

[11] See Michael D. Shear, Gorsuch, Conservative Favorite Appointed by Trump, Leads Way on Landmark Decision, N.Y. Times (2020), https://www.nytimes.com/2020/06/15/us/politics/gorsuch-supreme-court-gay-transgender-rights.html

 

 

 

Understanding Bostock: A Response to Ryan Anderson

By: AYAN GUPTA


The United States Supreme Court, in Bostock v Clayton County,[1] held that the firing of an individual based on their sexual orientation, or on the basis that they are transgender, amounts to sex discrimination under Title VII of the 1964 Civil Rights Act.[2] In his analysis on SCOTUSBlog, Ryan Anderson, who filed an amicus brief for advocating for the employers in the case, has criticized the formulation of the Court.[3]

Anderson has argued that Justice Gorsuch has only supplied “half a theory of discrimination.”[4] Under his formulation, the test laid down by the judgement is that if by replacing the sex of the complainant, the result would have been different, it amounts to discrimination. This logic is undoubtedly an aspect of the Court’s judgement. However, it would be immature to summarize the logic of the Court in just this “simplistic” formulation. There is much more to the judgement. In this article, I will take the hypotheticals he offers and explain how they will amount to discrimination (unlike what he argues) under Bostock’s ratio. In this process, I will attempt to clarify the Court’s judgement.

Anderson argues that Bostock’s test of only changing the sex of the employee and asking would the situation would have been different is incomplete. He argues that the Court requires only a causation and an injury without ever linking the two.

However, that is not what the Court does. It correctly notes the fact that discrimination entails wrongful treatment arising out of differential treatment. The Court states that

To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated … So, taken together, an employer who intentionally treats a person worse because of sex . . . discriminates against that person in violation of Title VII [5]

In the oral arguments too, the requirement for an injury was a matter of concern. Pamela Karlan, representing the Plaintiffs, aptly points this out with an example.[6] She explains that she will be referred to as “Ms. Karlan” by the Chief Justice. The defendant advocate would instead be referred to as “Mr. Harris.” She explains that this act of sex-based differentiation does not amount to discrimination. The very essence of discrimination is the existence of an injury arising from the differential treatment. Therefore, by default, the use of the word “discrimination” implies the link.[7]

Thus, the test that the Court effectively lays down is that if by changing the sex of the employee, the treatment would be different, and if such different treatment would be disadvantageous, Title VII would be triggered.

In this context, it is imperative to analyze another hypothetical Anderson offers. He gives the examples of a male employee who regularly enters a women’s locker-room and is fired for the same.[8]  He says, rightly, that changing the sex of the employee would lead to a different result. Under his formulation of Bostock, this in and out of itself would lead to discrimination, aptly forgetting the requirement for an injury. Accordingly, he argues, the Court has effectively outlawed separate bathrooms as they amount to discrimination.

Now two things must be noted here. Firstly, the correct application of the test would require changing the sex of the employee in a “similarly situated” manner.[9] That would mean that the correct comparator here would be asking what the employer’s reaction would be if a woman were to enter the men’s washroom. In this case, it is reasonable to assume that the result would be the same. If it is not, then it would be discrimination. In any case, the firing of the employee, here, is not intentionally in order to discriminate. The termination is because he entered a restricted private space. There is an apparent lack of intention to discriminate based on sex.

In any case, his argument that the Court has effectively outlawed sex-specific places falls apart once we rope in the requirement of disadvantageous treatment, which the Court has done. There is no injury caused by differentiating bathrooms.

At the heart of Anderson’s misunderstanding, and Bostock’s ratio, is the difference between differentiation and discrimination. Both the acts involve treating individuals belonging to separate groups in a different manner. However, differentiation involves differential treatment based on reasonable differences, whereas discrimination involves an intention to cause a disadvantageous effect.[10] It is important to note that the “disadvantageous effect” is not a subjective standard, i.e., it does not depend completely on whether the plaintiff feels wronged on not. Rather, the Court sees it as a question of existence of a disparate impact.[11] Separate washrooms, for instance, have no disparate impact.

Anderson is right that discrimination based on sexual orientation indeed involves a fundamentally different kind of intention. The Court does not deny that. Instead, the very logic of the but-for causation is figuring out whether sex plays a role. Sex does inevitably play a role when it comes to sexual orientation. Discrimination based on sexual orientation involves accepting the sexual orientation of heterosexual persons of one sex and not of another, in each specific instance. Undoubtedly, sex is not the primary motivating factor in such discrimination. However, that is not what Title VII requires; it merely requires the existence of sex as a ground. Thus, when there is an intention to discriminate based on sexual orientation, it inevitably involves an intention to discriminate based on sex. Sex and sexual orientation are distinct; however, they are, nevertheless, inextricably connected.

Anderson, goes on, and says that when an employer refuses to hire both gays and lesbians (and both transmen and transwomen), there is no discrimination. Both sexes, of a particular characteristic, are being treated equally. Therefore, he says, the main intent is to discriminate based on orientation and not sex. Indeed, the link between homosexuality (and transsexuality) and sex does not change the reality that there is discrimination purely on the grounds of orientation existing here. However, at the same time, the linkage between the two means that sex plays a role too. A woman attracted to a man will not be fired in a similarly situated condition. A man attracted to a man would be.

When the focus of the analysis shifts to determining whether gays and lesbians are treated equally, two mistakes are made. First, the comparator is not similarly situated. A similarly situated comparator for a gay man would be a straight woman. The similarly situated aspect being that both persons are attracted to men. If one recalls the earlier discussion above around the washroom example, there also, a similarly situated comparator would have been a woman entering a male-only space. Similarly situated does not necessarily mean the same situation with the sex-reversed.

The second error here is that comparing the treatment of gays and lesbians is a group comparison. Title VII looks at an individual test. Thus, the comparator asks whether a woman dating a man would be fired too. The object in question here is an individual and not a group.

In conclusion, the essence of the Bostock involves using a comparator in a similarly situated manner in an instance where the differentiation causes a disadvantage (or a disparate impact). It is true, however, that the Court could have done a better job of expressing the niche difference between differentiation and discrimination. Nevertheless, Justice Gorsuch has done an incredible job in simplifying a deeply insightful analysis and Ryan Anderson misses the point of that insight.

[1] Bostock v Clayton County U.S. LEXIS 3252 (2020).

[2] 42 U.S.C. §§ 2000e to 2000e-15 (1970), as amended, 42 U.S.C. §§ 2000e to 2000e-17 (Supp. II, 1972)

[3] Ryan Anderson, Symposium: The simplistic logic of Justice Neil Gorsuch’s account of sex discrimination, SCOTUSBlog (June 16, 2020), https://www.scotusblog.com/2020/06/symposium-the-simplistic-logic-of-justice-neil-gorsuchs-account-of-sex-discrimination/ (last visited 19, 2020).

[4] Id.

[5] Supra note 1 at 11.

[6] Transcript of Oral Argument at 19, Bostock v Clayton County U.S. LEXIS 3252 (2020).

[7] Supra Bostock at 11; See also Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006).

[8] Anderson, supra note 3.

[9] Supra note 1 at 11.

[10] See also Aart Hendriks, Disabled Persons and Their Right to Equal Treatment: Allowing Differentiation while Ending Discrimination, 1(2) Health and Human Rights 152.

[11] Supra note 1 at 11; see also Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988).

Paid Leave for Victims of Domestic Violence

By: LAUREN SCARFF


          New Zealand has one of the highest rates of domestic violence in the developed world. Every four minutes, a police officer responds to a domestic violence call every four minutes.[1] One in three women are victims of domestic violence at some time in their lives, although eighty percent of these domestic violence cases go unreported.[2] Finally, almost half of all homicides committed are the result of domestic violence.[3] According to a study done by economist Suzanne Snively, family violence costs New Zealand between $4.1 and $7 billion every year in pain, suffering, premature death, reduced productivity, costs of justice and social services, increased costs as a result of partners living in different homes, welfare costs, and health costs.[4] Domestic violence plagues New Zealand, and to fight these alarming statistics, the Victims’ Protection Act was passed on July 26, 2018.

            The Victims’ Protection Act, which is the product of seven years of work by Green MP Jan Logie, was passed by a vote of 63 to 57 in July of 2018 and went into effect in April of 2019.[5] Voting for the bill fell exactly along party lines as the Labour coalition supported it and the National and ACT parties voted against it.[6] The law requires that employers give any employees who are victims of domestic violence ten days paid leave. The law mandates that victims don’t have to provide proof of their circumstances to get these ten days and that employers should also create an easy path for victims to receive flexible work conditions, which include allowing a change in work location and email address and removing any contact information from the business’s website.[7]

            The main argument in support of this law is that it gives victims of domestic violence time to leave whatever dangerous situation they may be in and protect their families. One of the main reasons domestic violence victims stay in a dangerous relationship or environment is for fear that they will lose their jobs. The supporters of the law believe that with this standardized requirement to provide paid leave, victims will be able to more confidently remove themselves from the relationship knowing that they will still be able to keep their jobs and provide for their families.[8] Furthermore, allowing victims to change their work location will allow the victim to stay away or hide from the dangerous situation as long as they may need. Changing the victim’s work email address and removing information on the victim from the business’s website further protects the victim from any unwanted or potentially dangerous contact with their abuser.[9] All of these steps either required or suggested in the Victims’ Protection Act were made, the Labour coalition asserts, to empower domestic violence victims to feel comfortable and safe in removing themselves from any dangerous situations.[10]

            Many opponents of the law argue that domestic violence and work, in most circumstances, are not in the least bit related, however, supporters of the law have shown that domestic violence does indeed have an impact on businesses. Jan Logie, the MP that wrote the original bill, claims that businesses lose more than 368 million dollars a year as a result of domestic violence. Domestic violence leads to a loss of productivity and a higher employee turnover rate, which leads to an increase in new employees who need to be trained.[11] Businesses lose massive amounts of productivity as domestic violence is brought into the workplace via constant emailing or phone calls and the stalking or threatening a victim while they’re at work.[12] A main tactic of domestic abusers is also to push their victims to quit their jobs. This way, the victims will be completely reliant on their abusers for income and will be much less likely to leave them.[13]

            Beyond the concrete effects the law will have in aiding victims of domestic violence, supporters of the law believe that it will force businesses to realize that domestic violence is not just a social issue. Jan Logie claims that this law will force businesses to say that “the safety and well-being of our staff experiencing domestic violence is our business” (Logie). By not only enacting this law but by advertising the monetary losses businesses are experiencing because of domestic violence, Logie and the law’s supporters believe that the issue of domestic violence will become an economic issue as well.[14] This will ultimately give the government, the public, and the private sector even more of a reason to work together to end the plague that is domestic violence in New Zealand. The law challenges the very nature that domestic violence is only an issue domestically, and advocates for the belief that simply requiring employers to give victims a ten-day paid leave will result in a widespread change in how domestic violence is viewed and how New Zealand can work to end it.[15]

          The National Party and ACT Party voted unanimously against the bill in 2018 mainly because they believed it would hurt small and medium-sized businesses. Mark Mitchell, the Spokesperson for Justice for the National Party, was the voice for the National Party’s opposition to the law.[16] He claimed that the burden of giving domestic violence victims ten days paid leave was simply too much for small and medium-sized businesses to bear.[17] The National Party, however, was not totally against the essence of the law. It was suggested that the government should fund the law instead of leaving it to small businesses.[18] It was also proposed that domestic violence leave should be included in vacation and sick leave. Finally, the National Party proposed an amendment that would kickstart a nationwide educational campaign to teach employers how they could and should play a part in ending domestic violence.[19] The National Party’s main issue with the law really was not with the law itself, but with who was going to fund it.

          Furthermore, the National Party argued that the law would not actually result in ameliorating New Zealand’s domestic violence problem. A mandatory paid leave for victims of domestic violence would bring victims relief, the National Party understood, but there appeared to be no path towards the prevention of domestic violence offered in the law.[20] The Party was not in favor of a law that seemingly wouldn’t directly avoid any further instance of domestic violence, especially considering the toll it would have on small and medium-sized businesses. Those against the law believed that the economic losses that these businesses would face outweighed the benefits of a law that only brought relief, and not preventative measures, to the issue of domestic violence.[21]

          Not only did the National Party argue that the Victims’ Protection Act wouldn’t prevent domestic violence, but they also believed that it would actually encourage employers not to hire people they believe may be victims of domestic violence. Opponents of the law believed that mandatory paid leave for domestic violence victims would give employers incentive to not hire people who have been victims of domestic violence in the past, especially women, because of the economic burden it would put on their business.[22] Although the law has clauses that protect victims from this kind of discrimination,[23] employment discrimination is often incredibly hard to enforce, and those against the law believed that these preventative clauses would likely not be enough to discourage this discrimination. Again, the National Party believed that the risk of businesses promulgating this kind of employment discrimination outweighed the potential benefits of the law.[24]

          At face value, the Victims’ Protection Act offers relief and protection for victims of domestic violence. Beyond this face value, however, the law brings domestic violence to an economic platform by emphasizing the massive effects domestic violence has outside the home and in businesses. Jan Logie and the Labour Coalition aimed to bring the conversation of domestic violence to a new audience in an effort to end the issue completely. The National Party, however, had concerns about how the law would be funded and the burden the law would put on small and medium-sized businesses. On top of this, there was great fear that the law would ultimately hurt victims of domestic violence by incentivizing businesses to discriminate against past victims or suspected victims of domestic violence. The economic burden combined with the potential to promote employment discrimination outweighed any potential benefit the law may have for the National Party, especially considering the law seemingly would not prevent domestic violence.


[1] Anna Bracewell-Worrall, New Zealand Passes Bill Giving 10 Days’ Leave to Domestic Violence Victims, Newshub (July 25, 2018), https://www.newshub.co.nz/home/politics/2018/07/new-zealand-passes-bill-giving-10-days-leave-to-domestic-violence-victims.html.

[2]Anna Leask, Family Violence: 525,000 New Zealanders Harmed Every Year, NZ Herald (March 26, 2017), https://www.nzherald.co.nz/family-violence/news/article.cfm?c_id=178&objectid=11634543.

[3] New Zealand Grants Domestic Violence Victims Paid Leave, BBC News (July 15, 2018), https://www.bbc.com/news/world-asia-pacific-44951237.

[4] Simon Collins, Family Violence Costs NZ up to $7 Billion a Year,  NZ Herald (August 24, 2017), https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11356152.

[5] Eleanor Ainge Roy, “A Huge Win”: New Zealand Brings in Paid Domestic Violence Leave, The Guardian (July 26, 2018), https://www.theguardian.com/world/2018/jul/26/new-zealand-paid-domestic-violence-leave-jan-logie.

[6] Laura Walters, Domestic Violence Victims Able to Take a New Form of Leave, Stuff (July 15, 2018), https://www.stuff.co.nz/national/politics/105735404/domestic-violence-victims-able-to-take-a-new-form-of-leave.

[7] Supra. See note 5

[8] Merrit Kennedy, New Zealand Will Provide Paid Leave to Domestic Violence Survivors, NPR (July 26,2018), https://www.npr.org/2018/07/26/632601325/new-zealand-will-provide-paid-leave-to-domestic-violence-survivors.

[9]Supra. See note 5

[10]Supra. See note 8

[11] Susan Edmunds, Domestic Violence Costs Employers Millions of Dollars – Green MP Jan Logie, Stuff (February 28, 2017), https://www.stuff.co.nz/business/89866077/domestic-violence-costs-employers-millions.

[12] Supra. See note 5

[13] Supra. See note 5

[14] Supra. See note 11

[15] Supra. See note 5

[16] Supra. See note 6

[17] Supra. See note 6

[18] Supra. See note 3

[19] Supra. See note 6

[20] Supra. See note 3

[21] Supra. See note 1

[22] Supra. See note 1

[23] Charlotte Graham-Mclay, New Zealand Grants Domestic Violence Victims Paid Leave, The New York Times (July 26, 2018), https://www.nytimes.com/2018/07/26/world/asia/new-zealand-domestic-violence-leave.html.

[24] Supra. See note 3

Human Right to Housing

By: SADIE MORRIS


            On January 14th, 2020, several families were forcibly removed by Oakland police from a house they were occupying to demonstrate against the ever-growing housing crisis in California. The demonstration began on November 18th, 2019 when two mothers experiencing homelessness entered a vacant home owned by home-flipping company Wedgewood Properties with their children.[1] The situation soon morphed into a lawsuit in which Wedgewood Properties sued for the eviction of the families, to which the mothers responded with a claim of right of possession, arguing  that they have a human right to housing. According to California State Law, “The court shall determine the claim [of right of possession] to be invalid if the court determines that the claimant is an invitee, licensee, guest, or trespasser.”[2] In an unprecedented move, Alameda County Superior Court Judge Patrick McKinney decided to consider the mothers’ argument rather than dismissing the case as a clear example of a claim being invalid due to trespassing.[3] This allowed the mothers and their families to stay in the home for the next few months while the case was decided. At the same, they organized to spread their message, calling themselves Moms for Housing. Eventually, Judge McKinney found that while the mothers’ argument was moving, he rejected the argument that the women had a right to stay in the vacant home given their lack of alternatives.[4] This case is part of a larger conversation about the right to housing which has been going on since the Industrial Revolution and was reinvigorated by the economic depression of 2008. It is worth examining the body of laws surrounding the right to housing in order to better understand the position of Moms for Housing and where the conversation should go from here.

          The importance of housing has been enshrined in U.S. and English law for centuries. Most of these legal foundations lie in protections for the rights of property owners, which may seem to be in opposition to the rights of those without property at first glance. However, on closer inspection, these foundations actually speak to the legal recognition that a house is more than just a place of shelter. Housing affects physical health, mental health, physical fitness, nutrition, access to services, cultural and community identity, exposure to crime and other factors of well-being.[5] It is little surprise, then, that the first tenement acts and zoning laws arose in response to the squalor conditions of Industrial Revolution-age homes in the 19th and early 20th centuries. Citizens petitioned their governments–at the local, state, and federal level– to ensure that they and their families had access to affordable and adequate housing. Commissions on housing were started at all levels of government. Their work would contribute to a new body of housing legislation that arose mid-century, including the National Industrial Recovery Act of 1933, the National Housing Act of 1934 and The Housing Act of 1945.[6]

            The right to housing also became cemented in international law during the mid-twentieth century. Article 25 of the Universal Declaration of Human Rights of 1948 provides that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”[7] The Article goes on to say that “Motherhood and childhood are entitled to special care and assistance,” recognizing the specific role of adequate housing in proper childhood development.[8] The specific right of children to “a standard of living adequate for the child’s physical, mental, spiritual, moral and social development” is further emphasized in Article 27 of The Convention on the Rights of the Child.[9] The right to housing was also reaffirmed in the 1976 International Covenant on Economic, Social, and Cultural Rights.[10]  In general these laws do not “envision free single family homes for everyone; it is a more nuanced responsibility for governments to ensure all residents have access to adequate, affordable housing.”[11]

            Given that the right to housing is explicitly present in international law and U.S. law itself recognizes the multiplicity of roles that housing plays, the question must be raised whether there was some legitimacy to the Moms for Housing claim. The doctrine of “Unclean Hands” holds that courts cannot grant an injunction to a “litigant guilty of wrongdoing directly connected with the lawsuit.”[12] As applied to situations in which those experiencing homelessness are suing to keep from being removed from a property, the indicated party must be able to show that the government suing them has breached some duty they owe to the residents of the encampment.[13] While potentially a strong argument in cases on the side of the right to housing, this doctrine would not apply in the Moms for Housing claim because it is not the government suing for their removal but rather a private company, Wedgewood. Some litigants have argued under the Eighth Amendment that removal from property is a form of cruel or unusual punishment if the government is essentially criminalizing a necessary activity for survival in the absence of alternatives–the absence of alternatives being a key contingency.[14]

            Whether or not there are alternatives to illegally trespassing and squatting on vacant property is a harder question to answer in the face of growing economic problems in the U.S. and specifically in California. In the aftermath of the financial and housing crisis of 2008, the poverty rate in California has risen to 18.2% and “homelessness routinely tops the polls of residents’ biggest concerns.”[15] A visceral statistic in evidence of this is that “the only demographic category in the Bay Area whose incomes mostly rise above the salary needed for a two-bedroom abode in the Moms’ West Oakland neighborhood is white men, who earn a little more than $100,000 at the median. Black women earn less than half of that—$49,369.”[16] The Special Rapporteur on Adequate Housing to the United Nations reports that the 2008 financial crisis caused a dramatic increase in housing commercialization, changing housing primarily into a form of investment rather than a way to actually create homes for people.[17] Not only has this commercialization stimulated the growth of huge housing conglomerates like Wedgewood, which spur foreclosures and evictions, but “the vast amount of wealth [created by these conglomerates and via the investment market] has left governments accountable to investors rather than their international human rights obligations.”[18]  Evictions that go through private companies can also not be examined under the Unclean Hands doctrine, which results in governments being exempted from their duties to uphold the right to housing.

            The Moms for Housing legal case itself was unlikely to stand up to current U.S. legal standards, but their case was successful in furthering a dialogue on what right to housing is owed to citizens. The fact that the UN Sustainable Development Goals and Habitat III New Urban Agenda back in 2015 includes a commitment to “promote national, sub-national, and local housing policies that support the progressive realization of the right to adequate housing for all as a component of the right to an adequate standard of living” indicates how the Moms for Housing case is part of a larger, in-progress conversation that has begun to shift and must continue to shift towards thinking about a just housing system as part of the process of developing a more sustainable world.[19] Ever the land of experimentation, California and the U.S. have an important role to play in demonstrating how the right to housing can be incorporated in longer term planning.


[1] Brentin Mock and Sarah Holder, A Group of Mother, a Vacant Home, and a Win for Fair Housing, CITYLAB, 28 January 2020, https://www.citylab.com/equity/2020/01/moms-4-housing-eviction-oakland-homeless-crisis-real-estate/605263/.

[2] Code of Civil Procedure §1174.3, CCP (d) (2020)

[3] Marisa Kendall, Judge Considers if Moms 4 Housing has Right to Occupy Empty House, MERCURYNEWS, 30 December 2019, https://www.mercurynews.com/2019/12/30/judge-considers-moms-4-housings-right-to-occupy-empty-home/

[4] Marisa Kendall, Moms 4 Housing Loses Court Case Still Refuses to Move Out, MERCURYNEWS, 11 January 2020, https://www.mercurynews.com/2020/01/10/moms-4-housing-loses-court-case-must-vacate-west-oakland-home/

[5] Emily Bergeron, Adequate Housing is a Human Right, AMERICANBAR, 01 October 2019, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol–44–no-2–housing/adequate-housing-is-a-human-right/

[6] Emily Bergeron, Adequate Housing is a Human Right, AMERICANBAR, 01 October 2019, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol–44–no-2–housing/adequate-housing-is-a-human-right/

[7] Universal Declaration of Human Rights, UNITED NATIONS, 1948 https://www.un.org/en/universal-declaration-human-rights/.

[8] id.

[9] Supra. See note 7 (93)

[10] International Covenant on Economic, Social and Cultural Rights, UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER, 1966, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.

[11] Tent City, USA, NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, 2017 (83)

[12] Supra. See note 7 (86)

[13] Id.

[14] Supra. See note 7 (84)

[15] Conor Dougherty, California, Mired in a Housing Crisis, Rejects and Effort to Ease It, NEW YORK TIMES, 30 January 2020, https://www.nytimes.com/2020/01/30/business/economy/sb50-california-housing.html?te=1&nl=california-today&emc=edit_ca_20200131&campaign_id=49&instance_id=15634&segment_id=20863&user_id=bf0474a0ccaccf28d2f666623c073ebb&regi_id=7776464820200131

[16] Brentin Mock and Sarah Holder, A Group of Mother, a Vacant Home, and a Win for Fair Housing, CITYLAB, 28 January 2020, https://www.citylab.com/equity/2020/01/moms-4-housing-eviction-oakland-homeless-crisis-real-estate/605263/.

[17] Office of the High Commissioner, Special Rapporteur on Adequate Housing as component of the right to an adequate standard of living, UNITED NATIONS HUMAN RIGHTS COUNCIL, 2019, https://www.ohchr.org/en/issues/housing/pages/housingindex.aspx

[18] Id.

[19] Supra. See note 7 (95)

Legality of Gerrymandering

By MAEVE SILK


          Gerrymandering is the process of drawing electoral district lines in order to gain unfair political advantage. Beginning in the post-Civil War era, illegal “packing” and “cracking” techniques were used in the South to limit the voting power of the black population.[1] The most recent cycle of redistricting was in 2010. According to a report published by the Center for American Progress last May, on average fifty-nine members of the U.S. House of Representatives would not have been elected based on natural state party identification in 2012, 2014, and 2016 election cycles; they only won because of gerrymandering. Those fifty-nine legislatures are equal to the voting representation of approximately forty-two million Americans.[2]

          According to Section 2 of the Voting Rights Act of 1965, which was amended in 1982, “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.”[3]

          The Voting Rights Act, which was renewed on July 20, 2006, has been considered by many to be a direct opposition to gerrymandering, which often relies on the separation of different racial groups while redistricting in order to achieve political benefit. For example, after the 1990 census and subsequent redistricting, several district delineations were denied by the Supreme Court for being racially discriminatory. In ​Thornburg v. Gingles (​1986), the court unanimously decided that redistricting plans in North Carolina that strategically gave white citizens the ability to overpower the votes of citizens of color were not permissible.[4] Following this decision, in ​Bush v. Vera ​(1996), redistricting plans in Texas to create three new districts, limiting African-American residents’ ability to participate in voting and successfully elect their chosen candidates, were ruled as a violation of the Voting Rights Act.[5] In similar race-based gerrymandering cases, such as ​Shaw v. Reno ​(1993) and ​Miller v. Johnson (​1995), the Supreme Court has reaffirmed that any redistricting plans that can be proven to be racially discriminatory violate the Voting Rights Act.

          Gerrymandering is sometimes politically motivated, rather than solely racially motivated. Baker v. Carr​ (1962) alleged that Tennessee did not follow existing legislation in its appointment practices for its General Assembly. By ruling on this case, the Supreme Court demonstrated that it was in its jurisdiction to rule on cases regarding legislative apportionment.[6] A similar conclusion was found in ​Davis v. Bandemer (1986), a case which alleged that Democrats in Indiana were being unfairly disadvantaged through a proposed redistricting plan. Although the Supreme Court did not ultimately find that a violation of voting rights had occurred through redistricting in the case, it did conclude that claims of gerrymandering were justiciable through the Equal Protection Clause of the 14th Amendment.[7]

          In some cases, gerrymandering can be thought to violate the 14th Amendment by interfering with a certain group of individuals’ ability to vote, but it can be difficult to prove. In spite of these considerations, the Supreme Court has also found many gerrymandering cases to be outside of its jurisdiction for similar reasons. For instance, in ​Vieth v. Jubelirer ​(2004), the court considered whether Republican gerrymandering in Pennsylvania violated the “one-person, one-vote” concept of Article 1, Section 2 of the Constitution. While the District Court found that the redistricting plans did breach Article 1, Section 2, the Supreme Court decided that the case was non-justiciable.[8] While the Supreme Court recently heard another gerrymandering case, Rucho v. Common Cause​ (2019), ultimately, there has not been a clear decision on whether or not the issue of gerrymandering as a whole falls under the jurisdiction of the Supreme Court; it is largely dependent on a case-by-case basis.

          At the state level of legislature, there have been many different responses to gerrymandering. Every state has its own unique rules for district formation. Many states, but not all, require that the district be compact and contiguous, and that district lines not cross political subdivisions or break apart neighborhoods.[9] A few states, such as Michigan and Colorado, have added measures to their constitutions to help limit partisan gerrymandering, but most states have done little to regulate the practice.[10] In response to this issue, House Democrats proposed a new bill in 2019, the For the People Act (H.R.1), which included regulations requiring states to inhibit gerrymandering through methods like using an independent body for redistricting. H.R.1 passed in the House, but not in the Senate.[11]

          The Center for American Progress recommends a redrawing of lines by an unbiased, independent entity in order to create “voter-determined districts” based on using districts to fairly represent the division of state voters regarding major parties.[12] [xvi] Although this would be difficult to perfectly match the districts and voting preferences of the state, modern computer mapping systems make this a much more realistic option than in the past. Ultimately, the core of our democracy relies on people’s ability to vote for representation. The process of gerrymandering threatens that tenet by undermining the value of certain votes. With the 2020 election cycle approaching and the next redistricting scheduled to take place after the 2020 census, it is important for Americans to consider what gerrymandering can mean for their votes.


[1] E. Engstrom, ​Gerrymandering and the Evolution of American Politics​, University of Michigan Press (2013),  https://www.jstor.org/stable/j.ctt1gk086k.4?seq=1#metadata_info_tab_contents.

[2] Alex Tausanovitch​., The Impact of Partisan Gerrymandering​, Center For American Progress (October 1, 2019), https://www.americanprogress.org/issues/democracy/news/2019/10/01/475166/impact-partisan-g errymandering/.

[3] Voting Rights Act of 1965, 52 U.S.C ​§ 2 (2015).

[4]Thornburg v. Gingles,​ 478 U.S. 30 (1986).

[5]Bush v. Vera, 517 U.S. 952 (1996).

[6] Baker v. Carr, 369 U.S. 186 (1962).

[7]Davis v. Bandemer​, 478 U.S. 109 (1986).

[8] Vieth v. Jubelirer, 541 U.S. 267 (2004).

[9] N.A, Redistricting Criteria, ​National Conference of State Legislatures, (April 23, 2019),  https://www.ncsl.org/research/redistricting/redistricting-criteria.aspx

[10] ​Jake Neher​, ​Cheyna Roth​, ​Here’s Where Michigan’s Redistricting Effort Stands After SCOTUS Gerrymandering Ruling,​ WDET, (July 1, 2019), https://wdet.org/posts/2019/07/01/88365-heres-where-michigans-redistricting-effort-stands-after- scotus-gerrymandering-ruling/

[11]Michael Li, Five Ways H.R. 1 Would Transform Redistricting, Brennan Center, (June 19, 2019), https://www.brennancenter.org/our-work/analysis-opinion/five-ways-hr-1-would-transform-redistricting.

[12] Alex Tausanovitch​, ​supra n​ote 2.

A Brief Consideration of Sexual Assault Cases in the Criminal Justice System

By LINDSEY CLARK


          Over the past few years, the #MeToo movement on social media has shed a harsh light on the realities of sexual assault. Across many industries, women are speaking out against their attackers. These brave leaders inspire others who have experienced sexual assault to voice their traumatic experiences. Today, victims, the majority of whom are women, are more empowered than ever to disclose sexual assaults. However, despite these gains, society has not changed its fundamental approach to criminalizing sexual assault. Ideal punitive systems theoretically should uphold deterrence as the ultimate goal of punishment,[1] predicated on the understanding that prevention originates from the certainty of the punishment, not the severity.[2] The minuscule number of rapists who are actually punished demonstrates how our system fails to meet this ultimate standard.[3] Acknowledging this failure requires a fundamental review of how our theoretical treatment of sexual violence and our actual prosecution of the crime can precipitate a more just system.[4] Investigating these new approaches implies endeavoring beyond traditional legal boundaries and conventional understanding.

          A quick survey of the statistics surrounding sexual assault cases reveals a clear, deep, destructive failure within the system. An estimated 77% of sexual assaults go unreported.[5] If the victim does report the crime, the criminal justice process mistreats and isolates them. Instead of criticizing the perpetrator, trials engage in a brutal form of victim blaming.[6]  Sexual assault crimes draw low prosecution and conviction rates.[7]  Digging deeper, these startling statistics emerge due to a widespread societal misunderstanding of sexual assault. For example, a study of high school students in Los Angeles finds that 56% of girls and 76% of boys believe that “forced sex was acceptable under at least some circumstances.”[8] Another study finds that a majority of men believe that “any woman could prevent rape if she really wanted to.”[9]

           In response to this devastating societal ignorance and the resulting failures of the legal system, much academic literature contends that the traditional burden of proof on the prosecution could be too high. The prosecution must prove “beyond a reasonable doubt”[10] that the victim did not consent and that the perpetrator knew the victim did not consent. However, because of the public’s “weak moral prohibition”[11] of sexual assault outside of violent rape, perhaps the standard of “beyond reasonable doubt” becomes inhibitive.[12] We can observe how culture behaves in a punitive system with a lower burden of proof. The Title IX system does not involve criminal proceedings, so it requires a lower standard of proof.[13] Instead of “beyond a reasonable doubt,” Title IX cases demand a “preponderance of the evidence standard.”[14] This system bases convictions on a convincing probability, rather than virtual certainty. These microcosmic college environments can be extrapolated to examine how punishment works under different circumstances. Despite a lower standard of proof, Title IX remains largely inadequate at preventing victim blaming.[15] This indicates that removing the means of victim blaming in punishment systems does not terminate the motivation of victim blaming. Deterrence still requires shifting the blame from the victim to the perpetrator. This will only happen when punishments employ an appropriate “moral condemnation.”[16] Productive punishments properly align “the suffering [the] sanction imposes and the meaning it has for society.”[17] An ingrained societal shame about sex in general further connects shame to sexual assault punishments.[18] However, both the Title IX and criminal justice systems employ an ineffective form of shame to punish these crimes. We incessantly deny the realities of sexual assault trauma. Without the proper approach to shame, we cannot fully deter sexual violence.

          The manner in which we punish sexual assault fundamentally fails because “the message of condemnation is [not] very clear.”[19] To effectively punish and deter sexual assault, the system must change to successfully manipulate shame. Given the majority of high school and college students who excuse at least some form of sexual assault,[20] social conceptions of sex and masculinity are prioritized over the law. Instead of blaming the victim, we must judge the perpetrator. Shame, used effectively, becomes a social deterrent and can ideally rectify this destructive social failure.[21] With this ideology, reformers suggest public sanctions “designed not only to punish but to teach and steer social influence.”[22] Deploying shame in a new way wholly changes the nature of punishment; as a result, many of these solutions appear too radical at first glance. For example, Katharine K. Baker, a professor of law in Chicago, directs shame in Title IX cases to isolate the perpetrator from the tight-knit college community while they still live in it. She offers a punishment that requires perpetrators to wear an armband indicating their crime and the social organizations to which they belong.[23] Though drastic, this type of punishment certainly harnesses social influence to prevent sexual assault. The perpetrator shames himself and his social group, publicly. The law here overpowers the social pressures that incentivize sexual assault. Shame, if properly distributed, “instill[s] aversions to the kinds of behavior that the law prohibits.”[24] This approach brings justice directly to the victim to properly deter the action. Re-evaluating the burden of proof in cases of sexual assault cases is necessary, but not sufficient to promoting the ultimate goal of the criminal justice system: deterrence. How we behave and what behavior we excuse matters. We are a part of society; we are the judges and the jury; we are the victims and the perpetrators. Consequently, we are responsible for preventing sexual assault.


[1] Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments 16 (2011).

[2] Ibid.

[3] Dan M. Kahan, What Do Alternative Sanctions Mean?, 114 Faculty Scholarship Series, 591, 596 (1996).

[4] T. McDonald & L. Kline, Perceptions of Appropriate Punishment for Committing Date Rape: Male College Students Recommend Lenient Punishments, 38 College Student Journal (2004).

[5] Perpetrators of Sexual Violence: Statistics, RAINN, https://www.rainn.org/statistics/perpetrators-sexual-violence.

[6] N. Westera, M. Kebbell, & B. Milne, Want a Better Criminal Justice Response to Rape? Improve Police Interviews With Complainants and Suspects, 22 Violence Against Women, 1748, 1748 (2016).

[7] Ibid.

[8] Katharine K. Baker, Sex, Rape, And Shame 79 B.U.L Rev. 663, 679, (1999). Based on a study by Jacquelyn W. White and John A. Humphrey.

[9] Supra note 4.

[10] “Chapter 40. Sex Offender Registration.”

[11] Supra note 8 at 694.

[12] A recent rape case in a court in Texas offers support to this end. On December 10, 2018, the prosecution offered the defendant a $400 plea deal instead of years in prison. The prosecutor told the victim, “Our jurors aren’t ready to blame rapists when there isn’t concrete proof of more than one victim.” Our courts of law render one person’s victimhood insufficient to bring them justice within the system. CBS Evening News, Twitter Post, December 10, 2018, 3:51 PM.

[13] It should be noted that Title IX regulations were recently amended. However, these changes do not affect the cited information.

[14] U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide (2015).

[15] This point references the recent controversial changes to the Title IX standards as well as the subsequent outcry from Georgetown students. A new organization called Georgetown Survivors is working to draw attention to the shortcomings of Georgetown’s Title IX program and the ways in which the advisory board engages in victim blaming. (see https://thehoya.com/survivor-viewpoints/)

[16] Dan M. Kahan, What Do Alternative Sanctions Mean?, 114 Faculty Scholarship Series, 591, 593 (1996).

[17] Ibid.

[18] Susan Brison, Aftermath: Violence and the Remaking of a Self 12 (2002).

[19] Supra note 16.

[20] Katharine K. Baker, Sex, Rape, And Shame 79 B.U.L Rev. 663, 679, (1999). Based on a study by Jacquelyn W. White and John A. Humphrey.

[21] Ibid. 706.

[22] Ibid. 696.

[23] Ibid. 698.

[24] Supra note 16 at 603.

National Security Whistleblowers and the Espionage Act

By CHLOE WALLACE


          The Espionage Act of 1917 intended to put limits on the First Amendment during wartime in order to mitigate fears of potential traitorous American soldiers and spies.[i] Although this was a wartime measure, several provisions of it are still active. Section 793 of the Act, in recent years, has been used as a tool to charge whistleblowers, which the Government Accountability Office defines as employees who disclose information that they reasonably believe is “evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety.” This law is used to primarily charge those in the intelligence and national security community, as it broadly provides that anyone with access to data that the government deems to be harmful to the nation (i.e., can be used against the U.S. by enemies) that communicates, or attempts to communicate, the information shall be fined or imprisoned.

          Public opinion has shifted in favor of whistleblowers that alert the public of government wrongdoing, but the century-old law still functions as a means to protect the government by shielding the public from information that might reveal wrongdoing.[ii] The law should change to protect whistleblowers because at present this act poses a threat to government transparency. It allows the government to prosecute leakers and whistleblowers “that it dislikes, while leaving untouched the many leakers within the security state who release classified materials to advance those agencies’ bureaucratic aims.”[iii] Further, it does not allow the leaker to have a public interest defense in court, despite most coming forward out of a sense of “public duty.”[iv]

          The Espionage Act of 1917 has evolved from being a means to “punish acts of interference with the foreign relations” into a tool of government suppression that punishes whistleblowers and precludes potential whistleblowers from releasing evidence of wrongdoing to the public.[v]  Currently, seeking an outside channel for sharing information leaves a whistleblower vulnerable to charges under this Act. Punishing whistleblowers for exposing wrongdoing contradicts the philosophical understanding of punishment because by definition, a whistleblower does the morally “right” thing by exposing crimes or illegality, with no intent to harm, yet still faces the consequences a traitor, with intent to harm, would. This creates an unfair ethical dilemma for potential whistleblowers: should one overlook wrongdoing to protect themselves from punishment, or should they do the right thing and expose the government’s criminal activities but pay the price of punishment? The law should become more sympathetic to the critical role whistleblowers play by informing the public of government wrongdoing, rather than assuming whistleblowers are automatically criminals worthy of punishment.

         While the Espionage Act needs amending, this is not to say that such an amendment should free all leakers from punishment. There are some acts of leaking, or whistleblowing, that do not expose federal wrongdoing. Therefore, they are deserving of punishment. In cases where there is intent to harm the nation, or a revelation puts lives at risk – such as revealing the location of CIA assets or troop movements overseas – there is no public interest component that can mitigate possible punishment to the whistleblower. In sum, under current law anyone with information, regardless of whether or not it is communicated, can hypothetically be charged because the government decides whether or not the information possessed is harmful.[vi] Since the decision of what is “harmful” rests solely with the government, the government could theoretically use the Espionage Act to crack down on beneficial whistleblowers, which would threaten government transparency. While some information may actually be harmful if leaked to the press, and thus worthy of punishment, the government may prosecute people for revealing information that is merely embarrassing for them. This selective enforcement of the law must change to protect the government’s critics and so that civic-minded leakers are not punished more than actual wrongdoers.

          Over the past two administrations, 13 people have been charged under the Espionage Act. Eight of these cases occurred during the Obama Administration. None involved double agents or wartime security concerns, but instead leaking secure documents. Examples of these document leaks ranged from highly classified military intelligence to embarrassing candid diplomatic messages.[vii] At present, the Trump Administration is on track to break Obama’s record use of the Act.[viii] As the use of this law is on the rise again, this law should be amended to enhance safeguards for the individuals willing to hold our government accountable by exposing wrongdoing in the intelligence and national security community. However, it is crucial that a balance must be found to ensure national security and maximum government transparency under the law. The Act should distinguish between whistleblowers acting out of public interest by exposing wrongdoing and a spy selling classified information to an enemy state. On the Hill, Senator Ron Wyden (D-OR) has proposed provisions to harmonize the whistleblower reporting procedures for intelligence community members, but they have yet to be implemented.[ix] Other legislative efforts to protect intelligence whistleblowers have faced strong headwinds because “working with sensitive U.S. intelligence or national-security information means working within a system with little outside accountability and transparency.”[x]

           In sum, those that leak information from the intelligence community should have protections under the law as they risk their careers because they have found troubling information that they believe must be brought to light. Currently, the intelligence community has separate rules and little protection for whistleblowers unlike the corporate or federal sphere in part because of the Espionage Act. Without intelligence whistleblowers, we would not know about shortcomings of the drone program, the nation’s use of torture, NSA surveillance, and Russian election tampering; the national conversation would not have shifted on these topics and the government would not be challenged.[xi] The public has a right to know when the government falters, and ideally, the law should not punish these people for doing the right thing of exposing wrongdoing.


[i] David Asp, Espionage Act of 1917, The First Amendment Encyclopedia, (2019).

[ii] Tom Mueller, Whistleblowers say aloud what many of us think in silence. It’s a relief. The Washington Post (2019).

[iii] Jay Stanley, Reality Winner Is Latest to Face Prosecution Under Awful World War I Espionage Act, ACLU (2019). https://www.aclu.org/blog/national-security/secrecy/reality-winner-latest-face-prosecution-under-awful-world-war-i?redirect=blog/free-future/reality-winner-latest-face-prosecution-under-awful-world-war-i-espionage-act

[iv] David Colapinto, co-founder and general counsel of the National Whistleblower Center. https://www.cnn.com/2019/09/27/politics/whisteblowing-explainer-trnd/index.html

[v] Stephen Vladeck, The Espionage Act and National Security Whistleblowing After Garcetti, American University Washington College of Law, (2008).

[vi] 18 U.S.C 793 “Gathering, transmitting, or losing defense information,” Legal Information Institute Cornell Law School.

[vii] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).

[viii] Peter Sterne, Obama Used the Espionage Act to Put a Record Number of Reporters’ Sources in Jail, and Trump Could Be Even Worse, Freedom of the Press, (2017).

[ix] Rob Wyden, Wyden Secures Key Provisions in 2018, 2019 and 2020 Intelligence Authorization Acts (press release) (2019).

[x] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).

[xi] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).

Legality of Environmental Justice

By ALEX RAGLAND


          Environmental justice has heavily relied on the argument of federal common law of public nuisance for its argument. A public nuisance is “an act that causes incontinent or damage to public health or that obstructs public rights.”[i] The first link between pollution and public nuisance was created in the Supreme Court case Georgia v. Tennessee Copper (1907). The case, which was about air pollution due to copper mining, determined that states have the ability to sue for environmental damages.[ii] Furthermore, the case described the nature of the nuisance as:

It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source. If any such demand is to be enforced this must be, notwithstanding the hesitation that we might feel if the suit were between private parties, and the doubt whether for the injuries which they might be suffering to their property they should not be left to an action at law.[iii]

          This case laid the groundwork for key environmental cases years later. However, after 1907, the case, and the newly-defined public nuisance, were largely ignored. Seventy years later, the landmark decision in Illinois v. Milwaukee (1972) would cite Georgia v. Tennessee Copper as the Court defined federal common law of public nuisance.[iv]

          The federal common law of public nuisance was recognized in the decision Illinois v. Milwaukee (1972).[v] Before Illinois v. Milwaukee was decided at the Supreme Court, Congress had passed numerous legislations regarding the environment, and more specifically water pollution, such as the Federal Water Pollution Control Act and the National Environmental Policy Act of 1969. The Court decided that the previously listed “existing legislation did not offer the plaintiff the needed remedy” and “appealed to federal common law in fashioning a remedy for Illinois”.[vi] The decision of Illinois v. Milwaukee was a success for environmental law in that it allowed for the possibility for further lawsuits to be filed. After the decision in 1972, a “wave of cases” would emerge as conservation groups attempted to “apply this newly reemergent legal doctrine to other polluters”.[vii] It seemed as if environmental plaintiffs now had an iron-clad argument. However, soon the cracks in relying on the doctrine began to show.

          The doctrine that evolved from the case was “cloaked in general and vague terms.”[viii] The vague terms which defined the federal common law of public nuisance caused confusion in the lower courts.[ix] Now, lower courts had the problem of determining how to apply the doctrine. In response, some courts have “resolved this uncertainty by limiting application of the federal nuisance cause of action to factual settings analogous to the ones that existed in Illinois v. Milwaukee.”[x] This encapsulates multiple specific facts of the case and ensures that the number of environmental cases that can use the federal common law of public nuisance is severely limited. Other courts take the opposite approach and interpret the Court’s opinion as a “broad policy doctrine designed to protect the nation’s waterways and to abate water pollution.”[xi] This split definition of the Court’s ruling was particularly harmful to potential defendants. A “primary complaint” of defendants is that, since the application of public nuisance doctrine with regards to environmental cases is so vague, it is difficult for “defendants to reliably predict what sorts of activities will give rise to liability.”[xii] Regardless of the interpretation, Illinois v Milwaukee’s definition of federal common law forced district courts to “decide on the merits appellants’ right to federal common law relief” on a case-by-case basis.[xiii] While Illinois v. Milwaukee seemed like an easy answer to environmental cases, in reality it caused more trouble.

          Nine years after the original Court decision, the city of Milwaukee appealed a federal district court decision and the Supreme Court held the case Illinois v. Milwaukee (1981), commonly known as Milwaukee II.[xiv] However, in Milwaukee II, eight years after the original case, the Court switched their stance on federal common law. It held that “subsequent federal legislation regarding water pollution—specifically, what had come to be known as the Clean Water Act—was sufficiently comprehensive to displace any appeal to federal common law.”[xv] It was this decision that dampened the possibility of claiming federal common law of public nuisance. However, the Court did affirm the “a remedy for public nuisance is sometimes available under federal common law” [xvi](4 876). While Milwaukee II did severely limit the wide range of the doctrine established by its predecessor, it was not the end of claiming federal common law of public nuisance for environmental cases.[xvii]

          The true limiting case of federal common law of public nuisance was the Supreme Court Case Connecticut v. American Electric Power (2011). Connecticut v. American Electric Power reversed the Second Circuit’s earlier decision and clearly concluded that the Clear Air Act displaces federal common law of public nuisance.[xviii] Justice Ginsburg simply stated “We see no room for a parallel track,” [xix] the parallel track referring to the limiting on carbon dioxide emissions with both the Clean Air Act and invoking by federal common law. In Milwaukee II and Connecticut v. American Electric Power, the Supreme Court severely limited the ability for environmental plaintiffs to invoke federal common law of public nuisance.

          While it seems that federal common law of public nuisance with regard to climate change cases may no longer to viable options for environmental plaintiffs’ arguments, it did open the possibility for another argument to take its place. In the final lines of the Court’s opinion of Connecticut v. American Electric Power, Justice Ginsberg stated, “None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.”[xx] Therefore, the Court’s decisions that federal legislation displaces federal common law of public nuisance does not determine whether or not state common law could be argued successfully. While federal common law may not serve the environmental justice movement any further, there is an opportunity for state common law to pick up where it left off.


[i] Roger Meiners and Bruce Yandle, “The Common Law: How it Protects the Environment,” PERC Policy Series, (1 May 1998) https://www.perc.org/1998/05/01/the-common-law-how-it-protects-the-environment/

[ii] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[iii] Illinois v. City of Milwaukee, 406 U.S. 7 (1972)

[iv] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[v] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[vi] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[vii] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[viii] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[ix] Federal Common Law of Nuisance in Intrastate Water Pollution Disputes, Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976), 1977 Wash. U. L. Q. 164 (1977). https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2580&context=law_lawreview

[x] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[xi] Id.

[xii] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[xiii] Federal Common Law of Nuisance in Intrastate Water Pollution Disputes, Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976), 1977 Wash. U. L. Q. 164 (1977). https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2580&context=law_lawreview

[xiv] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Connecticut v. American Electric Power, 564 U.S. 10 (2011)

[xix] Ibid., 11.

[xx] Ibid., 15.