Retroactivity in Law Can Certain Repeal Legislation Violate the Ex Post Facto Clause?

Frank Yang is a sophomore in the college majoring Government and Linguistics with a minor in Portuguese.

There are few clauses in the U.S. Constitution that are simpler in writing than Article I, Section 9, Clause 3, which states: “No…ex post facto Law shall be passed.”[1] The provision is as comprehensive as possible, assigning an absolute prohibition on the passage of any ex post facto law. Intended to apply to both Congress and the states, Article I, Section 10, Clause 1 makes clear that “No state…shall pass any…ex post facto law.” Yet despite such ostensible simplicity, any observer or student of the law will know that there is no sentence in the black letter that does not produce complications.

From Latin, ex post facto literally translates to “from a thing done afterward.”[2] The definition furnished by Giles Jacob’s Law Dictionary of 1739, which was the standard volume of reference for its time, is equally straightforward and says: “a term used in the Law, signifying some Thing done after another Thing that was comitted [sic] before…”.[3] The principle of retroactivity in the law, and specifically retroactive punishment, is thus rendered crystal clear. The only remaining ambiguity, then, is whether ex post facto refers to criminal or civil statutes, or both.

During the drafting of the Constitution, significant debate was had over the precise boundaries of that legal principle. Specifically, the controversy surrounded the reconciliation of the debts of the states and that of a unitary federal government post-Constitution.[4] The conversation surrounding the unabridged ex post facto clause principally pitted George Mason and Patrick Henry against James Madison and Edmund Randolph, among others. Civil statutes concerning the settlement of old monies were to be forbidden under this new Constitution, therefore spelling potential financial ruin for many of the states in the union, Mason argued. Madison and Randolph’s defense hinged largely on technicality; they cited that the consequences highlighted by Mason and Henry would be staved off by provisions against bills of attainder, which were instances of “capital punishments… without any conviction in the ordinary course of judicial proceedings,” and the common understanding of ex post facto in the common law of the states.[5] Though Mason’s worries were ultimately unassuaged, Madison’s underlying premise that ex post facto implicitly applied only to crimes tended to be correct, albeit amidst an extensive back-and-forth in state courts, state legislatures, and the Supreme Court.

The parameters of ex post facto would be established by the Supreme Court shortly after the ratification of the Constitution in Calder v. Bull, defining it as:

Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.  2d.  Every law that aggravates a crime, or makes it greater than it was, when committed.  3d.  Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.[6]

When we discuss legal retroaction, it also becomes practically necessary to bring up repeal legislation. Much like the ex post facto clause of the Constitution, the intent of express repeals is perfectly plain — “that the older law shall no longer be operative.”[7]

Of course, the frequency of repeal legislation is very low, hence why the prevalence of this question is unsurprisingly rare. Between 1890 and 2009, the average number of repeals per year hovered around two; the total peaked at six in the 76th Congress of 1939 to 1941.[8] Repeals are, by their nature, immemorable; they erase an existing law turned so unpopular that a future legislature felt it necessary to address it with urgency. Their effect is, in essence, to undo unforeseen consequences of legislative enforcement. Yet the process of legislative erasure, especially when combined with the prohibition on ex post facto laws, becomes rather murky.

The chief example of this complexity is State v. Ramseur, which reached the North Carolina Supreme Court and was decided in June 2020. The case revolves around the Racial Justice Act (“RJA”) passed by the state’s General Assembly in 2010 and its subsequent repeal in 2013. Of relevance was a provision of the RJA that “designed a new substantive claim that fundamentally changes what is necessary to prove racial discrimination and, in return, provides a limited grant of relief that is otherwise unavailable,” in hopes of reducing racial bias in death penalty sentencing,[9] Defendant Andrew Darrin Ramseur, who was convicted of murder and sentenced to death, sought this newly available relief. Under the RJA, he was entitled to a hearing to determine whether racism had significantly influenced his sentencing, but before the trial court ruled on his motion, the RJA was completely repealed. The trial court thus dismissed the defendant’s claim on the basis that it was now void, and so he proceeded to sue the state on grounds of ex post facto violation. The question then arises: Is it unconstitutional to revoke a novel potential for substantive relief when such a legal avenue was not open during the course of the original trial? 

In the majority opinion, Justice Anita Earls, who is currently on President Biden’s shortlist for the Supreme Court, extensively covers this intersection of repeal legislation and ex post facto, ultimately reversing the lower court decision.[10] Citing restrictions on arbitrary and potentially vindictive legislation and citizens’ fundamental interest in the fairness of their government, the Court held that the RJA Repeal could not apply retroactively to pending motions under the RJA.[11] The concrete nature of the disadvantage handed down by the repeal, namely capital punishment, was also of great relevance, as the severity of the sentencing attached to the crime was distinctively high.[12] 

The dissent’s response to the majority opinion rested primarily on the unique situation that repeal legislation reconfigures preexisting sentences, in that it leaves the “defendant in precisely the same legal situation” as he was in when he was convicted.[13] No additional punishment was levied upon him by the RJA Repeal; the only effect was that a possible avenue of relief was erased. Furthermore, the Court’s decision impinged on the people’s authority to delineate the circumstances of the imposition of the death penalty through the General Assembly.[14]

Though this summary of the arguments on each side cannot do full justice to the nuances of the case in its entirety, it nevertheless demonstrates the myriad of technicalities involved in combining seemingly straightforward legal acts and clauses. What State v. Ramseur reveals are the complex questions that arise when criminal proceedings and legislative history follow parallel but incongruous timelines. The backlog and delay that are unwanted but immutable parts of our legal system force trial judges to contend with the possibility that the laws they are applying now may not be in effect by the time they actually reach a case in which that law was once pertinent. Of course, it is exceedingly unlikely that such a possibility would collide with either ex post facto concerns or repeal legislation.But while the infrequency of their intersection rarely manifests itself into practical instances of litigation, it is worth examining, at least in hypotheticals, how such instances could be resolved in the future.

[1]U.S. Const. art. I, § 9, cl. 3.

[2]“Ex post facto.” Dictionary, Merriam-Webster,

[3] William W. Crosskey, True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. Chi. L. Rev. 539, 545 (1947).

[4]Id. at 548.  

[5] Joseph Story, Commentaries on the Constitution of the United States, 3 Boston, 1338 (1833); Id. at 550.

[6] Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798).

[7] Carl Jr. Seeman. The Retroactive Effect of Repeal Legislation, 27 Ky. L. J. 75, 79 (1938).

[8] LegBranch Team, When Does Congress Repeal Legislation? A New Dataset of Major Repeals from 1877-2012 Provides Answers, LEGBRANCH (October 19, 2015),

[9] State v. Ramseur, 862 S.E.2d 354, 28 (N.C. 2020).

[10] David Larson, Anita Earls Would Join Short List of NC justices if picked for US Supreme Court, THE NORTH STATE JOURNAL (February 2, 2022),

[11] Id. at 27.

[12] Id. at 29.

[13] Id. at 40.

[14] Id. at 41.

Jury Selection and Derek Chauvin’s Trial

BY: Emily Kim

Emily is a senior at Georgetown University studying Government and American Musical Culture. She is currently an assistant editor for the Georgetown University Undergraduate Law Review.

Jury selection plays a crucial role in criminal trials, and it is difficult to avoid the issue of personal biases even with the legal infrastructure established to circumvent this issue. March 9th marked the first day of jury selection in the trial of Derek Chauvin, the Minneapolis police officer involved in the murder of George Floyd last year on May 25th, 2020. He faced charges of manslaughter, second-degree murder, and third-degree murder—the last of which was reinstated by Judge Peter A. Cahill on March 11th.[1] On April 20th, Chauvin was found guilty of murder and manslaughter after the jury deliberated for over ten hours.[2] The jury selection process was not easy, however, with this being a high-profile case that could set a precedent for future similar cases.

The process is called voir dire, meaning “to speak the truth,” and it tests potential jurors’ prejudices and neutrality.[3] This is crucial to fulfilling the rights granted by the Sixth Amendment, which promises a “speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”[4] However, the reality of this abstract promise has been repeatedly challenged throughout the history of criminal trials, particularly and especially in the context of race.[5] It is an undeniable fact that Derek Chauvin’s trial involves the issue of racism, as the death of George Floyd sparked a nationwide Black Lives Matter movement for racial justice and against police brutality last summer. With this in mind, it is necessary to scrutinize racial practices in voir dire.

Peremptory challenges—which are limited and allow potential jurors to be excluded by the prosecution or the defense without the need for reason or explanation—have been contested for being racially discriminatory despite existing to eliminate bias.[6] In 1985, the Burger Court ruled in Batson v. Kentucky that “purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure.”[7] Thus, a “neutral explanation” must be provided when a peremptory strike is challenged.[8] In a 1995 per curiam opinion in Purkett v. Elem, however, the Rehnquist Court held that the decision to strike a Black man on a peremptory challenge because “he had long, unkempt hair, a mustache, and a beard” is in fact “race neutral,” or a reason independent of the man’s race.[9] This arguably makes it easy to circumvent the requirements established in Batson and think of any “race-neutral” excuse to exclude a potential juror. Aside from peremptory challenges, prospective jurors can be excused for cause, and these challenges are limitless and can arise when they are deemed unqualified or unfit to be impartial.[10]

Because of the high-profile nature of this case, the jury selection process is particularly methodical, and parties involved were careful not to be racially discriminatory. Further, it is nearly impossible to find people who have neither heard about the case nor watched the gruesome video; therefore, the questioning was centered more toward determining whether potential jurors would set aside their biases.[11]

Of the individuals who have been selected, the majority are white, and many of them have either expressed uncertainty of Chauvin’s culpability or have shared that they would be open-minded, depending on the facts presented in the case despite holding certain opinions.[12] Concerns have arisen over the jury selection process; journalist Elie Mystal, who is a Black woman, believes that having a majority-white jury—which seems inevitable at this point—would result in a “perfunctory” trial that will end with a plea deal.[13]

Chauvin’s defense was permitted eighteen peremptory challenges, while the prosecution had ten.[14] The defense used fourteen of these strikes, including on a Hispanic woman who struggled with her English and on a Hispanic man who had martial arts training; while the prosecutors invoked a Batson challenge on the basis of race, Judge Cahill agreed with the defense’s “race-neutral” excuses.[15] On the other hand, the prosecution used the strike on a white man who said “people should not second guess police officers’ decisions” as well as on a white woman who expressed that she highly trusts the police.[16]

The vehicles through which either side can dismiss a prospective juror can pose issues of racial bias, but they are also somewhat effective in preserving the neutrality of the jury. Further, it is unclear how much the racial makeup of the eventual jury will impact the case’s outcome. That being said, the defense’s strategy will likely be to redirect some of the blame to the other inexperienced former officers involved, as well as to attribute the cause of death to Floyd’s drug use and underlying health condition.[17] Depending on the strength of the facts and arguments to be presented, having a majority-white jury made up of people selected largely because they do not express strong opinions on the racial aspect of this case could have made it difficult for Floyd to get the justice he deserves.

As the nation saw, however, Chauvin was rightfully convicted of murder and manslaughter. In his case, the transparency in jury selection and the trial in general ensured more fairness, tact, and impartiality, setting an important procedural precedent for future criminal cases.

[1] Nicholas Bogel-Burroughs, What to Know About the Trial of Derek Chauvin The New York Times (2021),®ion=TOP_BANNER&block=storyline_menu_recirc&action=click&pgtype=Article&impression_id=&variant=show.

[2] Eric Levenson & Aaron Cooper, What we know about the jurors selected so far in Derek Chauvin’s trial CNN (2021),

[3] Voir dire, Legal Information Institute,

[4] U.S. Const. amend. XI.

[5] Shamena Anwar, Patrick Bayer, & Randi Hjalmarsson, The Impact of Jury Race in Criminal Trials, 17 The Quarterly Journal of Economics 1017 (2012),

[6] Id. at 1018.

[7] Batson v. Kentucky, 476 U.S. 79, 86 (1986).

[8] Id. at 98.

[9] Purkett v. Elem, 514 U.S. 765, 769 (1995).

[10] Challenge for Cause, Legal Information Institute,

[11] Amy Forliti, Jury selection paused for ex-cop charged in Floyd’s death AP NEWS (2021),

[12] Trial of Derek Chauvin, charged in George Floyd’s death, begins with jury selection, CBS News, (last visited Mar 11, 2021).

[13] Elie Mystal, The Acquittal of Derek Chauvin Has Already Begun The Nation (2021),

[14] Levenson & Cooper, supra note 2.

[15] Id.

[16] Id.

[17] Bogel-Burroughs, supra note 1.

A Review of “To Protect and Serve”

BY: Alex Ragland

Alex is currently a line editor for the Georgetown University Undergraduate Law Review.

The phrase “To Protect and to Serve” originated as the motto for the Los Angeles Police Department before being adopted by departments throughout the country. The popular phrase has turned out to be quite misleading. Through a series of former decisions, the courts have affirmed that the police have no legal obligation to prevent harm except under specific circumstances.

In Warren v. District of Columbia (1981), the District of Columbia Court of Appeals decided that the police were not obligated to protect three women during a home invasion. They plainly stated that “a government and its agents are under no general duty to provide public services, such as police protection, to any particular citizen.”[1] They reasoned that “absent a special relationship between the police and an individual, no specific legal duty exists.”[2] Warren v. District of Columbia stated that the police have a duty to perform if there is a special relationship with the individual, such as the individual being in custody.[3] Absent a special relationship, the police also have a duty once they have “embarked upon services under circumstances where it was reasonably foreseeable that a citizen might rely on their performance.”[4] The court defined one such circumstance as the police telling an individual that “help is on the way.”[5] Warren v. District of Columbia decided that police departments are only responsible for the protection of certain members of a community under specific circumstances.

Since the pivotal decision in Warren, courts have continuously upheld that the police do not have a duty to protect. In the case DeShaney v. Winnebago County Department of Social Services (1989), the Winnebago County Social Services Department was accused of failing to protect a young boy from his abusive father.[6] The Supreme Court decided that government agencies are not required to “protect the life, liberty, and property of its citizens against invasion by private actors” under the Due Process Clause.[7] They further stated that the Due Process Clause “cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.”[8] Therefore, according to the court, because the boy was in the custody of his father—a private actor—the state actor had no obligation to protect him.[9] Thus, it has been definitively stated that government agencies do not have a duty to protect outside the bounds and requirements of State custody.[10] Unless someone is within the limits of police custody, there is no legal duty for officers to prevent harm.

More recent court cases have upheld the precedents set in Warren and DeShaney, including the infamous Castle Rock v. Gonzales (2005). In 2005, the Supreme Court heard the case of Castle Rock v. Gonzales. Jessica Gonzales sued the police department after her husband, whom she has a restraining order against, violated the court order. He later abducted and killed her three children.[11] The police officers did not attempt to enforce the restraining order, even after Gonzalez called multiple times asking for help. The Supreme Court upheld the precedent set in DeShaney and affirmed that State actors, in this case police departments, have no legal duty to protect.[12]

The idea that the police do not have an obligation to ‘protect and serve’ has been upheld in court cases over the past few years. After the 2018 Parkland shooting, a group of students sued the local police department for not protecting them. The District Court dismissed the suit, stating that “for such a duty to exist,” the student “would have to be considered to be in custody” and since “schoolchildren are not in a custodial relationship with the state,” there is no mandate to protect them, further affirming the DeShaney decision.[13] It may seem shocking that, despite their motto, police departments are not obligated to protect and serve. Further, courts have repeatedly affirmed the idea that, barring specific circumstances, there is no constitutional obligation for the police to protect and serve.

[1] Warren v. District of Columbia, 444 A.2d 1 DC: Court of Appeals 1981.

[2] Ibid.

[3] Ibid.

[4] Ibid.t

[5] Ibid.

[6] DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Castle Rock v. Gonzales, 545 US 748 (2005).

[12] Ibid.

[13] L.S. v. Peterson, Case No. 18-cv-61577-BLOOM/Valle, 12 (S.D. Fla. Dec. 12, 2018).


BY: Yeiji Seo

Yeiji is a sophomore in the College at Georgetown University studying economics. She is currently a line editor for the Georgetown University Undergraduate Law Review.

Calls to eliminate “qualified immunity” for law enforcement officers have intensified with the House of Representatives passing the George Floyd Justice in Policing Act of 2021 on March 3.[1] The House similarly passed an earlier version of the bill in June 2020, but the act failed to pass the Republican-controlled Senate at the time.[2] Democratic lawmakers expect the legislation will reduce police violence against people of color by increasing measures to hold police accountable.[3] Rep. Ilhan Omar, D-Minn., described the continued trauma experienced in the Minneapolis area following George Floyd’s death in May 2020: “Time and time again we have witnessed the people who are sworn to protect our communities abuse their power.”[4]

Notably, the Act includes a provision to amend Section 1979 of the Revised Statutes of the U.S. and essentially prevent local and federal law enforcement officers from receiving qualified immunity.[5] As applied today, qualified immunity protects government officials from trials involving allegations that an official violated a plaintiff’s rights; the protection, however, does not apply to violations of “‘clearly established’ statutory or constitutional rights.”[6] Section 102 of the bill, which concerns only law enforcement officers, proposes adding that “it shall not be a defense…in any action brought under [Section 1979]…that ‘(1) the defendant was acting in good faith…or (2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established.’”[7] Critics of the bill have questioned its potential effectiveness, highlighting the limited control the federal government has over state and local policing. Local developments addressing qualified immunity, however, have already begun to occur independently of federal legislation. On March 29, the New York City Council voted to end the practice of qualified immunity for New York Police Department (NYPD) officers, who compose the largest police force in the country.[8] Yet challenges against the role of qualified immunity in constitutional litigation are by no means a recent trend—they reflect a long-standing debate surrounding whether the applications of qualified immunity have fulfilled their intended role.

The Supreme Court first articulated the doctrine of qualified immunity in the 1967 case of Pierson v. Ray as a response to 42 U.S.C. § 1983, a statute that imposes civil liability on “every person” who violates another’s federal rights.[9] In this case, involving a Section 1983 suit against police officers, the Court argued that qualified immunity was necessary to shield law enforcement officials from financial burdens when acting in “good faith.”[10] Chief Justice Earl Warren delivered the majority opinion, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”[11] Thus, qualified immunity emerged as protection to encourage police officers to perform their duties and exercise their discretion without fearing financial consequences.[12]

Fifteen years later, this original intent underlying the qualified immunity doctrine evolved in Harlow v. Fitzgerald.[13] In particular, the Court established provisions for evaluating qualified immunity, clarifying that law enforcement officials would be liable for civil damages only if a violated constitutional right was “clearly established” at the time of the violation.[14] The Court justified this threshold immunity question by maintaining that an official could not be expected to refrain from conduct because of its unlawfulness if the action had not been identified as unlawful or understood as unlawful by the official.[15] Along with the potential financial burdens mentioned in Pierson, the majority opinion in Harlow emphasized the additional costs that arise for society as a whole from frequent claims against both the innocent and guilty in the absence of such qualified immunizations.

 Justice Lewis Powell highlighted “the diversion of official energy from pressing public issues… deterrence of able citizens from acceptance of public office… and [dampening of ardor] of public officials in the unflinching discharge of their duties” as social costs qualified immunity could combat.[16] Under the test established by Harlow, however, a law enforcement officer could avoid not only financial liabilities but also participation in discovery and trial even after violating an individual’s federal rights—with the rationale that the acknowledged, violated right was not clearly established.[17]

The subsequent interpretations of what constituted clearly established law and the resulting applications of qualified immunity proved to perhaps detract from the original purpose that led to its creation. Dissenting from a denial of certiorari in 2020 for the case Baxter v. Bracey, Justice Clarence Thomas reaffirmed his doubts about qualified immunity jurisprudence, asserting that “[l]eading treatises from the second half of the 19th century and case law until the 1980s contain no support for this ‘clearly established law’ test.”[18] He thus found no basis for the applied inquiry into clearly established law, citing that “the Court adopted the test not because of ‘general principles of tort immunities and defenses,’ but because of a ‘balancing of competing values’ about litigation costs and efficiency [in Harlow]…”[19] In 2014, Alexander Baxter, a homeless man, burglarized a house and fled to hide after perceiving a helicopter looking for him.[20] Once a canine unit arrived and discovered Baxter, he surrendered. Although his arms were raised to indicate surrender, Officer Spencer Harris released his dog—resulting in Baxter suffering a bite to his arm.[21] Baxter sued Officers Harris and Brad Bracey claiming excessive use of force, but the appellate court granted the officers qualified immunity on the basis that “Baxter [did] not point us to any case law suggesting that raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances.”[22] They concluded that Harris did not violate clearly established law, and he was entitled to immunity.

The House vote for the George Floyd Justice in Policing Act passed with a 220-212 vote, mostly along party lines.[23] Although the Senate is no longer Republican-controlled, at least 10 Republican members must vote in favor of the bill with the Senate Democrats for it to pass. While this “landmark police reform bill,” as described and supported by President Biden, may fail to survive Senate consideration, these proceedings encourage the rethinking of a doctrine that has allowed and will continue to allow instances of police misconduct to go unpunished.[24]

[1] George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. (2021).

[2] George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).

[3] Chloee Weiner, House Approves Police Reform Named After George Floyd, NPR (March 3, 2021),

[4] Id.

[5] H.R. 1280, 117th Cong. (2021).

[6] Legal Information Institute, Qualified immunity, Cornell Law School,

[7] H.R. 1280, 117th Cong. (2021).

[8] Luke Barr, New York City moves to end qualified immunity, making it the 1st city in US to do so, ABC News (March 29, 2021),

[9] 42 U.S.C. § 1983.

[10] Pierson v. Ray, 367 U.S. 547, 555 (1967).

[11] Id. at 550.

[12] Id. at 554.

[13] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[14] Id. at 818.

[15] Id. at 819.

[16] Id. at 814.

[17] Id. at 816.

[18] Baxter v. Bracey, 590 U.S. 1, 4 (2020).

[19] Id.

[20] Baxter v. Bracey, 751 Fed. App’x 869, 869-873 (6th Cir. 2018) (App. 1a).

[21] Id.

[22] Id.

[23] Weiner, supra note 3.

[24] Id.

A Brief Legal History of Gang Violence in New York City

BY: Jennifer Linares

Jennifer is a sophomore in College at Georgetown University studying history, government, and French. She is currently a blog editor for the Georgetown University Undergraduate Law Review.

New York City has been an enclave for Puerto Rican immigrants since the 19th century and saw the greatest influx during the “Great Migration” of 1946-1964, in which the already-established Puerto Rican communities of East Harlem, the South Bronx, and the Lower East Side saw an increase in population and expanded their borders.[1] With these changes in the city’s demographics came a change in the perceptions of delinquency. While the juvenile delinquency in New York City included gangs of various racial and ethnic backgrounds, there was a much larger sense of sympathy for White gangs than there was for Black or Latino gangs.  

In the summer of 1954, the District Attorney for Kings County, New York charged four white male teenagers, who later became known as the Brooklyn Thrill Killers, for crimes committed in the Williamsburg neighborhood of Brooklyn, including the murder of a Black homeless man named Willard Menter and an assault on two girls. However, the “bookish” nature of the teens garnered public sympathy throughout the trial and caused many spectators to question the structural causes for youth juvenile delinquency.[2]

The charges of the Brooklyn Thrill Killers case were eventually dismissed, but the same could not be said for the Michael Farmer case in 1957. In this case, Black and Puerto Rican members of two gangs – the Egyptian Kings and the Dragons – murdered fifteen-year-old Michael Farmer, who was believed to be a member of a rival gang. During the trial, Dr. Maurice Greenhill, a psychiatrist and director of the New York City Community Mental Health Board directed an investigation of people’s reactions to Farmer’s murder, the findings of which revealed that many residents believed that the murder was not due to structural factors but to racial tensions and to the presence of newcomers in the city.[3] This increased speculation towards ethnic migration and neighborhood borders also occurred in other urban cities in the 1950s and 1960s such as Chicago, where Puerto Rican gangs such as the Young Lords became increasingly controversial due to their calls for Puerto Rican empowerment and self-determination and began to be targeted by the FBI.

In a hearing on juvenile delinquency after the Brooklyn Thrill Killers case, psychiatrist Frederic Wertham found that all the crimes committed by the teenagers were inspired by those in crime comics and claimed the psychological harm of mass media was the prevalent cause of these acts of violence, not the city’s failures.[4] However, the discrepancies between this case and the Farmer case indicate that negative perceptions of racial and ethnic minorities and immigrants in New York City in the 1950s did also influence public reactions to instances of gang violence. On the one hand, the public upheld that the Brooklyn Thrill Killers were good people that were wronged by society and remained sympathetic towards them. On the other hand, the murder of Michael Farmer seemed to validate the public’s concern about immigrant communities and reinforce negative stereotypes about them.

The biases present in these two cases, as well as the general perceptions of gang violence in New York City, also highlight the limitations of New Deal liberalism. The mayor of New York City at the time, Robert F. Wagner Jr., was a New Deal Democrat that gained support from liberals, labor unions, and moderate Democrats during his mayoral campaign. His father, New York Senator Robert F. Wagner Sr., also sponsored some of the most important New Deal legislation during his time as senator, including the Social Security Act of 1935, and the Housing Act of 1937. However, Mayor Wagner largely failed to improve race relations in New York City, suggesting some of the failures of New Deal liberalism in the area. After the Farmer murder, Wagner promised to crack down on crime by strengthening law enforcement and counseling programs, but failed to address other underlying issues that may have contributed to the murder, such as discrimination against Black and Latino communities and underestimation of what needed to be done to address race relations. The Wagner administration also silenced many reactions from Black and Latino families, many of whom feared that the case would worsen pre-existing stereotypes and generalizations. In doing so, New York City’s leadership created a narrative that downplayed the effects of race relations on youth gang violence and “clung onto a vision of their city as a place that was not divided into hostile camps – even as it became just that.”[5]

[1] Clara E. Rodriguez, Puerto Ricans: Immigrants and Migrants, a Historical Perspective (Project Portfolio, 1990), 2-3.

[2] Anders Walker, When Gangs Were White: Race, Rights, and Youth Crime in New York City, 1954-1964, 55 St. Louis U. L.J. 1371, 1371-1372 (2011).

[3] Robert W. Snyder, A Useless and Terrible Death: The Michael Farmer Case, “Hidden Violence,” and New York City in the Fifties, 36 JUH 236, 236-237 (2010).

[4] Walker, supra note 2, at 1372.

[5] Snyder, supra note 4, at 243.

The Constitutionality of Trump’s Impeachment

BY: Jack Little

Jack Little is a junior in the School of Foreign Service studying international politics, philosophy, and Spanish. He is currently a line editor for the Georgetown University Undergraduate Law Review.

On February 13, former President Trump made history by becoming the first president to be acquitted during their Senate impeachment trial after already having left office.[1] Notably, even the Republicans who voted to acquit seemingly accused him of having committed impeachable offenses. Minority Leader McConnell said, “There is no question – none – that President Trump is practically and morally responsible for provoking” the riots at the Capitol.[2] However, McConnell argued, the Senate cannot impeach a president who has already left office, and therefore “President Trump is constitutionally not eligible for conviction.”[3] These strained arguments, aimed at simultaneously appeasing Trump supporters while steering the Republican party away from Trump, do not hold up to muster.[4] Not only is there precedent for late impeachment, there are also practical considerations that clearly demonstrate the constitutionality of impeaching and convicting presidents after they have left office.

The trial of Secretary of War William Belknap in 1876 established the precedent for late impeachment. Belknap, who had been accused of corruptly receiving bribes, resigned before he could be impeached, but the House decided to impeach him nonetheless.[5] During his Senate trial, Belknap’s counsel argued, as did Trump’s, that because he was now a private citizen, he was no longer subject to impeachment; it was unconstitutional for the Senate to proceed. The Senate debated this argument and found that he was “amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.”[6] Although he was ultimately acquitted, as only a majority and not two thirds of Senators voted to convict, this case established a precedent for acknowledging the constitutionality of late impeachment.

Precedent is an incredibly important tool for determining whether a branch of government’s actions are constitutional. Indeed, the Supreme Court has ruled that “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”[7] Thus, Congress, whose actions are rarely the subject of judicial review, must turn to precedent when deciding whether late impeachment is constitutional, and the only precedent for late impeachment prior to Trump’s second impeachment is that of the Belknap case.[8]

The House impeachment managers succinctly laid out the practical reason for why late impeachment must be constitutional in their “January exception” argument. According to Representative David Cicilline, if late impeachment were unconstitutional, it would allow that “our most powerful officials can commit the most terrible abuses and then resign, leave office, and suddenly claim that they are just a private citizen who can’t be held accountable at all.”[9] In other words, any impeachable offense committed by a president could go unpunished if they occurred near the end of their term or if they resigned soon after. Trump’s lawyer Bruce Castor responded that there could be no January exception because if a president did in fact commit impeachable offenses, they could simply be charged criminally after leaving office; they would not actually go unpunished.[10] Castor’s argument implies that impeachment is a criminal process, one in which all charges must be spelled out in the criminal code, but this is not the case. According to a House guide on impeachment, “Less than one-third of all the articles the House has adopted have explicitly charged the violation of a criminal statute.”[11] Since most impeachments have not referred to specific criminal offenses, there might not be any remedy to a president’s impeachable conduct other than their late impeachment if they resign or their term expires before the Senate can try them.

Castor’s argument also implies that the sole purpose of impeachment is removal from office, which ignores a significant component of impeachment: the ability to disqualify a president from future public office if they are convicted. If impeachment were solely a process of removal, why would the framers include in the Constitution the Removal and Disqualification clause?[12] This clause demonstrates an additional purpose to impeachment other than the mere removal from office. In many cases, those who are convicted in the Senate or leave office before being convicted cannot realistically win a future election and are unlikely to be appointed to a public office anyways.[13] The law does not guarantee their disqualification from future office, however, so it is important that Congress retains its constitutional ability to disqualify former presidents from office who have been convicted by the Senate, even when they leave office before their trials.

For their part, Trump’s attorneys made other arguments in his defense. First, they attacked the impeachment procedure for denying Trump due process. Attorney David Schoen criticized the House’s “snap impeachment” as too hastily conducted.[14] He also criticized “the denial of any opportunity ever to test the integrity of the evidence offered against Donald J. Trump in a proceeding seeking to bar him.”[15] Here, he criticizes the Senate impeachment trial for not allowing further scrutiny of the evidence presented against Trump, even though the leaders of both parties agreed to the trial’s rules at its outset.[16] This faulty process, he says, shows that the underlying reason for Trump’s impeachment is actually “political gain.”[17]

Second, Trump’s defense team argued his speech on January 6 was “constitutionally protected political speech.”[18] Because political speech “is the kind of activity to which the First Amendment offers its strongest protection,” Trump must be acquitted, argued Attorney Michael van der Veen.[19] Otherwise, Castor warned, “This Chamber and the Chamber across the way will change [majorities] one day, and partisan impeachments will become commonplace.”[20]

However, these two arguments should be set aside as secondary to the constitutionality argument because so many Republican Senators justified their votes to acquit with the latter argument. For example, along with Senator McConnell, the entire Senate GOP leadership team—Whip John Thune, Republican Conference Chairman John Barasso, Republican Policy Committee Chairman Roy Blunt, Vice Chair of the Republican Conference Joni Ernst, and Republican Senatorial Committee Chairman Rick Scott—relied on the constitutionality argument to justify voting not guilty.[21] The Senate Republican conference’s reliance on the constitutionality argument is not surprising, since it allowed them to avoid offending Trump’s political base and also not endorse his actions, but it clearly shows which argument they view as more important.[22]

            Given the Belknap precedent and these practical considerations, the Constitution clearly permits the impeachment of a president after he or she has left office. Rather than out of any serious concern for the Constitution, most Republican Senators unfortunately chose to hide behind it for the purposes of political expediency.

[1] Nicholas Fandos, Trump Acquitted of Inciting Insurrection, Even as Bipartisan Majority Votes ‘Guilty’, N.Y. Times (Feb. 13, 2021),

[2] 167 Cong. Rec. S28,735 (daily ed. Feb. 13, 2021)(statement of Sen. McConnell)

[3] Id.

[4] Carl Hulse & Nicholas Fandos, McConnell, Denouncing Trump After Voting to Acquit, Says His Hands Were Tied, N.Y. Times (Feb.13, 2021),

[5] Congressional Research Service, The Impeachment and Trial of a Former President 4 (2021).

[6] Id.

[7] U.S. v. Nixon, 418 U.S. 683, 703 (1974).

[8] Congressional Research Service, supra note 5.

[9] 167 Cong. Rec. S24,595 (daily ed. Feb. 9, 2021)(statement of Rep. Cicilline)

[10] 167 Cong. Rec. S24,601 (daily ed. Feb. 9, 2021)(statement of Counsel Castor)

[11] House Parliamentarian, Y 1.2:P 88/2, House Practice: A Guide to the Rules, Precedents and Procedures of the House 612 (2017).

[12] U.S. Const. art. I, § 3, cl. 7.

[13] Brian C. Kalt, The Constitutional Case for the Impeachability for Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Texas Review of Law & Politics 13, 126 (2001).

[14] 167 Cong. Rec. S27,669 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)

[15] Id.

[16] Brakkton Booker, Trump’s Legal Defense Team Concludes Case In Fraction Of Allotted Time, NPR (Feb. 12, 2021),

[17] 167 Cong. Rec. S27,670 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)

[18] 167 Cong. Rec. S27,677 (daily ed. Feb. 12, 2021)(statement of Counsel van der Veen)

[19] Id.

[20] 167 Cong. Rec. S24,599 (daily ed. Feb. 19, 2021)(statement of Counsel Castor)

[21] Press Release, Senator John Thune, Thune Statement on Conclusion of Senate Impeachment Trial (Feb. 13, 2021),; Press Release, Senator John Barrasso, Barrasso Statement on Impeachment Vote (Feb. 13, 2021),; Press Release, Senator Roy Blunt, Blunt Statement On Vote To Acquit Former President Trump (Feb. 13, 2021),; Press Release, Senator Joni Ernst, Ernst Statement on Conclusion of Impeachment Trial (Feb. 13, 2021),; Press Release, Senator Rick Scott, Sen. Rick Scott: It’s Time to Get Back to Work (Feb. 13, 2021),

[22] Hulse & Fandos, supra note 4.

U.S. Immigration Law and Domestic Violence

BY: Anya Howko-Johnson

Anya Howko-Johnson is a junior in the School of Foreign Service studying international politics, creative writing, and French. She is currently a line editor for the Georgetown University Undergraduate Law Review.

As of 2018, the Department of Justice no longer considers domestic violence in a foreign country a sufficient condition for foreigners to qualify for asylum in the United States. This decision, entitled “Matter of A-B-”, was issued by former Attorney General Jeff Sessions and reversed the United States’ former immigration policy that granted asylum to most domestic violence survivors.[1] Since “Matter of A-B-” went into effect, immigration judges must deny refugees seeking asylum on the sole basis of domestic violence, even if they will likely continue to experience domestic violence when returned to their native country. The ruling impacts refugees fleeing, among other violence, partner abuse, forced marriages, and legal systems that ignore gendered rights. Critically, this ruling can be overturned by future Attorney Generals.[2] Current Attorney General should consider this course of action to save lives and uphold American values and commitments.

In 2019, NPR published a story detailing the consequences of “Matter of A-B-.”[3] The piece tells the story of a young woman from Nicaragua who fled to the United States with her son after she was repeatedly raped and beaten by her boyfriend. Although she notified the Nicaraguan police, they refused to intervene. In the U.S., the immigration judge presiding over her case acknowledged the significant evidence of her abuse and agreed that she and her son were likely to be harmed if returned to Nicaragua. Nonetheless, he denied her and her son’s request for asylum, citing “Matter of A-B-” in his ruling.[4] Her current status is unknown.

“Matter of A-B-” reflects the persistent, negative trends in the international security community regarding gender. Issues associated with femininity and domesticity—in this case, domestic violence—are often deemed “private” matters that have no bearing on broader “public” concerns such as national security and societal stability.[5] With “Matter of A-B-,” the United States court system legitimized that domestic violence is detached from a community’s overall security and that women’s rights are not necessarily human rights. This ruling, like many policies regarding national security and conflict, essentializes women’s experiences and neglects their complex intersectional identities.  Specifically, “Matter of A-B-” ignores the contexts and systemic injustices that perpetuate cultures of sexual and gender-based violence (SGBV) and generalizes the experiences of all refugee DV survivors. Beyond its moral offenses, this policy violates the U.S.’s commitment to numerous international treaties, such the 1951 United Nations Convention on Refugees, which obliges signatories to ensure asylum-seekers are not returned to nations in which their lives or freedom will be endangered.[6] Indeed, the U.S.’s current immigration policies regarding survivors of domestic violence endanger women, perpetuate harmful gendered security norms, and infringe the U.S.’s commitments to promote gender equality and refugee safety.

The majority of claims for asylum in the United States come from the so-called Northern Triangle region of Central America which comprises three nations: Guatemala, Honduras, and El Salvador.[7] Between 2008 and 2014 alone, the number of U.S. asylum applications received from Northern Triangle country citizens increased by 13%.[8] The outpouring of refugees from these countries is rooted in the on-going violence that began with the end of bloody civil wars in the late twentieth century.[9] For women, the situation is particularly dire. Gang-related violence and domestic abuse are common realities for women in the Northern Triangle  and primary motivators for why many choose to seek asylum in the U.S. Gangs use sexual abuse and threats of rape as a control and intimidation tactic to goad communities into submission. Men considered to be of low social standing–often indigenous men–may be forced to watch gang members rape their wives as an expression of dominance and control. Local teenage girls may be forced to become “girlfriends” of gang members (novias de pandillas).[10] Disobedient partners of gang members may be subjected to psychological abuse and terror to be “shown their place.”[11] The ex-wife of a Guatemalan gang member reported the following: “Twice, I saw the gang kill two young men who approached the block. My ex required me to watch…it was a way of making me more afraid, weaker. How they screamed and begged for their life, I can’t forget it.”[12] Because the police have little control over territories occupied by gangs, most women report feeling unable to seek any kind of protection or help.[13]

By refusing such women fleeing such situations for asylum in the United States, current U.S. immigration policies perpetuate harm against women, both directly and systemically. “Matter of A-B-” and arbitrary court rulings place refugees of domestic violence in direct harm by repatriating them to countries where their lives and liberties are endangered. Standard practices at U.S. immigrant detention centers contribute to women’s suffering as refugees are harassed and abused without consequence.[14]

On a broader scale, Matter of A-B- legitimizes norms and systems that are harmful to women. By defining all refugee survivors of domestic violence as “victims of private criminal activity,” Matter of A-B- essentializes the experiences of all female domestic violence survivors who seek asylum in the U.S., casting them as indistinguishable victims who found themselves in unfortunate circumstances, much like victims of petty theft.[15] Just because the victims were women, Sessions claimed, does not mean they belong to a persecuted group, unprotected by their governments.[16] Sessions did not acknowledge the systemic vulnerabilities women face in their native countries due to their shared, intersectional identities. He also ignored gendered realities women face in their countries: Northern Triangle police forces dismiss many domestic violence allegations; court systems do not issue sentences that protect women and children; indigenous communities are oppressed by gangs and police alike; and women have few opportunities to gain economic independence.[17] Had such realities, and the countless accounts given by refugees, been considered from a gendered perspective, it would have been clear that women from the Northern Triangle countries who have fled domestic violence deserve asylum to protect them from harm.

[1] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018),


[3] Joel Rose, “As More Migrants Are Denied Asylum, An Abuse Survivor Is Turned Away,” NPR, January 18, 2019,

[4] Joel Rose, “As More Migrants Are Denied Asylum, An Abuse Survivor Is Turned Away,” NPR, January 18, 2019,

[5] Ann Tickner, “Feminist Perspectives on International Relations,” Handbook of Internatioanl Relations, file:///Users/anyachj/Downloads/Feminist%20Perspectives%20on%20International%20Relations%20(6).pdf

[6] UNHCR, “The 1951 Reguee Convention,”

[7] Anjali Fleury, “Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women,” United Nations University, May 4, 2016,

[8] Anjali Fleury, “Fleeing to Mexico for Safety: The Perilous Journey for Migrant Women,” United Nations University, May 4, 2016,

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] United Nations High Commissioner for Refugees, “Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico,” United Nations Human Rights Council, October 2015,

[13] Ibid.

[14] Nora Ellmann, “Immigration Detention is Dangerous for Women’s Health and Rights,” Center for American Progress,

[15] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018),

[16] Ibid.

[17] United Nations High Commissioner for Refugees, “Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras, and Mexico,” United Nations Human Rights Council, October 2015,

Saving the Court

BY: Curtis Yun

Curtis Yun is a sophomore at Georgetown University studying government and anthropology. He is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.

The Supreme Court of the United States is the highest court in the land and the only federal court that is constitutionally mandated. In order to insulate the Court from political influence when hearing cases of utmost importance, the Framers decided to grant life tenure to Justices who are nominated by the President and confirmed by the Senate. Essentially, the Court was designed to be an independent, nonpartisan body that could deliver fully and fairly deliberated legal decisions.

Unfortunately, the original vision of the Framers for a depoliticized judicial branch has vanished. The recent confirmations of Justices Brett Kavanaugh and Amy Coney Barrett laid bare how intensely polarizing the Court has become. Justices [CY1] today are likely to vote in favor of the party that appointed them more consistently than ever before in U.S. history.[1] This is a grave development that has demonstrably led to bitter confirmation battles and the erosion of the Supreme Court’s nonpartisan reputation[2] [3] . If the American people are not confident in the Court’s ability to deliver impartial justice, then the Court’s ability to meaningfully fulfill its constitutionally mandated role of settling important legal conflicts may be in jeopardy.[2]

The political response to this issue has been unproductive and divisive. Democrats have called for packing the Court with their own nominees, while Republicans have expressed their intent to block any kind of reform.[3] Saving the Court will require bold thinking, but it must also be devoid of partisan hackery. A potential solution is the “balanced bench” plan, which was developed by professors Daniel Epps and Ganesh Sitaraman, and prominently supported by 2020 presidential candidate Pete Buttigieg.[4]

The balanced bench plan has several components. First, the Court would start with ten permanent Justices: five affiliated with the Democratic Party, and another five with the Republican Party.[5] Second, these ten Justices would then select an additional five Justices from U.S. appeals courts or possibly district-level courts.[4] [5] [6] The catch is that the party-affiliated Justices must select these additional Justices unanimously or by some supermajority.[7] The five nonpartisan Justices would be chosen two years in advance, and then serve nonrenewable, one-year terms.[8]

This proposal intends to restore the Court’s nonpartisan reputation. Under the balanced bench plan, the permanent Justices would likely agree on additional Justices who are known for their “fairness, independence, and centrism,” and who have a record of voting across party lines.[9] Assuming that the permanent, party-affiliated Justices want their respective views to prevail, they would veto judges who are steadfast partisans and instead compromise on those who are “open-minded and persuadable.”[10] This mechanism ensures that the bench always consists of diverse views and judicial experiences.

In addition, the confirmations of permanent Justices would no longer be as high stakes as they are today. Under this proposal, there are an equal number of Justices who are affiliated with the Democratic and Republican parties, and additional nonpartisan Justices are required in order for the Court to hear cases. Therefore, the fate of controversial issues, such as abortion or immigration, would not rest solely on the outcome of a single confirmation battle.[11] Instead, such cases would actually need to be fully and fairly deliberated by a bench that consists of not only party-affiliated Justices, but also those who have been unanimously selected for their independence and open-mindedness.

Critics of the balanced bench plan have argued that assigning Justices to parties defeats the purpose of depoliticizing the Court[6] [7] . However, Epps and Sitaraman have emphasized that there is currently no reliable actor in the U.S. government that selects Justices without regard for party affiliation.[12] Hence, the best solution is to implement a system in which partisan actors are incentivized to select nonpartisan Justices.[13] The goal is to restore a Court that issues landmark rulings not solely based on predictable party allegiances. In fact, bringing back consensus to the Court is important.

Historically, consensus has been the unwritten rule for the Supreme Court. Most prominently, the Warren Court (1953-1969) delivered landmark decisions with unanimous judgments or overwhelming majorities.[14] In the midst of a politically divided bench, Chief Justice Earl Warren successfully formed winning coalitions and sought to express the full confidence of the Court through historic cases, such as Brown v. Board of Education (1954) and Gideon v. Wainwright (1963) — both were unanimous decisions.[15]

Admittedly, consensus amongst members of the bench is still common, especially in cases that do not concern high-profile political issues. Since 2000, unanimous judgments made up 36 percent of all decisions, while overwhelming majorities made up 15 percent.[16] Nevertheless, as mentioned before, Justices are increasingly voting along party lines, polarizing the American political landscape with alarmingly slim majorities in big cases, such as Bush v. Gore (2000) and Shelby County v. Holder (2013).[17]

If the Court cannot restore its historic reputation of delivering decisions impartially, the institutional legitimacy of the judicial branch itself may be compromised in the future. Hence, serious reform is needed in order to save the Court. The balanced bench plan is one of many solutions which have been proposed to depoliticize and transform the Court. While I believe that this plan would be the most effective solution, the greater issue at hand is that political leaders need to recognize the imperative to restore the nonpartisan judicial branch[8] [9] [10] [CY11]  the Framers had originally envisioned.

[1] Josh Lederman, Inside Pete Buttigieg’s plan to overhaul the Supreme Court, NBC NEWS (Jun. 3, 2019, 3:03 AM),

[2] Daniel Epps and Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L. J. 148, 148 (2019).

[3] Amber Phillips, What is court packing, and why are some Democrats seriously considering it?, THE WASHINGTON POST (Oct. 8, 2020, 12:13 AM),

[4] Lederman, supra note 1.

[5] Epps and Sitaraman, supra note 2, at 193.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 194.

[11] Id. at 196.

[12] Id.

[13] Id.


[15] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Gideon v. Wainwright, 372 U.S. 335 (1963).

[16] Sarah Tuberville and Anthony Marcum, Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common., THE WASHINGTON POST (Jun. 28, 2018, 3:00 AM),

[17] Bush v. Gore, 531 U.S. 98 (2000); Shelby County v. Holder Shelby County v. Holder, 570 U.S. 529 (2013).

The International Law Governing India-Administered Kashmir and How the Removal of Article 370 has Created a New Normal

BY: Keerat Singh

Keerat Singh is a sophomore in the School of Foreign Service studying foreign service, business, and global affairs. She is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.

Kashmir has historically been a region of contention between India, Pakistan, and China, dating back to when India and Pakistan became independent from British colonial rule in 1947. Although Kashmir technically refers to the Kashmir Valley, it has colloquially come to encompass the Indian-administered regions of Jammu, Kashmir and Ladakh, the Pakistani-administered regions of Azad Kashmir and Gilgit-Baltistan, and the Chinese-administered regions of Aksai Chin and Trans-Karakoram Tract.[1] This large region has been the subject of political skirmishes, protests, and wars between the three nations that control its different corners. Religious violence has also plagued the Kashmir Valley region in particular, as a result of clashes between the Muslim majority in Kashmir and the Hindu majority in India.[2] Sadly, the violence in the Indian controlled part of Kashmir is worse than ever and likely to endure as key legal safeguards on Kashmir’s autonomy are eroded.

The reason the region of Jammu and Kashmir agreed to join India after the India-Pakistan partition in 1947 was based explicitly on the provisions of Article 370 of the Indian constitution, which grant the region a special autonomous status.[3] The article sets out special rules for the Kashmir region, exempting it from following the Indian constitution like other Indian states. Under Article 370, Kashmir is guaranteed its own constitution, its own flag, and sovereignty over all of its laws except those pertaining to finance, defense, foreign affairs, and communications. It also notably denies property rights in the Kashmir region to non-Kashmiris.[4]

In 1954, Article 370 was supplemented by Article 35A, also part of the Indian constitution and known as the Permanent Residents Law. This law allows the local legislature in the Indian-administered region of Kashmir to define what qualifies permanent Kashmir residents. It also forbids any outsiders from residing in Kashmir, owning property, holding local government jobs, or winning Kashmiri education scholarships.[5]

Since the creation of the Indian constitution, Article 370 had been heavily diluted through over 40 presidential orders by the Indian government which acted as amendments to the original article.[6] On the other hand, Article 35A had remained fully intact.[7]

This all changed on August 5, 2019, when the Interior Minister of India, Amit Shah, moved to revoke those two key constitutional provisions, in an effort to unite India under the Hindu nationalist message of the Bharatiya Janata Party (BJP) and Prime Minister Narendra Modi’s government.[8]

The removal went into effect soon after this announcement. Fully aware of the backlash that it would have, the Indian government jailed many prominent Kashmiri political leaders, shut down communication everywhere in the region, cutting off access both within the country and to the rest of the world, and deployed thousands of Indian troops to curb protests.[9] These conditions continued for months following the announcement, despite the Indian government’s denial of any unrest or instability.

In December of 2020, over a year later, the first sign of a return to normalcy appeared as Kashmiris voted in the first local elections since the revoking of their special status.[10] With Kashmir now a federal territory ruled directly by India, the BJP made a major push to unite Kashmiris under their nationalist message and earn votes. However, many Kashmiri separatist parties united on a strong front as well, with many carrying anger towards the BJP over the events surrounding Article 370.[11] The BJP has so far been quite successful, winning 74 seats in the 280-seat District Development Council, the elected local government of the Jammu and Kashmir territory.[12]

Their claims of democracy and normalcy, however, have been less convincing. This is due to the many Kashmiri politicians and public figures still in detention or under threat, the hurried calling of the election, and the obvious BJP propaganda being paraded throughout the region.[13]

Kashmir, although in a better state than last year, seems firmly under the grip of the Indian government and forever changed in the eyes of both Indian domestic law and international law. The state of normalcy that Kashmiris may now be seeking will look very different than the autonomy they are accustomed to and were once legally entitled to.

The Indian government’s perspective on the issue is clear: they believe Kashmir is a vital part of India that will benefit from being a part of the Indian democracy. They attribute the anti-India sentiment in Kashmir to outside forces such as the Pakistani government.[14] Kashmiris, on the other hand, have a distinct identity connected to both Kashmir and Islam. Consequently, they want to govern themselves. Based on opinion polls, nearly 90 percent of Kashmiris feel this way, while the Hindu majority in Jammu and the large Buddhist population in Ladakh are generally content under Indian rule.[15] Kashmir’s substantial Muslim population, which has faced centuries of injustice, will never be satisfied under the rule of a Hindu-majority country like India.

If India continues to assert its rule, Kashmir will continue to be ravaged by internal protests, instability, and discontent. It is the responsibility of international agencies like the UN to recognize the religious issue at play and demand Kashmir gain back its autonomy.

However, there might not be any organizations or countries willing to combat the largest democracy in the world. Therefore, as long as nationalist sentiment rages on in India, Kashmiris may be looking at their new normal.

[1] “Kashmir.” Encyclopedia Britannica, Encyclopedia Britannica, Inc., 

[2] Srivastava, Spriha. “India Revokes Special Status for Kashmir. Here’s What It Means.” CNBC, CNBC, 9 Aug. 2019, 

[3] “Kashmir Article 370: Article 370 and 35(A) Revoked: How It Would Change the Face of Kashmir.” The Economic Times, Economic Times, 5 Aug. 2019,

[4] “Kashmir Special Status Explained: What Are Articles 370 and 35A?” Al Jazeera, Al Jazeera, 5 Aug. 2019, 

[5] Supra. See note 2.

[6] Halder, Anirban. “How J&K’s Special Status Was ‘Diluted’ over the Years.” The Times of India, TOI, 6 Aug. 2019,

[7] Supra. See note 3.

[8] “Full Text of Govt’s Proposal to Revoke Article 370 in Kashmir.” Business Today, 5 Aug. 2019,

[9] Samuels, Elyse. “Kashmir: The Indian Government vs. the Facts on the Ground.” The Washington Post, WP Company, 23 Aug. 2019, 

[10] Fareed, Rifat. “What Do the Local Elections Mean for Kashmiris?” Al Jazeera, Al Jazeera, 4 Dec. 2020, 

[11] Schmall, Emily. “Kashmir Votes, and India Hails It as Normalcy in a Dominated Region.” The New York Times, The New York Times, 22 Dec. 2020, 

[12] Press Trust of India. “J&K DDC Election Results: Winning Candidates Declared at 276 Seats; PAGD Gets 110, BJP 74.” Firstpost, 23 Dec. 2020, 

[13] Supra. See note 10.

[14] “Kashmir Developments – An Internal Matter for India.” The Jammu and Kashmir Issue,

[15] “87 Pct in Kashmir Valley Want Independence – Poll.” Reuters, Thomson Reuters, 13 Aug. 2007,

Google LLC v. Oracle America Inc

BY: Maya Valliath

Maya Valliath is a sophomore in the College studying mathematics and political economy. She is currently an assistant editor for the Georgetown University Undergraduate Law Review.

On October 7, 2020, the Supreme Court heard oral arguments for a case that has been in the making for over a decade. In 2005, after Google’s negotiations with Sun Microsystems, an American software company, to use its Java API in its Android platform fell through, Google proceeded to use Java’s API in its platform without a license. When Oracle acquired Sun Microsystems in 2010, Oracle sued Google for copyright infringement and years of appeals have ensued.[1]

The case heard before the Supreme Court in October sought to settle whether or not the use of Java’s API fell under the exclusive rights of Oracle and whether copyright law protected “a software interface” as a whole.[2]

Google’s Argument

A central theme of the hearing was addressing whether or not the ubiquity of Java’s API conferred fair use rights. Thomas C. Goldstein, representing Google, relied on Section 102(b) of US Code law, which states:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.[3]

Goldstein essentially argued that the Java API is a non-creative method of operation that can be used to make creative products, and therefore Oracle does not have the right to control who expresses its API.[4] The 1880 Baker v. Selden case, which crystalized the idea-expression dichotomy in copyright law, was also heavily referenced in the hearing:

The copyright protection for a book explaining an art or system extends only to the author’s unique explanation of it and does not prevent others from using the system or the forms incidentally used.[5]

By framing Oracle’s Java API as a method of operating, Goldstein argued that Oracle does not have the exclusive right to the use of its API. Justices likened the use of the API to using a QWERTY keyboard; something that if its expression was protected by copyright, would have detrimental consequences for the consumers of several industries and generally hamper productivity and innovation.[6]

Oracle’s Argument

Oracle’s representation, E. Joshua Rosenkranz, outlined two legal principles to argue that Google’s use of the Java API did not constitute fair use. Rosenkranz first stated:

Congress defined literary work to include software and granted copyright protection as long as the code is original. Google conceded Oracle’s code is original. That’s the end of the question.[7]

Rosenkranz went on to argue that Google’s use of the Java API in its own Android software served the exact same purpose that it did in Java. Rosenkranz also made sure to point out that other companies have paid millions of dollars to license the use of Oracle’s Java API. Echoing Justice Alito, he also made clear that major competitors of Google’s, such as Apple, do not use the Java API and have invested billions of dollars to create their own original software, emphasizing that software development as a whole does not rely on Oracle’s Java API. He argued that by granting Google fair use rights because the API was ubiquitous in the software industry, and consequently denying Oracle licensing rights, Oracle was being punished for its innovation and brilliance. Following up on the QWERTY metaphor, Rosenkranz articulated that the burden of innovation would not fall on consumers, a worry of the Justices, but rather on “independent economic actors.” In response to Goldstein’s comment that the Java API was uncreative, Rosenkranz argued that the complexity of the API made it so that it was inherently creative.[8]

Implications of the Upcoming Decision

As the software industry eagerly awaits the SCOTUS outcome, two important factors hang in the balance. It boils down to an almost principal economic problem: how does the government simultaneously lower barriers to entry for innovation while also incentivizing it? On one hand, Google argued several times that siding with Oracle would stifle productivity and innovation in the software industry, forcing developers to reinvent the wheel. On the other hand, Oracle argued that by making its Java API free to use without licensing rights and copyright protections, it would disincentivize the creation of better or newer technologies because their creation would no longer be profitable.

[1]Google LLC v. Oracle America, Inc.: The Supreme Court Considers the “Copyright Lawsuit of the Decade”, Harvard Journal of Law & Technology (2020), (last visited Jan 4, 2021).

[2]Google LLC v. Oracle America Inc, Oyez, (last visited Jan 3, 2021).

[3]17 U.S. Code § 102 – Subject matter of copyright: In general, Legal Information Institute (1990), (last visited Jan 4, 2021).

[4]Google LLC v. Oracle America Inc, Oyez, (last visited Jan 3, 2021).

[5] Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841, 1879 U.S. LEXIS 1888, 11 Otto 99 (U.S. Jan. 19, 1880).

[6] Idem.

[7] Idem.

[8] Idem.