John Kim is a Freshman in the College of Arts and Sciences at Georgetown University. He is double majoring in Sociology and Political Economy (PECO).

On July 28th, 2022, President Yoon nominated Oh Suk-joon, the Chief Justice of the Jeju District Court, as a Justice for the South Korean Supreme Court. On the following day, the national assembly convened for Oh’s confirmation hearing. There, he was subject to immense censure from the members of an opposing party, the Democratic Party of Korea, for passing controversial verdicts throughout his career. In particular, lawmaker Lee Tahney underscored Oh’s 2011 verdict, where he ruled it was just for a company to lay off a bus driver who had embezzled 800 KRW (approximately $0.70 in the United States) for instant coffee. When the hearing was publicized in the media, Oh was me with even stronger condemnation from the public.[i]

Such criticism begs the question: On what grounds did Oh pass the 2011 verdict?

A thorough review of Oh’s 2011 verdict reveals three pivotal differences between the popular understanding of the issue and its actual proceedings. First, the 2011 trial concerned two, not one, employees. Kim and Yang were former bus drivers who were laid off from a midsized transportation company in Jeonbuk, South Korea, following accusations of embezzlement.[ii] Following their dismissal, Kim and Yang protested to the National Labor Relations Committee (“N.L.R.C.”), arguing there were not sufficient grounds for dismissal.[iii] When the NLRC sided with Kim and Yang and ordered the company to remedy their dismissals, the company petitioned the Supreme Court to overturn the N.L.R.C.’s ruling.[iv] Finally, it was the layoff of Yang, who embezzled a sum of 5,200 KRW (approximately $4.55 in the United States), that Oh ruled was just, not the layoff of Kim.[v] Although it is questionable whether ruling it just to lay off an employee for 5,200 KRW is reasonable, a verification of the facts already reveals crucial details contradictory to widespread perceptions.

The key reasons underlying Oh’s verdict were as follows: The plaintiff’s sole source of income was customer bus fare, on which it only had a 7% profit margin, yet Kim and Yang embezzled an amount equal to more than 5% of the fare per person. Moreover, according to the collective agreement, the rules of the agreement, and the employee disciplinary action regulations, the only appropriate response to embezzlement was a layoff, especially given that Kim and Yang repeatedly engaged in the behavior. Finally, there was no evidence indicating it was customary for bus drivers the keep the changes to themselves, as Kim and Yang had previously claimed.[vi]

Taking this multitude of factors into account, it becomes apparent that Oh had a sound logical foundation for his ruling. Yet, it is still unclear whether this ruling was particularly harsh in comparison to precedents. To answer this question, a review of a precedent in similar cases is necessary. In August 1995, another midsized transportation company informed its bus drivers to stop receiving physical bills from passengers. The reason was, recognizing its bus drivers were embezzling an average of 20% to 30% of the bus fare to themselves, the company revised its operational policy from receiving physical bills from passengers to receiving pre-purchased tickets. Expecting the transition to be gradual, the company also supplied each driver with 5,000 KRW in coins for exchange if passengers carried only bills.[vii]

On the following 10th of August, the same company laid off a driver for receiving 4,000 KRW (approximately $5.20 in the United States) from passengers in bills. The driver’s explanation was that the coin-exchanging device was broken, and he had no choice but to receive the bills. When the N.L.R.C. classified the dismissal as a fair dismissal, however, the driver also filed a protest against the N.L.R.C. in the Seoul High Court, hoping to overturn the previous judgment.[viii]

Ultimately, the court ruled it was unjust for the company to dismiss the driver for the said reason. Although the company claimed that receiving 4,000 KRW in bills was a form of embezzlement, the court weighed numerous factors, rendering it difficult to find the driver guilty of embezzlement conclusively. Notably, the driver had worked in the company for over five years without being subjected to a single disciplinary action. Once, the driver even ranked third in monthly revenue. It was also difficult to conclude his action was intentional, as the coin-exchanging machine had been broken for a considerable number of days. Given the close proximity of the interactions between a bus driver and passengers, the driver would have also had no other option but to receive the bills as there was no clear alternative to maintain a reasonable flow of passenger boarding.[ix]

Such an outcome contradicts that of Oh’s 2011 trial. Still, there is a clear contrast between the two cases: Whereas the driver accused of embezzlement in the 1996 trial had sufficient contextual evidence supporting his innocence, the drivers accused of embezzlement in Oh’s 2011 trial lacked a viable explanation for their actions. Considering these factors, it appears that the ridicule of Oh’s reliability as a justice was more likely a product of partisan aggression and misrepresentation of the cases.

Perhaps so, only if Oh’s verdicts had not been so contradictory in the past. During Oh’s confirmation hearing on the 29th, another area of contention was his verdict from a 2013 trial. Just a couple of years after his ruling of Yang, he ruled it was unjust for the government to lay off a prosecutor for receiving a “mere 850,000 KRW (approximately $760 in the United States),” stating “the disposition was unduly harsh, to the extent it had significantly lost society’s acceptable level of validity.” Even in 2011, Oh ruled it was unjust to dismiss an employee at the National Intelligence Service (“N.I.S.”), who was accused of engaging in prostitution.[x] A conspicuous difference between such verdicts and Kim and Yang’s 2011 trial is that the former concerned elites with highly prestigious occupations, whereas the latter concerned ordinary laborers. How Oh had undergone such dissimilar judgments — Oh himself has never explained.

Oh was ultimately appointed a Supreme Court Justice on November 24th, 2022. Despite the lingering controversies over his quality as a Supreme Justice, it was a mere 119 days after he was nominated.[xi]

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[i] Minjung Shin, ‘800원 횡령 해고’ 판결에, 오석준 후보자 “살피지 못한 점 있었다, THE HANKYOREH (Aug. 29, 2022), https://www.hani.co.kr/arti/society/society_general/1056571.html.

[ii] Seoul Haengjeongbeobwon [Seoul Administrative Ct.], Dec. 2, 2011, 2011 Guhap 25876 (S. Kor.).

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

[vii] Seoul Godeungbeobwon [Seoul High Ct.], Sept. 23, 1996, 95Gu35359 (S. Kor.).

[viii] Id.

[ix] Id.

[x] Hyeonsu Son, Minyoung Choi, & Gwangjun Jeon, ‘성접대’ 국정원 직원 파면에 “가혹”…오석준 판결 70건 분석, THE HANKYOREH (Aug. 22, 2022), https://www.hani.co.kr/arti/society/society_general/1055605.html.

[xi] Jaehoon Lee, ‘119일 표류’ 오석준 대법관 임명동의안 국회 본회의 통과, THE HANKYOREH (Nov. 24, 2022), https://www.hani.co.kr/arti/politics/politics_general/1068762.html.

Grace St. Jeanos is a Sophomore in the College of Arts and Sciences at Georgetown University. She is majoring in Economics.

On February 26th, 2012, self-appointed neighborhood watch captain George Zimmerman fatally shot African American teenager Trayvon Martin. As Martin attempted his walk home, Zimmerman flagged the teenager as “suspicious” and pursued him against police instruction.[i] The events that followed would cost Trayvon Martin his life, just three weeks after his 17th birthday. Nevertheless, Zimmerman walked free on July 13th, 2013. It was Florida’s “Stand Your Ground” laws that echoed in his ultimate acquittal.[ii]

In 2005, the Florida State Legislature became the first of several states to introduce “Stand Your Ground” laws, fundamentally uprooting the face of self-defense legislation.[iii] Prior to 2005, states required individuals to retreat, if possible, from situations of perceived threat before resorting to the use of force. Contrary to this “duty to retreat,” “Stand Your Ground” laws permit individuals—who are engaged in lawful activity and in a legally permitted place—to employ force, including deadly force, under the presumption that it is necessary to prevent death, great bodily harm, or the commission of a forcible felony.[iv] Furthermore, in 2017, Florida introduced a new law such that “once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity.”[v] Consequently, the prosecution undertakes the burden of disproving self-defense immunity, an incredibly uphill battle in cases like Martin’s where the alleged aggressors are unable to tell their side of the story.

Despite the “shoot first, think later” stereotype, supporters of “Stand Your Ground” laws argue that they uphold a U.S. citizen’s fundamental right to self-defense. Proponents of this argument, like members of the National Rifle Association (“N.R.A”), claim that “Stand Your Ground” laws effectively deter crimes by immunizing those who engage in self-defense. However, the expansion of self-defense rights “has been associated with modest increases in violent crime rates on average across the United States but robust increases in some states, most notably Florida.”[vi] These statistics not only suggest claims like the N.R.A.’s are unfounded but that lenient self-defense laws are correlated with higher violent crime rates in the U.S.. As crucial as this correlation is, it does not even begin to touch on the racial implications of “Stand Your Ground” laws. According to a 2005-2010 study of data from the Federal Bureau of Investigations Supplementary Homicide Report, “White-on-Black homicides were more likely to be ruled justified (11.4 percent) while Black-on-White homicides were least likely to be ruled justified (1.2 percent).”[vii] Moreover, while rulings in favor of self-defense immunity saw a statistically significant increase in White-on-White, Black-on-Black, and White-on-Black homicides under “Stand Your Ground” laws, there was no such statistically significant rise observed in Black-on-White homicides.[viii] These findings point to serious racial disparities in justified homicide rulings, a dire echo of the inherent subjectivity of U.S. legislation.

Even in cases where “Stand Your Ground” laws fail to supply self-defense immunity, they nonetheless encourage reckless engagement in self-appointed justice systems. Such was true for Michael Dunn, a man convicted and serving a life sentence for fatally shooting teenager Jordan Davis after an altercation over loud music.[ix] While Dunn’s verdict ostensibly aligned with justice, it neither revived 17-year-old Jordan Davis nor spared his family from inconceivable pain. Thus, irrespective of guilt, “Stand Your Ground” laws promote deadly irresponsibility, especially at the hands of firearm owners. These effects are even more daunting today after Florida Governor Ron Desantis’s 2023 new legislation “allowing residents to carry a concealed loaded weapon without a permit.”[x] Governor Desantis’s signature erodes the requirement for both background checks and training for lawful Florida gun owners in a state where gun control is already concernably non-restrictive. In the wake of Florida’s thirty 2023 mass shootings, this decision underscores just how pervasive guns have become, not only in the culture of the United States but also in its legislation.[xi]

Florida’s union of lenient gun laws and “Stand Your Ground” laws perpetuate a hostile, vigilantist attitude towards crime, one riddled with the racist and implicit biases rampant in our culture. Deaths like Trayvon Martin’s point to the desperate need for reform in the now 38 states that have “[s]tand your ground statutes or legal precedents” supporting such statutes, as well as a necessary departure from the United States’s grotesque obsession with lethal self-defense.[xii] States with a duty to retreat, like New York, prioritize de-escalation of violent conflict while still permitting defensive force in situations of necessity. While some criticize the added burden of considering retreat in potentially deadly settings, the duty to retreat is vital in reducing both unnecessary harm and the fatal impacts of our inherent biases.

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[i] Jerome Horton, Trayvon Martin shooting fast facts CNN (2023), https://www.cnn.com/2013/06/05/us/trayvon-martin-shooting-fast-facts/index.html (last visited Feb 2, 2024).

[ii] Id.

[iii] Florida stand your ground law: Use of deadly force in self-defense, Hussein & Webber (2017), https://www.husseinandwebber.com/case-work/criminal-defense-articles/floridas-stand-ground-law/ (last visited Feb 2, 2024).

[iv] Fla. Stat. § 776.012(2) (2023).

[v] Fla. Stat. § 776.032(4) (2023).

[vi] Alexa  R. Yakubovich et al., Effects of laws expanding civilian rights to use deadly force in self-defense on violence and crime: A systematic review American journal of public health (2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7958062/ (last visited Feb 2, 2024).

[vii] John K. Roman, NCJRS Virtual Library Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data | Office of Justice Programs (2013), https://www.ojp.gov/ncjrs/virtual-library/abstracts/race-justifiable-homicide-and-“Stand Your Ground”-laws-analysis-fbi#1-0 (last visited Feb 2, 2024).

[viii] Id.

[ix] Lindsay Whitehurst & Curt Anderson, “stand your ground” laws proliferate after Trayvon Spotlight AP News (2022), https://apnews.com/article/trayvon-martin-florida-homicide-gun-politics-3907568281565b8cc191fcc66aadf318 (last visited Feb 2, 2024).

[x] Matt Dixon, Ron DeSantis quietly signs permitless concealed carry law NBCNews.com (2023), https://www.nbcnews.com/politics/politics-news/ron-desantis-quietly-signs-permitless-concealed-carry-law-rcna77934 (last visited Feb 2, 2024).

[xi] Gun violence archive, Gun Violence Archive, https://www.gunviolencearchive.org/reports/mass-shooting?page=5&year=2023&sort=asc&order=State (last visited Feb 2, 2024).

[xii] Jonathan Jones et al., Stand your ground laws are proliferating. and more people are dying. Reveal (2022), https://revealnews.org/article/”Stand Your Ground”-laws-increase-deaths/ (last visited Feb 2, 2024).

Saachi Baldwa is a Sophomore in the College of Arts and Sciences at Georgetown University. She is studying Government and Economics.

As support for the legalization of recreational drugs continues to grow across the country, debates over its implementation and potential dangers have significantly risen in the past five years. Opponents often warn that the path to legalization doesn’t just stop at reduced arrests of users; they fear it will lead to heroin dealers opening up shops in their neighborhoods and marijuana growing in their public parks. Overall, there is a great cloud of confusion over what constitutes legalization or decriminalization and just how drastic their effects will be on our society.

Legalization is the practice of removing barriers to both the consumption and sale of a particular substance. It also includes wiping past records and terminating prison sentences for those who have been convicted of related crimes.[i] Criminal justice advocates like Senator Cory Booker point to the overwhelming amount of people imprisoned for substance-related crimes, as well as the consequences this imprisonment has for returning citizens who attempt to work, secure housing, and more.[ii] Cannabis is the substance most commonly associated with legalization, as 24 states and the District of Columbia  have fully authorized recreational cannabis use, along with 14 other states legalizing medicinal cannabis use.[iii]

In 1996, California became the first state to legalize the medicinal use of marijuana under Proposition 215.[iv] The resulting California Compassionate Use Act of 1996 outlined the strict objectives of allowing “seriously ill Californians” to be prescribed marijuana for a variety of mental and physical illnesses.[v] This statute was followed by the legalization of recreational use through Proposition 64 in 2016.[vi] Nonetheless, there are still notable restrictions to this open usage, as reform efforts still acknowledge that addiction is an issue, but just not one that must necessarily always be dealt with through criminal measures. The proposition maintains that minors found with marijuana will still face consequences in the form of  “a requirement to attend a drug education or counseling program and complete community service,” instead of potentially facing juvenile prison or detention.[vii] The statute includes a tax of 15% on sales of non-medicinal marijuana that is used to fund “youth programs, environmental protection, and law enforcement” while simultaneously “[reducing] criminal justice costs.”[viii] Under legalization statutes like California’s, the sale of marijuana is restricted in areas near schools, and public consumption is strictly prohibited.[ix]

In recent years, the discussion of legalization has branched beyond marijuana following new discoveries about hallucinogenic compounds. Researchers at Johns Hopkins University have found that psilocybin, a compound found in “magic mushrooms,” can be used for treatment-resistant depression in patients.[x] States like Colorado have successfully legalized mushrooms as a medical treatment at licensed facilities in response to growing public support. However, Colorado’s Proposition 122 “does not allow for the sale of psychedelic mushrooms and other 13 plant-based psychedelic substances.”[xi] As of now, compared to the sweeping legalization of marijuana in multiple states, access to psilocybin mushrooms in Colorado has a relatively narrow frame, reflecting a general reluctance to decriminalize less familiar substances on the part of Americans as a whole. 

Colorado’s bill also decriminalizes public use, meaning that individuals over 21 will not be criminally punished for non-medical possession of these substances; sales are still illegal.[xii] In this way, decriminalization differs from legalization in that it continues to punish the distribution of substances while changing the ways the legal system treats substance abuse and addiction. This key nuance is often lost in the fearmongering discourse surrounding addiction and the negative externalities it has upon other citizens. Proponents of decriminalization emphasize the need to reframe addiction as a mental health, not criminal justice, issue. Rather than burning the book, decriminalization seeks more to reframe the pathways individuals suffering from addiction take once found by the police, redirecting them away from traditional incarceration practices. The legal system may see drastic drops in the volume of cases, discretion granted to prosecutors and judges who oversee these sentences, and burdens placed on public defenders should this policy continue to gain momentum or see expansion.

In fact, other decriminalization legislation pursues this exact expansion on Colorado’s mushrooms bill. Oregon is the first state to completely decriminalize all drugs under its Drug Addiction Treatment and Recovery Act (Oregon Recovery Act), enacted through a popular ballot measure.[xiii] This act designates funding from marijuana tax revenue towards Addiction Recovery Centers, community resources, mental health clinics, housing, and more to rehabilitate residents who suffer from addiction.[xiv] The theory behind this policy has been successfully implemented in European countries like Portugal; these actions are often taken to prioritize harm reduction and safe use. Proponents point specifically to reduced HIV contraction rates in decriminalized countries, as non-sterile needles are often a source of transmission.[xv]

Inspired by foreign successes, the Oregon Recovery Act reduces misdemeanor convictions that make it difficult for drug users to get back on their feet; instead, those found to possess small amounts of substances receive a civil infraction and a fine that “can be waived by calling a hotline to screen for substance use disorder.”[xvi] Critics of the bill, which was implemented in 2021, argue that statistics on overdoses and homicides have not significantly changed.[xvii] Others claim that Oregon rushed into the process without carefully transitioning between the criminal justice and rehabilitation infrastructure for the issue, leading to an ineffective start.[xviii] While successes in other countries with reduced overdoses and deaths have demonstrated that there can be a viable alternative to incarcerating drug users, the effectiveness of sweeping decriminalization in the United States is to be determined as Oregon and other states continue to invest in this alternative.

Legalization and decriminalization are reformative practices that can vary dramatically across regions, each tailored to meet the calls of citizens and the region’s struggles. Rising rates of fentanyl and opioid-led overdoses have struck close to home for many citizens once isolated from the chaos of addiction and the pursuant War on Drugs.[xix] This tragic spread has led Americans to question the system; it is evident that current practices are not entirely successful in saving lives, reducing incarceration, or cracking down on distribution. Proponents of legalization and decriminalization efforts hope to address the prevalence of addiction by not only attacking suppliers but also reducing demand through holistic, less punitive methods.

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[i] Marijuana Justice Act of 2017, 131 Harv. L. Rev. 926 (2018).

[ii] Id.

[iii] Ted Van Green, Americans overwhelmingly say marijuana should be legal for medical or recreational use Pew Research Center (2022), https://www.pewresearch.org/fact-tank/2022/11/22/americans-overwhelmingly-say-marijuana-should-be-legal-for-medical-or-recreational-use.

[iv] California Compassionate Use Act of 1996, CA Health and Safety Code, §11362.5 (1996)

[v] Id.

[vi] Control, Regulate and Tax Adult Use of Marijuana Act, Proposition 64 (Cal. 2016),  https://www.oag.ca.gov/system/files/initiatives/pdfs/15-0103%20(Marijuana)_ 1.pdf.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Marisol Martinez, Psilocybin treatment for major depression effective for up to a year for most patients, study shows Johns Hopkins Medicine Newsroom (2022), https://www.hopkinsmedicine.org/news/newsroom/news-releases/psilocybin-treatment-for-major-depression-effective-for-up-to-a-year-for-most-patients-study-shows.

[xi] Col. Proposition 122 (2022).

[xii] Id.

[xiii] “Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative” (2020), online at https://ballotpedia.org/Oregon_Measure_110,_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)

[xiv] Id.

[xv] Decriminalization works, but too few countries are taking the bold step, UNAIDS (2020), https://www.unaids.org/en/resources/presscentre/featurestories/2020/march/20200303_drugs.

[xvi] Jeffrey Miron & Jacob Winter, Oregon’s Drug Decriminalization Needs to Go Further Cato.org (2022), https://www.cato.org/blog/oregons-drug-decriminalization-needs-go-further.

[xvii] Id.

[xviii] Id.

[xix] Id.

Tanisha Chivate is a Fourth Year Law student at Maharashtra National Law University Mumbai.

      I.         Introduction

In an era where Artificial Intelligence (AI) rapidly reshapes our world, Elon Musk’s prediction that AI might be the catalyst for World War III highlights the urgent need for its ethical and legal regulation.[i] Without oversight, AI can produce biased and unfair outcomes. While embedding fairness into AI algorithms is theoretically possible, the absence of a universal fairness definition complicates this. Additionally, designing AI to optimize legal outcomes and handle moral dilemmas, like the trolley problem, raises the question: To what extent should morality intertwine with the law? Addressing this is crucial for establishing AI regulatory mechanisms.

 

   II.         Law and Morality— Natural Law School v Analytical Legal Positivism

The Natural Law School is premised on the simple statement that law is what it “ought to be.” It is regarded as the intersection between law and morals. Analytical Legal Positivism arose as a reaction to this, and theorists believed there is no necessary connection between law and morality. Analytical Legal Positivists believe that one can say what the law is without making moral judgments about what it should be. Thus, the key point of contention is the role of morals in law and legal interpretation.

A philosophical approach to differentiating between legal and moral norms is Kant’s structure of regarding laws as external conduct and morals prescribing internal conduct, specifically subjective factors such as motive.[ii] By this reasoning, law is only concerned with external manifestations, and this reasoning is also applied in criminal law as mens rea alone cannot constitute a crime. By this reasoning, law is only concerned with external manifestations, and this reasoning is also applied in criminal law as mens rea alone cannot constitute a crime.

With respect to AI, it has been argued that technological machines intrinsically have a moral character as the objectives sought by humans while creating the device are not separated from the characteristics of the object itself. Additionally, since technology affects the way humans perceive and interact with the world, no technology can be considered morally neutral.[iii] The integration of AI in legal systems also poses challenges to several fundamental legal principles, such as equal treatment before the law, fairness in the design and application of law, and adequate justice for all.[iv]

 III.         The Contemporary AI Perspective on the Trolley Example

As attempts are being made to resolve the dilemmas caused by AI, simultaneously, we are confronted with age-old questions: what role should the law play in regulating our behavior, and do we have a moral duty to follow the law in determining its content? Autonomous cars, the 2020s version of the common trolley ethical question, provides a compelling example because programming autonomous vehicles would involve not just technical automobile knowledge but also moral philosophy.[v]

Consider an autonomous vehicle on a collision course with two pedestrians, where the risk to the sole passenger is minimized. The alternative is a swerve off a cliff, sparing the pedestrians but killing the passenger. This scenario poses two primary challenges. The first is technological: the vehicle must evaluate the outcomes of its potential actions while adhering to traffic laws. We assume that manufacturers can devise a system to assess these adverse scenarios. The second challenge is moral: what decision should the car make in such a situation? This depends on who is deemed morally responsible for any resulting harm. Car manufacturers concerned with legal liability must program their vehicles accordingly. If there’s a moral obligation to follow the law, how should lawyers advise manufacturers about legal constraints and permissions? We must then assume the car’s algorithm is sophisticated enough to make such ethical choices.

Discriminatory biases in AI

A critical issue with AI is its inability to eliminate immoral or unethical considerations.[vi] A car’s algorithm, tasked with reducing legal liability, might inadvertently reinforce societal biases. If the algorithm assesses other vehicles’ values, harm probabilities, and potential liability from lost income, it might favor drivers of more expensive cars or individuals in their prime earning years. This approach could lead to decisions that perpetuate class, age, gender, race, and caste inequalities.

Key Approaches to Natural Law Regulating AI

While it is complex whether AI can or should render moral judgments, there are three approaches to how natural law and morality can regulate AI.

 

Top-Down

The top-down approach would involve humans identifying general moral principles for AI, which, once in place, can direct or restrict the goals of AI.[vii] A drawback of this approach is that there has not been a consensus on the right moral principles for time immemorial. More importantly, there might be a need for moral judgments sensitive to context and setting, meaning that a top-down approach to natural law will likely fail.

Bottom-Up

In this approach, AI is given data about diverse situations and the moral (or other desired) acts to be taken in them. Once moral decision-making patterns are identified, AI can use them as a guide. In particular cases, AI would have to receive input about the right moral outcome or action or develop some capacity to make relevant moral judgments. Without this, AI would lack the information required to find patterns. This approach is criticized because it complicates moral judgments with prudence and other actions like biases. It is vague in principle how an AI system could simplify the various reasons to support or reject a particular outcome. If AI were to develop its own moral judgment, it would need to acquire emotions and empathy.

Predictive Approach

This approach would involve AI imitating how human beings would make those judgments. However, this would fall flat to Hart’s argument that a judge would not do well to predict how she herself would rule in a case as that inquiry would seem circular.[viii]

  IV.         Legal Dualism

Legal dualism might reconcile the debate between Natural Law School and Analytical Legal Positivism and the role of morality in law. This theory posits that while determining the law’s content, morality isn’t necessary for mere description or prediction but is essential for moral guidance.[ix] As per this theory, in some cases, making the moral judgments necessary to render the law determinate and say what it is for guiding conduct. Legal positivism explains the essence of law in descriptive scenarios, whereas natural law provides better explanations when seeking moral direction from the law. Thus, legal dualism highlights the constraints on the role AI can play in legal interpretation – AI cannot replace human beings when law serves as a source of moral guidance, such as when programming autonomous cars.[x] However, one may argue that even by accepting legal dualism, AI may be able to predict judicial rulings of courts better than human beings by studying the data of past court precedents. AI can do this by analyzing the ethics incorporated in past court judgments and, thus, eliminating the role of human beings in interpreting the law. The same reasoning can be applied to autonomous cars, which can then decide based on what the law would favor, considering past court decisions. If a car manufacturer programs its autonomous cars in a way that treats human injury and death in violation of people’s legal rights as a mere cost of doing business and earning quick profits, courts could impose penalties, including punitive and compensatory damages. Legal dualism, however, has its own limitations. An autonomous car’s choice in terms of its course of action may be obscure and difficult to assess in hindsight. Lawyers advising car manufacturers and programmers for autonomous cars would have the legal obligation to exercise independent judgment in dictating what the law requires and not just to lay out the potential financial consequences of different choices of conduct. As per Legal Dualism, this independent judgment also includes ethical and moral considerations.[xi]

Analytical Legal Positivism may disagree with legal dualism, but AI solves the issue because AI is the best way to assess the facts and apply the law blatantly. If moral judgments are required to a certain extent, then AI can leave that portion for human beings to give their input.

    V.         Conclusion

In the context of AI and law, it’s vital to acknowledge the significance of moral judgment in legal interpretation. This article concludes that (1) moral judgments are sometimes necessary to define the law, (2) only humans are capable of making such judgments, and (3) while AI might not make moral judgments, it can predict the variety of moral decisions humans might make. Thus, natural law could potentially regulate AI. Despite technological advancements in pattern recognition, AI has yet to master goal identification and prioritization. Embracing this change could enable AI to make moral judgments. This evolution in AI might also offer new grounds for accepting Legal Dualism, benefiting from technological progress in a broader sense.[xii]

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[i]Seth Fiegerman, Elon Musk predicts World War III, September 3, 2017, available at https://money.cnn.com/2017/09/04/technology/culture/elon-musk-ai-world-war/index.html (last visited August 21, 2023).

[ii] Michael Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell 9th) (2018).

[iii] Magrani, E. (2019). New perspectives on ethics and the laws of artificial intelligence. Internet Policy Review,[online] 8(3), available at: https://policyreview.info/articles/analysis/new-perspectives-ethics-and-laws-artificial-intelligence (last visited February 23, 2024].

https://policyreview.info/articles/analysis/new-perspectives-ethics-and-laws-artificial-intelligence

[iv] Surden, Harry, ‘Ethics of AI in Law: Basic Questions,’ in Markus D. Dubber, Frank Pasquale, and Sunit Das (eds), The Oxford Handbook of Ethics of AI (2020; online edition, Oxford Academic, 9 July 2020), https://doi.org/10.1093/oxfordhb/9780190067397.013.46, last visited February 25. 2024.

[v] Joshua P. Davis, Law without Mind: AI, Ethics, and Jurisprudence, 55 CAL. W. L. REV. 165 (2018).

[vi] Id.

[vii]  Joshua P. Davis, Artificial Wisdom? A Potential Limit on AI in Law (and Elsewhere), 72 Oᴋʟᴀ. L. Rᴇᴠ. 51 (2019).

[viii] HLA HART, THE CONCEPT OF LAW (Oxford University Press, Incorporated 3rd) (2012).

[ix] See Supra note 5.

[x] See Supra note 5.

[xi] See Supra note 5.

[xii] See Supra note 5.

Shaharyaar Shahardar is a 3rd Year Student at Gujarat National Law University, Gandhinagar.

On 9 November 2023, the High Court of Australia delivered a landmark judgment ruling against the indefinite detention of illegal migrants, some of whom would have been languishing in prison for decades. The decision reversed a 2004 verdict that had justified indefinite detention as long as the government intended to “reasonably” remove illegal immigrants. While this ruling signifies an effort by the Australian judiciary to establish a jurisprudence that considers the plight of migrants, it contrasts with more stringent laws introduced by other nations, raising concerns about the violation of human rights obligations.

Background of the NZYQ case

The case of NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs and Anr. centered on a stateless Rohingya refugee, identified as “NZYQ” (hereinafter “plaintiff”), facing potential lifelong detention.[i] Born in Myanmar, he arrived in Australia by boat as a teenager in 2012. Although the plaintiff was initially granted a temporary visa, it was revoked in 2015 following a criminal conviction, leading to imprisonment. Upon completing his sentence in 2018, he was transferred to immigration detention. The Australian government rejected his visa application, citing he had committed a “serious crime” and deeming him“a danger to the community.” As an ethnic Rohingya, the plaintiff was denied citizenship under Myanmar’s 1982 Citizenship Law. Consequently, the plaintiff contested his detention before the Australian High Court.  In their written submissions, the Australian government opposed overturning the 2004 judgment of Al-Kateb v. Godwin, which affirmed the legality of indefinite detention for illegal migrants.[ii] Despite acknowledging the challenge of resettling the plaintiff, the government argued that the refusal of a third country to accept him did not necessarily preclude future possibilities. However, the court appeared to endorse the plaintiff’s averments, which asserted that “there was no real likelihood or prospect of him being removed from Australia in the reasonably foreseeable future.”[iii]

The High Court verdict: A step in the right direction?

Indefinite detention has been the fate of hundreds of thousands of illegal migrants worldwide, with limited legal discourse. The recent Australian High Court’s decision comes as a shower in a prolonged dry spell of sorts. The Australian government had detained hundreds of non-citizens for years, and this decision offers a pathway for their release from prolonged detention. While this decision is a positive step, other countries have introduced even more stringent laws favoring indefinite detentions that violate their human rights obligations.

In the United Kingdom (“UK”), for example, recent legislation extinguishes access to asylum for anyone arriving irregularly and grants sweeping new detention powers with limited judicial oversight.[iv] These powers lack a time limit, and while the UK government asserts it will align with existing immigration detention powers, the determination of a “reasonable time” is left to the executive’s discretion, potentially leading to misuse and abuse.[v]

Similarly, in 2018, the US Supreme Court in Jennings v. Rodriguez, upheld the statutory authority of the Department of Homeland Security to detain illegal immigrants indefinitely during the pendency of removal proceedings.[vi] Later in 2022, the court in Johnson v. Arteaga-Martinez held that immigrants detained in the US are not entitled to bond hearing which meant that thousands of individuals with open immigration cases could be detained indefinitely.[vii] However, the Court did not try to delve into the constitutional permissibility of such detention. Critics would argue that such constitutionality was already dealt with in Demore v. Kim back in 2003, but the Court failed to decide whether there were any constitutional limits to the duration of this detention.[viii] The US Supreme Court has constantly shied away from addressing the durationof such detentions.

Similarly, in India, the government has undertaken repressive measures to crack down against illegal immigrants across the country.[ix] In 2019, the government started constructing what is touted as Asia’s largest detention centre in Goalpara, located 150 kilometres west of Guwahati in Assam. According to a 2021 press release from the Ministry of Home Affairs, “detention and deportation of illegal migrants after nationality verification is a continuous process.”[x] A critical inquiry raises a serious question concerning individuals who lack any recognized nationality. A notable example is the situation of ethnic Rohingyas, who have been systematically denied citizenship under the Myanmar Citizenship Law. The question then becomes: what is the fate of such a stateless individual.

Conclusion

Under international human rights law, immigration detention should be an exceptional measure of last resort, not a punishment.[xi] The laws that empower the government to indefinitely detain individuals, especially concerning countries like the UK, and the US violate their international obligations of adhering to the basic principle of human rights under conventions such as Universal Declaration of Human Rights (UDHR), International Covenant for Civil and Political Rights (ICCPR), and United Nations Convention Against Torture (UNCAT) among others. Often, governmental actions tend to align with populist sentiments and electoral considerations. However, it is imperative that the constitutional courts of these countries proactively scrutinize the legality and constitutionality of such legislation and actions. The responsibility squarely rests on the judiciary to exercise robust oversight over the exercise of public authority, in consonance with the fundamental tenets of constitutionalism.

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[i] NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs & Anr [2023] HCA 37.

[ii] Al-Kateb v. Godwin [2004] HCA 37.

[iii] See Supra note 1 at para. 2.

[iv] Illegal Migration Act, 2023, Ch. 37,  Acts of Parliament [UK]. 

[v] Policy Paper, Illegal Migration Bill: Detention and Bail Factsheet, Government of United Kingdom [2023].

[vi] 138 S. Ct. 830.

[vii] 142 S. Ct. 1827.

[viii] 538 U.S. [2003].

[ix] Rohingiya Families in Kashmir Fear Separation as India Cracks Down, Al Jazeera [20 June 2022]. <https://www.aljazeera.com/news/2022/6/20/rohingya-families-in-kashmir-fear-separation-as-india-cracks-dow&gt;

[x] Press Release, Issues Related to Rohingya Muslims, Ministry of Home Affairs [28 July 2021].

[xi] UN Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/22/44.

Mathanki Narayanan is a student at O.P. Jindal Global University.

Over the past few decades, the hijab has become the subject of social and legal debates centered upon the right to religion and its tensions with secularism. From the hijab row in Karnataka to Leyla Sahin in Turkey, these conflicts have manifested in different forms across various jurisdictions. This article seeks to critically engage with the UN Human Rights Committee’s decision in Hudoyberganova v. Uzbekistan to show that while this decision has reaffirmed religious freedoms, it also overlooked an important opportunity to bolster their scope by incorporating the intersectional element of gender.[i]

Lifting the Veil- The Limited Success of Hudoyberganova v. Uzbekistan

Raihon Hudoyberganova was a Muslim woman studying at the Tashkent State Institute in Uzbekistan. In the second year of her studies, she began to wear a hijab. Over the course of many months, starting in September 1997, she was subjected to increasingly discriminatory actions by the Institute, which culminated in her exclusion in 1998. She filed a complaint before the Human Rights Committee (HRC) after having exhausted all domestic remedies to no avail. The HRC found that there had indeed been a violation of Article 18 of the International Covenant on Civil and Political Rights (ICCPR) which protects the right to religion. Additionally, individual opinions were presented by three of the Committee members: Solari-Yrigoyen, Sir Nigel Rodley, and Ruth Wedgwood.

Solari-Yrigoyen’s individual opinion points out that Hudoyberganova had failed to dispute the Chairman’s statement that Islam does not prescribe religious attire. This line of argumentation steers discourse towards religious practices and the examination of their essentiality to the religion itself. However, the question of women’s agency is also one that is central to this debate. For example, in Resham v. State of Karnataka, the framing of the issue—as being one underpinned by religious imperatives in opposition to the secular duties of the state—had the effect of relegating the agency of Muslim women to a secondary plane.[ii] Wedgwood’s opinion distinguishes itself from the previous ones in that it places importance on the State’s secular, educational obligations towards ensuring effective pedagogy; as per her reasoning, religious freedoms must therefore be balanced against secular imperatives. However, ostensibly secular policies might have the inadvertent effect of generating indirect discrimination.

Intersectionality and Indirect Discrimination

In positing that the prohibition of religious attire is an extension of the State’s secularism, Wedgwood fails to acknowledge that these restrictions could detract from the rights of one community far more than others. This also evidences how a purely formalistic approach can lead judicial reasoning astray from its aims of securing justice and equality for all. If judicial decisions are to be well-founded, they must incorporate elements of intersectionality and multiculturalism when necessary.[iii] For instance, the lived experiences of a black woman cannot be seen simply as a product of her being black and her being a woman disjunctively.[iv] The life of Hudoyberganova cannot thus be viewed as an additive result of her being a Muslim and her being a woman. As a Muslim woman, she experiences the impact of rights-limitation in a manner that compounds both of these social identities. In failing to acknowledge the intersectional impact of discrimination, the State protects marginalized communities only to the extent that their experiences coincide with those of the other identities whose intersection they exist within.[v] By choosing to reaffirm Hudoyberganova’s right to religion on the basis of her Muslim identity, the HRC viewed discrimination as perpetuating along a “single categorical axis.”[vi] If the axis is oriented around gender, then the Muslim woman is excluded due to her existence as a minority.[vii] On the other hand, if the axis is oriented around religion, then the Muslim woman is again pushed into the minority by Muslim men who are seen as being representative of Islam.[viii] By orienting this axis around religion, the HRC erases the gendered aspects of State discrimination from its analysis. At the end of the day, it is the Muslim woman who wears the hijab, not the Muslim man. Furthermore, this approach also espouses the view of justice as the normative outcome of anti-discrimination laws. The interference brought by characteristics such as religion and gender are perceived as being process-based deviations from outcomes that would otherwise be fair; accepting this would effectively circumvent the need for the State’s commitment to substantive equality.[ix]

While accomplished in a qualified manner, the fact that the HRC strengthened the freedom of religion cannot by itself be sufficient to abstain from addressing the shortcomings of this case. Hudoyberganova v. Uzbekistan went on to be cited in S.A.S. v. France,wherein the European Court of Human Rights upheld the validity of a French law prohibiting the wearing of clothing that covered the individual’s face in public.[x] If this article acts as a precautionary critique of the HRC’s failure in Hudoyberganova, then S.A.S. v. France illustrates the practical impact of the failure to adopt an intersectional standpoint and its resultant effect vis-à-vis indirect discrimination. The HRC in Hudoyberganova could perhaps have based its decision to invalidate the limitations upon a proportionality analysis, instead of simply attributing it to the absence of justifications by the State. Tests for ascertaining indirect discrimination also require a proportionality analysis. In doing so, it can be shown that reasonable accommodations, such as permitting the wearing of hijabs on a case-by-case basis, do not have the effect of obliterating secular imperatives.[xi]

Conclusion

The success of Hudoyberganova v. Uzbekistan has been qualified by two major issues: firstly, its reluctance to explain the success of religious freedom in this instance as being more than just a result of Uzbekistan’s failure to justify its limitations; and secondly, its failure to employ an intersectional analysis of the impacts of such a limitation. The case could have set a strong precedent for future cases involving the freedom to manifest one’s religion by incorporating a gendered approach through intersectionality. By adopting an intersectional approach to the impact of rights limitation on Muslim women, the human rights corpus stands to make meaningful progress in its journey toward becoming a transformational and multicultural subset of law.

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[i] CCPR/C/82/D/931/2000 (5 November 2004).

[ii] 2022 SCC OnLine Kar 1602; Gautam Bhatia, Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment, Indian Constitutional Law and Philosophy (Mar. 15, 2023), https://indconlawphil.wordpress.com/2022/03/15/between-agency-and-compulsion-on-the-karnataka-high-courts-hijab-judgment/.

[iii] Makau Mutua, The Complexity of Universalism in Human Rights in Human Rights With Modesty: The Problem of Universalism 51-64 (András Sajó ed., 2004).

[iv] Adrien Katherine Wing, Brief Reflections toward a Multiplicative Theory and Praxis of Being, 6 Berkeley Women’s L. J. 181, 194 (1991), https://lawcat.berkeley.edu/record/1113675/files/fulltext.pdf.

[v] Kimberlé Crenshaw, Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 143 (1989), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1052&context=uclf. 

[vi] Id. at 140.

[vii] Maleiha Malik, Complex Equality: Muslim Women and the ‘Headscarf’, 68 Droit et société 127, 135 (2008), https://www.cairn.info/revue-droit-et-societe1-2008-1-page-127.htm.

[viii] Id.

[ix] Crenshaw, supra note 9, at 139.

[x] [2014] ECHR 695; Shreyas Alevoor, The Hijab Case Through the Lens of Proportionality, Indian Constitutional Law and Philosophy (Feb. 15, 2022), https://indconlawphil.wordpress.com/2022/02/15/guest-post-the-hijab-case-through-the-lens-of-proportionality/.

[xi] Shreyas Alevoor, The Hijab Case Through the Lens of Proportionality, Indian Constitutional Law and Philosophy (Feb. 15, 2022), https://indconlawphil.wordpress.com/2022/02/15/guest-post-the-hijab-case-through-the-lens-of-proportionality/.

Andrew Sturgeon is a junior in the College, where he majors in Government and Psychology. Born and raised in the San Francisco Bay Area, Andrew is an avid athlete, gym goer, and board game enthusiast. He is currently a Blog Writer for the Georgetown University Undergraduate Law Review.

In 1992, Stella Liebeck sued McDonald’s after suffering third-degree burns from spilled takeout coffee that she had ordered from the drive-through.^[1] Now known as the “hot coffee case,” Liebeck’s action is chastised by many as an egregious example of a frivolous lawsuit. To an uninitiated observer, it may seem that Ms. Liebeck capitalized on a silly mistake to swindle the fast food giant out of millions.^[2] How could somebody sue a franchise because the hot coffee they ordered was hot? However, the “hot coffee case” is as infamous as it is misunderstood. A thorough assessment of the case reveals that Liebeck was not a trickster but a victim, and McDonald’s was not innocent but rather egregiously culpable for Liebeck’s burns and subsequent suffering.

First, it is essential to define the verifiable facts of the case, as well as how they differ from the common narrative. On a February morning in 1992 Albuquerque, 79-year old widow Stella Liebeck sat in the passenger seat of her grandson’s car in the McDonald’s drive-thru ordering a meal. After receiving their food, along with one hot coffee, the two pulled into a parking spot to eat. These simple contextual facts already contradict the poisoned popular narrative, which often holds that Liebeck sat in the driver’s seat of a moving vehicle when she spilled her coffee due to negligence. In reality, Liebeck was in the passenger seat of a motionless vehicle. Since the car did not have cup holders, Liebeck placed her takeout cup in between her legs. While removing the lid to add cream and sugar, Liebeck spilled the coffee on her lap, sending her body into immediate shock and covering her thighs and pelvic area with third degree burns. Liebeck was immediately taken to a hospital where she remained for a week, undergoing multiple skin graft surgeries, debridement, and whirlpool therapy. Liebeck would continue to suffer from chronic pain and disability for the rest of her life. 

When Liebeck’s legal team demanded $20,000 to cover her medical expenses, McDonald’s countered, offering a mere $800 and sending the case to trial. Liebeck sued on the grounds that McDonald’s knowingly sold a defective product that violated the implied warranties of merchantability and fitness as per Sections 2-314 and 2-315 of the Uniform Commercial Code.^[3] Under the implied warranty of merchantability, a vendor assumes liability for a defective product that cannot be used for its normal purpose.^[4] As per the warranty of fitness, if a seller is cognizant of a buyer’s intended purpose for their product, the seller must guarantee that the product they sell is fit for such a purpose. 

As it applies to the case at hand, Liebeck’s claims were twofold: first, that she had been sold defective coffee that could not serve its expected or normal purpose, and second, that such a defect had caused her severe injury.

Despite popular belief, these claims were well-founded and backed by the facts of the case. Crucially, the coffee sold to Liebeck was not merely hot; it was scalding. As revealed by employee testimony, McDonald’s intentionally kept its coffee between 180 and 190º Fahrenheit. The sale of McDonald’s coffee at this temperature was no malfunction or mistake; it was the codified corporate standard. Experts noted that a mere second of contact with liquid at this temperature is sufficient to cause third degree burns.^[5] Critically, McDonald’s could not plead ignorance to this biological fact. Prior to Liebeck’s accident, the fast food giant had already been made aware of over 700 unique incidents involving coffee induced burns over the previous decade.^[6] McDonald’s own quality assurance manager testified that “at that high temperature the coffee is a hazard.”^[7]

What, then, was the defense provided by McDonald’s for selling their coffee at such ludicrous, hazardous temperatures? The fast food giant offered two core rationalizations, though neither were particularly compelling. First, McDonald’s asserted that coffee at 190º Fahrenheit has a superior taste, and thus was serving its normal and expected purpose. But of what importance is the taste of a liquid that cannot safely be tasted? Testimony established that it is medically indisputable that coffee at this temperature is simply undrinkable. As such, its taste is irrelevant. Second, McDonald’s offered a familiar yet juvenile contention: hotness is an inextricable characteristic of hot coffee, and thus customers cannot sue on the grounds of its temperature. McDonald’s testified that market research had told them that customers “want hot coffee, they want it steamy hot, and they expect to get it that way.”^[8] However, it would be preposterous to assert that a customer’s desire for heat trumps their desire for a safe, drinkable liquid. Further, such an argument disregards the wide range encompassed by the descriptor “hot.” Yes, coffee is typically hot, but so is the surface of the sun. Thus, the mere label of “hot”—with no further specification—is an entirely inadequate warning of the severe health hazard posed by a liquid at 190º Fahrenheit. Consumers simply cannot be reasonably expected to assume that “hot” really means “dangerously scalding.”

Unsurprisingly, the jury was not convinced of McDonalds’ rather hollow defense; the fast food giant failed to defend the merchantability and fitness of its product. Liebeck was awarded $2.86 million in damages, but the two parties later entered a post-verdict settlement for an undisclosed amount. 

The fast food giant would take swift but silent action upon conclusion of the case—just a day after the verdict, it was reported that the Albuquerque McDonald’s, where Liebeck suffered her injuries, was selling its hot coffee at a much safer 158º Fahrenheit. The cups were also labeled with a far more extensive and descriptive temperature warning

It would also quickly become evident that McDonald’s PR team was far better equipped than its legal department. The fast food giant wasted no time in embarking upon a thorough smear campaign aimed at excusing itself from culpability and painting Liebeck as the money-hungry villain. Over the next few months, through a calculated series of press releases and statements to the media, McDonald’s worked tirelessly to distort public perception of the fundamental facts of Liebeck’s case. Tragically, they were successful, and Liebeck was made the poster child of the “frivolous lawsuit” phenomenon. CBS News Anchor Andy Rooney remarked that the case was proof that “suing has become a popular American pastime.”^[9] Following Liebeck’s passing, TIME Magazine sarcastically lamented that she “didn’t live to see the addition of iced coffee to the McDonald’s menu.”^[10] As the media continued to mock a justified lawsuit, the facts of the case were quickly swept aside. Even lawmakers bought into such disinformation. Former Ohio Representative John Kasich argued that Liebeck’s case “in itself is enough to tell you why we need tort reform.”^[11] Perhaps the most egregious example, columnist Randy Cassingham created the “Stella Awards” in Liebeck’s name, a book series dedicated to “ridiculous” and “bogus” cases.^[12]

The true story is the one far less told. Judy Allen, Liebeck’s daughter, remarked that her mother had lost all quality of life following her injuries, and the settlement money merely paid for her medical bills and a live-in nurse. Yet Liebeck is continuously presented as a conniving tactician who exploited the legal system to “win big.” Ultimately, what could have been celebrated as an advancement of corporate accountability was instead chastised as a deplorable reflection of flaws in our legal system. Such a discrepancy cements this case as one of the most shameful stains on legal discourse.

[1] Liebeck v. McDonald’s Restaurants, 1995 WL 360309 (1994).

[2] Elizabeth Gam, Stella Liebeck vs. McDonald’s Restaurants, H2O (May 29, 2018), https://h2o.law.harvard.edu/text_blocks/30812

[3] U.C.C §§ 2-314, 2-315

[4] Emilie McGuire & Jeffrey Skinner, The Coffee Case Revisited, ARENTFOX SCHIFF (Mar. 10, 2021), https://www.afslaw.com/perspectives/product-liability-mass-torts-blog/the-hot-coffee-case-revisited-has-proximate-cause#:~:text=In%201994%2C%20Liebeck%20v.,spilled%20McDonald%27s%20coffee%20on%20herself.

[5] General Data About Burns, BURN CENTRE CARE, http://burncentrecare.co.uk/about_burned_skin.html.

[6] The McDonald’s Hot Coffee Case, CONSUMER ATTORNEYS OF CALIFORNIA, https://www.caoc.org/?pg=facts.

[7] Kevin G. Cain, The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14 (2007).

[8] Greenlee, Kramer v. Java World, 26 CAP. U. L. REV. at 720-21. 

[9] Andy Simmons, Remember the Hot Coffee Lawsuit? It Changed the Way McDonald’s Heats Coffee Forever, READER’S DIGEST (Jul. 15, 2021), https://www.rd.com/article/hot-coffee-lawsuit/.

[10] Top 10 Outrageous Legal Battles, TIME, https://content.time.com/time/specials/packages/article/0,28804,1899500_1899502_1899510,00.html.

[11] Id.

[12] Randy Cassingham, All True Cases, STELLA AWARDS, https://stellaawards.com/.

Kirit Minhas is a junior in the College, where he majors in English Literature and minors in Journalism and French. He is currently a Blog Writer for the Georgetown University Undergraduate Law Review.

On March 6, 1961, President John F. Kennedy signed Executive Order 10925 which directed federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.”^[1] This measure introduced the institution known in the United States today as affirmative action, which is used today to protect and empower diverse hiring practices within education and career opportunities that are supported by the federal government. Three years later, President Lyndon B. Johnson signed the Civil Rights Act of 1964 into law, which prohibited the discrimination of employees by companies larger than fifteen employees. In 1965, he also issued Executive Order 11246, requiring all government contractors and subcontractors to take affirmative action to create more job opportunities for minorities.^[2]

While not explicitly laid out in the executive orders, affirmative action quickly assumed a pivotal role at institutions of higher education in the United States. Racial quotas began to take shape as universities worked to recruit minority students to their campuses; this controversial practice led to litigation from white applicants who felt they were being unfairly discriminated against. One such landmark case, the first in a long series of challenges to the practice of affirmative action at the Supreme Court, was Regents of the University of California v. Bakke. In this case, a white student named Allan Bakke brought a case against the University of California (UC) system after he was twice denied admission to UC Davis’ medical school, despite having higher test scores than admitted minority students.^[3] After the California Supreme Court ruled in his favor, the UC system appealed to the Supreme Court. 

UC Davis School of Medicine utilized a racial quota system, reserving 16 out of 100 spots for minority students each year. The central question in this case was whether this system violated the Civil Rights Act of 1964 and the Fourteenth Amendment’s equal protection clause in denying Bakke admission. The ruling ultimately set the precedent for the affirmative action practices we see today. Authored by Justice F. Powell Jr., the opinions upheld the principle of affirmative action but overturned UC Davis’s specific racial quota practice. In his opinion, Justice Powell writes that “the diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element.”^[4] This is the essential holding of the ruling—race may be used in what is now known as holistic admissions, but only as one of several broad factors determining diversity on a college campus. Altogether, the opinions written by Powell upheld the right of the university system to use holistic race-based admissions practices while striking down the specificity of the quota system as unconstitutional.

In several challenges since then, affirmative action has been upheld repeatedly, albeit in a rather lukewarm fashion by the nation’s highest court. In 2003, Justice Sandra Day O’Connor wrote for the majority in a narrowly divided 5-4 court in the case of Grutter v. Bollinger. The case, which involved a highly qualified applicant being rejected from University of Michigan Law School, ultimately yielded an opinion that upheld the constitutionality of affirmative action while further narrowing its usage.^[5] O’Connor wrote in her opinion that race must be treated on an individual basis for each applicant, and further limited the scope of affirmative action by arguing that “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”^[6] Affirmative action continued to be challenged at the Supreme Court again in the cases Fisher v. University of Texas (2013) and Fisher v. University of Texas (2016), which is commonly referred to as Fisher II. The justices essentially deferred a decision in 2013 by sending the case back to the lower court. But in Fisher II, the justices upheld that race-based affirmative action was protected by the 14th Amendment, leading to virtually no change.

With President Trump appointing three conservative justices to the Supreme Court, the makeup of the court has changed drastically in the years since affirmative action was challenged.  Within this current conservative supermajority, the conservative justices have judicial records of being hostile toward affirmative action. Thus, a pair of cases against the University of Carolina and Harvard University seem to be the final nails in the coffin of the practice. 

It is important to reflect on the impacts that a ban on affirmative action can have on educational institutions and their diversity. Affirmative action bans have been upheld on statewide levels via referendums in states like California and Michigan. Research conducted by David Mickey-Pabello as part of the UCLA Civil Rights Project shows that these bans have not exactly yielded the results that they promised. Racial and ethnic diversity has decreased by 26% for Black students and 19% for Hispanic students between 1996, the year when California banned affirmative action, and 2012. The SAT scores of those admitted students have also declined, on average, in both the math and verbal sections.^[7] 

Overall, these bans have negatively impacted diversity and academic excellence, while also producing other negative implications. These include decreasing applications from underrepresented minority students and lower numbers of underrepresented minorities entering the pipeline for graduate and professional studies. This further diminishes the diversity of the faculty at universities, perpetuating a negative feedback loop for underrepresented minorities in higher education.^[8] While the history of affirmative action in the United States in our judicial system is complicated, it is important to realize the real-life impacts that its ban could hold on its future in many aspects of our society. The “compelling interest” that Justice Powell wrote of in 1978 has not dissipated in the years since he penned his opinion, nor has it in the 20 years since Justice O’Connor wrote her majority opinion in Grutter v. Bollinger. 

^[1] Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 8, 1961).

^[2] Exec. Order No. 11,246, 30 Fed. Reg. 12319 (Sep. 28, 1965).

^[3] Regents of the University of California v. Bakke, Oyez, https://www.oyez.org/cases/1979/76-811.

^[4] Regents of University of California v. Bakke, 438 U.S. 265, 315 (1978).

^[5] Grutter v. Bollinger, 538 U.S. 306, 310 (2003), Retrieved from Oyez, https://www.oyez.org/cases/2002/02-241.

^[6] Id.

^[7] David Mickey-Pabello, Scholarly findings on affirmative action bans, UCLA Civil Rights Project (Oct. 26, 2020), https://eric.ed.gov/?id=ED609274.

^[8] Id.