GUULR Blog

Legality of Environmental Justice

by ALEX RAGLAND


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

[xi] Id.

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

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

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

[xv] Id.

[xvi] Id.

[xvii] Id.

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

[xix] Ibid., 11.

[xx] Ibid., 15.

Presidential Power

By QUENTIN LEVIN


          On Friday, January 3, 2020, the U.S. military, on the orders of the President of the United States, conducted an airstrike that killed Iranian general Qasem Soleimani, along with several other people traveling with him in Iraq. The attack was both politically and legally divisive in the U.S. Democrats and Republicans are now sparring over whether President Trump was wise to order the strike—and whether he could. Although there are international law questions related to targeted killing, this blog addresses some of the domestic law issues regarding whether the President could order this strike without further Congressional approval before initiation.

          This post first argues that while the strike was likely unsustainable under the 2002 Iraq AUMF, the Prize Cases and the War Powers Resolution currently grant the president discretion to conduct military strikes in self-defense. If the intelligence of an imminent Iranian strike is ultimately found to be true, then this strike can be upheld under the war power. Second, this post explains why legislative—not judicial—methods would be most effective for members of Congress seeking to limit presidential war power. Legal analysis is the sole purpose of this blog post; it does not take a position on the wisdom of the strike.

          The Trump Administration has argued that the drone strike was legal under U.S. domestic law because it was a “defensive” action taken to avert an “imminent” attack on U.S. interests.[i] National Security Advisor Robert O’Brien has specifically argued that the 2002 Authorization for the Use of Military Force against Iraq provided the President with statutory authority to order this strike.[ii] However, this argument is legally unconvincing because Section 3(a) of the 2002 AUMF solely authorized the President to enforce UN Security Council Resolutions related to Iraq and to defend against the “threat posed by Iraq.”[iii] On its face, killing an Iranian general pursues neither of these objectives.

          Still, the 1973 War Powers Resolution grants the President discretion to use military forces overseas for limited time periods without affirmative congressional approval.[iv] Most importantly, the United States Supreme Court held in the Prize Cases that the President possess implied constitutional authority to repel sudden or imminent attacks.[v] In that case, the Court upheld President Lincoln’s blockade of the South (without prior Congressional approval) because the President has an implied duty to defend the nation when circumstances of war present themselves. Applying this precedent, if—and only if—intelligence indicated an imminent Iranian attack on the U.S. that could be averted by killing its military leadership, then the strike could be justified under this implied Constitutional power. Then, the method of using U.S. forces would also be valid under the War Powers Resolution.

          One possible counterargument here is that the Prize Cases precedent should only be applied when another country has already begun to attack the U.S. In the Civil War, the South had clearly created a state of war by seceding. If, by contrast, the Prize Cases were read to justify a pre-emptive strike, this would erode Congress’s Article I power to declare war because a pre-emptive strike could, functionally, eliminate any choice for Congress regarding whether to initiate hostilities by declaring war, as the President could initiate that war himself. For instance, if the U.S. launched a first strike against a nuclear power, Congress would have little choice but to support the action to ensure national survival. And how would one ever know, in the case of a pre-emptive strike, if war was truly inevitable? If it is ultimately proven that Soleimani was not in the midst of executing an actual attack on the U.S., then the decision to target him might not be sustainable under the Prize Cases. This dynamic highlights the inherent issue in presidential war power: Most action can only be proven as illegal after it occurred, and the secret nature of the intelligence makes it difficult for the public to scrutinize.

          As further facts surrounding the operation are revealed and new judicial precedent develops, this legal analysis will likely change. However, as things currently stand, it tentatively appears that the President possessed at least colorable authority to order this strike. If members of Congress believe this is too much unilateral authority for any president, they must move to change the law and enforce their Constitutional prerogatives. Judicial avenues, however, will be the most difficult route for Congress to limit presidential war powers. In particular the political question doctrine is a barrier to members of Congress bringing suits against a president in attempt to limit his war power. For example, a federal Circuit Court held in Campbell v. Clinton that members of Congress lacked standing to challenge President Clinton’s military campaign in Kosovo and Yugoslavia because they possessed legislative tools that Congress could use instead.[vi]

          Instead, if Congress wishes to limit presidential war power, it should work on a bipartisan basis to reform and strengthen the War Powers Resolution and the 2002 AUMF to reflect the current security conditions that the country faces. Bipartisan reform is most likely to have the political legitimacy needed to succeed. There is no doubt that today’s threats require decisive action from the Commander-in-Chief. But it is for Congress and the President together to decide what scope that action may take since the Constitution divides the war power between the Commander-in-Chief and the Congress.


[i] Adam Taylor, The key word in U.S. justifications for the killing of Iranian general: Imminent, THE WASHINGTON POST (5 Jan. 2020) https://www.washingtonpost.com/world/2020/01/05/key-word-us-justifications-killing-iranian-general-imminent/

[ii] Ibid.

[iii] 50 U.S.C. § 1541 (2020)

[iv] 50 U.S.C. § 1541 (2020)

[v] Prize Cases, 97 U.S. 635 (1863)

[vi] Michael John Garcia, War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, CONGRESSIONAL RESEARCH SERVICES (17 Feb. 2017) https://fas.org/sgp/crs/natsec/RL30352.pdf

Paying NCAA Student-Athletes

By DANNY MCCOOEY


          After years of petitioning the NCAA for payment, collegiate student-athletes finally saw some progress in their favor over the past few months. On September 27th of this year, California passed SB 206 or the California Fair Pay to Play Act. The law, scheduled to be implemented in 2023, allows student-athletes to be compensated for the use of their name, image, or likeness.[i] In other words, when a student-athlete’s name is used in a video game or sells an autograph, he or she will receive monetary compensation.[ii] The law also provides other benefits for student-athletes including permitting them to hire agents before their graduation.[iii] Many people view the law as a positive step away from the unjust system of collegiate athletics in place now. With their talents, student-athletes in various sports propel billion-dollar industries that benefit their schools, their conferences, and the NCAA itself through the student-athletes’ unpaid labor. UCLA head football coach Chip Kelly said the law is, “the right thing to do.” He continued, “It doesn’t cost the universities, it doesn’t cost the NCAA.”[iv] This is because the student-athletes would be financially gaining only from the consumer’s purchases. This would seem like a logical solution that should have happened long ago, but the problem runs deeper. The NCAA pushes back on the ruling explaining that California does not foresee the problematic implications the bill could cause and they are threatening to punish the state, the schools, and the student-athletes with bans from NCAA competition. Although, the implications of the law are still uncertain and legal questions on all sides of the argument remain, one thing has been determined: the system today is broken and it is going to take cooperation on all sides to fix it.

          If the NCAA and the California legislature continue to struggle to find common ground, the legality of the law will be questioned in court. Under the United States Constitution, California can argue that its state legislature has a right to enact the law. The Tenth Amendment proclaims, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[v] This guarantees the States the right to regulate sectors like education and sport – both fields that the California Fair Pay to Play Act encompasses. On the other hand, the NCAA believes that the law is unconstitutional and the organization plans to challenge it in court under the interstate commerce clause. The commerce clause is a line from Article I of the Constitution that empowers Congress to regulate commerce between states.[vi] The clause has been cited in the past to stretch federal power over states’ rights and the NCAA could try to use it in a similar manner.[vii] The California collegiate teams engage in interstate commerce. They generate revenue from playing schools all over the country, they spend money when they travel to opposing schools for competitions, and they receive funding from donors or sponsors who are not solely based in California. These facts allow the NCAA to make the argument that this law cannot be legally passed through a state legislature but only by the federal government.

          Among the NCAA’s concerns is the fact that the law grants California schools an obvious recruiting advantage over the rest of the nation.[viii] Most of the country’s best student-athletes would desire to attend school in California if that was the only state that offered them a chance to make money. The NCAA has reacted by threatening the California schools with a ban from NCAA competition and millions of dollars in fines because of their violation of NCAA rules. This would be an enormous blow to the student-athletes and to the revenues of the universities and conferences they represent. The potential prohibition also brings up further questions like is it fair for the NCAA to punish the student-athletes, schools, and conferences at all if they are just complying with a state law?[ix] The California schools that do not support the law will still be forced to obey it and will thus suffer the impending NCAA punishments. Another apprehension of league officials is if the bill is moving to professionalize college sports, then how will this impact NCAA sports that do not attract hundreds of thousands to stadiums on Saturdays and generate billions of dollars of revenue?[x] [xi] The major revenue generating sports like football and basketball have absorbed so much of the attention of lawmakers and NCAA officials that it is easy to pass over how SB 206 will affect smaller men’s and women’s sports.[xii] There are varying opinions on this. Stanford women’s basketball coach Tara VanDerveer worries that “If it becomes an absolute free for all,” female student-athletes “are not going to be the winners in grabbing for cash.”[xiii] She believes that the money will be channeled to big programs like football and men’s basketball, while leaving her student-athletes out to dry. In contrast, California Senator Nancy Skinner, who co-wrote the bill, believes that given the lack of financial gain women can achieve in American professional sports, the act gives women student-athletes a chance to market themselves while in college.[xiv]

          On October 29th the NCAA board recently voted to lessen the restrictions on student-athletes’ endorsement money. Although the vote was a step in the same direction as the California law, the result is still very arbitrary as it did not yet put in place any physical changes.[xv] The NCAA and the state of California are stuck in a game of chicken waiting for the other to back down first. The NCAA thinks that the schools will convince the state to cave back to original NCAA regulations so they do not lose the revenue a potential ban would yield. Meanwhile, California thinks the NCAA will respect their law based on the major media market the state maintains. SB 206 leaves open the possibility of amendment before it comes into action in 2023 but if compromise does not occur soon it may be the courts that settle the decision.


[i] California Senate Bill No. 206 § 1(b).

[ii] SB 206 does stipulate that an exception to this rule is that student-athletes cannot enter into contracts or make exclusive deals with a company that contradicts a current contract their program has. For example, a student-athlete could not sign with Reebok at Georgetown University because the school maintains a contract with Jordan Brand.

[iii] Ibid

[iv] Bill Plaschke, Column: California’s College Sports Reform Bill Exposes Hypocrisy of NCAA’s Money Grab, LOS ANGELES TIMES (1 Oct. 2019) https://www.latimes.com/sports/story/2019-09-30/ncaa-reform-sb206-california-college-sports-money

[v] Content Team, Reserved Powers – Definition, Examples, Cases, LEGAL DICTIONARY (15 Feb. 2019) https://legaldictionary.net/reserved-powers/

[vi] The Editors of Encyclopaedia Britannica, Commerce Clause, ENCYCLOPÆDIA BRITANNICA (29 Apr. 2016) https://www.britannica.com/topic/commerce-clause

[vii] Ibid.

[viii] Alan Blinder, Paying College Athletes: Answers to Key Questions on New Law, THE NEW YORK TIMES (30 Sept. 2019) https://www.nytimes.com/2019/09/30/sports/should-college-athletes-be-paid.html

[ix] Ibid.

[x] Ibid.

[xi] Chris Smith, College Football’s Most Valuable Teams: Reigning Champion Clemson Tigers Claw Into Top 25, FORBES (1 Dec. 2019) https://www.forbes.com/sites/chrissmith/2019/09/12/college-football-most-valuable-clemson-texas-am/#2014bdbca2e7

[xii] Elliott Almond, What Does the NCAA Board’s Vote on Paying Athletes Actually Mean?, THE MERCURY NEWS (30 Oct. 2019) https://www.chicagotribune.com/sns-tns-bc-fbc-bkc-almond-column-20191030-story.html

[xiii] Ibid.

[xiv] Ibid.

Minnesota Voters Alliance v. Mansky: Upholding Grounds for Free Speech

By DUSTIN HARTUV


     Before 2018, Minnesota Statute § 211B.II prevented individuals from wearing politically affiliated symbols/clothing at polling booths on election days.[i] The statute was relatively broad, and so officials would distribute information to polling booth administrators to define specific articles of clothing that failed to uphold the rules outlined in the statute. If members of the public were caught disregarding the statute, the individual would still be allowed to vote, but could face misdemeanor prosecution.

         The Minnesota Voters Alliance (MVA) is a non-partisan organization that seeks to encourage voting by all members of the population. To challenge the statute, executive director Andrew Cilek wore a t-shirt with a logo representing the Tea Party, and was barred from voting in 2010.[ii] The MVA, along with Minnesota Majority, Minnesota Northstar Tea Party Patriots, and Election Integrity Watch, sued the Minnesota Secretary of State for violating the First Amendment.

         The case was first taken to a district court, and the MVA’s case was denied. On appeal, the Eighth Circuit upheld the district court’s determination, though it was nearly persuaded by some of the arguments before agreeing with the district court. In addition to the arguments of free speech, the MVA claimed that since the Tea Party was not a political party, the apparel did not count under the law. The Eighth Circuit claimed that while that was true, a reasonable interpretation of the statute would include the Tea Party even while it was not officially a political party in Minnesota.[iii]

         The MVA then took the case to the Supreme Court, arguing that Minnesota was imposing a “speech-free zone” at polling locations. The notion of a “speech-free zone” has its history in the Vietnam protests in the 1960s, when universities began to designate specific zones where protests would be allowed.[iv] Even though there have been constant debates about these zones, there has yet to be a broad ruling by the Supreme Court specifically on these zones. The Supreme Court has, however, decided on issues related to the matter.

         For example, in cases such as Police Department of Chicago v. Mosley, the Supreme Court used language involving time, place, and manner restrictions.[v] As the name suggests, the court determined that restrictions of public speech depend on the time, place, and manner of the speech. Another doctrine of the Supreme Court used in manners of public speech is the public forum doctrine, which was adopted from 1939’s Hague v. Committee for Industrial Organization.[vi] The public forum doctrine limits the ability of governments to restrain speech in areas that have historically been places of public congregation for debate. Along these lines, “speech-free zones” could be determined to be unconstitutional if one can prove that universities are historic areas of public debate.

         In the Supreme Court’s announcement of Minnesota Voters Alliance v. Mansky on June 14, 2019, the Court reversed the decision of the Eighth Circuit, stating that the statute violated the Free Speech Clause of the First Amendment.[vii] The opinion was written by Chief Justice John Roberts, and the Court argued that a polling place is not a public forum. However, based on the precedented time, place, and manner restrictions, while the statute was reasonable, it was too broad and did not properly define the term “political.”[viii] Therefore, although the decision was reversed, it set a precedent that polling places are not public forums, and that speech may be inhibited as long as the statute is not too broad and covers the time, place, and manner restrictions.


[i] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

[ii] Id.

[iii] Id.

[iv] David L. Hudson, Jr. and Andrew Gargano, Free-Speech Zones, Freedom Forum Institute (Nov. 8, 2017), https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/free-speech-zones/.

[v] Kevin Francis O’Neill, Time, Place and Manner Restrictions, The First Amendment Encyclopedia (last visited Nov. 18, 2019), https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.

[vi] David L. Hudson, Jr., Public Forum Doctrine, The First Amendment Encyclopedia (2017), https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine.

[vii] Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018).

[viii] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

The International Law of Drones

By MATTHEW BUCKWALD


“The United States Government is fully committed to complying with its obligations under the law of armed conflict, minimizing, to the greatest extent possible, civilian casualties, and acknowledging responsibility when they unfortunately occur during military operations,” said a spokesperson for National Security Council on the day that President Trump decided to revoke an Obama-era order to publicly disclose the number of civilians killed in airstrikes against terrorist targets “outside areas of active hostilities.”[i] While there is a conversation to be had about the relationship between paramilitary activities and public knowledge, this article will examine what exactly this spokesperson meant by “the law of armed conflict” with respect to drone use.

The most famous of unmanned aerial vehicles (“UAVs”) is undoubtedly the drone. The drone debuted in the Balkans in the 1990s to be used solely for military intelligence in the form of reconnaissance. However, after 9/11 the drone was used by the Bush administration to target specific individuals known to be affiliated with Al-Qaeda (“AQ”) or the Taliban. Such drones are equipped with a number of missiles in order to hit their desired target. The Obama administration, however, moved away from the Bush-era use of targeted strikes to an era of “signature strikes,” in which drones were used to target profiles of people rather than specific people themselves. As it stood during the Obama administration, drone strikes targeted profiles rather than people. The profile included men, aged 18-25, located in geographic areas where there was known terrorist activity. The name “signature” comes from the idea that those targeted by drone strikes fit the “signature” profile of a known militant. While some argue that signature strikes are immoral and an uncouth use of military force that potentially could (and historically has, in relatively small numbers) kill civilians as collateral damage, others argue that the collateral damage with drones pales in comparison to a boots-on-the-ground military attack. This same side would also argue that although you cannot fully know from a profile if a potential target is involved in terrorist activities, anyone who is in a geographic region with a known terrorist camp really could not be there for innocent purposes.[ii]

“Signature strikes have resulted in large numbers of bystander casualties in Pakistan and Yemen,” Jameel Jaffer, a deputy legal director for the American Civil Liberties Union, told Foreign Policy.[iii] One tragic blunder came on Dec. 12, 2013, when a U.S. drone flown by Joint Special Operations Command killed 12 Yemeni civilians in a single signature strike, leading the U.S. government to reportedly make about $1 million in condolence payments.[iv] Amnesty International, which examined 45 drone strikes in Pakistan between January 2012 and August 2013, reported that one signature strike killed 18 laborers and injured 22 others in July 2012.[v] Of course, this begs the question if the law allows for the use of drones.

Since 2011, there have been over 550 strikes in Libya, which amounts to more than the strikes ordered in Somalia, Yemen, or Pakistan.[vi] Libya remains one of the most targeted countries of U.S. drone strike attacks in the history of drone usage. If we were to examine the legal phenomena of drone strikes, Libya is a good place to start.

In analyzing the legality of drone use as a military tactic in Libya, the two jus in bello criteria must be applied. The first criteria to assess the legality of any act during war is discrimination, as codified in Article 52(2) of the 1977 Geneva Additional Protocol I,[vii] meaning that militaries must do their best to distinguish between legitimate and illegitimate targets. In this case, legitimate targets include anything actively engaged in harming, as to avoid the targeting of civilians, schools, religious centers, and hospitals. The second criteria is proportionality, as codified in Article 51(5)b of the 1977 Geneva Additional Protocol I,[viii] meaning that the force that a state uses must be proportional to the harm that they suffered or are expecting to suffer. In relation to the first criteria, drones are absolutely discriminate. They can loiter above their targets for hours to wait for the least amount of civilians. Additionally, the most used weapon utilized in a drone is a Hellfire missile, which has a reported “kill radius” of 50 feet and a “wounding radius” of 65 feet.[ix] The small blast radius of the Hellfire missile ensures more precision than a human attack. In relation to the second criteria, drones are also proportional, as the harm suffered by a terrorist who has yet to be captured or killed would be far worse than the harm caused by a drone strike. As both criteria of jus in bello are met, the drone strikes in Libya are unquestionably legal.

Although drones are legal under the scope of international law, the international community certainly does not cease to harshly criticize the United States for the use of drones bearing the collateral damage of civilians. In an attempt to restore the reputation of the United States, an effective step would be to narrow the scope of signature strikes. Instead of adhering to the Obama-era use of drones to target the profiles of suspects, perhaps this scope of narrowed to a more specific profile. Even more, perhaps the policy of drone strikes should revert back to the Bush-era use of drones to target specific people that are known to be members of AQ or the Taliban, in order to maximize the amount of discrimination that is being pursued, as required by jus in bello.

Although actions taken by the U.S. in the post-9/11 world order may have been strategically, ethically, and politically questionable, there is no doubt that they were legal as demonstrated through relevant international laws. This is not to say, however, that there is not work to be done to restore the stature of the U.S. in the international legal regime. Through reforming the methods in which drones are used, the U.S. can ensure its respectable reputation in international law.


[i] Zachary Cohen and Ryan Browne, “Trump Revokes Obama Order on Reporting Civilians Killed in US Airstrikes,” CABLE NEWS NETWORK, 6 Mar. 2019, www.cnn.com/2019/03/06/politics/trump-executive-order-revocation-terror-strike-civilian-deaths/index.html?utm_content=2019-03-07T00%3A45%3A11&utm_medium=social&utm_term=link&utm_source=fbCNNi&fbclid=IwAR1fWspqiB4lQVybkUj1gGLGv_-SKSEaX9ZLhHqi8Qwn6PWlC_7QLZdSF4g.

[ii] Daniel Byman, “Why Drones Work.” Foreign Affairs, FOREIGN AFFAIRS MAGAZINE, 15 Feb. 2019, www.foreignaffairs.com/articles/somalia/2013-06-11/why-drones-work.

[iii] Dan De Luce and Paul McLeary, “Obama’s Most Dangerous Drone Tactic Is Here to Stay.” Foreign Policy, Foreign Policy, 6 Apr. 2016, https://foreignpolicy.com/2016/04/05/obamas-most-dangerous-drone-tactic-is-here-to-stay/

[iv] Craig, Iona. “What Really Happened When a US Drone Hit a Yemeni Wedding Convoy?” AL JAZEERA AMERICA, 20 Jan. 2018,  http://america.aljazeera.com/watch/shows/america-tonight/america-tonight-blog/2014/1/17/what-really-happenedwhenausdronehitayemeniweddingconvoy.html

[v] Declan Walsh and Ihsanullah Tipu Mehsud, “Civilian Deaths in Drone Strikes Cited in Report,” THE NEW YORK TIMES, 22 Oct. 2013, www.nytimes.com/2013/10/22/world/asia/civilian-deaths-in-drone-strikes-cited-in-report.html.

[vi] Nick Turse, et al, “The U.S. Has Conducted 550 Drone Strikes in Libya Since 2011 – More Than in Somalia, Yemen, or Pakistan.” THE INTERCEPT, 20 June 2018, https://theintercept.com/2018/06/20/libya-us-drone-strikes/

[vii] “Protocols Additional to the Geneva Conventions of 12 August 1949.” INTERNATIONAL COMMITTEE OF THE RED CROSS, 30 Nov. 1993, https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf

[viii] Id.

[ix] Frédéric Ocqueteau, « Grégoire Chamayou, Théorie du drone », CHAMP PÉNAL, 07 Nov. 2013, http://journals.openedition.org/champpenal/8709

 

 

Libel Law—Past and Present

By JILLIAN AICHER


The historic significance of U.S. libel law—that is, the area of law concerning written or published defamation—can be understood in considering the questioning of free speech in early American laws, such as the Sedition Act of 1798, and in the notable Peter Zenger trial.[i]  Supreme Court Justice Clarence Thomas’ February 19th concurring opinion in Kathrine Mae McKee v. William H. Cosby, Jr. identifies current questions on libel law and its proper constitutional underpinnings.

Until 1964, libel law was not defined in federal jurisprudence, insofar as the statutes and case law lacked clear terms governing what content and intent were required for a media outlet’s publication to be considered libelous or defamatory. States, therefore, interpreted libel laws differently and applied different standards in terms of freedom of speech and the necessity for the speaker to demonstrate “actual malice.” The 1964 Supreme Court decision in New York Times Co. v. Sullivan limited the ability of a public figure to successfully sue a media outlet for libel under federal law.[ii] The Court found that the media source must demonstrate “actual malice” in its intended purpose of publication to be found to have libeled a public figure.[iii] This ruling standardized libel law, granting media outlets expanded federal protection against libel claims (resulting in increased freedom of speech) and restricting the potential for public figures to assert libel claims.

On February 19, 2019, Justice Thomas published a concurring opinion in the Kathrine Mae McKee v. William H. Cosby, Jr. case. In his comments, he questioned the constitutional grounds on which the Court in New York Times Co. v. Sullivan had authority to define libel law and the need for the Court’s 1964 ruling.[iv] Justice Thomas accepts the Court’s finding in the 1964 ruling that the New York Times was not guilty of libel, because the newspaper did not name Sullivan (the plaintiff and public figure accusing the media of libel) or publish defamatory content implicating him. He challenges the Court’s decision, however, positing that it could have limited its decision to a finding that there was no evidence to support Sullivan’s claim. He posits that the Court did not have the constitutional authority to expand its ruling create a new category of libel law to apply to the interests of public figures.[v] Justice Thomas suggests that the majority in the Court’s 1964 ruling requiring “actual malice” before a libel claim could be successful against a media defendant “made little effort to ground their holdings in the original meaning of the Constitution.”[vi] In particular, Justice Thomas states that the Court’s decision considered neither the First nor Fourteenth Amendments’ authoritative limits—or lack thereof—on libel cases:

“Although the Court held that its newly minted actual-malice rule was ‘required by the First and Fourteenth Amendments,’ id., at 283, it made no attempt to base that rule on the original understanding of those provisions.”[vii]

Justice Thomas’ concurrence in McKee asserts that the New York Times decision was ungrounded in constitutional support, yielding it a product of political rather than strictly legal understandings of libel. He also claims that the Court’s 1964 decision strayed significantly from the historic “common law of libel,”[viii] vastly shifting, and increasing, the media’s power and authority in a previously-unachievable national manner.

Though Thomas’ review of the constitutionality of the 1964 decision in the New York Times case validly assesses the decision as an interpretation (not direct implementation) of the Constitution, the need for federal standards in libel and defamation cases persists. The New York Times decision established a precedent that has, with good reason and in keeping with the First Amendment, protected the freedom of the press, while also allowing for public figures to assert libel claims where they can demonstrate a publication’s malicious intent. Any reconsideration or opinion that seeks to overturn or revisit the Court’s New York Times ruling could elicit a consequential shift in the processes and output of U.S. media outlets. Justice Thomas’s concurring opinion—along with comments from President Trump during his presidential campaign regarding the restrictiveness of the 1964 libel decision—have already begun to foster national debate on the implications of libel law on First Amendment and Fourteenth Amendment freedoms in the U.S.[ix]


[i] Alfred H. Kelly, “Constitutional Liberty and the Law of Libel: A Historian’s View,” The American Historical Review vol. 74 (Oxford University Press, 1968).

[ii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[iii] Ibid.

[iv] Kathrine Mae McKee v. William H. Cosby, Jr., 586 U. S. 1 (2019) (Thomas, J concurring opinion).

[v] Ibid.

[vi] Ibid.

[vii] Ibid.

[viii] Ibid.

[ix] Adam Liptak, “Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling,” New York Times, Feb. 19, 2019. https://www.nytimes.com/2019/02/19/us/politics/clarence-thomas-first-amendment-libel.html

Intersectionality and Immigration: How Race, Class, and Gender Play into Debates Surrounding DACA

By KAITLIN HUGHES


Immigration has played a controversial role in the American political landscape for decades, especially as the world globalizes and political parties in the U.S. become more divisive.  Since the Obama administration’s implementation of the executive order entitled Deferred Action for Childhood Arrivals, or DACA, immigration policy has come to the forefront of many debates.  A few years after the executive order’s enactment, Donald Trump ran for office on a rather xenophobic and nationalistic platform, and he promised to phase out DACA as soon as he got to office.  Thus, with President Trump now in office, he announced in 2017 that he would slowly eradicate DACA and move toward a stricter, more exclusionary immigration policy. To do this, Trump employs a specific definition of “nation” and racist rhetoric, aiming to fuel public support for unsubstantiated economic and social arguments that support a phase-out of DACA.  On the other hand, opposing arguments that support DACA and the Dream Act use a more inclusive lens that considers the intersection of race, class, and gender, and views the nation as a more diverse and global community.

To deem immigrants as an “other” in the U.S. and gain public buy-in, Trump’s rhetoric portrays all migrants as evil and pits them against American citizens.  In his statement on September 5th, 2017, Trump declares that the government must implement the rule of law and protect its people from this unconstitutional executive order, or DACA, in which undocumented immigrants can live and work in this country.  He deliberately uses words with negative connotations when describing immigrants to portray them as sub-human and in opposition to the American people and their values. He refers to undocumented workers as “illegals,” “criminals,” “dangerous,” and as being part of “drug cartels” and gangs such as MS-13.[i]  He simultaneously juxtaposes these descriptions with portrayals of the American population as “students,” “taxpayers,” “jobseekers,” “citizens,” and “hardworking.”[ii]  He goes as far as to say that Americans have been “victimized” by immigrants and DACA, more specifically, and that “we must remember that young Americans have dreams too,”[iii] as if Americans and immigrants exist in opposition to each other with one group maintaining an insider status while the other group exists as an alien outsider.  Andersen and Collins pose a question in “Systems of Power and Inequality” regarding the different connotations of referring to immigrants as “illegal aliens” as opposed to “undocumented workers,” and Trump’s rhetoric deliberately and clearly shows that his administration views immigrants as “un-American,” as Andersen and Collins phrase it.[iv]  This sort of rhetoric becomes dangerous, as we see in Nguyen’s “Becoming Suspects,” because it turns specific populations into suspects, and the general public subsequently starts to police each other, sometimes deliberately and sometimes subconsciously, as the image engrains itself into the public psyche.   

Moreover, Trump’s arguments to phase out DACA based on this “otherizing” rhetoric results from the toxic masculinity that exists within the United States and within Trump himself.  Kimmel explains that “We come to know what it means to be a man in our culture by setting our definitions in opposition to a set of ‘others’—racial minorities, sexual minorities, and, above all, women.”[v] Thus, to appear as powerful and an effective president, Trump tries to embody the classic interpretation of manhood by orienting himself in opposition to immigrants, creating hard-hitting policies against them, and persuading the public to feed into his power by using divisive rhetoric.  In other words, he embodies a classic example of hegemonic masculinity as he tries to become “a man in power, a man with power, and a man of power,”[vi] by positioning himself against some outside group, in this case immigrants, as so many men have done in the history of this country.  Yet, even though this pattern has repeated itself many times, much of the population still does not grasp the concept of inclusion, rather than exclusion, which Kimmel claims to be the only way to combat this toxic masculinity.[vii]  Moreover, many people, most importantly the Trump administration, continue to define the nation in terms of whiteness, masculinity, and socio-economic wealth.

Thus, as a result of this societal gender struggle and Trump’s subsequent exclusionary rhetoric, arguments arise to support stricter immigration policies based on claims that immigrants take jobs away from Americans, hurt the economy, and raise crime rates.[viii]  The Trump administration and others who position themselves against DACA and the Dream Act claim we can only protect the “nation” by preventing these things from happening, or, in other words, by excluding undocumented workers and restricting paths to citizenship.  However, countless economists and political scientists have disproven this theory that DACA recipients create lost jobs, crime, and a slower economy. Andersen and Collins argue that immigrants supply the labor that the global economy needs,[ix] and the Center for American Progress found that DACA recipients have had a positive impact on the economy as well-educated and skilled workers and students.[x]  Moreover, Trump advocates for a merit based immigration policy to bring growth to the economy and skill to the workforce, yet DACA recipients “are a perfect example of such immigrants: They are educated, working for U.S. employers, speaking perfect English, and they are young”[xi] because the selective application process requires applicants to have a specific level of education, and it also denies applicants who have a significant criminal record, thus disproving Trump’s claim that DACA allows criminals to permeate the country.[xii]  

Clearly, the baseless arguments of the Trump administration and others who support a phase-out of DACA and exclusive paths to citizenship stem from a largely white and male definition of nation; therefore, we must think of the nation through an intersectional lens in which we study how race, class, and gender interconnect to avoid deeming certain groups as “others” and to help create more inclusive and just policies.  Collins and Bilge explain that when we use an intersectional lens, we better understand inequality and its effect on the certain positionalities of individuals. It also allows us to move past grouping all immigrants as a “homogeneous, undifferentiated mass,”[xiii] as Trump does, to view undocumented workers as humans, rather than aliens, who share the same basic humanity as any other American citizen.  Moreover, intersectionality allows us to better understand that DACA recipients are not simply undocumented workers, but they are people who grew up in this country, many of them boys and girls, many of them now women and men, who have a relatively high level of education and countless other intersecting identities that play into their social location.  Additionally, when policy makers study the intersection of race, class, and gender, they can deconstruct Trump’s dominating rhetoric that dangerously reshapes the public’s view of this minority group. Without representation, or simply legal status, immigrants, as a minority, cannot stand up for themselves to counteract stereotypes; therefore, policy makers create bad social policy based on misguided research and public opinion.[xiv]  Thus, following in the guidance of Andersen and Collins who advocate for an inclusive perspective, we must not reduce Dreamers to the single identity of undocumented worker, and we must understand that they have established a life here with an education and a job, in most cases knowing no other country as their home.[xv]  

When we adopt this intersectional lens, we begin to grasp the complexity of the debate surrounding immigration that deals with real people who all share the same humanity.  We cannot simplify the debate by deeming immigrants as “others” and thus stripping them of their humanity to more easily exclude them. Moreover, intersectionality illustrates that Dreamers are “American” in every sense of the word in terms of a global, inclusive definition of our nation.  Leaders debating the constitutionality of DACA should take this viewpoint into consideration, and most importantly they must remember that their words and policies affect real people who share the same humanity as them.


[i] “Statement from President Donald J. Trump.” Whitehouse.gov, September 5, 2017. https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-7/

[ii] Ibid.

[iii] Ibid.

[iv] Andersen, Margaret and Patricia Hill Collins. “Systems of Power and Inequality.” In Race, Class, and Gender: An Anthology, edited by Margaret L. Anderson and Patricia Hill Collins, 51-73. Michigan: Wadsworth/Thomson Learning, 2004.

[v] Kimmel, Michael S. “Masculinity as Homophobia: Fear, Shame, and Silence in the Construction of Gender Identity.” In The Social Construction of Difference and Inequality, edited by Tracy E. Ore, 134-51. New York: McGraw-Hill, 2011.

[vi] Ibid., 137.

[vii] Ibid., 149.

[viii] Spagat, Elliot and Christopher Rugaber. “AP Fact Check: What the Trump administration said about DACA.” Public Broadcasting Service, September 5, 2017. https://www.pbs.org/newshour/politics/ap-fact-check-trump-administration-said-daca

[ix] Andersen and Collins, “Systems of Power and Inequality,” 67.

[x] Wong, Tom K. “New Study of DACA Beneficiaries Show Positive Economic and Educational Outcomes.” Center for American Progress, October 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/10/18/146290/new-study-of-daca-beneficiaries-shows-positive-economic-and-educational-outcomes/

[xi] Peri, Giovanni. “The Economic Cost of Repealing DACA.” Econofact, Setpember 11, 2017. http://econofact.org/the-economic-cost-of-repealing-daca

[xii] Department of Homeland Security. “Consideration of Deferred Action for Childhood Arrivals (DACA).” U.S. Citizenship and Immigration Services.  Accessed February 27, 2018. https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca

[xiii] Collins, Patricia and Sirma Bilge. Intersectionality. Massachusetts: Polity Press, 2016.

[xiv] Andersen, Margaret and Patricia Hill Collins. “Why Race, Class, and Gender Still Matter.” In Race, Class, and Gender: An Anthology, edited by Margaret L. Anderson and Patricia Hill Collins, 2-18. Michigan: Wadsworth/Thomson Learning, 2004.

[xv] Ibid., 12.

PRISON GERRYMANDERING AND FELON DISENFRANCHISEMENT: A REPRESENTATION CRISIS

Prison Gerrymandering and Felon Disenfranchisement are the latest evolution of policies and laws designed to prohibit equal representation and limit universal suffrage. Often overlooked, these policies have created a crisis where representation is taken away from communities disproportionately affected by mass incarceration where millions of individuals continue to be categorically denied the right to vote. Prison Gerrymandering stems from United States Census Bureau policy that “counts incarcerated people as residents of the towns where they are confined, though they are barred from voting in 48 states and return to their homes after being released.”[i] The key effect of this policy is the artificial inflation of “constituents” in districts where prisons are located, which means “ballots cast by citizens who live in districts that have been drawn to include prisoners are weighted heavier than are those of voters who live in districts that contain no such facilities.”[ii]

Let’s examine two examples that demonstrate the severity and effects of the policy. In Anamosa, Iowa, because Anamosa State Penitentiary’s population of 1,321 was counted as part of the town ward in which it was located, the penitentiary skewed town districting so its ward had only 58 constituents eligible to vote. One city councilman, Danny Young, “was elected with two write-in votes”[iii] and his constituents had “about 25 times as much clout as those in the other wards.”[iv] It’s worth noting as well “the prison population is nearly a third African American or Latino, but Anamosa is a small, rural city where less than 2 percent of the residents are black or Latino.”[v] In Wisconsin, “The 53rd Assembly District… has the highest concentration of prisons in the state and 5,583 of its ‘constituents’ are to be found behind bars.”[vi] What this ultimately means is that every ninety residents residing in that Assembly District have “the same amount of political clout as 100 residents of any other district,”[vii] and “only 590 of its 2,784 African American ‘constituents’ actually reside outside prison walls.”[viii] Voters in districts with prisons essentially have “extra political clout… solely on the basis of their residential proximity to a prison.”[ix] Because of the prison population demographics in the United States and location of prisons in more rural and white areas, the practice reduces “the political representation of others, especially urban residents and communities of color.”[x] Those who draw legislative boundaries can take prisons into consideration in order to give one side or another significant political advantage. “Shifting a significant proportion of these phantom constituents into districts that lean heavily toward the majority party, legislators can free up an equal number of citizens from those districts to be distributed… thereby increasing that party’s likelihood of picking up additional seats in the state legislature.”[xi] This redistribution of representation “has the effect of siphoning off political clout from the communities where most incarcerated people come from, and transferring it to districts where they are confined but cannot vote.”[xii]

Combine Prison Gerrymandering with Felon Disenfranchisement and we have a real representational crisis on our hands. Felon Disenfranchisement, long been used as a tool for political disenfranchisement especially during the Jim Crow era,[xiii] is the denial of voting rights to those who have been convicted of felony level crimes.[xiv] The Supreme Court recognizes this practice as constitutional as it held in Richardson v. Ramirez (1974) that “the deprivation of the right to vote for ex-offenders does not violate the Fourteenth Amendment’s Equal Protection Clause”[xv] because language in section two of the Amendment exempts states from the penalty of reduced representation in Congress when the right to vote is denied for the basis of “participation in rebellion, or other crime.”[xvi]

Today, “an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased.”[xvii] Today, except for in Vermont and Maine, felons are completely banned from voting while incarcerated,[xviii] and “in many states they lose their right for long after they have served out their sentences and have been released into society.”[xix] Thirty-five states deny the formerly incarcerated the right to vote while on parole, eleven states currently allow former offenders to reapply for suffrage, while others permanently lose the right to vote.[xx] Internationally, this practice is an outlier. According to Jamie Fellner and Marc Mauer, “No other democratic country in the world denies as many people – in absolute or proportional terms – the right to vote because of felony convictions.”[xxi] That the United States strays so far from other developed countries in this regard is a reflection on what we feel is the goal of the American criminal justice system, punishment. Other developed nations have policies that would seem to reflect a belief in the ideals of rehabilitation and reintegration by allowing the incarcerated and formerly incarcerated to retain their right to participate in democracy. The United States, however, uses Felon Disenfranchisement as one of many punitive measures that ensures a prison sentence remains a permanent mark on one’s life.

It is essential to note these practices disproportionately affect African American and minority communities and can have significant political consequences on their representation. One cannot lose sight of the importance “of large numbers of African Americans losing the vote – the very right that took centuries of anguish, perseverance, and conflict to acquire – as a result of criminal records.”[xxii] The rate at which African American men are disenfranchised is seven times higher than the national average.[xxiii] “In Florida, Kentucky, and Virginia, over 20 percent of black adults are disenfranchised,”[xxiv] and in states where such laws are more restrictive, “up to 25 percent will never vote again.”[xxv] Despite comprising 12 percent of the general population, African Americans “constitute 44 percent of the population with felony records. As a result, while 2.3 percent of the overall population is disenfranchised, over 7 percent of the African American community cannot vote.”[xxvi] The effect of Felon Disenfranchisement on the political power of the African American community is devastating, but not new. One only need to refer to the powerful example of Jarvious Cotton’s family from Michelle Alexander’s The New Jim Crow to see this fact. Mr. Cotton is the fifth generation of men in his family who has not been able to exercise his right to vote because of the various targeted forms of voter suppression throughout American history.[xxvii] The means to achieving the same end of disempowering the African American and minority voters has evolved along with the framework used to repress those communities. Today, Prison Gerrymandering and Felon Disenfranchisement are that very mechanism.

There are, however, signs for hope on addressing both of these issues as people are starting to become aware. Federal and state governments are acting to address Prison Gerrymandering. While the Census Bureau will still improperly count prisoners based on where they are incarcerated in 2020, they have “agreed to publish detailed data on incarcerated populations much earlier than in the past” giving “state and local governments the information they need to avoid prison-based gerrymandering in time to use it in their redistricting processes.”[xxviii] At the state level, “Maryland and New York have both passed legislation to count incarcerated people at their homes for the current redistricting cycle, while California and Delaware have passed laws to fix the problem during the 2020 cycle.”[xxix] Residents from Anamosa, Iowa, eliminated the district system from their town government that allowed only two residents to elect Danny Young. Nationally, “Senator Ben Cardin and Representative John Conyers have introduced the ‘Democracy Restoration Act,’ which seeks to restore federal voting rights to 4.4 million former prisoners and maintain those rights for people on probation.”[xxx] These actions are certainly steps in the right direction. However, the realities of the criminal justice system through Prison Gerrymandering and Felon Disenfranchisement will continue to keep us from achieving the ideals of equal representation and universal suffrage until extensive reforms are enacted that eliminate both practices.


[i] “The Problem.” Prison Gerrymandering Project. Accessed November 26, 2018. https://www.prisonersofthecensus.org/impact.html.

[ii] Jason P. Kelly, “The Strategic Use of Prisons in Partisan Gerrymandering,” Legislative Studies Quarterly 37, no. 1 (2012): 117.

[iii] “The Problem.” Prison Gerrymandering Project. Accessed November 26, 2018. https://www.prisonersofthecensus.org/impact.html.

[iv] Id.

[v] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 40.

[vi] Id, 41.

[vii] Id.

[viii] Id.

[ix] Id, 39.

[x] Id.

[xi] Jason P. Kelly, “The Strategic Use of Prisons in Partisan Gerrymandering,” Legislative Studies Quarterly 37, no. 1 (2012): 118.

[xii] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 40.

[xiii] Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 192.

[xiv] Christopher Uggen, Ryan Larson, and Sarah Shannon. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. October 6, 2016.

[xv] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 133.

[xvi] Richardson v. Ramirez, 418 U.S. 24, 43 (1974).

[xvii] Christopher Uggen, Ryan Larson, and Sarah Shannon. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. October 6, 2016. https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/#I. Overview.

[xviii] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89.

[xix] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 82.

[xx] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89.

[xxi] Id.

[xxii] Id, 134.

[xxiii] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89

[xxiv] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 134.

[xxv] Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 1.

[xxvi] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 134.

[xxvii]  Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 1.

[xxviii] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 41.

[xxix] Id.

[xxx] Id.

 

THE RIGHT TO PRIVACY IN THE DIGITAL AGE: CARPENTER V. UNITED STATES

By LÉA NICOLAS

Carpenter v. United States, which was decided on June 22, 2018, asked the Supreme Court to address the constitutionality under the Fourth Amendment of the warrantless search and seizure of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days. The Court rightfully decided in the Appellant’s favor that the acquisition of his cell site location information qualified as a search under the Fourth Amendment. In so doing, the Supreme Court overruled the judgment of the United States Court of Appeals for the Sixth Circuit, which was based on an erroneous reliance on pre-digital age precedent, and affirmed the people’s reasonable expectation of privacy in cell phone location records.

The advent of cellular devices has revolutionized all aspects of society and human interaction, a reality with which the Fourth Amendment must come to terms. David Strauss, author of The Living Constitution, argues that the valued common law tradition upon which our legal system operates was borne of an evolutionary process that takes into consideration societal realities when developing precedent. The social realities of today create a virtual requirement to own a cell phone. Given the location information produced by mere ownership of this device can be used to track its user’s movement, it warrants protection as private data. Accordingly, the Court is correct in opining that the acquisition of longer-term cell site location information should constitute a search under the Fourth Amendment. However, this case is merely tip of the iceberg in the privacy debate.

The right to privacy predates the technological era, promulgated in 1890 by attorney Samuel Warren and Supreme Court Justice Louis Brandeis in The Right to Privacy. While the Constitution does not grant an explicit right to privacy, various Amendments, namely the Fourth, and precedent have recognized it as a fundamental right. In 1928, Justice Brandeis famously advocated for the “right to be let alone” as “the most comprehensive of rights and the right most valued by civilized men.”[i] The right to privacy was further codified in American common law in landmark cases such as Griswold v. Connecticut (1965) and Roe v. Wade (1972), as well as in various state constitutions. In Katz v. United States (1967), Justice Harlan developed the Reasonable Expectation of Privacy Test, which remains a fundamental component of Fourth Amendment analysis. The test has two requirements, government violations of which constitute a violation of an individual’s Fourth Amendment right. The requirements consist of a) an individual’s demonstration of a subjective expectation of privacy; and b) society’s plausible recognition of this expectation as reasonable.[ii]

In this case, Timothy Carpenter had an expectation that his cell phone location records would not be made available to the government for a minute-by-minute tracking of his whereabouts without proper judicial oversight. This court’s precedent has identified an identical expectation in society. As technology has “lowered the cost of government surveillance” and removed barriers to previously private information, this Court has recognized that the rapid nature of technological advancement renders necessary a preservation of the “degree of privacy against government that existed” prior to the emergence of new technology.[iii].

Society’s expectation of privacy is also supported by the “everyday expectations of privacy that we all share” in terms of our data.[iv] Until the digital age, most individuals simply expected privacy in their homes and in other places “where they made an effort to be out of earshot of others.”[v] As Justice Alito said, “the greatest protections of privacy were neither constitutional nor statutory, but practical” given the lack of technology.[vi] Essential to Justice Brandeis’ definition of the right to privacy is the condition of anonymity, made possible by this lack of technology. While an individual is reasonably aware that his or her movements might be observed while in the public square, his or her expectation of privacy is predicated on the assumption that those movements are insignificant to onlookers. When technology infringes on this expectation of anonymity, so too does it infringe on the right to privacy.

To date, “[s]cience has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.”[vii] At present, approximately 75% of smartphone users “report being within five feet of their phones most of the time.”[viii]. Therefore, CSLI can “provide an intimate picture of one’s life,” State v. Earls, including visits that are assumed to be “private,” such as those to a priest or to a gynecologist. United States v. Davis. From this information can be inferred the “people and groups [individuals] choose to affiliate with and when they actually do so.” Commonwealth v. Augustine. CSLI can also be used to determine if an individual is in a private residence. This information collection “falls within the ambit of the Fourth Amendment when it reveals information that could not have been obtained through visual surveillance” from a public location, such as confirmation regarding whether “a particular article is actually located at a particular time in the private residence.”[ix]

However, the Sixth Circuit decided that CSLI records were not deserving of Fourth Amendment protection based on the precedent set in Smith v. Maryland and United States v. Miller, pre-digital age cases that together form the basis for the “third-party” doctrine. This legal principle dictates that when an individual voluntarily shares information with a third party, that third party is absolved of the responsibility to protect that information.[x] According to this argument, because Carpenter signed MetroPCS’ terms of agreement in order to use its services, he no longer had a proprietary interest in the data created by his movements. This application of the third-party doctrine is erroneous because CSLI is more sensitive than the information involved in those cases and, more importantly for future cases, is not voluntarily given.

            Cell phone users do not voluntarily provide cellular service providers with their location information in a meaningful way. Location information is generated not only when a cell phone user actively engages with the device, such as placing a call, but also when his or her device involuntarily receives a call or social media updates. Therefore, “the analog-era notion that transmission of data to a third party is necessarily “voluntary” conduct that precludes Fourth Amendment protection should not apply in a world where devices and applications constantly transmit data to third parties by dint of their mere operation.”[xi]

“No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are […] increasingly integrated into modern life.”[xii] In fact, it can be argued that cellular devices are becoming necessary to meaningful participation in society given 95% of Americans own a cellphone.[xiii] Many employers require their employees to be within digital reach in and out of the office, rendering cell phones vital to a professional career in most cases. Furthermore, cell phones are increasingly becoming tools of personal safety and health, capable of “monitor[ing] bodily functions and transmit[ting] data to doctors in real time.[xiv] The FCC also reports that approximately 70% of 911 calls are placed using wireless phones, assigning cell phones significance beyond tools of personal and recreational communication.[xv]  Therefore, as smartphones become essential tools of survival, “people should not be forced to choose between their privacy and their safety, health, or livelihood.”[xvi]

While the Court  defended the people’s right to privacy in reversing the Sixth Circuit’s judgement, its work is not yet finished. The advent of the Internet of Things and smart home devices comes to mind as an example of technology that has begun to pose a significant privacy threat to “the right of the people to be secure in their … houses.”[xvii] Those who oppose this ruling might still contend that CSLI records are not the property of the customer if he or she signs ownership of the data to the cellular service provider via their terms of agreement. However, the recent debate regarding the use of legalese highlights the deceptive nature and decreasing legitimacy of these contracts. The right to privacy, “terms of agreement” and technology companies’ legal responsibility to their customers as titans of a traditionally unregulated sector must be explored in light of the implications of Carpenter v. United States.

Technology companies have notoriously skirted Congress’ requirement of explicit customer consent for the disclosure of their data by cornering consumers with terms of agreement written in “legalese.” While the Supreme Court has yet to address a case based on the use of legalese, trends in both the public and private sectors indicate a growing awareness and rejection of this practice. In 2010, Congress passed and President Obama signed the Plain Writing Act, which aims to “promot[e] clear government communication that the public can understand and use.”[xviii] Perhaps the largest affront to the use of legalese and other barriers to meaningful consent came in the form of Europe’s General Data Protection Regulation (GDPR), implemented in May of 2018. Having already affected the business practices of many American companies, GDPR “signals a new age for the protection of privacy.”[xix]

Given that the terms of agreement of third-party service providers are generally designed to minimize the customer’s understanding of their implications and often do achieve this goal, it should be the implied contract of privacy between a customer and his or her service provider that prevails in this case. Justice Louis Brandeis established that in some cases where protection of an individual’s right to privacy should be afforded, jurisdiction can be asserted “not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence.”[xx] As was discussed earlier, state and federal laws currently reflect “public attitudes” toward the expectation of privacy in cell phone location records, which was confirmed in this Court’s ruling in Jones based on the “everyday expectations of privacy that we all share.”[xxi] This expectation of privacy is not unfounded. To the contrary, it is, rather ironically, largely based on the marketing strategies employed by the most pervasive technology companies of this era. Apple’s self-publicized refusal to compromise the security of its encryption technology by helping the FBI decrypt a terrorist’s iPhone password[xxii], Facebook’s $13 billion drop in stock upon the reveal of its data breach by Cambridge Analytica, and Google’s recent nationwide marketing campaign emphasizing its commitment to data privacy all contribute to the individual’s, and to society’s, reasonable expectation of privacy and form the practical basis for a claim of an “implied contract,” “trust,” or “confidence” regarding privacy between customer and service provider.[xxiii]

Therefore, it can be argued that companies illegitimately obtain ownership of customers’ data via the use of intentionally confusing terms of agreement that fail to produce meaningful consent. Furthermore, the marketing ploys of these very companies have led customers to develop a confidence in the companies’ ability and desire to protect their data, thereby creating an “implied contract” of privacy between consumer and provider that heightens the reasonable expectation of privacy. This implied contract was breached when law enforcement obtained Timothy Carpenter’s CSLI with a mere court order and violated his Fourth Amendment right to privacy.

Nevertheless while this post has argued against warrantless access to private data, it does not aim to minimize the problems posed by technology to the United States’ law enforcement capability. The Going Dark debate is legitimate and highly pertinent to this case, as law enforcement is increasingly unable to gain access to evidence for which it has legally obtained a warrant due to increased technological barriers. For more information regarding the problem of Going Dark, please see Susan Hennessey’s Lawfare article on the subject.


[i] Olmstead v. United States, 277 U.S. 438, 478 (1928)

[ii] Expectation of Privacy. Legal Information Institute. https://www.law.cornell.edu/wex/expectation_of_privacy

[iii] Carpenter, Brief for Petitioner, 15

[iv] Minnesota v. Olson, 495 U.S. 91, 98 (1990)

[v] Hon. Fogel, J. A Reasonable Expectation of Privacy. AMERICAN BAR ASSOCIATION https://www.americanbar.org/groups/litigation/publications/litigation_journal/2013-14/spring/a_reasonable_expectation_privacy/

[vi] United States v. Jones, 132 S. Ct. 945, 963 (2012)

[vii] Goldman v. United States, 316 U.S. 129, 139 (1942) (Murphy, J., dissenting)

 [viii] Riley v. California, 134 S. Ct. at 2490

[ix] United States v. Karo (1984)

[x] Lynch, J). Symposium: Will the Fourth Amendment protect 21st-century data? The court confronts the third-party doctrine – SCOTUSblog. SCOTUSblog. http://www.scotusblog.com/2017/08/symposium-will-fourth-amendment-protect-21st-century-data-court-confronts-third-party-doctrine/

[xi] Id.

[xii] Id.

[xiii] Demographics of Mobile Device Ownership and Adoption in the United States. PEW RESEARCH CENTER: INTERNET & TECHNOLOGY. http://www.pewinternet.org/fact-sheet/mobile/

[xiv] Eric J. Topol. The Future of Medicine Is in Your Smartphone. THE WALL STREET JOURNAL. https://www.wsj.com/articles/the-future-of-medicine-is-in-your-smartphone-1420828632

[xv] 911 Wireless Services. FEDERAL COMMUNICATIONS COMMISSION https://www.fcc.gov/consumers/guides/911-wireless-services.

[xvi] Carpenter, Brief for Petitioner, 42.

[xvii]  Fourth Amendment of the Constitution of the United States

[xviii] S. Burton. Why It’s Time to Kill Legalese. HARVARD BUSINESS REVIEW. https://hbr.org/2018/01/the-case-for-plain-language-contracts

[xix] A. Ahmed. Employee Data Privacy In The GDPR Era: What You Should Know. FORBES. https://www.forbes.com/sites/ashikahmed/2018/05/02/employee-data-privacy-in-the-gdpr-era-what-you-should-know/#5f3ee7345c5c

[xx] Warren., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4, no. 5 193-220.

[xxi] Id.

[xxii] Apple v. FBI (2016)

[xxiii] Id.

City of Escondido v. Emmons: A Divided Court Finally Stands United

By DUSTIN HARTUV


The case of City of Escondido v. Emmons began in April 2013, when police officers in Escondido, California, received a 911 call about a reported charge of domestic violence.[i] The individuals involved were Maggie Emmons and her husband.[ii] Her husband was arrested but released, and in May of the same year, another 911 call was issued.[iii] Two officers arrived at the house of Maggie Emmons, and were instructed to exercise caution as her two children were proclaimed to be located in the house.[iv] Once the officers were at the house, several important events occurred.[v] No one opened the front door, and so the officers spoke with Maggie Emmons through one of the windows, instructing her to open the front door.[vi] Concurrently, the officers heard the voice of another man, demanding that Maggie not open the door.[vii]

Several moments later, after more officers arrived at the house, the front door opened, and the unidentified man walked through the door.[viii] The man was later found to be Marty Emmons, father of Maggie Emmons.[ix] He was instructed by one officer not to close the door, but he failed to abide by the request, and then walked past them.[x] The officer then put him on the ground and handcuffed him, though footage from the officer’s camera video show that there was no violence nor any aggression in this act.[xi]

The crux of the case revolves around the idea of qualified immunity.[xii] That is, were the police officers, and specifically the officer who arrested Marty Emmons, acting within their official capacities as police officers?[xiii] Marty Emmons sued the two officers for not having probable cause to arrest him and for using excessive force.[xiv] Marty Emmons mainly cited the fourth amendment, but both counts were rejected by the District Court.[xv] The decision was appealed, and the Ninth Circuit overturned one of the charges, agreeing with the District Court about the fact of probable cause, but disagreeing about the use of excessive force.[xvi] The Ninth Circuit had a different interpretation of qualified immunity, feeling that the officers, and specifically the officer who arrested Marty Emmons, overstepped their boundaries as police officers.[xvii]

The Supreme Court sided with the police officers, reversing the Ninth Circuit’s charge of excessive force, while still agreeing there was probable cause to arrest Marty Emmons.[xviii] The Ninth Circuit believed that although there was no specific law forbidding the excessive force, Marty Emmons had an entitlement to be free of excessive force.[xix] The Supreme Court wrote that the Ninth Circuit failed to specify a law that was broken by the officers, and that the actions of the officers did not break any implied right to be free of excessive force.[xx]

The per curiam decision by the Supreme Court in City of Escondido v. Emmons demonstrates the importance of qualified immunity in cases where officers are not overstepping their bounds, and fits nicely with past precedent.[xxi] The term qualified immunity first began to be utilized in the 1982 case Harlow v. Fitzgerald.[xxii] This case established the right of White House aides to be free from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.”[xxiii] The case progressively began to be applied in other scenarios, and asserts that government workers are not liable for duties required in their course of action.[xxiv] In City of Escondido v. Emmons, the officers were not asserting any more force than was necessary in the given situation.[xxv] The officer who arrested Emmons simply fulfilled his duty in ensuring Emmons received justice for failing to abide by the officer’s command.[xxvi] No weapons were utilized, and there were no signs of physical damage on the body of Emmons.[xxvii] Finally, with increasing societal tension and discussion over the proper role of police officers, it would set a dangerous legal precedent to restrict the right of a police officer to act in his or her role when clearly no harm has been committed.[xxviii] Although the fact of an ad curiam case is not evidence alone for the clear-cut nature of a case, it does demonstrate how even in a divided court, the justices are all willing to act within precedent in cases where clearly no rights are being degraded.[xxix]


 

[i] City of Escondido v. Emmons, Oyez, https://www.oyez.org/cases/2018/17-1660 (last visited Feb 11, 2019).

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] City of Escondido, California et al. v. Marty Emmons, 586 U.S. 1 (2019).

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id.

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

[xxiii] Id.

[xxiv] Id.

[xxv] City of Escondido, California et al. v. Marty Emmons, 586 U.S. 1 (2019).

[xxvi] Id.

[xxvii] Id.

[xxviii] Id.

[xxix] Id.