The International Law of Drones


“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,

[ii] Daniel Byman, “Why Drones Work.” Foreign Affairs, FOREIGN AFFAIRS MAGAZINE, 15 Feb. 2019,

[iii] Dan De Luce and Paul McLeary, “Obama’s Most Dangerous Drone Tactic Is Here to Stay.” Foreign Policy, Foreign Policy, 6 Apr. 2016,

[iv] Craig, Iona. “What Really Happened When a US Drone Hit a Yemeni Wedding Convoy?” AL JAZEERA AMERICA, 20 Jan. 2018,

[v] Declan Walsh and Ihsanullah Tipu Mehsud, “Civilian Deaths in Drone Strikes Cited in Report,” THE NEW YORK TIMES, 22 Oct. 2013,

[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,

[vii] “Protocols Additional to the Geneva Conventions of 12 August 1949.” INTERNATIONAL COMMITTEE OF THE RED CROSS, 30 Nov. 1993,

[viii] Id.

[ix] Frédéric Ocqueteau, « Grégoire Chamayou, Théorie du drone », CHAMP PÉNAL, 07 Nov. 2013,



Libel Law—Past and Present


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.

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


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.”, September 5, 2017.

[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.

[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.

[xi] Peri, Giovanni. “The Economic Cost of Repealing DACA.” Econofact, Setpember 11, 2017.

[xii] Department of Homeland Security. “Consideration of Deferred Action for Childhood Arrivals (DACA).” U.S. Citizenship and Immigration Services.  Accessed February 27, 2018.

[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 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.

[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.

[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. 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.




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.

[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

[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.

[xi] Id.

[xii] Id.

[xiii] Demographics of Mobile Device Ownership and Adoption in the United States. PEW RESEARCH CENTER: INTERNET & TECHNOLOGY.

[xiv] Eric J. Topol. The Future of Medicine Is in Your Smartphone. THE WALL STREET JOURNAL.


[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.

[xix] A. Ahmed. Employee Data Privacy In The GDPR Era: What You Should Know. FORBES.

[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


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, (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.


Gray Area in the Deep Blue: The International Legal Struggle Over the South China Sea


In recent years, many countries like the Republic of the Philippines have taken legal recourse in response to the People’s Republic of China’s increasingly assertive actions in the South China Sea. In 2013, the Philippines initiated a case against China in the Permanent Court of Arbitration (PCA), alleging that China had violated its sovereignty by extending control over key parts of the South China Sea. In 2016, the PCA finally reached its verdict, which favored the Philippines.[i] While the facts of the case are certainly important, the manner and effect of arbitration are of more relevance to the present discussion about international maritime law.

The first noteworthy characteristic of the Philippines’ case was the Filipino government’s decision to bring a case against the Chinese at the PCA as opposed to the International Tribunal for the Law of the Sea or the International Court of Justice.[ii] Arbitration in these two bodies would have required the acquiescence of both parties, which China was unwilling to offer. Furthermore, the International Tribunal for the Law of the Sea and the International Court of Justice are permanent bodies which sit in perpetuity.[iii] The PCA, on the other hand, is a broad framework for disputes which creates a panel of adjudicators from a slate of “Members of the Court” on an as-needed basis when cases arise.[iv] Although the latter difference is likely less relevant to the Philippines’ decision to use the PCA than the former, it is a noteworthy trait that distinguishes the PCA, and the PCA’s usage suggests that such a method of as-needed formation of adjudicating panels is still a relevant method of international legal relations.

Moreover, considering the downsides of the PCA, participants in the organization and even signatories of the original convention which formed it are not bound to abide by the body’s authority structure as the panels are formed on an as-needed basis. China’s response to the 2016 PCA ruling, which favored the Philippines, is a strong example of the PCA’s lacking efficacy. China has acceded to both the 1899 founding convention of the PCA and the 1907 founding convention.[v] However, in so doing it did not bind itself to the body’s authority, partially because there was no specific body or panel per se to acquiesce to at the time. Such is the fickle nature of international adjudication; it requires the consent of both parties to be considered legitimate.

Furthemore, the Phillipines employed a clever strategy in its adjudication case against China in 2013. Instead of seeking a ruling on the sovereignty of the disputed territories (whether the land was Chinese or Filipino), the Filipino government questioned the definition of the maritime features in the South China Sea, as different features carry different rights in international law.[vi] The United Nations Convention on the Law of the Sea (UNCLOS), a document to which both China and the Philippines are party, establishes the rights which accompany different maritime territory and the borders of those territories.[vii] The most germane to the present case is the distinction between islands, rocks, and low-tide elevations. Under UNCLOS, islands carry extensive maritime privileges including territorial sea and economic zone rights for hundreds of nautical miles surrounding their shoreline. By contrast, rocks only afford the owner twelve nautical miles of territorial sea surrounding the formation. Low-tide elevations, on the low end, carry no entitlements of territory around them.[viii]  Prior to the ruling, China claimed the Spratly “islands,” one of their contested possessions in the South China Sea, were in fact islands and so carried the aforementioned jurisdictional rights. However, as the Philippines contended and the PCA found, the Spratlys were actually only rocks with several low-tide elevations, giving the possessor twelve nautical miles at most.[ix] As a result of the PCA’s ruling, China’s legal territorial claims had shrunk significantly–all on the basis of definitions.

Ultimately, one’s opinion on the ruling of the PCA is less relevant to the body of international maritime law than the unique nature of the Philippines-China case. As mentioned, the Philippines’ choice to use the PCA over another body sets a precedent for the future of international maritime law, suggesting that ad-hoc adjudication between nations is by no means a thing of the past. Additionally, the case highlights the importance of definitions and the various strategies available to an aggrieved party when pursuing an international legal ruling. Ultimately, the situation in the South China Sea shows no signs of quick resolution as China remains firm in its denial of the 2016 PCA ruling. Despite China’s resistance, these events demonstrate the important role international maritime adjudication will play in geopolitics for the foreseeable future, as different parties continue to employ subtle, novel, and complex strategies.


[i] William Pesek, Making Sense Of the South China Sea Dispute, FORBES MEDIA, August 22, 2017.

[ii] Euan Graham, The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence, COUNCIL ON FOREIGN RELATIONS, August 18, 2016,


[iv] Introduction to the PCA, PCA-CPA, 2019,

[v] Contracting Parties, PCA-CPA, 2019

[vi] Euan Graham, The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence, COUNCIL ON FOREIGN RELATIONS, August 18, 2016,

[vii] United States Convention on the Law of the Sea, UNITED NATIONS, 2004

[viii] United States Convention on the Law of the Sea, UNITED NATIONS, 2004

[ix] Euan Graham, The Hague Tribunal’s South China Sea Ruling: Empty Provocation or Slow-Burning Influence, COUNCIL ON FOREIGN RELATIONS, August 18, 2016,

Abood to Janus: A Transition from Empowerment to Incapacitation


On June 27, 2018, the Supreme Court of the United States in Janus v. AFSCME, overturned the nearly forty-year-old precedent of Abood v. Detroit Board of Education.[i] Janus invalidated an Illinois law which required ‘non-recognized’ public sector union workers to contribute towards union funds by paying “agency fees.”[ii] The term ‘agency-fees’ refers to a portion of the union fund that is collected from non-member workers. In Janus, the Supreme Court finds it unconstitutional to mandate payment of agency fees despite non-members’ enjoying the fruits of collective bargaining arrangements.[iii]

Whereas its predecessor Abood considered the balance of free speech and labour welfare, Janus not only fails to achieve such a balance, but in the name of doing so, sacrifices labour welfare altogether.

The Abood position

In order to appreciate the balance envisaged in Abood, it is important to understand the nuances riddled in the interplay between free speech and labour welfare. The right to free speech involved here takes the the form of a negative right: the right to not speak. The concern is that a union represents a specific political or ideological belief to which all workers may not subscribe. Consequently, mandating non-members to contribute to any particular union runs the risk of forcing a person to bolster an opinion to which she is opposed. This would be a violation of her right to refrain from speaking.

The complementary relationship between mandatory contributions and labor welfare exists due to the prevalence of ‘recognized unions.’ Around the globe, recognized unions have been used to tackle drawbacks associated with the multiplicity of unions. Such multiplicity makes it extremely difficult for a trade union to maintain quality membership, in turn eroding its bargaining power. When a recognized union receives contributions, it protects its collective bargaining power, leading to effective unionization. Therefore, such contributions play a crucial role in ensuring worker welfare.

The Supreme Court while adjudicating Abood recognized the inherent worth of both these interests. It ruled that contributions can be mandated from non-members only if the union expends such funding solely toward employment-related matters, rather than promoting specific ideological beliefs.[iv] By refusing to deprive recognized unions of funding while ensuring that workers’ contributions do not subsidize specific political initiatives or beliefs, the Supreme Court’s position accommodated both workers’ employment related interests and free speech.

Issues with Janus         

(i) A Misunderstanding of Free Speech

The majority in Janus refers to an earlier Supreme Court decision, West Virginia Board of Education v. Barnette[v] to judge the importance of the right to remain silent.[vi] Admittedly, Barnette gives a broad understanding of the negative right to free speech. However, Janus failed to take note of the specific facts in Barnette which warranted such a broad conception. Barnette concerned a petitioner being forced to swear an oath in contravention to his religious beliefs.[vii] Here, the interests were not competing with one another. In fact, in Barnette, religious freedom and free speech complemented one another. Therefore, the court was justified in adopting a broad interpretation here.  

The facts of Janus directly involve contradictory interests of labour welfare versus free speech. Therefore, Barnette is distinguishable on facts. Instead, Pickering v Board of Education,[viii] cited by the minority is the relevant authority in this context. Pickering testifies that the first amendment jurisprudence is flexible enough to take into account employment-related interests. In this case, the court had held that first amendment rights of employees in the public sector are subject to legitimate interests of the employer.[ix] The court recognized that an absolutist protection of first amendment rights would hamper the smooth functioning of government offices.

Drawing a parallel, the facts of Janus pit first amendment rights against an equally important competing interest: the protection of collective bargaining power through strengthening trade unions. This in turn allows workers an opportunity to reclaim their dignity and protect themselves against exploitation. This is as essential as the smooth functioning of government offices. The majority in Janus ought to have adopted the balancing exercise in Pickering rather than sacrifice labour welfare in the name of free speech.

(ii) Freeloading Hurts Collective Bargaining

Janus analyzes freeloading as a concern on two counts: moral and economic. On the moral count, Janus argues that the simple act of receiving a benefit does not make an employee morally liable to contribute to the union.[x] Based on a highly libertarian conception that premises morality on consent, Janus would be justified on this count. However, regardless of a moral duty, there exist strong economic benefits to the labour force, and by extension the state as a whole, by mandating contributions.  When contributions are not made mandatory, most workers are subsumed by a powerful, short-term economic incentive to withhold their union dues. A consequential reduction in revenue compels unions to demand greater contributions from existing members. This in turn makes union-membership highly undesirable due to excessive economic costs associated with membership, shouldered entirely by a small section of the workforce. The unattractiveness of union-membership leads to the exit of a sizable number of workers, simply to avoid these associated costs. Dilution in existing membership hurts unionization, weakening the collective bargaining power of workers.

In response to this, the majority in Janus relies on statistics to observe that despite 28 states’ prohibiting agency fees, millions of employees join unions in the public sector.[xi] However, the majority did not consider the extent to which union membership would have increased, had contributions been mandatory. The economic argument dictates that unions would have had more funds, even in these areas, had contributions been mandatory, making collective bargaining stronger than it is at present.

Janus‘s Incompatibility with Ground Realities

Past experience highlights how precluding unions from collecting agency fees results in ‘free riding,’ which in turn reduces resources needed to afford transaction-costs associated with negotiating contracts and general worker welfare.[xii]  By encouraging free-riding, Janus may result in causing irreparable damage to collective bargaining. While realizing its consequences may take years, Illinois Economic Policy Institute suggests that overturning Abood would result in severely shrinking the economy and reducing public sector wages. It indicates that wages of government employees, both at the state and local levels would diminish by 3.6 percent, resulting in a loss of $1,810 in wage and salary income per worker.[xiii] The Institute further states that unionization in the public sector would substantially shrink by 8.2 percentage points, predictably translating into a loss of 726,000 members over time. Specifically, there could be an estimated decrease by 189,000 members in California, 136,000 members in New York, and 49,000 members in Illinois.[xiv]

The ruling also disproportionately hurts African-American workers, forming a large fraction of union members in the state and local government, discouraging their unionization and in turn, undermining their political influence. African-American workers are statistically (1.0 and 1.3 percentage points) more likely to be members of labour unions, as compared to White, Non-Latino American employees.[xv] The weakening an already fragile bargaining power, would allow state leverage over public employees such as teachers, police officers, firefighters, and other public workers to increase. As a result of increased asymmetry in the employer-employee relationship, employer pressure could cripple wages for public sector workers.[xvi]


The Supreme Court should have retained its earlier position in Abood. Instead, it has disregarded stare decisis, stirring labour jurisprudence violently. The majority decision in Janus will cause burgeoning turbulence for a while in the lives of the American worker when she is already fragile.[xvii] In an attempt to save workers’ free speech already between cushions, it has slipped and hurt workers’ interests instead.

[i] Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

[ii] Janus v. AFSCMEC, No. 16-1466, slip op. at 2 (U.S. 2018).

[iii] Id.

[iv] Supra note 1, at 254.

[v] West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

[vi] Supra note 2, at 9.

[vii] Supra note 5, at 629.

[viii] Pickering v. Board of Education, 391 U.S. 563 (1968).

[ix] Id., at 568.

[x] Supra note 2, at 13.

[xi] Id., at 12.

[xii] Frank Manzo & Robert Bruno, After Janus The Impending Effects on Public Sector Workers from a Decision Against Fair Share, Ill. Econ. Pol’y Inst., 3 (May 9, 2018), (Last visited July 25, 2018); Joe Davis & John Huston, Right-to-Work Laws and Free Riding, 31(1), Econ. Inquiry 52-58 (1993).

[xiii] Id., Frank Manzo & Rober Bruno, at 3-4.

[xiv] Id.

[xv] Id.

[xvi] Id., at 6-7.

[xvii] Steven Greenhouse, Unions are as weak as they’ve been in a century. The Supreme Court’s Janus decision will gut them further, L.A. Times, June 27, 2018, (last visited July 25, 2018).

When Justice Becomes Unjust: Abolishing the Money Bail System to Create Equality for All


Mass incarceration is one of the United States’ systemic problems that need to be addressed. One of the main causes of mass incarceration, especially in New York, is the bail system. The original intent of the bail system was to ensure that defendants showed up to their court dates.[i] A judge requires the defendant to pay a certain amount of money in order to be released, which in turn creates certainty that the defendant will attend their trial date. It is important to note that those who are considered too dangerous or a flight risk are often not offered bail. Today, however, posting bail is something that separates the rich from the poor, not the dangerous from the harmless. While there are several types of bail, the most common forms in New York are cash bails or bail bonds, where a bail bondsman fronts the bail amount in exchange for a non-returnable fee and temporary collateral from the defendant.[ii] There are many problems with this. The average cost of bail in New York is $1,000 or less, but rarely falls below $500.[iii] Despite these somewhat modest numbers, in New York City for example, only 15% of defendants are able to provide this amount at the time of the arraignment.[iv] Therefore, the other 85% of defendants are either forced to go to jail to wait their trial date or plead guilty on the spot, even if they are innocent. Neither of these is an adequate option; if people cannot pay bail, their lives will be negatively affected whether or not they are proved guilty.

There are great implications of the unequal bail system. First, this inequality against the poor has allowed for the bail bond industry to prosper. Bail bondsmen are involved in a for-profit, multi-billion dollar industry at the expense of struggling New Yorkers.[v] This further contributes to growing economic inequality. Additionally, the current bail system is a large factor in the high incarceration rates in New York. While New York has been making substantial progress in dropping its prison populations (in 2016 the population was down to 22,580), there is still more that can be done.[vi] Much of this decrease in population can be contributed to improved rehabilitation programs, judicial attitude, and a change in the minimum sentencing laws.[vii] However, New York could decrease this number even further, as shown by New Jersey where bail reform has been adopted. Comparatively, New Jersey has decreased their jail population to 19,619 since getting rid of cash bail almost entirely.[viii]

Not being able to post bail affects both the defendant and the everyday taxpayer. For the defendant, not posting bail means being sent to a state prison, and for many defendants in New York City this means the notoriously dangerous Riker’s island. According to a New York Time’s article, “Sexual and other physical assaults are most common in the first three days. Almost half of deaths in jail, including suicides, happen the first week.”[ix] Therefore, these “few days” in jail before one’s trial does not just consist of sitting in a jail cell, it can be a life altering experience. On top of this, the days that defendants wait in jail can take away from weekly income, potentially cause them to lose their jobs, and can greatly affect their families.[x] In terms of affecting taxpayers, putting someone in prison costs a large amount of money. At Riker’s Island, the cost of keeping one person at the prison is $247,000 a year.[xi] By reducing the unnecessary amount of people going to places like Riker’s, New York taxpayers could get a bit of a break. Overall, it is essential that New York legislators address this problem now in order to continue the great success in reducing mass incarceration. Furthermore, it is important to make changes as soon as possible so that no more people living in poverty have to be unfairly sent to jail. As the Human Rights Watch writes, “Poverty should not be an impediment to pretrial freedom.”[xii]

To create greater equality in pretrial cases and continue to lower the mass incarceration rates, I propose that New York State gets rid of virtually all utilizations of money bail and bail bonds. Instead, I recommend a system that requires defendants to complete non-financial requirements based on past criminal history and the cases presented by prosecutors and defense lawyers. This system will look at a wide variety of factors such as prior convictions and charges (such as drug possession or gun possession), prior interaction with courts, length of any jail time, and any illegal activity the defendant may be affiliated with. Each factor will be worth a certain amount of points. For example, if a defendant has had a previous conviction, that may grant them two points. After looking at each factor, the total amount of points will finally correlate with a general level of risk. Judges are able look at this analysis and pair it with the arguments presented at the arraignment to then decide if a defendant should be freed or taken into custody. Defendants who are granted permission to leave, however, are then required to complete other measures to ensure they attend their court dates. For example, a defendant may be required to wear a home monitor, return home at a certain hour each night, be subject to random drug testing, or be required to call the court regularly in the weeks leading up to the trial.[xiii]

Under this system, people would go to jail during pretrial based on the danger they present to society, not based on whether or not they are able to pay a certain amount of money. In State v. Habeeb Robinson, the NJ Supreme Court went further to ensure this process was just and ruled that the court could hold an individual pre-trial as long as the defendant had access to the evidence guiding the judge’s decision.[xiv] Essentially, it would help to eliminate the economic inequality the current bail system embodies and focus more on the crime itself. Additionally, this system would ensure that harmless people with minor offenses do not unnecessarily populate the state prisons. This, in turn, would help to further reduce New York’s incarceration rates, and help to decrease taxes, even if just a small amount.

Similar systems have been adopted in both New Jersey and the District of Columbia. In New Jersey, a computerized algorithm analyses similar factors based on three different categories: failure to appear, new criminal activity, and new violent criminal activity. After computing a raw score for each of these categories, the defendant is then rated on a scale from one to six, six being a high risk of violence or avoidance of court.[xv] If a defendant is on the higher side of the scale, he or she is taken into custody. If the defendant is on the lower side, they are released but may have similar restrictions as the ones presented above.[xvi] For New Jersey, this system has worked quite well. There have been a few instances where people have been released and have committed new crimes soon after, but for the most part the new system has provided a number of positive results.[xvii] For example, in June 2016, prior to passage of the bail reform, 8,332 defendants were detained prior to their trial. A year later in June 2017, after the new system was implemented, 5,717 defendants were detained.[xviii] This is a dramatic decrease in only a year. Along with this decrease in detainees, the system is balancing out to be divided between those who are dangerous and those who are not. Wealthy criminals are no longer being set free just because they have the money for bail, and poor and harmless people are no longer being jailed just because they don’t.[xix] Similarly, the District of Columbia has also done away with money bail and has also seen some success. In D.C.’s system, the judges look at the defendant’s criminal record and assesses whether or not the defendant will be a flight risk or commit another crime.[xx] This is called the “risk assessment” model and has enabled the district to detain mainly high-risk defendants. Furthermore, this model has been mostly successful in analyzing whether or not someone will appear for court: 88% of defendants do appear when required to.[xxi]

After looking at the models adopted by New Jersey and D.C., I would tweak a few areas where negative results have arose. Fundamentally, these systems pose limitations in that humans make errors and will not always analyze cases correctly. Along with this, it is possible that past charges and instances may be overlooked. For example, in the New Jersey PSA system, the algorithm does not look at past gun possession charges when calculating a risk score. This has resulted in released defendants committing gun crimes soon after their arraignment. Therefore, the system I am presenting would have to look into all past illegal activities. This includes drug possessions, gun possessions, DUI’s, and other offenses, all of which would be weighed based on the severity of their possible outcomes. Taking this further step would hopefully ensure that instances such as those in New Jersey do not happen. Both New Jersey and New York have similar crime indexes, racial makeup, and geographical location, making them a good pair of states to have this type of system.[xxii] If it has been successful in New Jersey, it is likely that is can be successful in New York.

Presumably, this policy change would receive widespread support from both lower and middle class individuals. As these citizens are the ones who are most affected by the current bail system, they would likely support any measures taken to reduce the inequality. Additionally, many politicians would be smart to support this policy change. Edward R. Tufte argues for a three-point theory in “Political Control of the Economy.” In his electoral-economic cycle theory, he argues that (1) economic changes shortly before an election can tip the balance, (2) electorates reward incumbents who provide them prosperity, and (3) that short-run growth preceding an election will benefit incumbents.[xxiii] If Tufte’s theory is correct, then you, Governor Cuomo, and the other legislators that are hoping to get re-elected in the 2018 elections should begin reforming the bail system as soon as possible. As stated before, the new system would decrease the demand for taxpayer money and would allow for this money to be put into other projects favored by taxpayers, or given back to them directly. On top of the economic benefits, you would have the support of a large number of lower and middle class constituents, helping to propel you into your third term as New York’s Governor.

While the loss of clients and business will inevitably cause backlash from the bail-bond industry, these bondsmen should not be prioritized over the everyday New Yorker. The bail-bond industry may propose that judges be able to impose bail for more serious cases in this new system. Under this alternative proposal, only serious crimes and not minor offenses could be asked to post bail, which would in turn keep the bail bondsmen in business and still keep the poor from going to jail unnecessarily.[xxiv] The biggest flaw to this proposal, however, is that it cannot ensure that wealthy criminals are detained. Under this proposal, violent criminals may be able to make bail through bail bonds or through their own cash flow. This is even more dangerous because bondsmen may take on clients that are simply able to provide them income, no matter how violent the crime. Thus, my proposal would be more successful in ensuring that criminals are detained until trial and would likely guarantee that both taxpayers and politicians receive their own personal benefit too.

Cash bail is an unequal component of our justice system that favors the rich and attacks the poor. By implementing a new system that eliminates cash bail and imposes a more cohesive analysis of the risk a defendant poses, New York can make great strides in its journey towards equality. You are likely to gain a fair amount of support for this policy change, as it will not only help the average tax payer, but it will help both lower and middle class citizens who are put in very difficult situations when they are unable to pay bail for a minor offense. There would be some negative implications of this policy change from the bail-bond industry, which could lead to lawsuits, as this has happened in New Jersey. However, the positive implications are that New York legislators, and yourself, will be putting yourselves in a good position for election season, tax payers will not be paying so much for correctional facilities, defendants with minor offenses will avoid unnecessary jail time while keeping their jobs and families, and New York will continue to lower incarceration rates. There are so many positives to implementing this policy that it is imperative New York makes this next step towards equality.

[i] “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” Human Rights Watch, December 2, 2010,

[ii] “Bail Bondsman,” Legal Information Institute, accessed November 20, 2017,

[iii] Tina Rosenberg, “Assisting the Poor to Make Bail Helps Everyone,” New York Times, November 15, 2017,

[iv] Ibid.

[v] “Cash Bail’s Lonely Defender,” New York Times, August 25, 2017,

[vi] Judith A. Greene and Vincent Schiraldi, “Better by Half: The New York City Story of Winning Large-Scale Decarceration while Increasing Public Safety,” Federal Sentencing Reporter, Vol. 29, No. 1 (University of California Press, 2016): 22,

[vii] Ibid.

[viii] “Total Inmates in New Jersey State Correctional Institutions and Satellite Units,” State Of New Jersey Department of Corrections, accessed November 20, 2017,

[ix] Tina Rosenberg, “Assisting the Poor to Make Bail Helps Everyone,” New York Times, November 15, 2017.

[x] Ibid.

[xi] Ibid.

[xii] “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” Human Rights Watch, December 2, 2010.

[xiii] John Schuppe, “Post Bail,” NBC News, August 22, 2017,

[xiv] State of New Jersey v. Habeeb Robinson, No. A-1891-16T2, NJ, May 10, 2017.

[xv] “Public Safety Assessment: Risk Factors and Formula,” Laura and John Arnold Foundation, last modified 2016,

[xvi] John Schuppe, “Post Bail,” NBC News, last modified August 22, 2017.

[xvii] Ibid.

[xviii] Ibid.

[xix] Ibid.

[xx] Jason Flom and Inimai Chettiar, “Jailing the Poor and Releasing the Rich,” U.S. News, last modified October 19, 2016,

[xxi] Ibid.

[xxii] “U.S. Crime Index State Rank,”, accessed November 20, 2017,–crime-index–state-rank.htm?hl=&hlst=&wist=&yr=&dis=&sb=DESC&plow=&phigh=&ps=

[xxiii]Edward R. Tufte, Political Control of the Economy, (Princeton University Press, 1980), 9.

[xxiv] “Have bail reforms made us safer? Two views,”, last modified June 15, 2017,



Amazon, Antitrust Law, and the Consumer Welfare Standard


Early in the year 2000, United States District Judge, Thomas Penfield Jackson, ruled that Microsoft Corporation, in “unlawfully tying its Web browser to its operating system,” behaved in an anticompetitive manner, thereby violating the Sherman Antitrust Act. Later that year, in June, the court ordered Microsoft to break up the two functions into separate units.[1] The antitrust action against Microsoft created an opportunity for new tech giants to rise;[2] among those younger monopolists was Amazon. Enjoying baffling 75% and 44% market shares in the electronic books and online commerce industries respectively, Amazon seems to be infiltrating every sector of consumer-focused commerce.[3] Likewise, companies like Wal-Mart, Apple, Google, and Facebook also dominate their markets, creating a situation akin to one in which the nation found itself just over a century ago. In 1911, President William Howard Taft declared that the country needed to decide between a socialist future, or one with “legitimate and independent competition.”[4] If we are to choose the latter, as did Presidents Taft and Wilson, American antitrust laws must be reformed so as to be made relevant to the economic issues confronted today.

As the law is currently written, the American consumer’s interest is paramount. Dating back to 1890, the Sherman Antitrust Act was designed to prevent large railroad and oil conglomerates from becoming monopolistic behemoths and subsequently causing a significant restraint on free trade. Thus, it aimed to ensure that large corporations were competitive on the grounds of low prices and high quality, but the Supreme Court limited its scope to prohibit ‘unreasonable’ restrictions on free trade, not just any restriction.[5] In 1914, Congress passed the Federal Trade Commission and Clayton Acts which further specified the Sherman Act. While the FTC Act slightly expanded the Sherman Act, to include “unfair methods of competition,” the Clayton Act prohibits mergers that may substantially lessen competition or have monopolistic tendencies.[6] These three pieces of legislation form the consumer welfare standard, which essentially narrows the scope of antitrust violations to acts which have the tendency of harming the consumer via price hikes, compromised quality, or reduced access.

However, unlike the “respected but unloved” commercial giants to whom these antitrust laws were originally addressed, the companies in question today enjoy warm reception from consumers.[7] Specifically, Amazon has become the ever-expanding entity it is precisely for its ability to provide efficient customer service while offering low prices for the same high-quality products. Amazon’s immediate threat is not to the customer. Rather, it poses a threat to the livelihood of capitalism as a system. In systematically wiping out its smaller competition, Amazon has made itself a commodity for both consumer and supplier. Amazon has become online customers’ go-to for any type of product. Moreover, it has come to control the way small businesses go about their business. Without selling as a third-party through Amazon, small businesses have little chance of winning substantial profits in the world of e-commerce. But with Amazon’s strict customer service policies, these small businesses are forced to sell at margins and abide by policies they simply cannot afford.

Furthermore, Amazon has managed to pose a challenge to some of the most stalwart names in retail for the past several decades. Companies such as Macy’s, Sears Holdings, JCPenny, and Kohl’s are closing massive portions of their brick-and-mortar storefronts, creating a surplus in available retail real estate. The blows to these massive companies will in turn impact the 16.5 million Americans, nearly 10% of the workforce, employed by the retail sector.[8] Although this “Amazon Effect”[9] is not necessarily detrimental to the consumer in the short run, by systematically removing competition from every industry, it proves to be a present threat to capitalistic competition. Indeed, Amazon, among other large rising giants, displays market shares similar to the trusts of the late 19th and early 20th century.[10] However, unlike those earlier trusts, these mammoth conglomerates prey on different victims. If we are to protect smaller and small businesses, as well as retail jobs, Amazon, and similar companies, must be domesticated with methods appropriate to the new creature. Antitrust laws from the 20th century simply will not suffice.

Thus far, little has been done to hinder Amazon’s growth. The lack of action is partly due to the government’s inability to sufficiently prove a violation of either the Sherman or Clayton Acts, and partly due to a fear of stifling innovation. Like similar leading tech companies, Amazon re-invests a large sum of its earnings in researching and developing new products and technology.[11] However, the idea behind a capitalist system is that more competitors yield more innovation. If we buy into the idea of a capitalist economy, we must ensure that it functions per capitalism’s principles. Currently, antitrust laws speak nothing of the issues Amazon raises. If the government is unwilling to creatively apply the existing law to the issue at hand, as they did with Microsoft, then Congress must re-design the laws to create a proper framework in which to foster competition.

An alternative to the consumer welfare standard is the Democrats’ “Better Deal” proposal. Such a scheme would aim to prevent mergers that “reduce wages, cut jobs, lower product quality, limit access to services, stifle innovation, or hinder the ability of small businesses and entrepreneurs to compete.”[12] Unlike the consumer welfare standard, a multifaceted guideline such as the Democrats’ is certainly more subjective. While the language demonstrates a move in the right direction, the nation needs a middle ground that reflects the same intent with more practicable provisions. Whereas the Sherman, Clayton, and FTC Acts were adequate in controlling companies that preyed on the consumers, new legislation is unquestionably required to protect America’s small businesses, retail jobs, and long-term technological innovation.

[1] Joel Brinkley, ” U.S. Judge Says Microsoft Violated Antitrust Laws with Predatory Behavior,” The New York Times, April 03, 2000, accessed March 07, 2018,

[2] Jed Graham, “The Amazon Monopoly Problem: Prime Time For Antitrust Action Vs. Internet Giants?” Investor’s Business Daily, September 18, 2017, accessed March 07, 2018,

[3] Greg Ip, “The Antitrust Case Against Facebook, Google and Amazon,” The Wall Street Journal, January 16, 2018, accessed March 07, 2018,

[4] Harry B. McMeal, Telephony, vol. 61 (The University of Michigan, 1911), 451, October 30, 2009, accessed March 7, 2018.

[5] “The Antitrust Laws,” Federal Trade Commission, December 14, 2017, accessed March 07, 2018,

[6] Id.

[7] Supra note 3.

[8] Adam Hartung, “How The Amazon Effect Will Change Your Life And Investments,” Forbes, March 02, 2017, , accessed March 07, 2018,

[9] Id.

[10] Supra note 3.

[11] Id.

[12] Supra note 2.