microsoft word shan_final.docx bellarmine law society review volume xii issue i editor’s note: volume xii of the bellarmine law society review rebecca shan boston college, shanr@bc.edu 2 editor’s note: volume xii of the bellarmine law society review rebecca shan1* in the first issue of the bellarmine law society review’s twelfth volume, three undergraduate contributors explore a range of topical issues through the lens of legal analysis. first, rose kiefer analyzes the impact of u.s. boardroom gender quotas in the workplace, incorporating facets of legal, economic, and social theory to examine the future efficacy of these policies. in our second article, grace mendes presents a thorough study of energy legislation and the energy market through a focused consideration of california’s history with renewable technologies, especially solar power. finally, christopher siegert surveys the history of the writ of habeas corpus and its relevance to the federal government’s past usage of the suspension clause. as always, many thanks are due to each of these accomplished and capable authors for their rigorous research and the insight that their articles provide on a diversity of legal issues. as is the case with most spring issues of the bellarmine law society review, this issue marks the departure of our editor in-chief, dennis wieboldt, who assisted with the production of this issue in his emeritus capacity. during the 2019-2020 academic year, wieboldt joined the review, and upon assuming the editor in-chief position during the 20202021 academic year, successfully transitioned the review to an online, open-access journal. since completing this transition, the review has experienced a significant increase in domestic and international readership, a true testament to the value that undergraduate scholarship can bring to legal discourse. on behalf of the entire editorial board, my thanks and well-wishes are due to wieboldt as he embarks on the next phase in his academic journey as an m.a. student in twentieth-century american history at boston college. 1* rebecca shan is the editor in-chief of the bellarmine law society review. the limits of logic and procedure the bellarmine law society review volume xi issue ii article 4 limits of logic and procedure caitlin colangelo boston college morrissey college of arts and sciences, colangec@bc.edu 2 limits of logic and procedure caitlin colangelo * abstract: the idea that the american legal system is meant to foster justice is agreed upon even by proponents of the most irreconcilable methods of legal interpretation. going back to the intentions of the founders, the judiciary “may truly be said to have neither force nor will, but merely judgment (federalist 78). the efficacy of the supreme court depends on its structural legitimacy and public acceptance of its procedures. the constitution was intended to stand in perpetuity, protecting the rights of the people for all time, according to the concretized will of the people at the founding, as embodied in the constitution. however, practical considerations beyond this agreement that the judiciary is intended to secure justice as delineated by the constitution generate great controversy. achieving the original goal of the judiciary becomes complicated when viewed in light of the discord between universal statements of the law and particular instances. this paper explores the relationship between justice, rationality, and precedent in order to answer the question: how can supreme court justices reconcile with the gaps between formal logic, procedural legitimacy, and substantive justice? the approaches of legal pragmatism, originalism, and dworkin’s moral reading are explored. the idea that the american legal system is meant to foster justice is agreed upon even by proponents of the most irreconcilable methods of legal interpretation. going back to the intentions of the founders, the judiciary “may truly be said to have neither force nor will, but merely judgment.”1 federalist 78 stresses that the judiciary has neither an independent sword (method of enforcement) nor an independent purse (method of payment), and will, therefore, ultimately “depend upon the aid of the executive arm even for the efficacy of its judgments.”2 consequently, the judiciary was intended to be a constrained branch of government solely designed to fairly settle disputes according to the law. the efficacy of the court depends on its structural legitimacy and public acceptance of its procedures. the constitution was intended to stand in perpetuity, * caitlin colangelo is a b.a. candidate majoring in philosophy and is interested in moral philosophy, as well as the philosophy of the law. she would like to thank professor fried for his help in preparing this manuscript. 1“federalist no. 78.” the avalon project, accessed august 9, 2021. https://avalon.law.yale.edu/18th_century/fed78.asp 2 “federalist no. 78.” 3 protecting the rights of the people for all time, according to the concretized will of the people at the founding, as embodied in the constitution. in a way, it is clear that the will of the people at the founding was intended to reign supreme over the will of all future generations: the constitution would become fundamental law. however, practical considerations beyond this agreement that the judiciary is intended to secure justice as delineated by the constitution generate great controversy. achieving the original goal of the judiciary becomes complicated when viewed in light of the discord between universal statements of the law and particular instances. this paper will explore the relationship between justice, rationality, and precedent in order to answer the question: how can supreme court justices reconcile with the gaps between formal logic, procedural legitimacy, and substantive justice? the judiciary is tasked with fairly deciding cases, which involves closing the gap between universal principles and particular situations. typically, it is understood that if one agrees with the following proposition: if a then b, if b then c, if c then d, one is committing oneself to: if a then d. however, in terms of the law, this conclusion is not always true. a judge may be committed to the universal proclamations of the first three conditional statements, but when faced with a particular situation, decide that the fourth conditional is not true. catherine wells describes the difference between two methods of legal interpretation in her book, oliver wendell holmes: making of modern american law. the first method is mechanical, and leaves no room for the rejection of “if a then d” if the previous premises are accepted. the other method is titled the pragmatic method. under the pragmatic method of judicial decision making, “rules are not statements written on a piece of paper.”3 instead, rules are a routinized way of “responding to like cases,” where the decision-making process outlined by precedent bears weight in deciding future 3 catherine wells, oliver wendell holmes: a willing servant to god (cambridge: cambridge university press, 2020), 156. 4 cases, not the substance of the precedent itself.4 wells explains that justice holmes believed, "what is expedient for the community concerned" should overrule logic, which "create[s] the appearance that each decision follow[s] syllogistically from existing precedents."5 justice holmes viewed precedent as a series of cases that illustrate practical policy, within their own contexts. for example, if a court is trying to decide if an employer should be held liable for an injury their employee incurred at work while on a lunch break, but taking a work-related phone call, the importance of the decision as precedent is the way the court decided the case, as opposed to the actual substantive decision reached by the court. the substantive decision in this instance would be if an employer can still be liable for an employee's injury even if the employee is not physically at their workplace, but is doing work assignments. sometimes, judges decide cases broadly, and create legal doctrine which enumerates various considerations for future application of the law. these legal doctrines contain the primary importance of the cases as precedent. for example, in youngstown sheet & tube company v. sawyer, justice jackson distinguished three possible relationships between the executive power and congressional authority. this case concerned the constitutionality of president truman’s seizure of the steel mills during the korean war. the workers of the steel mill were striking over poor working conditions, and the american government was concerned with the decrease in steel production due to increased demand of steel for war purposes. in a 6:3 decision, the supreme court decided that the president did not have the power to seize control over the mills. however, the precedential significance of this case was not the idea that the president cannot seize control of labor disputes, because it is plausible to think of scenarios in which control of labor disputes would be a proper exercise of presidential powers. instead, the importance of the case lies in justice 4 wells, oliver wendell holmes: a willing servant to god, 156. 5 wells, oliver wendell holmes: a willing servant to god, 178. 5 jackson’s delineation of three possible modes of presidential action and their corresponding burdens of proof. justice jackson describes the first situation as being when the president acts in pursuant to an order of congress. in this case, the president’s authority is at maximum. the second situation is that in absence of congressional grants and denials pertaining to a presidential action, the president can only act on a case-by-case basis, in a “zone of twilight in which he and congress may have concurrent authority, or in which its distribution is uncertain.”6 the third scenario is that when the president takes action against congress, his or her power is at the lowest end, “for then he can rely only upon his own constitutional powers minus any constitutional powers of congress over the matter.”7 it is important to note that just because the president’s power is at its lowest end, the president’s action is not necessarily unconstitutional. rather, the court applies the highest burden of proof to establish constitutionality. these three scenarios tell judges what questions to ask themselves in order to fairly decide cases and maintain consistency in their future decisions. if this case created a simple if-then statement, ‘if the president seizes control over labor disputes, then the act is unconstitutional because it is a violation of the separation of powers,’ the courts would actually be incapable of securing justice in the future. each case’s decision is informed by the particular facts of the case, and by the broader background information of the case. for example, the relevant background information pertaining to the youngstown case is the occurrence of the korean war. the facts or background information of a future case may make a future presidential seizure of control over labor disputes constitutional. therefore, in recognition of the unpredictability of future situations, and possible divergent facts, the decision of the case includes an outline of a decision making process to be followed by future cases, but does not 6 “youngstown sheet & tube co. v. sawyer, 343 u.s. 579 (1952),” justia law, accessed august 9, 2021, https://supreme.justia.com/cases/federal/us/343/579/. 7 “youngstown sheet & tube co. v. sawyer, 343 u.s. 579 (1952).” 6 explicitly bind future cases to the decision itself. the gap between the substance of a universal law and a particular instance reproduces itself if precedent is treated as substantially important. a gap then exists between a particular instance and previous precedent. the application of the universal phrasing of the constitution onto a particular situation requires judges to make decisions in good faith. in contrast to legal pragmatism, mechanical decision making accepts procedural legitimacy as the superior goal above substantive justice. originalist claims gain legitimacy over other types of constitutional interpretation by appealing to a type of mechanical decision making which looks to the original meaning of a text to fill the gap between a universal law and a particular instance. originalism is similar to syllogistic decision making because it appeals to the same underlying principle: the law is objectively determined and applied without judicial interference. a valid concern about legal pragmatism is that “judges can do what they want,” creating tyranny within the judicial branch.8 legal pragmatism seems to give the judiciary the ‘will’ that federalist 78 warns against. unrestrained judicial freedom was clearly not intended by the founders. however, as wells explains, “although judges are not bound by any particular formulation of the rule, they are bound to apply the rule in this pragmatic sense.”9 under justice holmes’s model of interpretation, although judges are not bound in substance, they are bound to a decision making model. and still, it is true that pragmatism trusts judges with quite a bit of wiggle room. legal pragmatism secures procedural justice in a loose sense, but if perfectly implemented, with moral judges seeking the public good, it secures substantive justice without fail. in contrast, originalism secures procedural justice and accepts that it may fail to secure substantive justice in some instances. originalism appeals to the moral principle that the will of 8 wells, oliver wendell holmes: a willing servant to god, 160. 9 wells, oliver wendell holmes: a willing servant to god, 161. 7 the legislature is above the courts, and that the courts are not meant to interpret the law in a way that creates ‘better’ policy. the problem with the claim that originalism achieves unbiased interpretation of the law is that it fails to recognize that the discernment of the original public meaning of a text is subjective, as is the application of the rule to modern circumstances. the judges’ personal beliefs will inevitably influence their interpretations. scalia argues that because he looks for “‘objectified’ intent the intent that a reasonable person would gather from the text of the law,” he is immune to deciding that “law means what [he] think[s] it ought to mean.”10 however, in discerning what the people at the time understood a law to mean, judges are asked to act as historians.11 the original public meaning of a text is often unclear, and in areas of ambiguity, it can be decided that “the original understandings [say] pretty much what the person examining them want[s] them to say.”12 in practice, originalist methods are still more restrained than a moral reading of the constitution because there is greater room for disagreement over morality than there is over the original public meaning of a text, and how to apply this understanding to modern circumstances. nearly anything can be construed to be a type of moral interpretation, but valid applications of the past public meaning of a law and modern circumstances are more constrained. dworkin’s moral reading of the constitution arguably lacks procedural legitimacy but secures substantive justice depending on the morality of the interpreter. dworkin assumes the law’s purpose is ethical, and believes that a law’s substantive meaning is its underlying moral principle. according to dworkin, this interpretation is not unrestrained-precedent, and the general moral trend underlying laws in the society, constrain the interpretation. some laws, like the fourteenth amendment, are so broadly phrased that it is clear they were intended to promulgate a 10 antonin scalia, a matter of interpretation (princeton: princeton university press, 1997), 17-18. 11 david strauss, the living constitution (oxford: oxford university press, 2010), 19. 12 strauss, the living constitution, 21. 8 general moral principle. dworkin acknowledges that this method of interpretation is subjective: “judges whose political convictions are conservative will naturally interpret abstract constitutional principles in a conservative way.”13 in this mode of interpretation, judges extract a moral principle from a universal law, and apply this to a particular instance. the application onto particularity is constrained by “history and integrity” (precedent), so the decision fits into a general legal trend.14 under this mode of interpretation, securing substantive justice is dependent on the moral beliefs of the judges. the main difference between originalist interpretations and legal pragmatism or dworkin’s moral reading is that originalist interpretations impose no duty rooted in individual judges’ sense of morality, whereas other approaches embrace a moral duty of the judicial branch. originalism appeals to a broad moral duty independent of each judge’s individual morality: to uphold the people’s will as concretized by the law in a democratic constitutional system. given the contents of federalist 78, it is clear that unbiased interpreters were desired by the founders. in this sense, originalism (on its face) seems to best achieve the goal of unbiased interpretation without judicial interference, despite the fact that originalists are still influenced by their own morality when they determine the text’s original meaning and application to modern scenarios. there is subjectivity involved in every instance of closing the gap between universal and particular instances. a moral reading of the constitution, and pragmatist readings which emphasize the particularity and uniqueness of situations, hold the ideal of substantive justice above pure procedural justice. although the legal system’s purpose is to create a formalized and objective system to fairly settle disputes, pure rationality is ineffective in applications of the law because of the diversity of 13 ronald dworkin, “the moral reading of the constitution,” the new york review, accessed august 9, 2021, https://www.nybooks.com/articles/1996/03/21/the-moral-reading-of-the-constitution/. 14 dworkin, “the moral reading of the constitution.” 9 particular instances and the superior goal of the judiciary to secure substantive justice. precedent is invaluable because it creates a decision making outline, which constrains judges, and allows them to maintain consistency in future decisions. judges have to recognize when to go beyond strict 1 + 1 = 2 mathematical logic in order to reach a practical decision that is substantively just. sometimes, a procedurally just decision, although secure in its formal logic, makes little practical sense. originalist methods that seek to apply the original meaning of the law to present circumstances are negatively restrained in their formalism. non-originalist methods of interpretation are not less legitimate because securing justice cannot be formalized completely because of the nature of the act. aristotle defines epieikeia in book vi of nicomachean ethics, explaining that epieikeia is the exercise of what is reasonable, fair, or equitable. he explains that the law sometimes runs incongruent to the facts at hand, but “the error is not in the law; or in the lawgiver, but in the nature of the case” because “all law is universal, and yet there are some things about which it is not possible to make correct universal pronouncements.”15 judges must use epieikeia to make equitable decisions to secure justice. but, once it is decided that substantive justice is superior to procedural justice, the importance of the moral beliefs of each individual judge takes the stage. in contrast, if one commits to the unattainable ideal of the founders, and ignores that unbiased decision making is impossible, judges can falsely claim that their political ideologies do not influence their decision making under originalism (although as previously discussed, morality does influence their interpretations). the main incongruence between legal interpretive methods stems from the unattainable ideal of an objective interpreter, and the societal practical function of judges to protect the rights of minorities and produce fair and substantively just decisions. under legal pragmatism and a moral reading of 15 aristotle, nicomachean ethics, trans. christopher rowe (oxford: oxford university press, 2002), 174. 10 the constitution, it’s clear one would want justices to share one’s own moral values. and as explained, one would also want originalist justices to share one’s own moral values because originalism is subjectivity hiding under the guise of unbiased interpretation. therefore, an ideologically balanced court is important to guard against the fallible morality of likeminded individual justices. an unbalanced supreme court would lead to the dominance of one moral ideology, making it difficult for the supreme court to reach fair decisions. the morality of different judges must act as a check on one another. the supreme court cannot be trusted to ‘get it right’ in all instances, and the fallibility of individual judges is comparable to the fallibility of professionals in any other field. overall, the supreme court’s interpretations cannot be objective, and so the supreme court’s jurisdiction should be limited by rules like the political questions doctrine in order to curb its power. 11 bibliography aristotle, nicomachean ethics. translated by christopher rowe. oxford: oxford university press, 2002. the avalon project. “federalist no. 78.” accessed august 9, 2021. avalon.law.yale.edu/18th_century/fed78.asp. dworkin, ronald. “the moral reading of the constitution,” the new york review, accessed august 9, 2021. https://www.nybooks.com/articles/1996/03/21/the-moralreading-of-the-constitution/. justia law. “youngstown sheet & tube co. v. sawyer, 343 u.s. 579 (1952).” accessed august 9, 2021. supreme.justia.com/cases/federal/us/343/579/. scalia, antonin. a matter of interpretation. princeton: princeton university press, 1997. strauss, david. the living constitution. oxford: oxford university press, 2010. wells, catherine. oliver wendell holmes: a willing servant to god. cambridge: cambridge university press, 2020. 33 shackling pregnant prisoners: cruel and unusual or justified and necessary? caroline ring introduction childbirth can be one of the most painful experiences of a woman’s life. labor can last for several hours, and even with anesthetics and hospital amenities intended to make the mother more comfortable, the entire process is still draining and distressing. giving birth as an incarcerated woman often deprives the mother of these basic benefits and worsens such suffering. throughout the course of their pregnancies, most expecting mothers in prison are already experiencing higher risks due to stress and lack of adequate prenatal nutrition and care. to make matters worse, the delivery of the child—including transportation, labor, and recovery—will often involve the mother being restrained. her legs may be bound together, her arms and feet may be shackled to a hospital bed, or her stomach may have a chain over it moments before birth or days after a cesarean-section. it is difficult to imagine this kind of punishment as being commonplace, but in reality it has happened to thousands of women all over the country, despite being illegal in many states. the current lack of overarching federal legislation banning such practices coupled with the weak enforcement of existing state laws and local policies leaves many pregnant inmates suffering unnecessarily, and arguably, unconstitutionally. shackling may seem inhumane, but in some instances it may also seem necessary. is the use of restraints on incarcerated pregnant women really unconstitutional, violating the eighth amendment and its protection against the infliction of “cruel and unusual punishments”?93 does constitutionality depend on the type of restraints and the circumstances under which they are used? or are such practices actually 93 u.s. const. amend. viii. 34 justified in order to prevent possible escape and to ensure that unrestrained prisoners do not harm themselves or others? this paper will examine the use of restraints on incarcerated pregnant women and various cases and arguments regarding its constitutionality. the current legal position that many states take (or choose not to take) will be discussed first, along with these laws’ effectiveness and the implications of states not having legislation on the matter. then, the paper will look at the reasoning against shackling women before, during, or after labor, founded on case law that establishes when restraints and their resulting harm violate women’s rights. following the argument against restraints, this paper will weigh opposing arguments that claim restraints are justified and necessary, either under certain conditions or at all times. finally, the paper will conclude with a consideration of the future problems that this controversial issue raises. is the use of shackles on pregnant inmates truly cruel and unusual punishment, or is it the price that incarcerated women must pay for past actions and for present safety? history eighteen states have laws prohibiting or restricting the shackling of pregnant prisoners, twenty-four states have enacted anti-shackling policies, and eight states have no regulations addressing the matter.94 however, the states where there are laws and policies intended to prohibit or limit the use of restraints do not always fully implement or enforce such rules. given the number of lawsuits brought against prison officials or correctional facilities by former inmates claiming to be unjustly restrained, even in states where shackling is illegal, it seems as if no state has 100% effective anti-shackling legislation. mistreatment may be the worst in states with no legislation at all, with nothing in place to protect inmates’ rights and wellbeing during 94 leonie stoute, “break every chain: bringing an end to the unconstitutional shackling of pregnant inmates,” 60 howard l.j. 749, 759 (2017). 35 pregnancy and childbirth. illinois became the first state to prohibit shackling in 2000, declaring that during transport “no handcuffs, shackles, or restraints of any kind may be used…[and] under no circumstances may leg irons or shackles or waist shackles be used on any pregnant prisoner who is in labor.”95 new york96 and california97 also passed anti-shackling legislation, but these laws have exceptions that allow for the use of restraints at the discretion of prison officials if they identify undefined “risks.” these caveats allow for the possibility of subjectivity and human error in determining the appropriate times, if there are any, to use shackles and chains on pregnant women. surveys show that even under circumstances where use of restraints would be prohibited, the laws are ignored. in new york, twenty-three out of twenty-seven women surveyed were shackled despite the law, and in california, only twenty-one out of the fifty-five counties were in compliance with the anti-shackling legislation that had been put in place.98 in addition, the inconsistencies between policies in different towns and counties in the same state, the vagueness of the language used in laws, and the lack of effective enforcement in many prisons create confusion and noncompliance. oftentimes both the officers and the prisoners do not entirely understand the full extent of the laws and policies in place. despite the lack of uniform anti-shackling legislation that all states and their corrections departments must follow, some federal changes have been made in recent years. in 2007, the u.s. marshals services established policies and procedures stating that restraints should not be used when a woman is in labor, delivery, or recovery.99 the following year, the federal bureau of prisons ended the practice of shackling pregnant inmates in all federal correctional facilities, but this 95 730 ill. comp. stat. § 5/3-6-7 96 n.y. correct. law § 611 97 cal. penal code § 6030 98 leonie stoute, “break every chain: bringing an end to the unconstitutional shackling of pregnant inmates,” 60 howard l.j. 749, 769-771 (2017). 99 u.s. marshals service, restraining devices § 9.1(d)(3)(e) (2010) 36 does not pertain to state and local prisons.100 these federal measures acknowledge shackling’s potential to violate constitutional rights, but still do not address the discrepancies between different states’ laws and the lack of accountability for officers who allow harmful restraints to be used without just cause. there are undoubtedly many more instances of illegal or unjust shackling in prisons that have not been and may never be brought to light in lawsuits. analysis the constitutionality of shackling has come into question before. in hope v. pelzer, the supreme court ruled that the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the eighth amendment.101 in this case, a man was shackled to a hitching post on two occasions for several hours without water, access to a bathroom, or protection from the sun. despite a lack of emergency or potential threat, officers still subjected him to a substantial risk of physical harm, unwarranted pain caused by the cuffs and confinement, and discomfort and humiliation. because the officers clearly disregarded hope’s safety and knowingly inflicted unnecessary and gratuitous pain on him, the supreme court decided that this was an obvious violation of hope’s constitutional right to protection from cruel and unusual punishment. any reasonable person would not see this kind of treatment as deserved unless there was valid penological justification, but there was no excuse in this case. the risk of harm was deemed to be obvious, and this case and its ruling established the “deliberate indifference” standard that was later applied to cases specifically pertaining to pregnant inmates. years after hope v. pelzer was decided, a woman named shawanna nelson filed a lawsuit against the arkansas prison where she was incarcerated for a nonviolent offense when 100 u.s. dep’t of just., escorted trips § 570.40 (2008) 101 hope v. pelzer, 536 u.s. 730, 731 (2002) 37 she was pregnant with her second child. she claimed that she was shackled to her hospital bed during the final stages of labor, thus violating her eighth amendment rights. the eighth amendment standard for conditions of confinement and medical care asks, did the defendant act with “deliberate indifference” by disregarding risk and inflicting unnecessary and wanton pain? defined in hope v. pelzer, this definition was reiterated and revised in nelson v. corr. med. servs. a prison official is deliberately indifferent if he or she knows of and disregards a serious medical need or a substantial risk to an inmate’s health or safety.102 if a risk is obvious and an official imposes physical restraints that perpetuate this risk and cause further harm, then there is a clear constitutional violation. in this case, officer turensky witnessed nelson’s severe contractions even before reaching the hospital, disregarded orders from her boss not to handcuff the prisoner, and ignored medical personnel’s requests that restraints be removed. nelson was clearly in pain, which was only exacerbated by the shackles, and was in no condition to flee, so therefore she was not an escape risk. in fact, officer turensky testified that the nonviolent offender never did anything to suggest that she was a flight risk or presented any other threat, yet nelson was still shackled until moments before entering the delivery room.103 nelson’s inability to move, stretch, or change positions during labor caused mental anguish, permanent hip injury and deformity, torn stomach muscles, an umbilical hernia, sciatic nerve damage, and lifelong physical suffering that subsequently prevented her from sitting or standing for extended periods of time, engaging in everyday activities without pain, and having additional children. the court decided, based on case law and the “deliberate indifference” standard, that there is substantial evidence of officer turensky’s general awareness of the risk of harm associated with shackling and the unnecessary 102 nelson v. corr. med. servs., 583 f.3d 522, 525 (8th cir. 2009) 103 id. at 526 38 suffering, discomfort, and humiliation that she caused to nelson. turensky knew that restraints would interfere with medical care and aggravate pain, and there was no threat, emergency situation, or penological justification that warranted such treatment. therefore, the use of restraints on nelson was a violation of her eighth amendment rights and an example of cruel and unusual punishment. there are many lawmakers and citizens who argue that the use of restraints on pregnant inmates is not unconstitutional and should be either allowed or at least unregulated. some claim that shackling is necessary to ensure that incarcerated women do not try to escape during labor. as an act of desperation, some women may take advantage of this opportunity to flee when they are not physically in a prison or under restraints. furthermore, proponents of shackling contend that the practice is needed to prevent incarcerated women from hurting themselves, the officers, or the other patients around them. while statistics show that the majority of female prisoners are nonviolent offenders and no escape attempts have been reported among pregnant inmates who were not shackled during childbirth (most likely because they are in too much pain to move or flee), people still have concerns about safety and security.104 conclusion and personal statement some people may be able to justify these beliefs, but they are predominantly unfounded and perpetuate the harmful stigmas around incarcerated women. simply put, restraints on women during labor do more harm than they could ever do good, serving no legitimate purpose and causing undue pain and suffering. handcuffs, leg shackles, and belly chains prevent both mothers and children from getting proper medical care, and deliberate indifference that leads to deprivation of such care is unconstitutional. tests to check for life-threatening conditions during 104 leonie stoute, “break every chain: bringing an end to the unconstitutional shackling of pregnant inmates,” 60 howard l.j. 749, 758 (2017). 39 pregnancy cannot be properly administered; immobility prohibits sufficient pain management, successful cervical dilation, and an overall successful vaginal delivery; the risk of falling is increased; and recovery exercises are significantly limited.105 this practice is demeaning, unnecessary, and harmful. there is still not enough legislation or enforcement, although over the past two decades anti-shackling laws have slowly become more numerous and more extensive. in september 2018, a bipartisan group of congresswomen introduced a bill in the house of representatives that codifies the current federal bureau of prisons policy, outlawing the shackling of pregnant women in federal prisons and banning restraints during the pregnancy and in the weeks after birth.106 the first step act, introduced in the senate in november 2018, also bans the shackling of pregnant inmates, forbidding restraints around the ankles, legs, or waist even if the circumstances warrant an exception in which restraints must be used for safety.107 judges, lawmakers, and prison officials have a duty to respect and protect the unalienable constitutional rights of inmates. nelson v. corr. med. servs. laid the foundation for future progress by expanding on the precedent set in hope v. pelzer and ruling that shackling during labor and delivery violates the eighth amendment when officers act with indifference, interfere with care, or inflict unnecessary suffering. mistreatment occurs far too often as the laws and policies that do exist are rarely followed as they should be. thus, both state and federal lawmakers must continue to use precedent to actively create strong, clear legislation that strictly prohibits these practices before more women and their unborn children are put at risk. it does not depend on the type of 105 leonie stoute, “break every chain: bringing an end to the unconstitutional shackling of pregnant inmates,” 60 howard l.j. 749, 753-754 (2017). 106 jouvenal, justin. “bipartisan bill would outlaw shackling of pregnant inmates in federal prisons.” the washington post, wp company, 13 sept. 2018. 107 united states, cong. senate. first step act of 2018. 115th cong., 2nd sess. s. 3649. § 4322. 40 restraints, the point at which shackles are used, or an individual officer’s discretion. based on the risks to human life and unnecessary harm associated with the practice, the careless and unjustified shackling of pregnant prisoners is unconstitutionally cruel and unusual punishment. 55 schuster, adam. “illinois bonds once again rated just above junk.” illinois policy institute , 10 apr. 2018, http://www.illinoispolicy.org/illinois-bonds-once-again-rated-just-abovejunk/. schuster, adam. “tax hikes vs. reform: why illinois must amend its constitution to fix the pension crisis.” illinois policy institute, july 2018, https://www.illinoispolicy.org/reports/tax-hikes-vs-reform-why-illinois-must-amend-itsconstitution-to-fix-the-pension-crisis/. supreme court of illinois. ann b. jorgenson et al., appelees, v. rod r. blagojevich, governor, et al., appellants. 20 may 2004. http://www.illinoiscourts.gov/opinions/supremecourt/2004/may/opinions/html/97624. htm supreme court of illinois. city of chicago v. c. & nw ry. co. 18 nov. 1954. https://law.justia.com/cases/illinois/supreme-court/1954/33316-5.html supreme court of illinois. in re pension reform litigation (doris heaton et al., appellees, v. pat quinn, governor, state of illinois, et al., appellants). 8 may 2015. http://www.illinoiscourts.gov/opinions/supremecourt/2015/118585.pdf supreme court of illinois. roger kanerva et al., appellants, v. malcolm weems et al., appellees. 3 july 2014. https://law.justia.com/cases/illinois/supreme-court/2014/115811.html the state of illinois retirement systems: funding history and reform proposals, a civic federation issue brief. the civic federation, 30 sept. 2008, http://www.civicfed.org/file/4885/download?token=lmdn2dol. the state of illinois. the general assembly. public act 098-0599. 2013. http://www.ilga.gov/legislation/publicacts/98/pdf/098-0599.pdf “these u.s. states are the most fiscally stable.” u.s. news & world report, u.s. news & world report, 2018, http://www.usnews.com/news/best-states/rankings/fiscal-stability. u.s. constitution. art. i, sec. 10. https://www.archives.gov/founding-docs/constitution-transcript walstrum, thomas. “the illinois budget crisis in context: a history of poor fiscal performance.” monetary goals and strategy federal reserve bank of chicago, 2016, www.chicagofed.org/publications/chicago-fed-letter/2016/365. shackling pregnant prisoners: cruel and unusual or justified and necessary? 730 ill. comp. stat. § 5/3-6-7 cal. penal code § 6030 hope v. pelzer, 536 u.s. 730 (2002) jouvenal, justin. “bipartisan bill would outlaw shackling of pregnant inmates in federal prisons.” the washington post, wp company, 13 sept. 2018. leonie stoute, “break every chain: bringing an end to the unconstitutional shackling of pregnant inmates,” 60 howard l.j. 749 (2017) nelson v. corr. med. servs., 583 f.3d 522 (8th cir. 2009) 56 n.y. correct. law § 611 u.s. const. amend. viii. u.s. dep’t of just., escorted trips § 570.40 (2008) u.s. marshals service, restraining devices § 9.1(d)(3)(e) (2010) united states, cong. senate. first step act of 2018. 115th cong., 2nd sess. s. 3649. § 4322 potential federal regulation of covenants to not compete alexander hamilton (1788). federalist 78. application group v. hunter (1998) cali orb §16600 catherine l. fisk + (fall, 1998). article: removing the 'fuel of interest' from the 'fire of genius': law and the employee-inventor, 1830-1930. 65, 1127. charles graves * (winter, 2010). article: analyzing the non-competition covenant as a category of intellectual property regulation. hastings science & technology law journal, 3, 69. david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. justice louis brandeis in new state ice co. v. liebmann (1932). katherine v.w. stone* (february, 2001). article:the new psychological contract: implications of the changing workplace for labor and employment law. ucla law review, 48, 519. melissa ilyse rassas* (winter, 2009). comment: explaining the outlier: oregon's new noncompete agreement law & the broadcasting industry. university of pennsylvania journal of business law, 11, 447. ors §653.295 perry v. moran (1987) phillip d. thomas + (2018). article: would california survive the move act?: a preemption analysis of employee noncompetition law. university of chicago legal forum, 2017, 823 starr, evan and prescott, j.j. and bishara, norman d, noncompetes in the u.s. labor force (september 12, 2018). u of michigan law & econ research paper no. 18-013. sharon k. sandeeri + and elizabeth a. rowe ++ (2017). article: debating employee non-competes and trade secrets. santa clara high technology law journal, 33, 438. the u.s. treasury department (2007) antitrust guidelines and policy statements § 114. u.s. department of the treasury office of economic policy (march 2016). non-compete contracts: economic effects and policy implications viva r. moffat* (2012). article: making non-competes unenforceable. arizona law review, 54, 939. the oedipal origins of the law the bellarmine law society review volume xi issue i article 5 the oedipal origins of the law peter klapes boston college morrissey college of arts and sciences, klapes@bc.edu 2 the oedipal origins of the law peter klapes* abstract: the law and language are inextricably connected. the human individual’s first encounter with language—and, thus, the law—occurs early in life, through what the psychoanalyst sigmund freud calls the oedipus complex. it seems that the law, as we colloquially understand the term, bears roots in the human individual’s experience of the oedipus complex. in what follows, i argue that the law not only bears oedipal origins, but also that it seems the law is the only possible way that we might establish relations with others. introduction in a nod towards (hobbesian) nominalism, the psychoanalyst and philosopher sigmund freud outlines what he sees is the connection between language and the ontological status of civilization itself: “[t]he man who first flung a word of abuse at an enemy instead of a spear was the founder of civilization.”1 for freud, it seems that civilization comes about as a result of linguistic mediation—the use of words is precisely what precipitates the genesis of civilization. admittedly, however, not every civilization is founded with such haste; in fact, there has likely never existed a civilization founded as a result of one man’s verbal insult. rather, it seems the formation of laws—always linguistic in nature—marks the birth of a civilization. for reasons * peter klapes is a student in the joint b.a./m.a. program in the department of philosophy at boston college. his philosophical interests include the psychoanalysis, literary theory, and the philosophy of law. over the past few years, peter has presented his work at various international philosophy conferences and his work—on topics including the philosophy of literature, the philosophy of religion, and psychology—has appeared in multiple journals. 1 sigmund freud, on the psychical mechanism of hysterical phenomena: a lecture (1893). in the standard edition of the complete psychological works of sigmund freud, volume iii (1893–1899). james strachey (trans.). london, england: vintage books. p. 36. 3 i shall outline, it seems that the law (or language) serves—exclusively—as the constitutive force of our interpersonal bonds. a civilization becomes a civilization only when it is named such and when people come together, not as a result of kinship or bloodlines, but rather as a consequence of the law. in what follows, i aim to give an account—based on psychoanalytic research—of the origin of the law. specifically, i aim to demonstrate exactly why the law is the only possible bedrock of human civilization. in so doing, i will consider how various psychic maladies, including paranoia and psychotic delusions, point to a connection between law and the nature of human psychic life (mainly the oedipus complex). before proceeding, we must first identify the connection between law and language, not least because i see both as interdependent entities. for example, law is certainly always languagebased. the connection has its root in the proto indo-european root leg, which led to the greek verb λέγω (lego), and later, the english verb to legislate. moreover, in ancient greek, the word for word is λέξις (lexis), and in latin, the word for law is lex. the word for word in latin can also be lexis. this evolution of language as it is based in latin roots serves as an illustration of the inherent interconnectedness of language and the law. experience of the law in infancy and in the family unit each human individual’s first experience with the law (and, for that matter, language) occurs in the context of the oedipus complex, via the child’s father. perhaps most concretely, this relationship becomes evident when a newborn’s father becomes jealous and resentful of his infant’s intimate physical and emotional union with the former’s wife, after which he administers 4 what the french psychoanalyst jacques lacan calls the law-of-the-father.2 emanating from the fact that he does not lactate and that the mother’s pregnancy often strains his ability to engage in sexual intercourse, the father’s jealousy causes a traumatic and rather hasty separation of mother and child. such separation necessitates the child’s use of language to communicate, as the child must use language to demand nutrition and sustenance in a way that was not necessary when he was in the womb. furthermore, the father’s attempt to reclaim his wife’s attention and body causes the father to physically distance the child from the mother, which, again, deems language a necessity for the child. in the above account, we see that the law (and language) serves two purposes: (1) to enable relations with others subsequent to the child’s separation from his mother, and (2) to guard against a continuation of the incestuous physical relationship shared by mother and child.3 it seems impossible not to posit that these are ends of all laws—from the mosaic law, to hammurabi’s code, to municipal ordinances.4 in fact, there seem to exist two sorts of legal codes: (1) those that establish relationships between people and which structure people accordingly, and (2) those that prohibit behavior that might be societally or individually calamitous. some laws may serve both functions. the father’s law, as lacan calls it, is one of such laws. it separates the child from his mother and commands that the child-mother relationship be mediated not through the body, but 2 jacques lacan, ecrits: a selection (london 1997) p. 218. jacques lacan (1901-1981) was a french psychoanalyst and psychiatrist who gained notoriety through his commentary on, and development of,” freudian psychoanalytic theory. lacan’s own theories attempt to understand the subject and his relation to language and the law, and in his “the instance of the letter in the unconscious,” posits that “the unconscious is structured like a language.” for further discussion, see muller, j. p., & richardson, w. j. (1994). lacan and language: a reader's guide to "écrits." international universities press, inc. 3 as sigmund freud remarks to his friend and colleague dr. wilhelm fliess, “the father forbids the child from realizing its unconscious wish to sleep with his mother.” (letter of october 15, 1897). 4 throughout human history, laws have served to mediate intersubjective relationships. for instance, hammurabi’s code and the law of moses both established standards for human relationships. hammurabi’s code, the babylonian civilization’s legal code, dealt with debt collection, commercial interactions, and physical altercations, among other things. and the law of moses established regulations for how one ought to treat his neighbor and how one ought to relate with god. 5 through language, which ensures that the child will be able to function and interact alongside others in society. though this evidence may point to the conclusion that law emanates from every living (or deceased) individual’s oedipal experiences, we must also reflect on whether, in the individual’s adult form, such oedipal experiences continue. in what follows, i will demonstrate the ways in which the law as a concept and in its many tangible forms continues to mirror these oedipal experiences of infancy. experience of the law in adulthood and society psychosis—especially persecutory delusions and paranoia—emanate, as sigmund freud establishes in his write-up of the case of judge daniel schreber, from repressed filial attraction and affection. as freud writes in his case study: “the patient's struggle with flechsig [schreber’s doctor; schreber’s father was also a doctor] became revealed to him as a conflict with god, and we must therefore construe it as an infantile conflict with the father whom he loved; the details of that conflict (of which we know nothing) are what determined the content of his delusions.”5 though the exact content of psychotic delusions has not been widely discussed in contemporary psychological literature, especially given the advent of symptoms-based research and treatment, it can be estimated that close to all paranoid and persecutory delusions relate to authority, alleged governmental action, or, most broadly, the law. take for example the story of john forbes nash jr., as featured in a beautiful mind (2001), who suffers from paranoid schizophrenia. in a beautiful mind, we see nash struggle with paranoid 5 sigmund freud, the case of schreber, in the standard edition of the complete psychological works of sigmund freud,” tr. james strachey in collaboration with anna freud, 1911-1913. p. 55. sigmund freud (1856-1939) was an austrian neurologist and the ‘father of psychoanalysis,’ a method which seeks to uncover unconscious conflicts through dialogue between psychoanalyst and patient. 6 delusions that relate to government and authority: he fears that he is being pursued by soviet spies and he mistakenly believes that he has been taken to work with the department of defense, breaking top-secret codes. such delusions, which involve the government, authority, and the law are far from rare. nonetheless, as freud establishes in the aforementioned case study, in cases of paranoid and persecutory delusions, the patient often bears hidden affection for the person—or institution—whom he believes is pursuing him. thus, since the delusional patient cannot actualize and act upon his affection (recall that the child’s intimate relationship with his mother was curtailed by his father), the patient turns the alleged pursuer against him so that he may palliate his now deviant desire for uninhibited affection and intimacy. as we have seen, the father and the law bear a symbiotic relation, and thus, in these cases, the law (i.e. the government) seems to stand as the father for whom the child, due to paternal jealousy, social mores, and the incest taboo, cannot properly demonstrate affection. after all, again, most psychotic delusions pertain to the government or other authority figures. in the case of denis lorte, for instance, the french-canadian corporal who shot over a dozen government employees at the parliament building, lorte claimed that he saw the face of his father in the quebecois government and, in the moment of the shooting, saw the face of his father in the guard who denied him entrance to the parliament building. the relationship a child has with his father is similar to that which he has with the law, as well: both relationships are mediated by language. both are also mediated by prohibition. if paranoia and persecutory delusions only come about as a result of repressed affection for the patriarch, then the government—which is, more times than not, the ‘butt’ of such delusions—must, itself, stand as the patriarch. the law, moreover, comes about as a result of our desire to relinquish and defer responsibility. in the oedipal situation, the father serves as the bearer of both responsibility and 7 culpability. he both causes and curtails desire’s progress—he stands in the way of the child’s pursuit of his desires (for his mother) and also creates desire itself. for not only does the child desire (or lack) because he is separated from his mother, but the father also serves as a sort of foil, demonstrating, through his possession of the phallus, the child’s mother’s lack (her vulvic ‘wound,’ as freud calls it) and, thus, her incompleteness and perceived inability to fully provide for her child and his desires. in a congruent way, the law is a foil for us: it demonstrates our incompleteness, inabilities, and disabilities. it exists because we are not perfect in our own right. we must be commanded and guided, and our actions, many times, must be curtailed. the law commands the repression of our unjust desires, self-destruction, and chaos. it ensures that we function well in society and as a society. the psychotic’s condition is distinct from that of the neurotic in one way: anosognosia. for the psychotic, an imagined scapegoat (though he surely does not call it a scapegoat) controls his entire life: his actions and his contemplations. the psychotic’s condition is one that emanates from the law. for him, the law is the scapegoat, which has allegedly caused his behavior (the authorities pursuing him, the government recording his conversations, the tax bureau pilfering his business’s assets). in this same way, we all obscure and defer our maladies and our illicit desires in the name of the law. we forget about our incestuous and parricidal desire—we do not commit incest and parricide merely because they are illegal and might land us in prison. the law keeps us from having to painfully impose certain inhibitions upon ourselves. we are not responsible for our own prohibitions, for the law bears responsibility for our behavior. in this way, the law is our scapegoat. law’s ability to bring about a deferral of control and responsibility is exemplified in saint paul’s letter to the romans: 8 i do not understand what i do. for what i want to do i do not do, but what i hate i do. and if i do what i do not want to do, i agree that the law is good. as it is, it is no longer i myself who do it, but it is sin living in me. for i know that good itself does not dwell in me, that is, in my sinful nature. for i have the desire to do what is good, but i cannot carry it out. for i do not do the good i want to do, but the evil i do not want to do—this i keep on doing. now if i do what i do not want to do, it is no longer i who do it, but it is sin living in me that does it. so i find this law at work: although i want to do good, evil is right there with me. for in my inner being i delight in god’s law; but i see another law at work in me, waging war against the law of my mind and making me a prisoner of the law of sin at work within me (romans 7:15-23). as we see here, sin (which, of course, exists only as an aspect [and result] of the law) is seen as a sort of foreign body that acts upon an individual. the individual does not act; it is the ‘law of sin’ that acts within him. when he ‘does what he does not want to do,’ he considers the law to be good—it is the law that is responsible for his ‘good behavior.’ he does not self-castigate; he does not need to. the law does this painful thing for him. the law, we see again, is the individual’s superego, a welcome addition to his psychic life—a scapegoat, responsible for his behavior. conclusion in sum, it seems that the law bears oedipal origins. the law is a father-figure—we relate to it via language and it both produces desire (lack) by curtailing our pursuit of pleasure, but, also, hinders desire, for it makes us do exactly—as we see in saint paul’s words—what we do not want to do. as an example, the psychotic’s experience is most telling of this interchangeability of the father and the law. his delusions emanate from unrealized love. most of his delusions pertain to the law. therefore, he must love the law—for he surely loves his father. 9 bibliography freud, sigmund, on the psychical mechanism of hysterical phenomena: a lecture (1893). in the standard edition of the complete psychological works of sigmund freud, volume iii (1893– 1899). james strachey (trans.). london, england: vintage books. freud, sigmund, the case of schreber, in the standard edition of the complete psychological works of sigmund freud,” tr. james strachey in collaboration with anna freud, 19111913. freud, sigmund, j. moussaieff masson, and wilhelm fliess. 1985. the complete letters of sigmund freud to wilhelm fliess, 1887-1904. cambridge, mass: belknap press of harvard university press. lacan, jacques, ecrits: a selection (london 1997). legendre, pierre. law and the unconscious: a legendre reader. palgrave macmillan, 2014. taline_v1 the bellarmine law society review volume xi issue i article 4 affirmative action in college admissions: successes and failings taline ratanjee boston college lynch school of education and human development, ratanjee@bc.edu 2 affirmative action in college admissions: successes and failings taline ratanjee* abstract: although introduced in 1961, affirmative action policies continue to beget everyday conversations around and lawsuits against institutions of higher education. students for fair admissions, a national advocacy organization that opposes the use of certain affirmative action policies in higher education, brought suit against harvard university in 2017, arguing that the university discriminated against asian-american applicants and therefore violated title xi of the civil rights act of 1964. this article discusses the arguments that both parties presented and provides an analysis thereof. the author’s personal assessment is included, though it was written in advance of the district and appellate courts’ recent verdicts. as students for fair admissions v. harvard is the latest in a series of high-profile cases against elite universities, this article seeks to provide a foundational understanding for how to approach similar cases that will undoubtedly arise in the future, some of which may even reach the supreme court. introduction this article analyzes the key legal issues surrounding the 2017 litigation in students for fair admissions v. harvard, a massachusetts district court case concerning alleged admissions discrimination towards asian americans in violation of title xi of the civil rights act of 1964. in elucidating the contours of students for fair admissions, this article evaluates previous college admissions cases that involve similar legal and ethical issues. additionally, it provides an analysis of both the plaintiff’s and defendant’s positions. * taline nicole ratanjee is a fourth-year undergraduate student at boston college pursuing a b.a. in applied psychology and a b.s. in economics with a minor in marketing. her academic interests lie at the intersection of behavioral economics, social advocacy, and public policy. the author wishes to thank her parents, joe and georgette, for their unwavering love and support, and professor thomas wesner for his guidance and inspiration. 3 this litigation was initiated considering the fact that over the last two decades, asian american applicants saw the lowest acceptance rate of any other racial group applying to harvard (roughly 8.1%). the plaintiff, students for fair admissions, presented the court with three primary arguments with respect to harvard’s admissions practices: (1) the university engaged in intentional discrimination, (2) the university attempted to create racial-balancing, and (3) the university did not use race as a “plus factor” for the purpose of critical mass.1 the defendant, harvard university, defended its case by: (1) rationalizing its admissions policies, (2) connecting its admissions policies to the creation of a diverse student body, and (3) asserting that its admissions policy was aimed at allowing all students to have a safe and welcoming environment at harvard.2 in addition to legal questions, many ethical issues arose in this litigation. as such, this case establishes certain principles dealing with admissions and diversity that will continue the legacy of affirmative action while also creating the potential for equitable reform. in this vein, students for fair admissions v. harvard will help set a precedent for the future of race-conscious admissions. a brief history of affirmative action in 1961, president john f. kennedy introduced the term “affirmative action” as a method to equalize discrimination that persisted in spite of civil rights laws and constitutional guarantees. indeed, after the supreme court’s decision in brown v. board of education (1954) and the passage of the civil rights act of 1964, discrimination in public accommodations was prohibited on the 1 students for fair admissions also presented “race-neutral alternatives” that harvard could have employed. this will be discussed in the article’s conclusion (chiu). 2 by comparison, african-american applicants enjoyed an average acceptance rate of 13.2%, white applicants enjoyed an average acceptance rate of 13.2%, and hispanic-american applicants enjoyed an average acceptance rate of 10.6% (avi-yonah et al.) 4 basis on race, color, religion, sex, and national origin. following these precedents, president lyndon johnson eventually developed and enforced affirmative action policies to advance civil rights and equality. beginning in the 1960s, colleges and universities adopted similar non-discriminatory admissions policies, prompting acceptance rates for minority students to increase. by 1978, however, flaws in affirmative action policies arose despite their good intentions: in regents of university of california v. bakke (1978), the supreme court ruled that the use of racial quotas was unconstitutional in the admissions process, though a school’s use of affirmative action to focus on admitting more minority applicants was constitutional. the debate about affirmative action persisted through the 2000s with two landmark cases concerning college admissions: in 2003, the supreme court made rulings gratz v. bollinger and grutter v. bollinger that established that certain affirmative action policies promoted a “compelling state interest” in societal diversity. in 2013 and 2016, litigation arose in fisher v. university of texas, ultimately concluding in a ruling that established that states which use race as a consideration in the admissions process are not acting in violation of the equal protection clause of the fourteenth amendment.3 now, the public eagerly awaits the results of likely appeals in students for fair admissions because of the legal issues still outstanding. 3 in fisher v. university of texas (2013) (alternatively called fisher i), 570 u.s. ____ (2013), the court ruled that strict scrutiny should be applied to determine the constitutionality of a race-sensitive admissions policy. fisher v. university of texas (fisher ii) is helpful in understanding sffa v. harvard since harvard has involved itself in the fisher case, filing an amicus brief in november 2015. harvard’s brief supported “ut austin’s use of race-conscious admissions policies to create a diverse student body, writing that a diverse student population is a compelling interest that justifies race-conscious admissions in higher education” (ellis). 5 sffa arguments against harvard’s admission policies sffa first contends that harvard’s admissions policy, also known as “the harvard plan,” intentionally discriminates against asian americans. in its brief, sffa points to harvard president a. lawrence lowell's quota on jewish enrollment in the 1920s and 1930s, one de-emphasized academic achievement and instead relied on legacy preferences.4 through this example, sffa argues that harvard employs an overly subjective analysis when considering asian-american applicants. furthermore, sffa refers to harvard’s statistical data in demonstrating that the “racial demographics of harvard’s admissions and enrollment have remained stable over approximately the last decade, despite fluctuations in application rates.”5 sffa also cites several studies that reveal disparities based on race indeed exist: for example, an espenshade-radford study concluded that asian americans are dramatically less likely to be admitted than otherwise similarly qualified caucasian students.6 with this quantitative background, sffa asserts that harvard’s personal rating of each applicant is significantly lower for asian-american students than for other applicants, thus prompting many asian-american students to be denied the equal opportunity to attend harvard solely based on race. as a result of this system, sffa concludes that harvard university violated 4 chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. during the 1920s and 30s, harvard established this quota by instituting a system that determined “character fitness and the promise of the greatest usefulness in the future as a result of a harvard education” as a way to decrease the number of admitted jewish students 5 chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. “[b]etween 2003 and 2012, the percentage of asian americans at harvard wavered only slightly above and below approximately 17 percent. . . . [d]espite the fact that, by 2008, asian americans made up over 27 percent of harvard’s applicant pool, and approximately 46 percent of applicants with academic credentials in the range from which harvard admits the overwhelming majority of students.” 6 chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. 6 the gratz precedent: that “overly mechanized” point systems violate the equal protection clause of the fourteenth amendment. in its second argument, sffa claims that harvard’s admissions policy employs “racial balancing” to ensure a fixed quota of asian americans in its student body. sffa deduced its claim by examining harvard’s statistical data which shows that even with fluctuations in application numbers, harvard’s admissions quotas have remained stable. moreover, sffa argues that the university’s “one-pagers,” which provide “statistics of the present representation of various racial groups as compared to the prior year,” show harvard’s quota for asian americans.7 this argument is important insofar as the bakke decision established that using racial quotas in college admissions decisions violates the equal protection clause. although this landmark case eradicated racial quotas in higher education admissions, race is still considered as one of many factors during the admissions process under the auspices that it promotes the creation of a diverse student body. sffa’s third argument states that harvard does not consider race for the purpose of achieving critical mass, but rather, that it considers race as more than just a “plus factor.”8 this assertion is premised on the precedent established in fisher ii that allows universities to determine their preferences on diversity if critical mass has already been achieved. examining harvard’s diversity policy, sffa contends that harvard’s policy fails to attain educational diversity since harvard’s policies are not focused on attaining critical mass, thus proving that race-conscious admissions “could be used in perpetuity even though there may be some point in time where the 7 chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. 8 chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. critical mass is defined as “adequate representation of minority students so that the . . . educational benefits that can be derived from diversity can actually happen.” see fisher v. university of texas at austin (fisher ii), 579 u.s. ___ (2016). 7 ‘use of racial preferences will no longer be necessary to further the interest in diversity.”9 under this premise, sffa asserts that race is more of a “plus factor” that can either help or hinder an applicant’s admittance, thus violating the fourteenth amendment. harvard university’s counter-arguments attempting to undermine the veracity of sffa’s claims, harvard presents a compelling argument as to why its admissions policies give all applicants, especially asian americans, a fair chance in earning admittance. in response to sffa’s first argument, harvard assert that it has “expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups,” as stated in justice powell’s bakke concurrence.10 in this way, harvard presents itself as using admissions policies that threat all applicants as individuals. harvard further contends that sffa’s reference to the 1920s racial quota against jewish americans is not an indication of discriminatory intent against asian americans and does not suggest that harvard is instituting these policies now. moreover, harvard cites justice powell’s bakke opinion that “colleges and universities have a right to academic freedom protected by the first amendment, which includes a right to select their students.”11 harvard then utilizes this notion in acknowledging its reaffirmance in the 2016 fisher ii case, ultimately arguing that it was simply exercising the right to determine admittance based on the university’s definition of diversity.12 as stated in harvard’s fisher ii amicus brief, “individualized admissions programs 9 chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. 10 oppenheimer, david b. 2018. "article: archibald cox and the diversity justification for affirmative action." virginia journal of social policy & the law, 25, 158. 11 oppenheimer, david b. 2018. "article: archibald cox and the diversity justification for affirmative action." virginia journal of social policy & the law, 25, 158. 12 fisher v. university of texas at austin (fisher ii), 579 u.s. ___ (2016) 8 like harvard’s … considers each applicant as a whole person,” preventing asian americans from “being grouped into one monolithic ‘asian category’ that blurs the different realities that various ethnic subgroups face.”13 based on the rulings from these cases, harvard asserts that it has the right to choose the makeup of its student body through a fair admissions process. regarding sffa’s second argument of “racial balancing,” harvard argues that it maintains a diverse learning environment that admissions policy pioneers have diligently worked to achieve.14 although critical mass is an immeasurable number, the concept requires some ideal balance constituted through a number of factors. because of the educational benefits of diversity, one of these factors is race. in having a proper balance of races within the university, not all qualified applicants can be accepted equitably, which is not a mirror of racial balancing but instead part of any admissions process. most importantly, harvard focuses on creating a diverse environment through a fair and competitive admissions process like any other elite university. sffa’s claims about harvard’s intentional “racial balancing” fails to consider the perspective of other minority groups as well as the need for a diverse learning environment that constitutes all backgrounds, races, and ethnicities. as upheld in smith v. university of washington law school (9th cir., 2004), admissions programs that recognize “different cultures, backgrounds, and languages” of applicants whose families or who themselves originated from the philippines, viet nam, cambodia, taiwan, or the people’s republic of china would bring different contours to the educational environment. in applying smith, harvard argues that its admissions program fosters these values of diversity and inclusivity. 13 brief for united states district court district of massachusetts as amicus curiae brief...in opposition to plaintiff’s motion for summary judgment, students for fair admissions v. harvard 1:14-cv-14176-djc (d. mass). pg. 8. 14 chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. 9 lastly, harvard replies to sffa’s arguments that it fails to consider race for the goal of achieving critical mass. in fisher ii, the supreme court mandated that a university must reevaluate its critical mass status every five years, leading harvard to create the “smith committee” which focuses on affirmative action policies. consequently, harvard claims that its holistic admissions process allows all students to be given a fair chance, thus demonstrating that race is not put on a pedestal for any applicant but instead merely serves as another contributing factor. harvard maintains that it does not discriminate or base its rigorous admissions process on an applicant’s background and even promotes “the belief that diversity adds an essential ingredient to the educational process.”15 harvard’s convictions, the university argues, are affirmed with the grutter decision which states that “student body diversity promotes learning outcomes,” and “better prepares students for an increasingly diverse workforce and society …” harvard also claims that “there is substantial diversity within the asian american community” since the term is all encompassing of a geographically-disparate population.16 harvard correctly acknowledges that it faces the difficult task of making admission decisions since diversity is a broad term with many complexities. personal assessment in considering the evidence presented to the district court, it is clear that harvard’s admissions policies do provide all applicants a fair chance no matter their race, background, or socioeconomic status. with respect to sffa’s claims, harvard enjoys first amendment rights to freely choose who has the privilege of joining its incoming student body. as one of the oldest and 15 oppenheimer, david b. 2018. "article: archibald cox and the diversity justification for affirmative action." virginia journal of social policy & the law, 25, 158. 16 brief for united states district court district of massachusetts as amicus curiae brief...in opposition to plaintiff’s motion for summary judgment, students for fair admissions v. harvard 1:14-cv-14176-djc (d. mass). pg. 5. 10 most elite universities in the world, harvard is intentional and decisive in its admissions decisions, but in a non-discriminatory way. sffa raises valid concerns in its lawsuit but fails to consider the importance of harvard’s interest in student applicants from different backgrounds, especially within the asian-american community. conclusion since the 1987 bakke litigation brought the topic of diversity in higher education to the supreme court, various competing interests have attempted to alter the scope of affirmative action programs. despite the fact that the majority of universities today do not openly employ race considerations in admissions as open-enrollment institutions, sffa v. harvard makes a valuable contribution to the history of debates over affirmative action in higher education. although harvard was victorious in the district and appellate courts’ review, there are “workable race-neutral alternatives” that can be employed to reduce the possibility of discrimination. for example, universities can incentivize applicants requiring more financial aid to apply to increase applications from historically-underserved minority groups. as a recent article in the university of michigan journal of law reform has argued, with “more inclusive applicant pools, social mobility in america will improve and reduce the size of preferences universities use.”17 with this in mind, the potential for all colleges to achieve meaningful diversity and fulfill their educational missions may seem improbable, but the remains a need for increasingly raceneutral alternatives to ensure there is minimal possibility for discrimination. 17 sander, richard, and danielson, aaron. 2014. “thinking hard about "race-neutral" admissions.” university of michigan journal of law reform 47 (4): 967. 11 bibliography avi-yonah, shera s., and mccafferty, molly. “asian-american harvard applicants saw lowest admit rate of any racial group from 1995 to 2013 | news | the harvard crimson.” accessed december 21, 2020. https://www.thecrimson.com/article/2018/10/19/acceptancerates-by-race/ brown v. board of education, 347 us 483 (1954). brief for united states district court district of massachusetts as amicus curiae brief...in opposition to plaintiff’s motion for summary judgment, students for fair admissions v. harvard 1:14-cv-14176-djc (d. mass). https://admissionscase.harvard.edu/files/adm case/files/aaldef_amicus_brief_iso_harvard.pdf. chiu, cynthia. “justice or just us?: sffa v. harvard and asian americans in affirmative action note.” southern california law review, january 1, 2019. ellis, brittany n. “the harvard admissions lawsuit, explained | news | the harvard crimson.” accessed december 21, 2020. https://www.thecrimson.com/article/2016/11/7/harvardadmissions-lawsuit-explainer/. sander, richard, and danielson, aaron. 2014. “thinking hard about "race-neutral" admissions.” university of michigan journal of law reform 47 (4): 967. fisher v. university of texas (fisher i), 570 u.s. ___ (2013) fisher v. university of texas at austin (fisher ii), 579 u.s. ___ (2016) gratz v. bollinger, 539 u.s. 244 (2003) grutter v. bollinger, 539 u.s. 306 (2003) oppenheimer, david b. 2018. "article: archibald cox and the diversity justification for affirmative action." virginia journal of social policy & the law, 25, 158. regents of the university of california v. bakke, 438 u.s. 312 (1978) smith v. university of washington law school, 392 f.3d 367 (9th cir. 2004) title vi of the civil rights act of 1964, 42 u.s.c. § 2000d, et seq. u.s. constitution. amend. xiiii, sec. 1. 6 pharmaceutical price-gouging: an analysis of maryland’s efforts to regulate unconscionable increases in the prices of generic drugs harry shanmugam introduction few people in modern american history have attained the notoriety of “pharmabro” martin shkreli. in august of 2015, he acquired the exclusive rights to a drug called daraprim for $55 million through his company turing pharmaceuticals. daraprim, which has been off-patent since 1953, is a drug primarily used to treat toxoplasmosis in newborn babies and hiv patients. no generics had entered the market due to high barriers to entry, and after acquiring daraprim, turing put it on a closed distribution and removed it from wholesalers and pharmacies. very soon after, turing raised the price of daraprim from $13.50 a pill to $750 a pill—an increase of over 5,000%—and martin shkreli became the “most hated man in america.”1 cases of pharmaceutical companies raising off-patent drug prices by obscene amounts routinely make headlines, and are almost always met with public outrage because of the intense and undue burden they place upon patients, insurance providers, and the government. this paper analyzes one new regulatory effort, maryland’s hb 631, to curb price-gouging of generic drugs. the law will be examined in terms of its legality and efficacy through an exploration of the following: ● public health and economic ramifications; ● constitutional issues in the law’s regulatory mechanism; ● the policy context and regulatory environment in which the law is operating. 1 merle, r. (2017, march 8). martin shkreli’s long, strange tale could end with a decade in prison. the washington post. 7 history legislative history: hatch-waxman act the generic drug legal space is rife with complicated processes, checkpoints, and hurdles. the modern regulatory environment for generics was largely created in 1984 with the drug price competition and patent restoration act—commonly known as the hatch-waxman act—which seeks to preserve drug innovation through patent-term restoration policies while also increasing competition in the marketplace through the introduction of generics.2 this section will focus on these latter provisions, which provide the backbone of the regulatory process for the entry of generics into a market. under hatch-waxman, the active compounds in pioneer drugs, known as new molecular entities (nme’s), receive a “data exclusivity” period of five years, during which no generic drugs can enter the market.3 if a drug is patent-protected, then this exclusivity period is extended until the life of the patent.4 after the exclusivity period expires,5 generics can enter the market by submitting an abbreviated new drug application (anda), named so because the generic is not required to conduct clinical and preclinical trials.6 from here, the regulatory process becomes complicated and task-intensive. in order to be listed in the fda’s approved list of drugs, the socalled “orange book,” a generic must prove bioequivalence, meaning that the drug “performs in 2 mossinghoff, g. j. (1999). overview of the hatch-waxman act and its impact on the drug development process. food and drug law journal. 3 grabowski et al. (2017). pharmaceutical patent challenges: company strategies and litigation outcomes. american journal of health economics. 4 it is here that the patent-term restoration provisions kick in. many pioneer drugs see their realized patent life shortened because patents are often filed early on in the development process; hatch-waxman provides a maximum five year extension on the exclusivity for cases like these. 5 potential generic entrants can also attempt to enter the market before the exclusivity period expires by using what is known as a “paragraph iv challenge,” where they assert that their drug does not infringe on the brand name drug’s patent, or that the brand name drug’s patent is invalid. 6 mossinghoff, g. j. 8 the same manner as the innovator drug.”7 after conducting studies to prove bioequivalence, the generic drug must then prove bioavailability parity—the rate of absorption of the generic drug must be comparable to the original. the drug then must undergo multiple chemical reviews and label reviews before it can be approved.8 price-gouging the martin shkreli saga ended with the pharma magnate eventually going to jail, but not for his price-gouging of daraprim; he was instead convicted for running a ponzi-like scheme at a hedge fund he managed. in fact, what he did at turing with daraprim was completely legal, and not entirely uncommon. valeant pharmaceuticals, for example, increased the price of two drugs treating a rare disorder called wilson’s disease by 5,785% and 3,162%.9 another company, rodelis, increased the price of a multi-drug resistant tuberculosis medication by 2,060%.10 indeed, a report by the government accountability office found that from 2010-2015, 315 generic drugs experienced an “extraordinary price increase—a price increase of at least 100 percent.”11 over the last decade, drug companies and industry groups have poured $2.3 billion into lobbying efforts in washington.12 as a result, according to a joint report by the yale school of public health and the yale law school, “the federal government has failed to take—and many policymakers have not even considered—meaningful steps to curb drug prices.”13 in the absence of federal action on this issue, some states have created policies of their own to combat 7 ibid. 8 ibid. 9 u.s. senate, special committee on aging. (2016). 10 ibid. 11 united states, government accountability office. (2016, august). generic drugs under medicare. 12 berman et al. (2017, august). curbing unfair drug prices: a primer for states (issue brief). 13 ibid. 9 pharmaceutical price-gouging. in april of 2017, maryland passed a law, hb 631, that was considered by many to be a model for other states. hb 631 prevented any drug manufacturer or distributor from “engaging in price-gouging in the sale of any off-patent or generic drug.”14 price-gouging, or an “unconscionable increase” was given a very specific definition by the maryland legislature: “... ‘unconscionable increase’ means a price increase that is excessive, and not justified by the cost of producing the drug or expanding access to it, and that results in consumers having no meaningful choice about whether to purchase the drug at an excessive price, because of the importance of the drug to their health, and insufficient competition in the market for the drug.”15 violators of this law would be subject to fines of up to $10,000 per violation, with enforcement duties falling upon the office of the maryland attorney general. predictably, the law was met with resistance from the pharmaceutical industry, which immediately challenged the statute in court. the case, association for accessible medicines v. frosh, made its way up to the u.s. fourth circuit appeals court, where the court ruled in a 2-1 decision that the law was unconstitutional. the state moved to have the case heard en banc by the full panel of judges on the court but was denied. in october of 2018, maryland attorney general brian frosh filed a petition for a writ of certiorari with the supreme court.16 14 public health essential off-patent or generic drugs price gouging prohibition 15 public health essential off-patent or generic drugs price gouging prohibition 16 frosh et al. (2018, october). petition for a writ of certiorari to the supreme court of the united states: frosh v. association for accessible medicines. cockle legal briefs. 10 analysis the argument for hb 631 the maryland law regulates a very particular type of pharmaceutical business model; indeed, while rising drug prices are a problem in a variety of pharmaceutical sectors, hb 631 only targets exploitation of dysfunction in the generic drug market, as outlined in a report by the u.s. senate special committee on aging. in its analysis of the generics industry, the committee found that several companies purposely built their operations around the following five core elements: ● the company would acquire a sole-source, off-patent drug for which there was only one manufacturer; ● this drug was the gold standard for the condition it treated; ● critically, the company purchased a drug that serviced a small market; ● after purchasing the drug, the company restricted consumer access to it by pulling it from normal pharmacies and wholesalers and putting it on a closed distribution loop; ● once these elements were in place, the company drastically increased the price of the drug so as to make a windfall profit.17 from an economic perspective, this is a creative (if rather machiavellian) way to game to the market. capitalism operates such that competition keeps prices down, but this innovative business model essentially forms monopolies around decades-old therapies; in the absence of any competition, the company is free to raise prices astronomically, and in the absence of any regulation, the company does so legally. 17 u.s. senate, special committee on aging. 11 maryland’s price-gouging law was formed in response to the negative ethical implications and economic impacts of this business model. drastic price hikes in the generic industry represent a life-threatening burden on patients—for example, 24% of cancer patients do not fill prescriptions because of excessive prices.18 furthermore, the design of the above business model insidiously conspires to impose a special burden upon people afflicted by rare, “orphan” diseases with small patient bases. one witness before the senate committee described how her treatment for wilson’s disease—which affects only about 2,000 to 3,000 americans—spiked so suddenly that her out-of-pocket costs increased by over $10,000 per year.19 another witness described how she faced a $360,000 bill for the use of a daraprim to save her two-month-old infant from a case of toxoplasmosis.20 this kind of testimony makes clear the ethical case for curbing this kind of price-gouging; it is disturbing to see patients at their most vulnerable beset with astronomical medicine bills threatening their course of treatment. price-gouging also carries with it a host of negative economic effects. in many cases, the state covers a significant portion of the expenses for prescription drugs through programs such as medicare and medicaid.21 price hikes thus represent a de facto tax upon citizens as states struggle to reconcile their role in providing essential health coverage in the face of rising costs. the economic implications extend to the private insurance market as well; faced with claims for increasingly expensive drugs, insurance companies have resorted to “increasing premiums, deductibles, and out-of-pocket drug payments,” or worse, denying claims all together, thus further threatening patient security.22 18 lee et al. (2018). legal challenges to state drug pricing laws. jama. 19 u.s. senate, special committee on aging. 20 ibid. 21 berman et al. 22 ibid. 12 buttressing the economic and ethical arguments in support of hb 631 are the distinctly american, capitalistic tendencies against monopolistic behavior. the sherman antitrust act expressly prohibits “monopolization, attempted monopolization, or conspiracy or combination to monopolize” when said conduct unreasonably restrains trade.23 the ftc is charged with regulatory power in potential violations of the sherman antitrust act and related anticompetitive legislation. however, the ftc does not intervene “without evidence of a conspiracy among competitors or other anti-competitive actions that sustain the increased price,”24 and in most pharmaceutical price-gouging cases, there is nothing insidious besides the price hike itself. rarely do pharmaceutical companies engage in behavior that would exclude competitors25; instead, lack of competition arises from the lack of incentives to undergo the fda’s intense approval process and be the second entrant into a small generic drug market. indeed, the business models pursued by hb 631’s target companies operate fairly and legally within the regulatory framework of the generics market; companies like turing and valeant follow all of the rules of the fda, and raise their prices because their legal monopoly status gives them no reason not to. but by creating conditions in which competition is non-existent—even if the steps in the process to do so were legal—this brand of price-gouging goes against the spirit of laws such as the sherman antitrust act. indeed, the language of the maryland law operates on the same principles as, say, regulation against predatory pricing. in utah pie co. v. continental baking co. the court held that there must be a clear marginal-cost economic or competitive basis for lower prices in order for the action to not be considered predatory pricing.26 hb 631 operates in a 23 sherman antitrust act. § 2 (1890). 24 alpern et al. (2015). high-cost generic drugs—implications for patients and policymakers. new england journal of medicine. 25 ibid. 26 utah pie co. v. continental baking co. (1967). 13 similar fashion, dictating that a price-increase must be “justified by the cost of producing the drug or expanding access to it.”27 even in the absence of ftc or congressional action to combat predatory behavior, there seems to be a basis in existing pro-competitive statutes for regulation against price-gouging. the argument against hb 631 in its suit against the state of maryland, the association for affordable medicines (aam) asserted two constitutional challenges to hb 631: that it violated the extraterritoriality prong of the dormant commerce clause and that it is unconstitutionally vague.28 the dormant commerce clause of the constitution places a “constraint on the power of the states to enact legislation that interferes with or burdens interstate commerce.”29 coming out of this is the extraterritoriality principle, which states that a “state may not regulate commerce that takes place wholly outside of the state’s borders, whether or not the commerce has effects within the state.”30 statutes directly controlling out-of-border commerce are invalid, regardless of whether the extraterritorial reach is expressly written or intended by the legislature or if it is a “practical effect” of the statute.31 in aam v. frosh, the appellate court held that even while hb 631’s provisions were only triggered when a drug was available for sale in maryland, the act “directly regulates the prices charged for prescription drugs in out-of-state transactions.”32 the court based this conclusion on the assessment that the legislation would target transactions that occur outside of the state of maryland because the wording of the act targets manufacturers and distributors—almost none of 27 frosh et al. 28 association for accessible medicines v. frosh. 29 ibid. 30 ibid. 31 ibid. 32 ibid. 14 whom are headquartered in, operate in, or manufacture in maryland.33 indeed, the majority of these drugs are sold in maryland through resale or consumer retail, but hb 631 instead puts its regulatory focus on price changes “in the initial sale of the drug,” thereby directly regulating the transactions of wholesale distributors and manufacturers which occur entirely outside of the borders of maryland. maryland’s defense to this conclusion is that the out-of-state pricing effects are merely “upstream impacts of a state regulation” and not the direct regulation that the dormant commerce clause requires. but the court holds that hb 631’s regulatory mechanism constitutes a price control mechanism; instead of merely creating an upstream pricing disturbance because of an instate regulation, it creates a change in manufacturers’ pricing schemes that comes independently of “natural market forces.”34 by consequence, the “practical effect” of the maryland law is that maryland places a price control on an out-of-state transaction—which is expressly prohibited by the extraterritoriality principle—thus rendering the law invalid. the court did not rule on the aam’s claim of unconstitutional vagueness because the law was already invalidated for violating the dormant clause. the vagueness claim is important, though, because it asserts that the “unconscionable increase” standard was too inconsistent and reliant on post hoc enforcement by the attorney general in order for the regulated parties to know clearly what their obligations were. the supreme court has set the precedent in cases such as fcc v. fox that regulators must provide fair and clear notice of the exact duties a regulated group has before imposing regulations on them35; the enforcement mechanism of hb 631, wherein the attorney general would file suit against companies in violation of the law, would 33 ibid. 34 ibid. 35 fcc v. fox television stations. (2009). 15 mean that such duties would be made evident only after the fact, subject to law enforcement’s discretion in its exercise of the penalty as opposed to a clear, prior communicated standard. in a memorandum of law in support of their preliminary injunction, the aam also claims that hb 631 would pose a significant threat to the public interest. the association asserts that the law would “introduce enormous uncertainty and business risk for generic drug manufacturers,”36 leading to the potential risk of companies withdrawing from marketing their medicines in the maryland market, or worse yet, declining to make generic medicines altogether. such actions would be an unintended negative externality of the law, with detrimental public health consequences for the state of maryland. evaluating the current system in balance, then, it seems that the clear economic and ethical principles in favor of curbing price-gouging are countered by legal arguments that make meaningful regulation of the pharmaceutical industry difficult. the current infrastructure of the pharmaceutical distribution system is nationwide in scale; companies manufacture medicines in one state and then sell it to wholesalers at a national level, who then sell it to distributors who resale it to local retailers, hospitals, and pharmacies.37 absent any federal action on this issue, it is difficult for states to find policy strategies that meaningfully combat price-gouging; constitutional constraints make it impractical to rely on state-level legislation to regulate a national-level problem. the simple solution would be to lobby for more federal oversight on this issue, but such a perspective ignores the dysfunction in a system which allows such excesses in the first place—a system in which competition is inhibited and disincentivized. indeed, per each additional entrant 36 memorandum of law in support of plaintiff's motion for preliminary injunction. 37 ibid. 16 in a generic drug market, drug prices decrease by 20%, and yet, pharmaceutical companies report consistent barriers to entry and inhibitors to competition.38 the largest such barrier is the bloated nature of the fda approval process for generics. as of 2015, the median approval time for an anda was 43 months, with more than half the applications taking upward of four years.39 furthermore, there is increased demand in generic entry; in the last 3 years alone, the number of anda submissions has risen from 539 to 1,306.40 faced with such an immense workload, the fda has fallen into a cavernous backlog, with 4,036 generic drug applications awaiting approval as of july 1, 2018.41 the inefficiency of this approval system is compounded by the significant costs to be borne by anda applicants, with each submission facing “fda fees well in excess of $70,000.”42 in light of this, there is a certain twisted genius to the business model pioneered by shkreli and other “price-gougers”—it makes sense to target drugs with small markets because potential competitors will be deterred from entering the cumbersome fda approval cycle just to access such a small base of potential customers as the second or third entrant. as such, we see that the regulatory environment today is permissive to price-gouging; because of the complicated calculus that a company must undertake to decide whether to attempt to penetrate a market at such a high entry cost, players who make the first move and take a small drug market hostage have free reign to raise prices as much as they want to make a windfall profit. 38 united states, government accountability office. 39 u.s. senate, special committee on aging. 40 association for accessible medicines, & iqvia. 41 the latest on the anda review backlog. 42 u.s. senate, special committee on aging. 17 conclusion and recommendation the policy problem at the core of aam v. frosh is one of national significance. if the supreme court grants certiorari to this case, then it will place pharmaceutical price-gouging at the center of the national debate. in the end, we could see a realist versus formalist showdown in the court, where the economic and ethical implications of price-gouging are placed in stark opposition to the constitutional challenges posed by attempting state-level legislation on a problem of national scale. the court currently has a formalist majority, suggesting a victory for pharmaceutical companies, but price-gouging on life-saving medicines generally garners such universal discomfort that this case may not be decided on strictly ideological lines. ultimately, though, even if maryland’s law is upheld, it is an insufficient, surface-level patching to a hole that extends deeper into the system than this legislation can feasibly cover. all maryland’s law does is provide penalties for companies that have recognized and capitalized on opportunities to increase their profits that are borne out of inefficiencies in the current market structure. this method of after-the-fact regulation does nothing to address the institutional problems that create an environment where price-gouging can occur in the first place. instead, policymakers should turn their attention to fixing these enabling factors. legislation to provide more resources to the fda to work through their backlog is in order, as well as legislation that further incentivizes generic entry into markets with smaller patient bases. there is the potential for legislative innovation here—for example, expedited review for anda submissions to markets with only one generic drug would attract entrants to that market and thus lower prices. indeed, with the cost of entry being reduced, the prospect of entering a market is not tempered by fears of a drawn-out and expensive approval process. this policy would also need to be accompanied by other legislative measures; special incentives for generic 18 drugs entering markets with small patient bases would help effectively defeat the business model of many price-gouging companies from the bottom up. after these structural changes were implemented, congress could look into giving more explicit guidance to the ftc on exercising its antitrust regulatory power to prevent maneuvers by pharmaceutical companies to corner segments of the markets. ultimately, though, the focus of new policy initiatives should be adjusting the infrastructure of the pharmaceutical industry such that market entry by generics— and by extension, competition—is increased. indeed, natural market forces are often far more effective checks than imposed, post hoc regulations. the issues brought upon by pharmaceutical price-gouging are both troubling and pressing, couched in ethical and economic relevance. it is incumbent upon regulators and policymakers to take action in a way that restores competitive balance and thus mitigates the worst excesses of this essential, life-saving industry. 52 endnotes pharmaceutical price-gouging: an analysis of maryland’s efforts to regulate unconscionable increases in the prices of generic drugs alpern, j. d., stauffer, w. m., & kesselheim, a. s. (2015). high-cost generic drugs — implications for patients and policymakers. new england journal of medicine,372(7), 685-686. doi:10.1056/nejmc1415471 association for accessible medicines v. frosh (april 13, 2018). association for accessible medicines, & iqvia. (n.d.). number of abbreviated new drug applications (anda) received in the u.s. from 2009 to 2017. in statista the statistics portal. retrieved november 14, 2018, from https://www.statista.com/statistics/864366/andas-received-number/. berman, a., lee, t., pan, a., rizvi, z., & thomas, a. (2017, august). curbing unfair drug prices: a primer for states(issue brief). retrieved https://law.yale.edu/system/files/area/center/ghjp/documents/curbing_unfair_drug_pricespolicy_paper-080717.pdf fcc v. fox television stations (2009). frosh, b. e., & neall, r. r. (2018, october). petition for a writ of certiorari to the supreme court of the united states: frosh v. association for accessible medicines. cockle legal briefs. grabowski, h., brain, c., taub, a., & guha, r. (2017). pharmaceutical patent challenges: company strategies and litigation outcomes. american journal of health economics,3(1). doi:10.1162/ajhe a 00066 lee tt, kesselheim as, kapczynski a. legal challenges to state drug pricing laws. jama. 2018;319(9):865–866. doi:10.1001/jama.2017.20952 memorandum of law in support of plaintiff's motion for preliminary injunction, aam v. frosh. (2017, july 6). association for accessible medicines. merle, r. (2017, march 8). martin shkreli’s long, strange tale could end with a decade in prison. the washington post. retrieved from https://www.washingtonpost.com/news/business/wp/2018/03/08/martin-shkrelis-longstrange-tale-could-end-with-a-decade-in-prison/?utm_term=.6a3d0364b013 mossinghoff, g. j. (1999). overview of the hatch-waxman act and its impact on the drug development process. food and drug law journal,54. retrieved from https://pdfs.semanticscholar.org/905b/215a807fab1b61b60e0279b5fedc8a3cae90.pdf. public health essential off-patent or generic drugs price gouging prohibition, md annotated code §2-801 §2803 sherman antitrust act, § 2 (1890). 53 the latest on the anda review backlog. (2016, september 15). retrieved from https://pharmdevgroup.com/latest-backlog-anda-reviews/ united states, government accountability office. (2016, august). generic drugs under medicare. retrieved from united states, government accountability office. (2016, august). https://www.gao.gov/assets/680/679022.pdf. u.s. senate, special committee on aging. (2016). special report of the u.s. senate special committee on aging on the sudden price spikes in off-patent prescription drugs: the monopoly business model that harms patients, taxpayers, and the u.s. health system(s. m. collins & c. mccaskill, authors) [s. rept.]. utah pie co. v. continental baking co. (april 24, 1967) (lexisnexis, boston college libraries, dist. file). drowning in debt: a legal analysis of pension systems in the state of illinois chea, pisei. “research announcement: moody's unfunded us state pension liabilities surge in fiscal 2017 due to poor investment returns.” moody's investors service, 27 aug. 2018, http://www.moodys.com/research/moodys-unfunded-us-state-pension-liabilitiessurge-in-fiscal-2017-pbm_1139183?wt.mc_id=am~rmluyw56zw4ubmv0x1jtql9syxrpbmdzx05ld3 nftm9fvhjhbnnsyxrpb25z~20180827_pbm_1139183. cloud, whitney. “state pension deficits, the recession, and a modern view of the contracts clause.” the yale law journal, vol. 120, no. 8, 2011, pp. 2199–2212. jstor, jstor, http://www.jstor.org/stable/41149590. “constitution of the state of illinois.” illinois general assembly home page, http://www.ilga.gov/commission/lrb/conent.htm. dabrowski, ted, and john klinger. “pensions 101: understanding illinois' massive, government-worker pension crisis.” illinois policy institute , 9 sept. 2017, https://www.illinoispolicy.org/reports/pensions-101-understanding-illinois-massivegovernment-worker-pension-crisis/. ellman, jeffrey b.; merrett, daniel j. "pensions and chapter 9: can municipalities use bankruptcy to solve their pension woes," emory bankruptcy developments journal vol. 27, no. 2 (2011): p. 365-414. heinonline, https://heinonline.org/hol/p?h=hein.journals/bnkd27&i=373. godofsky, david r., and emily hootkins. “illinois supreme court affirms constitutional protection of public pensions.” benefits law journal, vol. 28, no. 3. ingram, jonathan. “$203 billion and counting: total debt for state and local retirement benefits in illinois.” illinois policy institute , 4 apr. 2017, http://www.illinoispolicy.org/reports/203-billion-and-counting-total-debt-for-state-andlocal-retirement-benefits-in-illinois/. final hoefling, simon.docx bellarmine law society review volume xiii | issue ii article iii the insanity defense and psychiatry: the advantage of a cognitive approach simon hoefling boston college, hoeflisi@bc.edu the insanity defense and psychiatry: the advantage of a cognitive approach simon hoefling 1 abstract: the insanity defense is an important part of criminal law because it allows individuals who suffer from severe mental disorders to face more lenient sentences for their crimes. in american courts, several different standards for this defense strategy are codified into state law. the main point of dispute between psychiatrists and legal scholars is whether insanity defense rules should focus on cognition or volition. this paper examines some psychological disorders commonly associated with criminal activity and how they interact with the various standards employed by different states. ultimately, it argues that the insanity defense should be centered around a purely cognitive paradigm, as this creates a higher standard that more accurately implants the psychiatric conception of insanity into law. this debate is an important intersection between psychology and law and raises important questions about criminal culpability. i. introduction mental illness and the legal system have often crossed paths throughout human history, as some individuals plagued with delusions or those devoid of empathy find it difficult to conform their actions to societal norms and codified laws. in the united states, the insanity defense has often been used in high-profile cases such as the hinckley trial, wherein john hinkley was found not guilty of attempting to assassinate president reagan by reason of insanity, to the outrage of many americans. this case and others have brought the use of the insanity defense into the public eye; contrary to depictions in popular media, this type of defense strategy is extremely uncommon and rarely successful. only about 1% of criminal cases involve an insanity plea, and 1 simon hoefling is a second-year student at boston college studying political science and philosophy. he is interested in the intersection of psychology, philosophy, and law. simon would like to express thanks to professor andrea heberlein for directing his attention to psychiatry and the legal issues that accompany it. 33 of these, only 26% are accepted by the jury.2 nevertheless, this defense strategy represents a very important intersection between psychiatry and the legal system, raising pertinent questions about standards for culpability and the future of criminal justice in america. ii. history in general, the insanity defense is a form of legal argument in which the defendant admits to the action in question but denies responsibility because of some sort of mental illness.3 this approach has been around for as long as sophisticated legal systems had existed, with one of the earliest cases being argued in rome around 230 b.c.e. when a lawyer stated that “if a madman commit homicide he is not covered by the cornelian law because he is excused by the misfortune of his fate.”4 since then, this defense has appeared in criminal courts everywhere, with the standard for its application appearing in subtly different forms in various contexts. some of these legal definitions are still codified in american laws today. iia. the m’naghten rule the first appearance of the insanity defense that is relevant to contemporary american law was in 1843 in england. daniel m’naghten, a man troubled by paranoid thoughts, shot edward drummond, the private secretary to the prime minister at the time. he falsely believed that the tories were attempting to persecute him and thought that his act would put an end to the political conspiracy that was being leveled against him. he was found not guilty by reason of insanity.5 this decision, given it absolved a man of the murder of a prominent public figure, was extremely controversial in england, so much so that the house of lords requested a description of the criteria by which the judges arrived at such a conclusion. thus, the m'naghten rule was 5kaplan, robert. “daniel m’naghten: the man who changed the law on insanity.” psychiatric times 40, no. 1 (january 23, 2023). https://www.psychiatrictimes.com/view/daniel-m-naghten-the-man-who-changed-the-law-on-insanity. 4 walker, nigel. “the insanity defense before 1800.” the annals of the american academy of political and social science 477 (1985): 25–30. http://www.jstor.org/stable/1045999. 3 “insanity defense.” legal information institute, 2020. https://www.law.cornell.edu/wex/insanity_defense. 2 callahan, l a, h j steadman, m a mcgreevy, and p c robbins. “the volume and characteristics of insanity defense pleas: an eight-state study.” the bulletin of the american academy of psychiatry and the law 19 (1991): 331–38. https://pubmed.ncbi.nlm.nih.gov/1786413/. 34 born; this defense asserts that the defendant is afflicted with some sort of mental illness, to such a degree that they either did not know what they were doing when they committed the crime or did not know that what they were doing was wrong.6 if either of these conditions are met, the defendant can be declared not guilty by reason of insanity. iib. the irresistible impulse test the m'naghten rule was the primary standard for the insanity defense in the united states until the 1950s and remains the measure of criminal insanity in 25 states. however, even soon after its inception, criticisms were lodged from many sides. in 1887, the alabama supreme court adopted another method of determining criminal culpability known as the irresistible impulse test. this legal standard simply posits that the defendant, suffering from a mental illness, was unable to resist the urge to commit the crime.7 it was taken in many states as a corollary to the m'naghten rule: a separate set of circumstances to be considered in conjunction with the original standard. this is the status that it retains today in texas, though all other states have abandoned it. iic. the durham rule after this, a new formulation of the insanity defense was proposed with the appearance of a new case concerning mental illness in 1952. in this instance, monte durham was convicted of breaking into a house, but his lawyers argued that he was not culpable due to his mental illness. the judge overturned durham’s conviction after numerous testimonies stated that he was of unsound mind. the judge used his opinion to formally denounce the m'naghten rule, stating “by its misleading emphasis on the cognitive, the right-wrong test [the m'naghten rule] requires court and jury to rely upon what is, scientifically speaking, inadequate, and most often, invalid and irrelevant testimony in determining criminal responsibility.”8 later, the judge devised the durham rule, which states that “an accused is not criminally responsible if his unlawful act was 8 durham v. united states, justia (us court of appeals for the district of columbia circuit 1954). 7 “irresistible impulse test,” legal information institute, 2023. https://www.law.cornell.edu/wex/irresistible_impulse_test 6 “the m'naghten rule.” legal information institute, 2020. https://www.law.cornell.edu/wex/m%27naghten_rule 35 the product of mental disease or mental defect.”9 many scholars believed that this standard for criminal insanity moved in a more progressive and scientifically accurate direction. despite these benefits, it is believed that the durham rule still has many shortcomings; it has been all but abandoned in the realm of criminal law, with only the state of new hampshire still adhering to it.10 iid. the model penal code the final test for legal insanity was developed in 1972 after a team of legal scholars at the american law institute sought to create a model upon which states could update their own legal codes.11 the project, titled the model penal code, was incredibly broad in its efforts to reform the criminal justice system, touching on all pertinent topics, including the insanity defense. in section 4.01, a new standard was formed, stating, “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.”12 this rule seeks to fuse together the disparate standards for legal insanity that have been present throughout the history of common law. the model penal code rule, with some modifications, is the standard for criminal insanity in 23 states today. iie. federal rule each state has the ability to determine its own criteria for an insanity defense to be utilized in its own courts. on the federal level, the most recent formulation of an insanity defense is the comprehensive crime control act of 1984. u.s. code §17 states that this defense can be applied if “the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.”13 given that this standard is 13 18 us code § 17 insanity defense https://www.law.cornell.edu/uscode/text/18/17 12 model penal code § 4.01 http://individual.utoronto.ca/dubber/web/website/respons/model_penal_code.htm 11 “model penal code,” legal information institute, 2021. https://www.law.cornell.edu/wex/model_penal_code_(mpc) 10 “the insanity defense among the states,” january 23, 2019. https://www.findlaw.com/criminal/criminal-procedure/the-insanity-defense-among-the-states.html. 9 durham v. us 36 nearly identical to that of the model penal code, this paper will focus on the various rules used in states and exclude the federal rule from discussion. iii. analysis the contrasting qualities of each of these definitions are important to note with regard to criminal pathology. in psychology, cognition is all of the mental activities associated with understanding the world and performing actions. the m’naghten rule crucially focuses on cognition, specifically the defendant's cognitive awareness of the existence or wrongfulness of their criminal act. the test is designed to determine if the subject is conscious of their actions with regard to the law. thus, the m'naghten rule has been criticized for only taking cognition into account because some scholars believe the defendant’s ability to control their actions should be considered. furthermore, the particular language used in the second condition of the m'naghten rule has often been the target of criticism, as the word “wrongfulness” is seen as not engaging with law but with morality. this perhaps places the m'naghten rule in an awkward position concerning determining a subject’s knowledge of the law itself. the irresistible impulse test, on the other hand, draws upon the defendant’s volition rather than their cognition.14 it places the emphasis on whether the subject was able to willingly decide to commit the crime or not. similarly, the durham rule, often dubbed “the product test,” deals with the defendant’s volitional capacity. volition is one’s ability to voluntarily choose one's actions. a sneeze, for example, is an act that is not done with volition, whereas throwing a baseball is. thus, if one is afflicted with a mental disorder that involuntarily “produces” their crime like a sneeze, they are seen as having no free will in the matter and therefore are not responsible. some scholars believe that this is a more accurate and lenient formulation of the insanity defense. in sum, the m’naghten rule and these two methods outline the main point of dispute in these cases: cognition versus volition. according to some, the strength of the model penal code’s conception of the insanity defense lies in its synthesis of these two terms, as well as its integration of both law and morality. it attempts to combine all of the disparate notions of criminal insanity into one rule: either the defendant is cognitively unaware of the nature of his crime, or he is unable to willfully act in 14 “insanity defense,” legal information institute 37 accordance with the law. additionally, the model penal code deliberately uses both “criminality” and “wrongfulness” in this first provision concerning the cognitive aspect of insanity. in this way, the model penal code seeks to combine each aspect of the various legal standards for criminal insanity. iv. application of modern psychiatry each of these definitions of insanity is the attempt of the legal system to integrate scientific knowledge into the consideration of crimes. given the gap between these two separate institutions and the uncertain nature of psychiatry, any legal definition of insanity is destined to be at least somewhat vague and perhaps even inapplicable or incorrect in certain situations. however, the official clinical definitions of mental disorders can be helpful in elucidating what a proper standard looks like. the most recent diagnostic criteria can be found in the fifth edition of the diagnostic and statistical manual of mental disorders (dsm-5), published by the american psychiatric association. specific disorders most commonly associated with criminal acts can be input into each rule, and different determinations of sanity are arrived at by whether the emphasis is placed on cognition or volition. iva. antisocial personality disorder it is clear that certain disorders engage only with the volitional or product aspect of these legal definitions, and an issue raised by legal scholars and psychiatrists alike is that this allows an excuse for individuals who are otherwise clearly responsible for their acts. one such disorder is antisocial personality disorder, whose sufferers are known colloquially as “sociopaths.” the prevalence of this disorder could be as high as 3.6% of the population.15 it is defined as “a pervasive pattern of disregard for and violation of the rights of others.”16 symptoms include lack of remorse, disregard for the safety of others, and repeated behaviors that violate social norms or laws. consequently, this disorder is overwhelmingly associated with a high rate of incarceration: 16 “personality disorders.” diagnostic and statistical manual of mental disorders: dsm-5. arlington, va: american psychiatric association, 2017. 15 “antisocial personality disorder: often overlooked and untreated.” american psychiatric association, december 29, 2022. https://www.psychiatry.org/news-room/apa-blogs/antisocial-personality-disorder-often-overlooked. 38 studies have found that at least 16% of the male prison population in the united states has antisocial personality disorder.17 however, despite the intense symptoms, people with this disorder are still cognitively healthy and experience no delusions, hallucinations, or paranoia. in fact, those with this disorder can actually become extremely successful when they stay out of prison; a study of high-level corporate professionals found that 21% meet the criteria for antisocial personality disorder. evidently, this disorder does not cause its sufferers to be completely unable to function in society, and offenders with this disorder have full knowledge that their actions are wrong or illegal they may even sadistically revel in this fact.18 given this information, many critics worry that those with antisocial personality disorder may still be able to avoid penalties for their criminal actions under certain insanity defense rules, namely the irresistible impulse test and the durham rule. within both these paradigms, crimes committed by individuals with antisocial personality disorder could possibly be grounds for an insanity defense as they are unable to control their behavior given their pathology. it could potentially be argued that a crime committed by someone with antisocial personality disorder is involuntary. on the other hand, states with the m'naghten rule would not allow such an argument to be mounted because those with antisocial personality disorder clearly understand their actions and are aware of the law. almost all psychiatrists agree that subjects with antisocial personality disorder should not avoid consequences for their crimes, and the leniency of volitional tests with regard to aspd would, therefore, be a weakness. tellingly, the creators of the model penal code seemed to have recognized this oversight, as section 4.01(2) specifically prohibits the use of the insanity defense for those with antisocial personality disorder.19 the irresistible impulse test and durham rule contain no such provision. ivb. pedophilic disorder 19 model penal code § 4.01(2) http://individual.utoronto.ca/dubber/web/website/respons/model_penal_code.htm 18 holt, s e, j r meloy, and s strack. “sadism and psychopathy in violent and sexually violent offenders.” journal of the american academy of psychiatry and the law 27 (1999): 23–32. https://pubmed.ncbi.nlm.nih.gov/10212024/. 17 kiehl, kent, and morris hoffman. “the criminal psychopath: history, neuroscience, treatment, and economics.” jurimetrics 51 (2011): 355–97. https://www.ncbi.nlm.nih.gov/pmc/articles/pmc4059069/. 39 another disorder in the dsm-5 that affects the volitional capacity is pedophilic disorder, which involves intense sexual urges towards children.20 surveys have concluded that about 1% of the population may have this disorder.21 pedophilic offenders could perhaps be allowed an insanity defense under the irresistible impulse test and the durham rule if it is argued that they are unable to stop themselves from committing related crimes due to their diagnosed disorder. however, unlike antisocial personality disorder, there is no specific provision in the model penal code that prevents the use of the insanity defense for pedophilic individuals. this opens the door for individuals diagnosed with this disorder to employ an insanity defense in states with this standard. indeed, this exact scenario occurred in 1994 in maryland, a state that adheres to the model penal code rule. james kowalski was accused of running a pedophile ring and thus charged with 84 counts of child abuse. his lawyer argued that pedophilia was a mental illness with powerful urges, the intensity of which left him unable to follow the law.22 ultimately, the insanity plea was rejected, and the man was convicted of the crime, but the very fact that such a defense was possible concerned many legal scholars, who argue that pedophilic disorder is a potentially disastrous oversight of the model penal code.23 any use of the insanity defense for pedophiles would be entirely impossible by the m'naghten rule, as these individuals are completely aware of the illicit nature of their acts. ivc. schizophrenia contrary to psychopaths, sociopaths, and pedophiles, those with a psychotic disorder such as schizophrenia are more traditionally considered to be “insane.” schizophrenia, according to the dsm-5, is characterized by delusions, hallucinations, and disordered thinking.24 sufferers are often plagued with paranoia as well. in general, schizophrenia causes the subject to be 24 “paraphilic disorders,” diagnostic and statistical manual of mental disorders: dsm-5 23 jeter, jon. “kowalski found responsible in molestation of four boys.” the washington post, june 7, 1994. https://www.washingtonpost.com/archive/local/1994/07/07/kowalski-found-responsible-in-molestation-of-four-boys /6bd53cbe-5267-49c9-87d7-049f6b2ac8c0/ 22 jeter, jon. “pedophile seeks insanity ruling.” the washington post, february 9, 1994. https://www.washingtonpost.com/archive/local/1994/02/09/pedophile-seeks-insanity-ruling/3bf285ad-23e8-49e0-bc 0e-1509331191b2/. 21 tenbergen, gilian, matthias wittforth, and helge frieing. “the neurobiology and psychology of pedophilia.” frontiers in human neuroscience 24 (2015). https://pubmed.ncbi.nlm.nih.gov/26157372/. 20“paraphilic disorders.” diagnostic and statistical manual of mental disorders: dsm-5. arlington, va: american psychiatric association, 2017. 40 radically out of touch with reality itself. these individuals are often severely incapacitated and unable to take care of themselves, with some even lapsing into catatonic states. only about 0.32% of people will suffer from this disorder in their life.25 however, numerous surveys have found that almost half of homeless people unfortunately suffer from one of the psychotic disorders, with 10% plagued specifically with schizophrenia.26 this illustrates the severity of the functional impairment that it can cause, as those with the disorder are often incapable of taking care of themselves. nearly every scholar agrees that people plagued with psychosis should have the insanity defense available to them. indeed, psychotic individuals who commit a crime would be able to pursue an insanity plea under the irresistible impulse test and the durham rule because they could have been unable to control their actions in the legal sense. therefore, schizophrenia is covered under volitional approaches. in addition to this, the m'naghten rule covers psychotic disorders; psychotic people are often so out of touch with reality that they have no notion of the rules that govern them or what they are actually doing at the time. in fact, it is very likely that daniel m’naghten, the rule’s namesake, was suffering from a psychotic disorder at the time of his crime. an insanity defense for schizophrenics could also be pursued under the model penal code rule, theoretically in either of the two prongs, as it could qualify as a cognitive impairment or a volitional one. thus, schizophrenia, arguably the most intense and debilitating psychiatric disorder, is incorporated into the insanity defense in all its iterations. v. advantages of a cognitive approach constructing an adequate standard for the insanity defense is extremely important because it will help those who have an incapacitating mental impairment and disallow others from taking advantage of the system to achieve more favorable rulings in court. analysis of these three disorders and their relationship to the various versions of the insanity defense rule provides evidence for the superiority of a purely cognitive approach. the irresistible impulse test, 26ayano, getinet, getachew tesfaw, and shegaye shumet. “the prevalence of schizophrenia and other psychotic disorders among homeless people: a systematic review and meta-analysis.” bmc psychiatry 19 (2019). https://bmcpsychiatry.biomedcentral.com/articles/10.1186/s12888-019-2361-7. 25“schizophrenia.” world health organization, january 10, 2022. https://www.who.int/news-room/fact-sheets/detail/schizophrenia. 41 durham rule, and model penal code rule are poor formulations of the insanity plea because of the loophole they leave open through the volitional provisions. the m'naghten rule, though the oldest of them and therefore the most distant from modern psychiatry, is nonetheless more accurate in its staging of insanity because of its emphasis on the subject’s ability to understand and navigate the world. a lack of volition alone is not enough to disqualify an individual from criminal responsibility because it is too vague and difficult to recognize. determining whether an act is the product of mental illness or if a subject is truly unable to resist their urges is not a clear-cut decision in the field of psychiatry. people with antisocial personality disorder or pedophilic disorder may be able to argue that their incredibly strong desires “force” them to commit crimes, but it is impossible to determine if this is actually true because the space between mental processes and behavior is murky. many of these individuals are fully capable of existing in society, walking among us, working in our companies, and participating in our government, so it is clear that at least some of them do have the capacity to resist their urges and stay out of prison. research has found that “criminal and non-criminal psychopaths share the same neuropsychological profile,” and whether a psychopath ends up committing a crime is more so determined by their background, specifically socioeconomic status and early parental supervision.27 similarly, some individuals diagnosed with pedophilic disorder do not offend at any point in their lives and instead develop numerous coping mechanisms.28 ascertaining the extent of a subject’s volitional ability is nearly impossible in a psychiatric evaluation, while a lack of proper cognition is extremely obvious because it is constantly manifested in the sufferer’s behavior. psychopaths and pedophiles have the ability to blend in with normal, healthy individuals, but schizophrenics often do not. this variance in the ability of these disordered individuals to resist their urges places the volitional tests on very shaky ground; the psychological determinism that they advocate for is insufficiently backed up. even if it is somehow granted that some psychopaths or pedophiles have extremely strong desires that they are to curb, there is not sufficient cause to consider them in the company 28stevens, eleanor, and jane wood. “‘i despise myself for thinking about them.’ a thematic analysis of the mental health implications and employed coping mechanisms of self-reported non-offending minor attracted persons.” journal of child sexual abuse 28, no. 8 (2019): 968–89.https://pubmed.ncbi.nlm.nih.gov/31509097/ 27jarrett, christian. “not all psychopaths are criminal.” british psychological society, june 26, 2008. https://www.bps.org.uk/research-digest/not-all-psychopaths-are-criminal. 42 of those who genuinely cannot tell real from imaginary. the fact of the matter is that they still know that what they are doing is wrong. they suffer from no delusion or mental distortion that renders them unable to be completely aware of the law in its intricacies or even common moral norms at large. fully lucid in themselves yet plagued by uncomfortable and distressing impulses, these individuals should prevent their urges by seeking psychiatric treatment and alleviating their symptoms; many already do. on account of this, psychopaths and pedophiles should not be allowed to take an insanity plea to escape consequences for their actions, which they were wholly aware of at the time. someone who is perhaps unable to control themselves can still have full, perhaps even intimate and professional, knowledge of the law and a competent ability to escape the criminal fate that their disorder has ostensibly condemned them to. unfortunately, the volitional rules of certain insanity defenses leave the option open for these characters to exploit the system. in addition to this, a purely cognitive approach like that of the m'naghten rule already contains elements of volition it, only with a higher standard for determining insanity. nearly everyone would agree that schizophrenics should be allowed the insanity plea. indeed, they are afforded it by all of the various rules that exist in the united states, including those like the durham rule that only concern the subject’s ability to control their actions. schizophrenia often causes auditory and visual hallucinations, rendering the sufferer unable to determine what is real from what is a figment of their imagination. thus, it follows that untreated schizophrenics cannot control what they do because they are not even in touch with reality itself; they cannot resist their delusions, and if they commit some horrific act because a voice in their head tells them to do so, the crime is a product of their illness. we see here that the cognitive defect present is actually the cause of the volitional deficit. someone who is unaware of the true nature of their actions is necessarily unable to properly control themselves. therefore, a volitional aspect of insanity is already contained within the cognitive aspect of it, only with a higher threshold for consideration. this means that anyone who meets either of the requirements of the m'naghten rule would also already be considered insane by the irresistible impulse test, durham rule, or model penal code rule standards; cognition alone is a higher bar. solely volitional tests are too broad, while the m'naghten rule is more specific and sets a higher standard for what is considered insanity. it makes sense that an extremely strict and 43 limiting standard should be set for insanity because of the minuscule number of cases that actually concern it. furthermore, stricter evaluations of criminal insanity are important because they disallow malicious actors from taking advantage of a rule designed for those who are genuinely disabled by their disorder. to eliminate the volitional provisions in the insanity defense is to prevent certain individuals from taking advantage of the system to earn themselves more lenient sentences. the flaw of the volitional perspectives of criminal insanity is a completely unnecessary ambiguity in this corner of the law, and it can be avoided through an entirely cognitive approach. the m'naghten rule provides this wholly cognitive standard which more appropriately situates criminal insanity in whether an individual is able to understand the world around them, the inability to do which is far more easily diagnosed than whether one can control their actions. ultimately, it is up to a jury to decide whether a defendant successfully employs the insanity plea. as mentioned before, pedophiles who have used the defense have been unsuccessful because of this fact. furthermore, a legal scholar, when writing on new hampshire, the only durham rule state, argued that “whether a jury would regard a psychopath as criminally insane is doubtful.”29 it has been shown that juries rarely, if ever, allow psychopaths and pedophiles insanity defenses under the volitional rules. despite this, all it takes is one strangely inclined jury, and a pedophile may be able to avoid prison through an insanity defense; even if it is largely unsuccessful, the loophole still exists and must be amended. the m'naghten rule is simply a more refined and focused version of the volitional rules. it allows an insanity defense to those who are out of touch with reality while stopping those who are not from utilizing one. this is the most accurate codification of common sentiment into law. half of the states recognize the superiority of the m'naghten rule; most others use the model penal code rule, which, in its second provision, allows the possibility for paraphilic disorders to count as insanity. even with the supposed steadfastness of juries with regard to certain disorders, this still creates an uneasy and perilous situation going forward. psychiatry must work in tandem with the law to furnish fair and accurate standards that protect the rights of the accused while also maintaining a certain precision that prevents the abuse of such rules. a cognitive approach 29reid, john p. “the working of the new hampshire doctrine of criminal insanity .” university of miami law review 15 (1960): 14–57. https://repository.law.miami.edu/cgi/viewcontent.cgi?article=3414&context=umlr 44 to criminal insanity meets both of these criteria and places the insanity defense in a strict and clear-cut position, one void of any ambiguity or cracks to slip through. 45 41 potential federal regulation of covenants to not compete abigail korrell introduction the competition among companies for customers is obvious, but behind the scenes there is also fierce competition among these companies for the talent that develops and markets their products. one strategy companies employ to prevent a competitor from stealing top talent (and potentially also trade secrets or other confidential information) is to require employees to agree, in advance, that at the end of their employment they will not work for any competitor for a specified period of time, often a year or more. one of the most significant problems in employment law is the diversity of state law on enforcing these covenants not to compete (noncompetes).i some states freely enforce these agreements; some states enforce them in narrow circumstances; and a few states, including california, prohibit them altogether. because employees are mobile, often moving to obtain new and better employment, this inconsistency creates uncertainty and in some cases a "race to the courthouse," with litigants trying to find the forum friendliest to their positions. because the markets served by large companies and the talent pool they hire from are often nationwide, which implicates interstate commerce, the federal government could intervene and adopt a uniform, national rule. this paper will explore the pros and cons of adopting pro-noncompete federal regulation, anti-noncompete federal regulation, or leaving the issue for states to solve. history in the 15th, 16th, and 17th centuries, the courts of england invalidated noncompetes for two reasons: the value to society of keeping skilled labor in the public domain and maintaining the employee's right to seek a livelihood.ii in the 18th century, case law began to change. british 42 courts found that these partial restraints on trade could be enforceable if they were reasonable, that is, if they were specific to a time or place, not general in nature, and if employers could demonstrate an economic necessity for the restriction.iii these two conflicting concerns (the importance of free moving labor versus the importance of preventing unfair competition) are the foundation for the modern noncompete debate. current use and trends according to a 2018 study, 18% of the labor force was bound by a noncompete in 2014, and 38% had been at some point in the past.iv this is a testament to the ubiquity of noncompetes in the modern labor market.108 in addition, not all noncompetes are signed at the beginning of employment, when an employee has the option to sign or just look for other employment. one in three noncompetes is requested after the employee has already accepted the job and has made "employer specific investments" (i.e., moving or turning down other offers).v in that situation, the employee appears to have significantly lower bargaining power, and this is reflected in the data. employees who sign noncompetes before accepting a job have better pay, training, access to relevant information, and job satisfaction than those who were required to sign after they had begun employment.vi the diversity of state law most states, including washington, massachusetts, and minnesota generally accept and enforce noncompetes. in these states, judges conduct balancing tests similar to those described above in english common law, enforcing the agreements if they are reasonable in scope and in what they protect the company from.vii in perry v. moran (1987) the court found that a 108 starr et al. found that 12% of employees without a bachelor’s degree who earn less than $40,000 a year will sign a noncompete every year. this is a serious issue but will not be addressed due to space and because it is nearly universally frowned upon, inspiring the proposal of an act of congress to address it (the move act), but not much debate. 43 noncompete "for a reasonable time and within a reasonable territory, as may be necessary for the protection of the interests of the employer without imposing undue hardship on the employee, is valid."viii the different states balance these factors slightly differently, but the parts of the equation are all the same, stemming from common law.ix other states impose statutory restrictions on the enforcement of noncompetes. oregon takes a creative stance on noncompete enforcement.x in order for a noncompete to be enforceable, oregon requires the employee to be notified of requirement at least two weeks before accepting the job, the employer to have legitimate interest in enforcement, the employee to be compensated for the agreement, and for it to last less than 2 years.xi california, colorado, north dakota, and oklahoma all categorically reject noncompetes as antithetical to public policy.xii statute §16600 of the california state code states "except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”xiii this makes california the ideal state for an employee who no longer wishes to be bound by her previous noncompete to sue a former employer to try to get out of such an agreement. the california courts are not shy about applying these laws, even in cases that seem to have little connection to the state. in application group v. hunter (1998), the court found that it could apply the california law against noncompetes and refuse to enforce an agreement between a maryland employee and her old maryland employer, because the new company she wanted to join was based in california.xiv in this case, the employee in question would, if hired, continue to live in maryland during her employment.xv the maryland employment agreement even specified in a “choice of law” clause, that maryland law would apply to any dispute about the agreement. california used the "red pencil doctrine"xvi to remove this provision from the contract. in this case, california assumed a 44 right to impose its law because the california court determined california had more interest in the dispute than the other state.xvii despite the state’s hostile view of noncompetes, 19% of workers in california are bound by a noncompete, suggesting that employers foresee an ability to enforce outside of california. xviii due to the diversity of state law, choosing a litigation venue is vital to a litigant's strategy. if the dispute over a noncompete agreement is fought in a california court, this may lead to invalidating a noncompete that another state’s courts would have enforced. in contrast, in a dispute in a washington court, an employer is more likely to have its agreement enforced.xix the judicial system generally prohibits trying the same case in multiple courts. so, the first state to hear the controversy is usually the one to see the issue through.xx this creates a situation where parties have incentives to sue fast and thereby pick the potentially favorable forum. some state courts, notably california’s, have been generous in allowing jurisdiction in a good faith attempt to protect their citizens' legitimate interests. this "race to the courthouse" disproportionately favors the departing employee, who usually knows all the facts (the fact that she has a job offer from a competitor) before her previous employer does. (this fact pattern is contrary to common perception that the employer has more power in noncompete litigation due to their superior resources.xxi) analysis general arguments for federal involvement x solves jurisdictional problems resulting in fairness and predictability x protects a person’s ability to reasonably expect the fulfillment of a contract x preservation of constitutionally mandated judicial roles 45 any federal law concerning noncompete enforcement would preempt conflicting state laws. this would adopt a uniform standard for enforcement nationwide and would reduce the forum shopping by parties to noncompete disputes. with only one law, the question of where to sue becomes less relevant. a nationwide standard and decreased incentive to look for a favorable court would create predictability for all involved. the courts’ ruling in home insurance co. v. dick (1930) implies that due process requires that a party to a contract be free of surprise in the process of adjudicating a claim.xxii under the current system, two parties located in the same state can sign a contract in that state and choose that state in a choice of law provision. a reasonable person would be surprised to have to enforce that contract in another state under unforeseen, conflicting laws. the court said the u.s. constitution’s guarantee of due process means that people are entitled to know what law is governing their actions to be able to abide by it. in allstate co. v. hauge (1981), justice brennan asserted that “‘change in residence to forum state’ before filling suit is not, by itself, sufficient to justify application of forum law.”xxiii this sets a precedent that implies noncompete cases decided on recent moves are not valid. unfortunately, noncompete cases rarely receive appellate review. most challenges stop because cases are rendered moot by the expiration of the terms of the contract before any higher appeals courts can rule on them. arguments for the federal government to invalidate all noncompete agreements x employee mobility and ownership of human capital x promoting competition the government has an interest in making sure that employee skills are a public good. as a part of working for a particular company a given employee gains human capital. human capital is the combination of education, trade secrets, mundane knowledge about office management, 46 client relationships, and any training an employee has received on the job.xxiv this leads to the questions about who owns this capital. the company invested time and resources in bringing in this person and in training him or her. the employee, on the other hand, is the vessel for this knowledge and, beyond that, is an autonomous person with significant legal rights. stone argues that this is part of an employee's compensation in a changing workplace because part of what people are compensated with is future marketability.xxv if the federal government were to ban noncompetes, it would significantly increase employee mobility. the employee would be free to take his or her human capital to the public, to choose a job that realizes his or her full potential, or to open a new company. new companies increase competition which will benefit the public. companies who want new talent are free to pursue it. when employees cannot work in their industry of expertise, their human capital is removed from the market and allowed to stagnate.xxvi the burdens of a noncompete are especially heavy when employees get fired without cause. getting fired in this manner has increased ramifications on the right of that person to work as they cannot apply their expertise to the relevant industry and employees fired in this manner have likely made no effort to account for a period of time when they cannot work at their highest earning potential. even for those who are not fired, noncompetes can still cause problems: an employee with a noncompete is less likely to look for opportunities to get a better job or make more money because the noncompete creates a significant barrier to beginning that process. if the noncompetes are not enforced, then employees have more room to innovate and create competing products and services free from interference after their employment ends. 47 arguments for the federal government to protect noncompete agreements x protects employers and any investments in training employees x protects trade secrets x help to keep labor cost reasonable and therefore lower consumer cost for goods one of main reasons employers use noncompetes is to help protect their trade secrets; the agreements can prevent or at least delay the loss of confidential information (known by a departing employee) to a competitor. some argue that enforcing existing trade secret rules would adequately protect the employer's interests without damaging employee mobility.xxvii this is a good idea in theory but the law has to take in to account practice. in practice, trade secret violations are very hard to prove. it is difficult to establish who had an idea first, if the competitor had thought of the idea before the new employee was hired, if the employee even knew that particular trade secret in the course of their duties, and many other questions of the kind. all of these disputes will be costly to fight out in court. noncompetes simplify the protection of confidential information. noncompetes also facilitate employer investment in training and employee access to jobrelated trade secrets.xxviii employers argue that they need noncompetes to protect the investments that they make in employee training, which can be costly and time consuming for a company. noncompetes are a profit-maximizing tool for companies by "depressing wage growth, enhancing productivity through training, information sharing, lowering turnover costs, lowering product-market competition by preventing valuable info and skills from reaching competitors."xxix companies argue that they need these benefits in order to remain competitive and produce goods at a cost that consumers can afford. the employer has a legitimate interest in keeping other companies from "free riding" by hiring an employee who has specialized 48 knowledge and training provided by and specific to that employer's company.xxx the law is unfriendly to "free riding," and intellectual property rights “promote innovation by allowing owners to prevent others from appropriating much of the value derived from their inventions or original expressions."xxxi in noncompetes, the proprietary information is contained in a free person. however, the court has consistently found that the innovations of a company belong to that company.xxxii even the individual who invents the innovation does not have a right to it if they were hired to come up with it.xxxiii this establishes a legal precedent to support using noncompetes to protect employers by showing that having knowledge does not translate to a right to use that knowledge however one pleases. the country and the market would both benefit from the enforcement of noncompetes. as established above, noncompetes are instrumental in protecting secrets, which increases innovation, and in facilitating investment and training. establishing a uniform national rule would result in less forum shopping and more predictability, so that no single state, e.g., ca, would benefit from having laws that let its companies raid employees from other states with noncompetes, and would keep costly trade secret litigation to a minimum by replacing it with simpler noncompete cases. arguments for the status quo x federalism and innovation x lack of national consensus among states or companies some, if very few, noncompetes and employment arrangements involve no interstate commerce at all. in these cases, federal oversight would be unconstitutional and violate the principles of federalism. this may not be a significant barrier since the market is interstate. despite changes in the economy in the past few decades, it is reasonable to assume states still 49 have unique interests that are harmed by federal preemption. additionally, the public may benefit by allowing states to continue to be, as justice brandeis described, “laboratories of democracy".xxxiv if a standard federal system is imposed, states may stop coming up with innovative laws. there will be no way to try new ideas on a small scale to test their viability. states who want to innovate will have their hands tied. the current system certainly comes with extra costs as it also allows companies to choose locations/headquarters. some companies go to california (google, apple) where there are no noncompetes, but others go to washington (microsoft, amazon) where the agreements are enforced. the fact that large tech companies with many high skilled workers have chosen different states with very different noncompete policies suggests that companies do not all agree on what the best policy is. similarly, the diversity of state law suggests that the united states lacks a national consensus on noncompetes. therefore, federal intervention would be contrary to what the legislators of some states have found to best protect their interests. conclusion and personal statement given current trends in practice, the most practical way to impose constitutionally-valid practices in noncompete enforcement is federal regulation that enforces reasonable noncompetes. the difficulty of proving trade secret cases makes a solution based on intellectual property law too burdensome on courts and parties. a broad federal law could contain limits on noncompete practice. it could protect employees with regulations on duration, income, and other factors. the government has a legitimate interest in enforcing fair noncompetes signed by autonomous adults. the law is only legitimate if its effects can be reasonably predicted and uniformly applied. the system needs to reward good faith efforts to follow the law and enforce legitimately constructed contracts. noncompetes have the potential to optimally balance the 50 importance of employee mobility (to employees and the economy) with the need to protect company investments in people and technology, as well as to prevent unfair competition. as a person who tends to side with legal formalists, i am wary of increasing federal oversight of something as fundamental as the right to work. however, i think that the current interstate discrepancy raises a serious constitutional question when states claim jurisdiction over cases that are at best tangentially related; it also poses practical problems. i would rather have a single, if imperfect, law, than 50 different laws, which creates inconsistency and unpredictability. in the first scenario, every person who signs a contract can reasonably predict the consequences of their actions and rely on the legal protection of it. our economy relies on a trust that contracts will be fulfilled. enforcing noncompetes creates stability and rewards innovation in the market. 51 footnotes i viva r. moffat* (2012). article: making non-competes unenforceable. arizona law review, 54, 939. ii u.s. department of the treasury office of economic policy (march 2016). non-compete contracts: economic effects and policy implications iii ibid iv starr, evan and prescott, j.j. and bishara, norman d, noncompetes in the u.s. labor force (september 12, 2018). u of michigan law & econ research paper no. 18-013. available at ssrn: https://ssrn.com/abstract=2625714 or http://dx.doi.org/10.2139/ssrn.2625714 p.2). v starr, evan and prescott, j.j. and bishara, norman d, noncompetes in the u.s. labor force (september 12, 2018). u of michigan law & econ research paper no. 18-013. (p.3) vi ibid vii david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. viii perry v. moran ix phillip d. thomas + (2018). article: would california survive the move act?: a preemption analysis of employee noncompetition law. university of chicago legal forum, 2017, 823 x melissa ilyse rassas* (winter, 2009). comment: explaining the outlier: oregon's new non-compete agreement law & the broadcasting industry. university of pennsylvania journal of business law, 11, 447. xi ors §653.295 xii david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. xiii california code §1600. note: this statute’s exceptions are incredibly narrow. xiv david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. xv phillip d. thomas + (2018). article: would california survive the move act?: a preemption analysis of employee noncompetition law. university of chicago legal forum, 2017, 823 xvi lara grow* & nathaniel grow** (summer, 2017). article: protecting big data in the big leagues: trade secrets in professional sports. washington and lee law review, 74, 1567. xvii david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. xviii u.s. department of the treasury office of economic policy (march 2016). non-compete contracts: economic effects and policy implications p.3 xix david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. xx home insurance co. v. dick, 281 u.s. 397 xxi david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. xxii ibid xxiii ibid xxiv katherine v.w. stone* (february, 2001). article:the new psychological contract: implications of the changing workplace for labor and employment law. ucla law review, 48, 519. xxv ibid xxvi ibid xxvii charles tait graves * (winter, 2010). article: analyzing the non-competition covenant as a category of intellectual property regulation. hastings science & technology law journal, 3, 69. xxviii ibid xxix starr et al. xxx david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. xxxithe u.s. treasury department (2007) antitrust guidelines and policy statements § 114. xxxii catherine l. fisk + (fall, 1998). article: removing the 'fuel of interest' from the 'fire of genius': law and the employee-inventor, 1830-1930. 65, 1127. xxxiii ibid xxxiv justice louis brandeis in new state ice co. v. liebmann (1932). 56 n.y. correct. law § 611 u.s. const. amend. viii. u.s. dep’t of just., escorted trips § 570.40 (2008) u.s. marshals service, restraining devices § 9.1(d)(3)(e) (2010) united states, cong. senate. first step act of 2018. 115th cong., 2nd sess. s. 3649. § 4322 potential federal regulation of covenants to not compete alexander hamilton (1788). federalist 78. application group v. hunter (1998) cali orb §16600 catherine l. fisk + (fall, 1998). article: removing the 'fuel of interest' from the 'fire of genius': law and the employee-inventor, 1830-1930. 65, 1127. charles graves * (winter, 2010). article: analyzing the non-competition covenant as a category of intellectual property regulation. hastings science & technology law journal, 3, 69. david a. linehan* (2012). article: due process denied: the forgotten constitutional limits on choice of law in the enforcement of employee covenants not to compete. utah law review, 2012, 209. justice louis brandeis in new state ice co. v. liebmann (1932). katherine v.w. stone* (february, 2001). article:the new psychological contract: implications of the changing workplace for labor and employment law. ucla law review, 48, 519. melissa ilyse rassas* (winter, 2009). comment: explaining the outlier: oregon's new noncompete agreement law & the broadcasting industry. university of pennsylvania journal of business law, 11, 447. ors §653.295 perry v. moran (1987) phillip d. thomas + (2018). article: would california survive the move act?: a preemption analysis of employee noncompetition law. university of chicago legal forum, 2017, 823 starr, evan and prescott, j.j. and bishara, norman d, noncompetes in the u.s. labor force (september 12, 2018). u of michigan law & econ research paper no. 18-013. sharon k. sandeeri + and elizabeth a. rowe ++ (2017). article: debating employee non-competes and trade secrets. santa clara high technology law journal, 33, 438. the u.s. treasury department (2007) antitrust guidelines and policy statements § 114. u.s. department of the treasury office of economic policy (march 2016). non-compete contracts: economic effects and policy implications viva r. moffat* (2012). article: making non-competes unenforceable. arizona law review, 54, 939. lgbt rights in russia: the 'gay propaganda' law and its consequences in chechnya 1 the bellarmine law society review volume xi issue i article 1 lgbt rights in russia: the ‘gay propaganda’ law and its consequences in chechnya daniela vazquez loriga boston college morrissey college of arts and sciences, vazquedb@bc.edu 2 lgbt rights in russia: the ‘gay propoganda’ law and its consequences in chechnya daniela vazquez loriga* abstract: russia’s anti-lgbt mizulina law, named after its author, elena mizulina, was signed into law on june 29, 2013 by president vladimir putin.1 the law, which has since been dubbed the ‘gay propaganda law’ is aimed at “protecting children from information promoting the denial of traditional family values” and bans “promotion of nontraditional sexual relations to minors,” thus prohibiting children from accessing information about the lgbt community through the press, television, and internet.2 those found to be disobeying this law can face fines of ₽5,000, and organizations can face up to ₽1,000,000 in penalties or even a temporary suspension of their activities.3 though these fines may seem quite large, even harsher repercussions can be faced if the law is defied through mass media, like the internet, and tourists can face deportation. while this hostility towards lgbt russians is not uncommon, the law also affects the accessibility of educational and other social support services to lgbt youth. as a result, both children and adults have faced tremendous harm, and horrific treatment of lgbt russians has notably increased. most devastatingly, however, secret detention camps for homosexual men in chechnya have been created, serving as another means through which the russian government can perpetuate injustice. in its investigation of russian and chechnyan history, this article demystifies the atmosphere that led to the passage of the gay propaganda law and its harsh implementation. history: russian homophobia and chechnya’s complicity anti-lgbt sentiment is prominent in russian history: peter the great banned sodomy in the army and navy in 1716, nicholas i criminalized same-sex sexual relations in 1835,4 and even * daniela vazquez loriga is a third-year undergraduate at boston college pursuing a b.a. in international studies with a minor in history. her academic interests lie at the intersection of international human rights, u.s foreign policy, war and terrorism, and social movements. the author wishes to thank her parents, addel and arletys, for their unwavering love and support, and professor jennie purnell for her guidance and inspiration. 1 kathleen e. feyh. "lgbtq oppression and activism in russia: an interview with igor iasine." qed: a journal in glbtq worldmaking 2, no. 1 (2015): 100-08. accessed april 28, 2020. doi:10.14321/qed.2.1.0100. 2 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth,” accessed april 28, 2020, https://www.hrw.org/report/2018/12/11/no-support/russias-gay-propaganda-law-imperils-lgbt-youth#page 3 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth.” 4 ibid. 3 though the bolshevik’s decriminalized homosexuality in 1917, stalin reinstated it in 1933.5 in fact, during stalin’s reign, men found guilty of sexual relations could face prison time of up to five years of hard labor.6 as a result of this policy, thousands of men in the soviet union were convicted of sodomy and ordered to labor camps and psychiatric institutions. although women in same-sex relationships were not criminalized, they could also face forced psychiatric hospitalization. the collapse of the soviet union brought hope to the russian lgbt community that a new era of freedom from persecution awaited them, leading to the emergence of many lgbt organizations. indeed, in 1993, after the collapse of the ussr, same-sex relationships between men were decriminalized, and by 1999, the russian ministry of health removed the diagnosis of homosexuality from the international classification of diseases (icd).7 russian public opinion surveys displayed a decrease of homophobia in the 1990s, but now also show an increase during the presidency of vladimir putin.8 moreover, the european court of human rights saw an increase in russian lgbt litigation from 2.1% in 2002 to 22.5% in 2007.9 by 2017, the levada center, a russian polling organization, also found that 81% of the russian public disapproved of same-sex relationships.10 furthermore, 63% of respondents in a 2018 government-run poll believed that the spread of “gay propaganda” was destroying the traditional russian values.11 this apparent near-uniformity in public opinion is the russian government’s typical defense of the gay propaganda law, thus claiming that the state protects the traditional values of russia through its legal enforcement. supported by domestic conservatives, putin’s implementation of the gay propaganda law beginning in 2013 led to a shutdown of lgbt spaces such as websites and support groups that offered information and services to many lgbt 5 kathleen e. feyh. "lgbtq oppression and activism in russia: an interview with igor iasine, " pg. 100 6 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth.” 7 ibid. 8 kathleen e. feyh. "lgbtq oppression and activism in russia: an interview with igor iasine, " pg. 101 9 stephan polsdofer. “pride and prejudiced: russia's anti-gay propaganda law violates the european convention on human rights." american university international law review 29 (kondakov 2019): 1069-1096. https://proxy.bc.edu/login?qurl=https%3a%2f%2fsearch.proquest.com%2fdocview%2f1613593144%3faccounti d%3d9673. 10 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth.” 11 ibid. 4 youth.12 consequently, the government has been able to frame the law as protecting russian traditions, including family structures, that are seemingly threatened by homosexuals. considering the fact that this law’s defense of russian tradition is central to the russian conservative movement, president putin has been able to apply this law lethally in the chechen area. after the fall of the ussr, there was conflict between chechnya and russia, especially in terms of militarization: chechnya attempted to claim independence from 1991 to 2000, but by february 2000, rebels in chechnya had lost grozny, the capital, to insurgent russian forces.13 as a result, president putin effectively implemented direct control from moscow only three months later.14 this conflict led to militarized public life, poverty, poor education, and lawlessness in chechnya, contributing to the presence of a strong patriarchal order, or a “war generation,” that lacked education and proper socialization.15 one member of this generation, akhmad kadyrov, was the kremlin-backed leader of chechnya and promoted a sufist version of islamization. in return for kadyrov keeping the region under control (after two wars for independence in the 1990s into the early 2000s), kadyrov was granted more freedom to rule as he saw fit.16 thus, his promotion of strict islamic rule in the predominately muslim region disfavored the gay population, a policy that continued to be enforced by his son, ramzan kadyrov, after kadyrov’s assassination in 2004. in fact, once ramzan became prime minister in 2006, he implemented official policies in support of vigilante groups that monitored the gender expression of the public.17 this permitted homophobia to become widespread in the highly conservative, and predominantly muslim, russian republic of chechnya.18 12 ibid. 13 alexander kondakov. “chechnya, detention camps in." in global encyclopedia of lesbian, gay, bisexual, transgender, and queer (lgbtq) history, edited by howard chiang et al. 315-318. vol. 1. farmington hills, mi: charles scribner's sons, 2019. gale ebooks (accessed april 28, 2020). https://link-galecom.proxy.bc.edu/apps/doc/cx3662300080/gvrl?u=mlin_m_bostcoll&sid=gvrl&xid=c06f95cc. 14 bbc. “chechnya profiletimeline,” last modified january 17, 2018. https://www.bbc.com/news/world-europe18190473 15 alexander kondakov. “chechnya, detention camps in,” pg. 317. 16 andrew e. kramer. “chechnya renews crackdown on gay people, rights group say,” accessed may 2, 2020. https://www.nytimes.com/2019/01/14/world/europe/chechnya-gay-people-russia.html 17 alexander kondakov. “chechnya, detention camps in,” pg. 317. 18 bbc. “chechnya lgbt: dozens ‘detained in new gay purge,’” accessed april 28, 2020. https://www.bbc.com/news/world-europe-46871801 5 chechnya: the 2017 anti-gay purge russian newspaper novaya gazeta first highlighted the unlawful detainment and killing of gay men in chechnya in early july 2017: the newspaper cited two high-level chechen sources that reported that unannounced raids against this minority group actually began in mid-december of 2016. novaya gazeta also reported that twenty-seven people had been killed by security forces on the night of january 26, 2017 without formal arrests.19 in april 2017, they also uncovered detention camps that held men suspected of being homosexual; investigations later revealed that one hundred men were incarcerated for homosexuality in two prisons near the capital of chechnya, at least three of who were killed during their detainment.20 throughout this reporting, it became clear that chechen security officials, as early as 2017, engaged in a systematic campaign to detain dozens of men alleged to be homosexuals. these men were held for numerous days in secret locations and were subjected to starvation and torture, all for the purposes of collecting further information on other homosexual men.21 according to non-governmental watchdog groups, this campaign was organized and executed by law enforcement officials and promoted by top-level chechen authorities.22 thus, without a doubt, these crimes were both systematic and institutionalized by the state. victims have anonymously shared their stories and confirmed these allegations of detainment and torturous practices, including electric shocks and physical beatings, sometimes lasting from several weeks to several months.23moreover, they have confirmed that data and other information from their phone contacts were investigated in pursuit of other gay men.24 this information was later used as blackmail to advance investigations, causing a level of positive reinforcement beneficial to the state’s campaign against homosexuality. although detention centers were largely limited to men in chechnya, lesbians in the same area also faced hostile conditions, rape, honor killing, and forced marriages.25 19 amnesty international. “russian authorities must investigate new allegations of extrajudicial executions in chechnya,” accessed april 28, 2020, https://www.amnesty.org/en/latest/news/2017/07/russian-authorities-mustinvestigate-new-allegations-of-extrajudicial-executions-in-chechnya 20 alexander kondakov. “chechnya, detention camps in,” pg. 315. 21 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth.” 22 katy steinmetz. “a victim of the anti-gay purge in chechnya speaks out: ‘the truth exist,’” accessed april 30, 2020. https://time.com/5633588/anti-gay-purge-chechnya-victim/ 23 bbc. “chechnya lgbt: dozens ‘detained in new gay pruge.’” 24 alexander kondakov. “chechnya, detention camps in,” pg. 315. 25 ibid., 316. 6 unfortunately, the infamous 2017 gay purge in chechnya was not the final chapter; in fact, multiple human rights organizations still declare that these conditions exist and might even be extending to other anti-gay campaigns.26 more recent allegations that new instances of persecution and arose just a few weeks into 2019, some of which claim that upwards of forty people were been detained and still have no sign of release.27 while igor kochetkov, the leader of the russian lgbt network, has stated that they have helped about 140 people escape the region, he maintains that there is evidence and witnesses of torture and deaths that remain.28 international accountability: the status of courts and third-party actors russia has been found in violation of human rights, especially discrimination, by both international courts and third-party actors. unlike the russian constitutional court, which has accepted29 the russian government’s claim that the gay propaganda law serves to protect “family and childhood” values, in 2017, european court of human rights (echr) declared the law to reflect and reinforce “predisposed bias, unambiguously highlighted by its domestic interpretation and enforcement.”30 in its decision, the echr found the gay propaganda law in violation of article 14 of the court’s prohibition on discrimination due to sexual orientation. especially as a result of the law’s implementation, the echr felt bound by article 14 to express that russia had violated its international commitments.31 by this token, although the echr noted that the russian constitution does not protect the freedom of assembly or freedom to be free from discrimination, it held that the russian government, under previously-signed international agreements, had an obligation to protect those rights.32 furthermore a 2018 report from the organization for security and cooperation in europe argued that the 2017 gay purge was a “very serious human rights violations.”33 in evidencing its claim, the report included testimonies from survivors and allegations of lgbt persecution, torture, harassment, arbitrary arrest, and extrajudicial killing. 26 katy steinmetz. “a victim of the anti-gay purge in chechnya speaks out: ‘the truth exist.’” 27 bbc. “chechnya lgbt: dozens ‘detained in new gay pruge.’” 28 ibid. 29 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth.” 30 ibid. 31 stephan polsdofer. “pride and prejudiced: russia's anti-gay propaganda law violates the european convention on human rights,” pg. 1080. 32 ibid., 1074. 33 bbc. “chechnya lgbt: dozens ‘detained in new gay pruge.’” 7 furthermore, they characterized the situation as facilitating a “climate of impunity,” demanding russia to investigate the recorded human rights abuses.34 the united nations human rights committee, under the international covenant on civil and political rights, proclaims that the freedom of expression as “indispensable . . . for the full development of the person,” and is thus “essential for any society.”35 in light of this proclamation, it is clear that while the gay propaganda law claims to protect the health and morals of minors, freedom of expression is very important for developing adolescents, especially as they explore their identities and transition into adulthood. indeed, reports have shown that adolescents and adults who hid their sexual orientation had low relationship satisfaction, faster progression for hiv, less job promotion, a negative association to their job, and higher levels of stress and suicide.36 as such, it is unsurprising that the echr dismissed the russian government’s claims of protection and health.37 despite the echr’s ruling, other international organizations, such as the council of europe’s committee for the prevention of torture and inhuman or degrading treatment or punishment, have continued to accuse chechen officials of unlawful detention and mistreatment of homosexual individuals, especially considering their failure to improve or mend the situation in any substantial way.38 however, even beyond the russian lgbt community, the report aptly notes that drug users, suspected terrorists, and journalists are also at risk because of russian abuses of international human rights law. consequently, other international actors, such as the canadian rainbow railroad have worked with lgbt-supporting russian groups to resettle chechen men, victims of the anti-gay purge, and others with a genuine fear of being targeted, to belgium, the netherlands, canada, and other countries. 39 even in spite of the compelling evidence of torture and abuse that has become all-themore clear in recent year, chechen officials have denied these violations and even claimed that gay people do not exist in chechnya because their relatives would send lgbt away in shame.40 34 ibid. 35 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth.” 36 nicole legate et al. “is coming out always a “good thing”? exploring the relations of autonomy support, outness, and wellness for lesbian gay, and bisexual individuals.” social psychology and personality science3(2) 145-152. doi: 10.1177/1948550611411929 37 human rights watch. “no support: russia’s “gay propaganda” law imperils lgbt youth.” 38 katy steinmetz. “a victim of the anti-gay purge in chechnya speaks out: ‘the truth exist.’” 39 ibid. 40 ibid. 8 in response to reports of abuse, kadyrov has erroneously claimed that allegations of the vicious crackdown on lgbt chechens were invented by foreign agents or fabricated by activists.41 nevertheless, from the judgments and statements of international courts and organizations to which russia is a party, enforcement of the gay propaganda law a violation of russia’s international agreements, harming the state’s reputation on the international stage. the long road of justice amnesty international, a respected human rights watchdog group, has documented extrajudicial executions in chechnya for many years, repeatedly naming and shaming the russian government in the hopes of one day delivering justice for the lgbt community through the investigation of allegations of the anti-gay purge and for prosecution of those alleged to have violated international law.42 furthermore, they frequently condemn the russian government for allowing perpetrators43 to enjoy impunity from human rights prosecutions and for failing to provide protections to lgbt activists like igor kochetkov, the leader of the russian lgbt network, who has even received death threats.44 as amnesty international argues, russia’s international agreements demand that the state protect its population against discrimination. under echr precedent, states must take action to ensure individuals can live “without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”45 similarly, universal declaration of human rights demands that because that every person is equal under the law, each person is entitled to equal protection from discrimination.46 although the russian government continues to justify its gay 41 bbc. “chechnya lgbt: dozens ‘detained in new gay pruge.’” 42 amnesty international. “russian authorities must investigate new allegations of extrajudicial executions in chechnya.” 43 amnesty international. “russia: two years after chechnya’s gay purge victims still seek justice as lgbti defender receives death threats,” accessed may 2, 2020. https://www.amnesty.org/en/latest/news/2019/04/russiatwo-years-after-chechnyas-gay-purge-victims-still-seek-justice-as-lgbti-defender-receives-death-threats/ 44 amnesty international. “russia: two years after chechnya’s gay purge victims still seek justice as lgbti defender receives death threats.” 45 stephan polsdofer. “pride and prejudiced: russia's anti-gay propaganda law violates the european convention on human rights,” pg. 1080. 46 ibid., 1076. 9 propaganda law under the veil that it is acting as the majority of the russian populace expect, a democratic society still has the responsibility to protect minority groups.47 if the russian government does change course willfully, or through international pressure, the state should provide education and support for the lgbt community to protect the interests and health of minors. moreover, it should allow lgbt groups to exercise their rights to assembly and live free from discrimination, benefiting russia financially as they would no longer need to carry out strict monitoring and enforcement of anti-lgbt laws on these groups. by protecting its citizens from violence, russia would also help to rebuild its own international reputation, demonstrating to the global community that discrimination against lgbt people is antithetical to international human rights law.48 analysis: encarnación’s model and key factors for accountability the gay propaganda law, along with chechnya’s long history of societal homophobia, has created a devastating formula for the chechen lgbt population. indeed, chechen use of the russian government’s pseudo-legal justification for the gay propaganda law has allowed torment of its lgbt population, nearly all of which has no legal recourse. this issue has only been magnified by chechnya’s strict implementation of the gay propaganda law and its 2017 anti-gay purge, just another demonstration of how punitive measures (i.e. detention camps and torture) inhumanely target the russian lgbt community.49 in “gay rights: why democracy matters,” omar encarnación highlights three important domestic factors that can explain the expansion or regression of lgbt rights: wealth, religiosity, and the state’s type of regime. he explains that the richer and more secular the state, the more accepting it is of homosexuality, but the poorer and more religiously devoted the state, the less accepting it is of homosexuality.50 considering the fact that chechnya is largely composed of practicing members of the sufist islam faith, it is unsurprising that encarnación notes that 84% of the russian public disapproves of homosexuality.51 moreover, he writes that russia’s 47 ibid., 1084. 48 ibid., 1094. 49 alexander kondakov. “chechnya, detention camps in,” pg. 316. 50 omar g. encarnación “gay rights: why democracy matters.” journal of democracy 25(3) 90-104, doi:10.1353/jod.2014.0044. 51 ibid., 96. 10 religious atmosphere is a setback for improving public sentiment on homosexuality: russians who claimed to be at least somewhat religious increased from 11% in 1991 to 54% in 2008.52 furthermore, russia’s gdp was about $2.3 trillion usd in 2013, while in 2017, it was only about $1.5 trillion usd.53 similarly, russia's gdp per capita in 2013 was about $16,007 usd, while in 2019 it was $10,750 us dollars.54 this combination of increased religiosity and decreased wealth coincides with the passage of the gay propaganda law in 2013 and the vicious 2017 crackdowns in chechnya. moreover, as the russian state features few truly democratic features, encarnación evidences his secondary claim that although lgbt rights are not protected in all democracies, they are almost non-existent in nondemocratic regimes.55 although there was hope after the ussr’s collapse in 1991 for a less vicious approach to homosexuality, democratic backsliding in russia has halted lgbt progress, and even worsened during vladimir putin’s presidency.56 in other words, russia (at the time of the chechen lgbt crackdown), was a combination of all the factors that fit encarnación's rights-regression model: highly religious, poor, and lacking democratic values. the four key factors established in “overcoming impunity: pathways to accountability in latin america;” civil society, absence of veto powers, domestic judicial leadership, and international pressure; can also explain the lack of accountability and justice in chechnya for its 2017 anti-gay purge. as shown in the chechen context, calls for justice and accountability were not met,57 the absence of veto powers allowed strong state figures to avoid accountability through military or political status,58 domestic judicial leadership would not take a controversial stance in challenging impunity and state amnesty laws,59 and international pressure from foreign courts and organizations to follow obligations and international norms was not respected and thus ineffective.60 52 ibid,, 96-97. 53 the world bank. “gdp (current us$)russian federation,” accessed may 9, 2020. https://data.worldbank.org/indicator/ny.gdp.mktp.cd?locations=ru 54 ibid. 55 omar g. encarnación “gay rights: why democracy matters,” pg. 91. 56 ibid., 99. 57 francesca lessa et al. “overcoming impunity: pathways to accountability in latin america.” international journal of transitional justice, volume 8, issue 1, march 2014, pages 75–98, https://doiorg.proxy.bc.edu/10.1093/ijtj/ijt031 58 francesca lessa et al. “overcoming impunity: pathways to accountability in latin america,” pg. 78. 59 ibid., 80. 60 ibid., 82. 11 the dominant chechen religious teachings against homosexuality also precipitated a weak demand from civil society for true justice. even in areas where other lgbt leaders, like igor kochetkov, might have spoken up where the religious population did not, lack of protection from threats and violence limited activists from making public demands and influencing policy.61 there are also strong veto players in chechnya: the organization for security and co-operations in europe, a regional security organization, identified issues of total impunity for the security forces engaged in human rights abuses, making those involved the anti-gay purge immune to state-enforced justice. domestic judicial leadership did not challenge this impunity, instead upholding the gay propaganda law under the veil of constitutional “family and childhood” protections.62 on the international front, even though russia has ratified the european convention for the prevention of torture and inhuman or degrading treatment or punishment,63 the un convention against torture and other cruel inhuman or degrading treatment or punishment, the un international convention on the elimination of all forms of racial discrimination, and the un international covenant on civil and political rights, there has been insufficient international pressure on russia to enforce the legal obligations made through international agreements .64 conclusion chechnya’s implementation of the gay propaganda law and its 2017 gay purge is a reflection of the historic religious markers of the region, in addition to the four key factors of accountability absent in the region. indeed, weak demands from civil society, strong veto players, weak domestic judicial leadership, and a lack of strong international pressure has all but eliminated the compliance that russia might otherwise have with human rights agreements. while russia has not attempted to bring reparation, restorative, nor retributive justice to chechnya or its lgbt population in particular, this is not surprising: russia has denied the anti 61 amnesty international. “russia: two years after chechnya’s gay purge victims still seek justice as lgbti defender receives death threats.” 62 human rights watch.“no support: russia’s “gay propaganda” law imperils lgbt youth.” 63 council of europe. “chart of signatures and ratification of treaty 126,” last modified november 11 2020. https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/126/signatures?p_auth=xvbsrdw4 64 the united nations. “view the ratification status by country or by treaty,” accessed may 11, 2020. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/treaty.aspx?countryid=144&lang=en 12 gay purge even occurring and chechnya continues to claims that no gay people exist in their region.65 for justice to prevail, there must be to be stronger domestic demand and greater pressure from international partners for justice, truth, and healing for the devastated victims. without investigating allegations of wrongdoing, making the results of such investigations public, and prosecuting the perpetrators of abuses on the russian lgbt community, this region will continue to be a blemish on the international order’s movement towards equity and inclusion. 65 katy steinmetz. “a victim of the anti-gay purge in chechnya speaks out: ‘the truth exist.’” 13 works referenced “chart of signatures and ratification of treaty 126,” council of europe, last modified november 11, 2020. https://www.coe.int/en/web/conventions/full-list//conventions/treaty/126/signatures?p_auth=xvbsrdw4 “chechnya lgbt: dozens ‘detained in new gay pruge,’” bbc, accessed april 28, 2020. https://www.bbc.com/news/world-europe-46871801 “chechnya profiletimeline,” bbc, last modified january 17, 2018. https://www.bbc.com/news/world-europe-18190473 encarnación, omar g. “gay rights: why democracy matters.” journal of democracy 25(3) 90104, doi:10.1353/jod.2014.0044. feyh, kathleen e. "lgbtq oppression and activism in russia: an interview with igor iasine." qed: a journal in glbtq worldmaking 2, no. 1 (2015): 100-08. accessed april 28, 2020. doi:10.14321/qed.2.1.0100. “gdp (current us$)russian federation,” the world bank, accessed may 9, 2020. https://data.worldbank.org/indicator/ny.gdp.mktp.cd?locations=ru “gdp per capita (current us$)russian federation,” the world bank, accessed may 9, 2020. https://data.worldbank.org/indicator/ny.gdp.pcap.cd?locations=ru kondakov, alexander. "chechnya, detention camps in." global encyclopedia of lesbian, gay, bisexual, transgender, and queer (lgbtq) history, edited by howard chiang, anjali arondekar, marc epprecht, jennifer evans, ross g. forman, hanadi al-samman, emily skidmore, and zeb tortorici, 315-318. vol. 1. farmington hills, mi: charles scribner's sons, 2019. gale ebooks (accessed april 28, 2020). https://link-galecom.proxy.bc.edu/apps/doc/cx3662300080/gvrl?u=mlin_m_bostcoll&sid=gvrl&xi d=c06f95cc. kramer, andrew e. “chechnya renews crackdown on gay people, rights group say,” accessed may 2, 2020. https://www.nytimes.com/2019/01/14/world/europe/chechnyagay-people-russia.html legate, nicole. ryan, richard m. weinstein, netta. “is coming out always a “good thing”? exploring the relations of autonomy support, outness, and wellness for lesbian gay, and bisexual individuals.” social psychology and personality science 3(2) 145-152. doi: 10.1177/1948550611411929 lessa, francesca. olsen, tricia d. payne, leigh a. pereiera, gabriel. reiter, andrew g. “overcoming impunity: pathways to accountability in latin america.” international 14 journal of transitional justice, volume 8, issue 1, march 2014, pages 75–98, https://doiorg.proxy.bc.edu/10.1093/ijtj/ijt031 “no support: russia’s “gay propaganda” law imperils lgbt youth,” human rights watch, accessed april 28, 2020, https://www.hrw.org/report/2018/12/11/no-support/russias-gaypropaganda-law-imperils-lgbt-youth#page polsdofer, stephan. "pride and prejudiced: russia's anti-gay propaganda law violates the european convention on human rights." american university international law review 29 (kondakov 2019): 1069-1096. https://proxy.bc.edu/login?qurl=https%3a%2f%2fsearch.proquest.com%2fdocview%2 f1613593144%3faccountid%3d9673. “russian authorities must investigate new allegations of extrajudicial executions in chechnya,” amnesty international, accessed april 28, 2020, https://www.amnesty.org/en/latest/news/2017/07/russian-authorities-must-investigatenew-allegations-of-extrajudicial-executions-in-chechnya/ “russia: two years after chechnya’s gay purge victims still seek justice as lgbti defender receives death threats,” amnesty international, accessed may 2, 2020. https://www.amnesty.org/en/latest/news/2019/04/russia-two-years-after-chechnyas-gaypurge-victims-still-seek-justice-as-lgbti-defender-receives-death-threats/ steinmetz, katy. “a victim of the anti-gay purge in chechnya speaks out: ‘the truth exist.’” accessed april 30, 2020. https://time.com/5633588/anti-gay-purge-chechnya-victim/ “view the ratification status by country or by treaty,” the united nations, accessed may 11, 2020. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/treaty.aspx?countryid=144 &lang=en janus v. afscme an unprecedented blow to public sector unions? the bellarmine law society review volume xi issue ii article 2 janus v. afscme, council 31: an unprecedented blow to public sector unions? sophie carter boston college morrissey college of arts and sciences, carterbc@bc.edu 2 janus v. afscme, council 31: an unprecedented blow to public sector unions? sophie carter* abstract: in june of 2018, the supreme court of the united states handed down a shocking opinion that sent waves through labor law and the public sector. after forty-one years of state and local labor law policy being structured around the precedent set by abood vs. detroit board of education (c. 1977), the supreme court overturned the right of public sector unions to enter into agency-shop agreements, which otherwise necessitates the payment of fees to the union regardless of union membership. in this article, i will first briefly discuss the facts of janus, both parties’ contentions, and the reasoning behind the opinions of both the conservative majority and the liberal minority. i will then argue that janus was incorrectly decided under the well-established doctrine of stare decisis and that the practical implications of the majority’s decision run counter to the spirit of public sector labor rights. background and facts of the case the primary question at issue in janus v. afscme is whether it is unconstitutional under the first and fourteenth amendments to require non-members of public sector unions to pay agency fees as a condition of employment. agency fees are similar to generic union dues, but, since they are being paid by non-union employees, they are only a fraction of what union members pay. in the case of the illinois department of healthcare and family services, where plaintiff mark janus was employed, the agency fees were only seventy-six percent of what union members paid in dues, adding up to about five hundred and thirty dollars each year as a condition of his continued employment1. the usage of these agency fees by the union is statutorily restricted to omit political and ideological purposes—under the illinois public labor relations act, these funds may only be * sophie carter is a fourth-year political science and philosophy honors student in the boston college class of 2022. she possesses an academic interest in public, professional, and medical ethics, both within the law and philosophy. special thanks are due to boston college professor david twomey and his labor and employment law seminar for bringing attention to this case. 1 janus v. afscme, council 31, 138 s. ct. 2448 (2018), 5. 3 used for “the collective bargaining process, contract administration[,] and pursuing matters affecting wages, hours[,] and conditions of employment.”2 additionally, it is required for the union to distribute a “hudson notice” to non-members each year, which serves as an account of what the agency fees were ultimately spent on. despite this, the continuation of these agency shop agreements in the public sector has remained controversial for decades. before examining the facts of janus, it is important to first examine the precedent that was under review in the janus decision— the 1977 abood v. detroit board of education decision. in 1977, several public school teachers in detroit filed actions in michigan state court alleging that the collection of agency fees from union non-members to be used in collective bargaining and political activities was a violation of their first and fourteenth amendment rights to freedom of speech and association3. the supreme court ruled in this case that it is acceptable for agency fees to be collected from non-members because the benefits to preserving labor peace and preventing free riders from benefiting from collective bargaining outweighs the first amendment concerns of these agency shop requirements. the court ruled that as long as the fees are used solely for the purposes of “collective bargaining, contract administration, and grievance adjustment,” then these agreements do not sufficiently infringe upon freedom of speech and association to warrant an objection from the courts4. unions would continue to be prohibited from spending agency fees on political and ideological activities, such as supporting campaigns or legislation, and therefore, in the view of the court, these fees did not qualify as coercive political association. janus v. afscme was brought forward in 2018 as a challenge to the long-standing abood decision. originally introduced by illinois governor bruce rauner, the case alleged that agency 2 5 ilcs 315, illinois public labor relations act (1983). section 5(a). 3 abood v. detroit board of education, 431 us 209 (1977). 4 abood. 4 shop agreements were inherently associationally coercive, and therefore infringe upon first amendment rights. however, the original iteration of this case as brought by the governor was dismissed by both the district court and the seventh circuit court of appeals because the governor did not have standing5. mark janus, a non-union employee of the illinois department of healthcare and family services, stepped into the existing case filed by the state of illinois alleging that the collection of agency fees posed a direct injury to him and his first amendment rights. janus’ iteration of this case was eventually granted certiorari by the supreme court in 20186. janus was staunchly opposed to joining the union at his workplace— not just for political and ideological reasons, but because he also deeply disagreed with the positions taken by the union in collective bargaining activities7. this disagreement posed deep issues for the precedent set by abood because, while non-members could not be forced to subsidize political or ideological activities, their agency fees were going almost entirely to collective bargaining efforts. the safeguards put in place by abood to circumvent the possible coercion of public employees to pay for political activities were not enough in the case of mark janus because he was principally opposed to the union itself. janus was also able to establish standing by arguing that he suffered a direct injury as a result of the agency shop laws in illinois, showing that his fees cost him about five hundred and thirty dollars annually8. in the amended complaint put forth by janus and his attorneys, the claim was that “nonmember fee deductions are coerced political speech” and that “the first amendment forbids coercing any money from the nonmembers''9. 5 "janus v. american federation of state, county, and municipal employees, council 31," oyez. accessed april 14, 2021. https://www.oyez.org/cases/2017/16-1466. 6janus v. afscme, council 31, 138 s. ct. 2448 (2018), 1. 7 janus, 1. 8 janus, 5. 9 janus, 5 5 petitioner’s contentions mark janus filed his suit against the american federation of state, county, and municipal employees (afscme) because he contended that requiring the payment of agency fees from nonunion government employees is a coercive violation of the first amendment right to freedom of speech. the central claim, as stated above, was that “all ‘nonmember fee deductions are coerced political speech’ and that ‘the first amendment forbids coercing any money from the nonmembers.’”10 the argument was that the standard set in abood v. detroit board of education did not go far enough in protecting public sector employees from violations of their rights to freedom of speech. under the precedent created by the abood decision, unions were prohibited from using agency fees from non-members to subsidize political and ideological activities that fall outside of the scope of collective bargaining. however, janus argued that since he did not agree with the activities of the union within the collective bargaining sphere, he should not be required to subsidize these activities either. additionally, he rejected the notion that agency fees are important to circumvent the “free rider” problem. in the complaint, it was stated that “petitioner strenuously objects to this free-rider label. he argues that he is not a free rider on a bus headed for a destination that he wishes to reach, but is more like a person shanghaied for an unwanted voyage.”11 the contention here is that, since government employees work under contracts that are paid for by taxpayers, collective bargaining activities fall under the umbrella of substantial public and political concern, and therefore the requirement of agency fees is a way of forcing non-members to tacitly endorse a political standpoint. the decision of a public sector union to demand higher wages, for example, could have a substantial impact on how the state spends public money and the 10 janus, 5. 11 janus, 13. 6 quality of public services. since the government is both the employer and a political actor that spends public money, janus argued that it is very difficult to separate the bargaining activities of the union from political and ideological statements. to elucidate this point further, it is helpful to look at examples of this argument in practice. at the time the case was brought, the state of illinois had over $160 billion in unfunded pension and retiree healthcare liabilities that were owed to public sector employees12. in collective bargaining, the union may ask for additional benefits, which would grow this sum and place additional burdens on taxpayers and the government. essentially, janus contends that collective bargaining with a public employer is the same as lobbying the government and that these activities have effects that reverberate beyond just employees. another example provided by the petitioner to illustrate how public sector union bargaining activities are inherently political relates to the influence of teachers’ unions in particular. in union activities, teachers’ unions inevitably address questions of education policy— for example, they hash out the specifics of how teacher and student success is measured, whether that be through standardized testing or other means, or questions of how many students should be in a classroom for optimized learning experiences. additionally, collective bargaining can address the hot-button issues surrounding school curriculum— it can include or exclude topics such as comprehensive sex education, evolution, or even climate change13. these examples highlight the manner in which janus and his attorneys argued that union activities, even those that are permitted to use agency fees under abood, are inextricable from the larger political context of public concern. finally, the petitioner made the argument that the afscme local council 31 was not complying with the restriction on political and ideological activities established by the abood 12 janus, 28. 13 janus, 30. 7 decision. in the complaint, it was stated that “the nonmembers were told that they had to pay for ‘[l]obbying,’ ‘[s]ocial and recreational activities,’ ‘advertising,’ ‘[m]embership meetings and conventions’ and ‘litigation,’ as well as other unspecified ‘[s]ervices’ that ‘may ultimately inure to the benefit of the members of the local bargaining unit.”14 although the majority of these activities are not explicitly political or ideological in nature, they are seemingly a far cry from the strict use of agency fees for collective bargaining activities, further adding fuel to janus’ argument that the payment of non-member agency fees is a coercive requirement that frivolously violates the first amendment rights of public sector employees. respondent’s contentions the respondent in this case is the american federation of state, county, and municipal employees (afscme), a public sector union that represents state and local government employees across the country. the crux of the respondent’s argument is that the abood decision is an adequate balance between the rights of individual employees to free speech and the rights of unions to collectively bargain with the government on behalf of all employees, not just union members. the government, in their view, should be allowed to fulfill its role as an employer in making basic employment decisions. the tricky part of this case is conceptualizing the role of the government as both a political actor and an employer of unionized employees, and the afscme contends that the nature of the government as an employer outweighs the potential for political statement and that the rights of employees to bargain with the government as an employer should be protected under the conditions of abood. the afscme contends that the government does in 14 janus, 4. 8 fact have the right, in its role as an employer, to restrict freedom of expression among its employees15. legally, as the sole and exclusive bargaining representative of employees, public sector unions are required to represent both union members and non-members in collective bargaining activities. the primary question, as stated by the attorney for the afscme, is: “do states, as part of our sovereign system, have the authority and the prerogative to set up a collective bargaining system in which they mandate that the union is going to represent minority interests on pain of being subject to any fair labor practice?”16 since the union is required to fairly represent all employees, even those who do not choose to join the union directly, the requirement of fair-share payments from non-union employees is an equitable way to make sure the union has the resources to bargain on behalf of these employees. since non-members are still benefiting from the collective bargaining agreements negotiated by the union, it would be equitable to ask for agency fees. they also contend that, in addition to agency fees being broadly important to union functioning, the majority of the activities that agency fees go to fund are apolitical in the first place and do not constitute a violation of the first amendment. these listed benefits conferred by collective bargaining consist primarily of “wages, benefits, working conditions, promotions, safety equipment, grievance procedures, holidays, grooming standards, meal periods, and the like.”17 the afscme says that characterizing these bargaining agreements as overtly political is inaccurate, and the infringement on the first amendment rights of employees is practically negligible. the standard that was set by abood, from the perspective of the respondent, was a functional 15 janus v. afscme, council 31, 138 s. ct. 2448 (2018), oral arguments, february 26, 2018, 57. 16 janus, oral arguments (2018), 54-5. 17 moshe marvitt, “the legal arguments of janus v. afscme, explained,” the century foundation, february 15, 2018, https://tcf.org/content/commentary/legal-arguments-janus-v-afscme-explained/. 9 compromise between the rights of the union and the government to fill their roles as employee and employer and the right to freedom of expression. majority decision: overturning abood justice samuel alito authored the 5-4 majority decision in this case in favor of overruling the abood v. detroit board of education decision from forty years prior. the argument made by justice alito in his majority opinion is threefold— agency fees are a coercive violation of the first amendment, agency fees are not necessary to the protection of labor peace and functioning, and the abood decision was incorrectly decided. each component of this argument is important to the majority decision as a whole. first, alito argues that agency fees are an unjustified violation of the first and fourteenth amendment rights to freedom of speech and association. the majority decision begins with the following statement: “we conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”18 the question of whether collective bargaining activities by public sector unions constitute matters of substantial public concern is one of the key considerations in deciding this case, and the majority ultimately ruled that the argument made by the petitioner was correct; since the government is one of the actors in a collective bargaining negotiation, the public interest is also a stakeholder in these negotiations. this, in the view of the majority, constitutes public and political speech that is inextricable from the key activities of a union. second, the majority dismisses the claim that upholding the 1977 abood decision is key to maintaining labor peace in the public sector. the worry was that the absence of agency fees that financially tied all employees to a singular union would lead to the promulgation of several 18 janus v. afscme, council 31, 138 s. ct. 2448 (2018), 1. 10 competing unions. with many different organizations speaking on behalf of the employees, this could result in labor unrest and chaos,. however, according to alito’s decision, the payment of agency fees and the right of the union to exclusive representation of the employees are not necessarily mutually exclusive. the majority points to the observation that, even without the collection of agency fees, public sector unions will still have the exclusive right to represent the employees in their workplace. on the federal level, where agency fees are not required of federal employees who elect not to join the union, exclusive representation is still upheld, and there is no turmoil with regards to labor peace19. therefore, the majority did not see the concerns about labor peace as a sufficient reason to avoid overturning the abood decision. finally, the majority contends that the abood decision was incorrectly decided in the first place, so it would not be a violation of the stare decisis principle to overturn it. alito writes that the abood decision constitutes an outlier in contemporary first amendment jurisprudence. in a non-union context, alito argues, the requirement that people subsidize speech and expressions that they disagree with would be a blatant violation of the first amendment, and this is proven by the overwhelming majority of other first amendment decisions that have taken place since abood. after listing a variety of other first amendment cases that are more in line with the janus decision than with abood, alito states, “we have held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’”20 according to the majority, abood was poorly reasoned, leading to practical problems and abuse of employees’ constitutional rights by unions; therefore, violating stare decisis by overruling abood was justified. the majority took into consideration the impact of agency fees on employees’ constitutional rights, the ability 19 janus, 12. 20 janus, 8. 11 of unions to peacefully function, and the legitimacy of the precedent, and ultimately acted to overrule abood v. detroit board of education. dissenting opinion: protecting labor peace justice elena kagan authored the dissenting opinion in this case, speaking on behalf of herself and justices sotomayor, ginsburg, and breyer. justice kagan’s argument on behalf of the abood precedent and the afscme rests primarily on the principle of stare decisis and the practical implications of the decision on the operations of state-level government employers and employees. the belief of the minority on the court was that the abood decision struck a stable and fair balance between allowing employees to exercise their first amendment rights and the right of the government to act as an employer, and the justification for overturning this well-established precedent was simply too weak. the minority believed that the right of the government to act as an employer in bargaining with public sector unions is an important right and must necessarily be balanced with the rights of employees to exercise free speech. in the private sector, it is commonplace for employers to regulate the free speech and expression of employees— whether that be through dress codes, workplace rules, or union shop agreements— and in order for the government to act as a legitimate employer, this right is similarly important to protect. in line with this argument, justice kagan states that “the court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively.”21 in its previous managerial role under the abood decision, the government was able to effectively balance its role as an employer and its role as a protector of constitutional rights, and the janus decision upsets this well-established balance. 21 janus, 1. 12 additionally, the disruption of precedent in this decision clearly would have practical impacts on the operations of the public sector on the state and local levels. since abood was so deeply entrenched in the constitutional and statutory landscape, kagan expressed concern about the impacts on existing laws and contracts. she notes that over twenty states had statutes relating to public sector unions that were built around the abood standard and that the abood standard informed hundreds of existing contracts that applied to millions of public sector workers22. in addition, the reverberating financial impacts of banning agency shop agreements in the public sector were destined to be massive. kagan is concerned that, “public employee unions will lose a secure source of financial support. state and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”23 by allowing free riders to damage the financial salience of unions, the dissenting justices were particularly worried that labor peace would be disrupted and competing unions may emerge. the worry that the unexpected janus decision would be a stunning breach of precedent, leading to instability and unintended consequences, provides a compelling reason to uphold an entrenched and functional forty-year-old standard. analysis the janus v. afscme decision is obviously a controversial one— the court was sharply divided on the case, as are many legal scholars. i contend that the court did not do justice in deciding this case, that the majority was incorrect in overturning abood v. detroit board of education, and that he reasoning behind opposing this precedent was an inadequate justification. the practical implications of any supreme court decision are crucial to consider, and the majority 22 janus, 2. 23 janus, 2. 13 issued a sweeping opinion that practically devastates public sector unions and destabilizes the crucial principle of stare decisis. first, the court did not have sufficient justification to go against stare decisis principles in deciding this case. traditionally, the threshold for overturning an established precedent is relatively high. stare decisis is a well-established doctrine that promotes uniformity in decisionmaking, making it central to the legitimacy and stability of the judiciary system. there are several practical reasons for upholding stare decisis. according to james tilghman of the new york law school law review, “the doctrine remains functionally desirable because it promotes stability, protects settled expectations, conserves judicial resources, and adds predictability to the everyday affairs of citizens.”24 it is crucially important for people to be able to rely on the law as a stable entity, rather than a moving target that changes at the whims of an unelected court. this consideration is especially relevant when one considers that millions of public sector employees lived and worked under the abood standard, without issue, for more than forty years, before it was upended suddenly. traditionally, the doctrine of stare decisis is more strictly applied to cases where there are statutes that rely on precedent because of the practicality of deferring to elected legislatures. statutes and pieces of legislation are democratically crafted, deliberated upon, and passed, which is a direct contrast with supreme court decisions, which are handed down by a few unelected judges. in janus, the original case was brought against the agency shop clauses in the illinois public labor relations act, a statutory arrangement, not the abood decision itself. additionally, the statutory schemes of twenty-two states were crafted around the standing precedent that the janus court overruled. alito and the majority took it upon themselves, as unelected judges, to 24 james tilghman, “restoring stare decisis in the wake of janus v. afscme, council 31,” new york law school law review 64, no. 2 (2019): 142. 14 intervene in statutory labor law on a massive scale, which has been normatively condemned in the past. in the 1991 hilton v. south carolina public railway commission case, the majority wrote, “stare decisis has added force when the legislature… and citizens… have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.”25 the janus decision accomplished what the hilton court feared: it dislodged the expectations of millions of public sector employees and upended dozens of pieces of legislation. the destabilizing impact of the janus decision on stare decisis and the legislative schemes of various states cannot be considered just. the court in janus certainly erred in not applying stricter scrutiny to the question of whether overturning an established precedent and, consequently, various democratically-crafted statutes was appropriate. justice alito’s reasoning behind ignoring these statutory and legislative concerns is alarming. in his majority opinion, he writes that the upending of the legality of agency-shop agreements would not pose a shock to the extensive system of contracts and bargaining agreements because unions had been “on notice” for years that the overturning of abood may be a possibility.26 this is not a legitimate argument for violating stare decisis— just because relevant stakeholders may suspect a decision will be overturned, does not mean that the reliance interests will not be substantially implicated. it also has shocking implications once this statement is taken to its logical conclusion. tilghman writes, “according to alito, if individuals or entities should know—or are ‘on notice’—that precedent has been questioned or is in jeopardy of being overturned, then they should not rely on the precedent.”27 precedent should always be reliable as it forms the foundation of a functional legal system. suggesting that people should ignore precedent in the face of an 25 hilton v. south carolina public railway commission, 502 us 197 (1991). 26 janus v. afscme, council 31, 138 s. ct. 2448 (2018), 45. 27 tilghman, “restoring stare decisis,” 145. 15 unstable judiciary is shocking. this dismissal of the material consequences of violating stare decisis implies that people should not rely on existing precedent if they are “on notice” about the possibility of it being overturned. in addition to the importance of stare decisis to the predictability of law and the right of legislatures to make their own statutes based on stable legal principles, it is important to note that many legal scholars agree that wielding the doctrine in an inconsistent and seemingly random manner lends credence to the public perception and suspicion about the supreme court being overtly political and unprincipled. legal scholars, let alone members of the public, have their suspicions about the motivations of the supreme court in this case. the weak reasoning of the court with regards to stare decisis “begs the question of whether the court was in favor of upholding constitutional protections or whether the court was instead anti-union.”28 janus is not solely to blame for the perception of the supreme court as a political institution, capable of reversing its rulings based on ideological leanings, but it certainly does not help ameliorate this perception either. “this is evidenced from the increased political jockeying involved in supreme court nominations. political leaders of both parties understand that if they are able to get a justice on the court who disagrees with prior jurisprudence, precedent will not be upheld.”29 the janus decision served to further exacerbate the instability and political tint of the supreme court without a sufficient reason for deciding in the unseemly way it did. next, i will expand on why scholars believe that the justifications given by the court for violating stare decisis were insufficient. the majority’s reason for overturning the agency-fee requirement was that the abood decision was “unworkable.” it is curious that a standard that had 28 johannah pizzini, “janus vs. american federation of state, country, and municipal employees: an unprecedented departure from precedent,” loyola law review 62, no. 2 (summer 2019): 500. 29 tilghman, “restoring stare decisis,” 143. 16 been well-established and practically successful for over forty years would suddenly be considered unworkable, but this is tangential to the point. the majority was unable to find an adequate bright line standard to differentiate between expenses that are chargeable and non-chargeable to nonunion employees under the first amendment, and they argued that the hudson notices given to non-union members detailing the expenditures were too vague to be workable. however, the entire point of having precedent is to provide a stable basis upon which the courts can refine, develop, and clarify the law through subsequent decisions. johannah pizzini of loyola university new orleans school of law argues, sensibly, that “if the main reason abood was unworkable was the difficulties in distinguishing chargeable expenses from non-chargeable expenses, then why not expand the hudson notice to include more details on each expenditure?”30 there were other tools and options at the disposal of the court that stopped short of completely overturning abood, but the majority chose instead to exaggerate these workability concerns in order to justify an extreme and sweeping decision. finally, the janus court was mistaken in its choice to ignore the reliance interests involved with the case in favor of overturning abood. the vast majority of jurists say that reliance interests in contracts should be weighed by the courts when overturning precedent is on the table.31 although “the court would normally defer to precedent to protect the actors who relied on the then-existing law when negotiating and entering into contracts,”32 the janus court took a highly unusual stance by completely ignoring the material interests of those operating under current contracts. the majority justified dismissing the impact of the decision on public sector unions by asserting that the prohibition of agency fees would not lead to the weakening of unions— they 30 pizzini, “an unprecedented departure from precedent,” 496. 31 tilghman, “restoring stare decisis,” 143-4. 32 tilghman, “restoring stare decisis,” 147. 17 contend that the right to exclusive representation over all employees is enough of a benefit to outweigh the cost of no longer being able to collect non-member fees. however, the court severely misunderstood the free rider label and the collective action problem unions will face without the possibility of agency-fee requirements. the theory surrounding public goods contends that people are rational economic actors. if employees suspect that they can reap the benefits of collective bargaining without paying union dues, they will rationally choose to save their money (even if they are strong supporters of the union!). this is empirically demonstrated in the case of indiana teachers’ unions. the teachers had the statutory right to decertify their union if membership dropped below fifty percent of all employees, and, although many districts had union membership as low as twelve percent, none of these local union chapters voted to decertify.33 this is a good example of how, even if employees love the union that represents them and the benefits it confers, they may not choose to pay dues34. without the allowance of agency shop agreements, unions will be prevented from effectively forming and functioning, and there will be far fewer meaningful collective goods for non-members to free ride on in the first place. fisk and malin write in the california law review: “the majority assumed that unions… will effectively negotiate collective benefits… they also assumed that fair share fees serve just one interest: preventing nonmembers from free-riding on the existing benefits. but if unions are unable to compel support, there will be no common benefits in the first place.”35 studies have shown that the presence of agency shop agreements for state and local government employees are correlated with higher wages and union status, delivering tangible 33 catherine fisk and martin malin, “after janus,” california law review 107, no. 6 (december 2019): 1830. 34 it is also important to note that the indiana teachers’ unions were kept afloat by the agency fees paid by union employees in states without right-to-work laws. 35 fisk and malin, “after janus,” 1828. 18 benefits for millions of workers.36 although there may be some employees, such as mark janus, who do not agree with the aims of the union and deliberately choose not to pay dues out of opposition, far more people will tacitly let their memberships expire in the belief that they will obtain these higher wages and better working conditions at no additional cost to them. when this free-rider mindset is allowed en masse, the unions’ financial salience and ability to negotiate these collective goods quickly plummets. when conceptualizing the collective action problem, the court asserted that the right to exclusive representation provided a significant enough advantage, while failing to consider that unions may no longer be able to even function as an exclusive representative. by failing to take into account the reliance interests that were previously protected by abood, the court failed to adequately do justice in this case. conclusion after examining the facts and background of this case, the contentions of both mark janus and the afscme coupled with the arguments of both the majority and the dissenting justices, i contend that the supreme court did not do justice in janus v. afscme, council 31. stare decisis is a well-respected and foundational part of the american legal landscape. especially considering that dozens of democratically-constructed statutes were based on the overturned abood decision, the supreme court needed an extremely compelling rationale for overturning an established fortyyear precedent, and the majority simply did not adequately establish a solid reason. by eroding stare decisis in this stunning decision, the court further fed the narrative that they are a politicallymotivated institution. finally, the court erred in not taking into account the interests of the publicsector unions and employees that worked under contracts negotiated under abood. the janus decision runs the risk of dealing a devastating blow to public-sector unions and their ability to 36 fisk and malin, “after janus,” 1829. 19 exercise exclusive representation for all employees, and the majority’s overlooking of these practical concerns shows that the court’s decision was incomplete and unjust. bibliography abood v. detroit board of education, 431 us 209 (1977). fisk, catherine and martin malin. “after janus.” california law review 107, no. 6 (december 2019): 1821-1876. hilton v. south carolina public railway commission, 502 us 197 (1991). illinois compiled statutes. 5 ilcs 315, illinois public labor relations act (1983), section 5(a). accessed april 26, 2021. janus v. afscme, council 31, 138 s. ct. 2448 (2018). "janus v. american federation of state, county, and municipal employees, council 31." oyez. accessed april 14, 2021. https://www.oyez.org/cases/2017/16-1466. janus v. afscme, council 31, 138 s. ct. 2448 (2018). oral arguments, presented february 26, 2018. marvitt, moshe. “the legal arguments of janus v. afscme, explained.” the century foundation. february 15, 2018. https://tcf.org/content/commentary/legal-arguments-janus-v-afscme-explained/. pizzini, johannah. “janus vs. american federation of state, country, and municipal employees: an unprecedented departure from precedent.” loyola law review 62, no. 2 (summer 2019): 473-501. tilghman, james. “restoring stare decisis in the wake of janus v. afscme, council 31.” new york law school law review 64, no. 2 (2019): 135-150. microsoft word kiefer_final_blsr.docx bellarmine law society review volume xii issue i article 1 gender quotas and equity in corporate boardrooms: a legal, economic, and social analysis rose kiefer boston college, kieferr@bc.edu 4 gender quotas and equity in corporate boardrooms: a legal, economic, and social analysis rose kiefer1* abstract: adopted by countries like france, norway, and germany, gender quotas have been enacted as a measure to ensure equal opportunity for women in the corporate environment. today, an increasing number of states in america have turned to gender quotas to remediate the inequity present in corporate boardrooms. in 2018, for example, senate bill 826 was passed in california to resolve inequitable female boardroom representation amongst public companies, specifically those headquartered in california. on the surface, gender quotas seem to promote equality in the workplace, but a closer analysis reveals that they may be doing more harm for women than good. this paper analyzes the impact of boardroom gender quotas through a legal, economic, and social lens, and addresses the efficacy of these quotas for the future. introduction we learn at a young age that humans are “creatures of habit,” that is, we gravitate towards what we know and seek comfort in redundancy. although understandable, this notion can (and unfortunately has) been the achilles’ heel of humankind, especially with reference to implementing social reforms. over the past decade, the world has experienced this dynamic relationship between the necessity of change and the difficulty of implementation. in particulate, a variety of social movements, most of which bear economic and gendered undercurrents, have forced us to face disturb systems of injustice in order to facilitate progress. one of the most prominent examples of injustice that has come to light in the last decade is gender inequality. for centuries, women have struggled to find equal footing with their male counterparts due to the reproduction of “systemic dimensions of discrimination.”2 fortunately, however, twenty-first-century movements have provoked a newfound sense of 1* rose kiefer is a third-year student at boston college pursuing a b.a. in english with a minor in accounting for consulting. she is profoundly interested in exploring the intersection of law and ethics, and how said frameworks influence one another. the author would like to extend a special thanks to professor thomas wesner for his continued mentorship and empowerment. 2 coleen sheppard, “systemic discrimination and gender inequality: a life cycle approach to girls’ and women’s rights,” in confronting discrimination and inequality in china: chinese and canadian perspectives, eds. erroi p. mendes and sakunthala srighanthan (ottawa: university of ottowa press, 2009), 232-344. 5 urgency, making it clear that it is necessary to move away from traditionally patriarchal approaches to social and business governance. as such, conversations about gender equality have become more frequent and more impactful, raising awareness and allowing women to achieve positions in society once considered impossible, or at least highly unlikely. with this relatively newfound ability to exercise their power, women are realizing how valuable their impact is on local, regional, national, and international communities. the strides that have been made towards gender equality in the united states recently have been substantial. nevertheless, it would be ignorant to suggest that complete equality has been achieved, or perhaps ever will be. in the corporate sector, the twenty-first century’s valuation of a woman’s voice and point of view is at an all-time high, but that is not to say the corporate space is void of wrongdoing. in 2019, only 27% of fortune 500 board members were women, and, in 2016, the u.s. was ranked in the bottom half of countries with the most female boardroom representation.3 to increase female boardroom representation, gender quotas have been implemented, though they have been met with great contempt. in spite of this objections, corporations have begun to understand the advantage of having a diverse leadership team; in fact, attaining some level of gender diversity has become “the new frontier in corporate governance.”4 since their emergence, boardroom gender quotas have been met with mixed emotions. even many women have asked whether these quotas have been introduced for the sake of gender equity or corporate public-relations value. while it is certainly disheartening that many women have expressed distrust with government regulations requiring boardroom equity, this distrust is equally justified. indeed, it is difficult for many women to believe that the system once working against them is now magically working for them. collectively, women have learned the hard way that they must proceed with caution. to many, the implementation of gender quotas seems like a rejection of how far women advanced in society. for a culture where women are now able to be successful entrepreneurs, ceos, professional athletes, or even astronauts, why must we pass new 3 statistia, “share of female board members in fortune 500 companies, 1995 to 2019,” april 27, 2021, https://www.statista.com/statistics/691204/share-of-women-board-members-fortune-500/; felix richter, “infographic: the countries with the most women in the boardroom,” statista infographics, may 23, 2016, https://www.statista.com/chart/4871/the-countries-with-the-most-women-in-the-boardroom/. 4 sandeep gopalan and katherine watson, “an agency theoretical approach to corporate board diversity,” san diego law review 52 (march 2015): 1. 6 statues that promote gender equity? the answer can be traced back in american history, one that demonstrates how long women have been fighting for equal representation in public spaces. consequently, after reviewing the relevant history, we will employ legal, economic, and social frameworks to assess the shortand long-term implications of gender-based quotas, remaining mindful of the nuances of gender inequality that have and still affect women today. history: 1920-1950 following the women’s suffrage movement, twentieth-century lawmakers had a stronger inclination than ever confront and remediate the injustices experienced by women. ratified in 1920, the nineteenth amendment to the constitution was a major step towards recognizing the voice and value of women in the united states. legalizing a woman’s right to vote, the nineteenth amendment was one of the first national initiatives that explicitly promoted gender-based equality. despite the benefits of this change, however, the aftermath of the nineteenth amendment’s ratification is also important to analyze, especially because the ability to exercise the right to vote was an unknown territory of power for women. indeed, during the november 1920 election, women’s turnout was lower than men’s, and politicians began to realize that the “incorporation of women as full equals in the electoral process would take decades.”5 this response to the amendment reveals how stratified a woman’s fight was: de jure equality was not synonymous with newfound freedom to de facto vote. all things considered though, the amendment did set a strong precedent, one that proved to women that persistence works, and they would be heard. this mindset alone fueled the continuous re-engineering of the prescribed female role over the remainder of the twentieth century. history: 1960-1990 by the end of the twentieth century, the nineteenth amendment was no longer the only piece of legislation from which women could reap benefits. embracing the power of femininity, the women’s rights movement invigorated the country. protests, marches, and campaigns influenced a the passage of many new pieces of legislation, including the 1963 5 corder, j. kevin and christina wolbrecht. “did women vote once they had the opportunity?” americanbar.org, october 21, 2021, https://www.americanbar.org/groups/public_education/publications/insights-on-law-andsociety/volume-20/issue-1/did-women-vote-once-they-had-the-opportunity-/. 7 equal pay act, which catalyzed a panoramic embargo on the oppression of women. the act, requiring “that men and women in the same workplace be given equal pay for equal work,” attempted to sanitize the work of monetary hierarchy that had been practiced by most to all companies.6 only a year later, the enactment of title vii of the civil rights act facilitated a monumental shift in gender equity. seeking to reform a woman’s experience in the corporate realm, title vii formally prohibited “employment discrimination based on sex, giving women the ability to challenge the actions of employer or potential employers.”7 this piece of legislation was refreshing and rewarding for women in the workplace and supporters of women’s rights more broadly. three years later, due to an executive ordered signed by president lyndon b. johnson, the obligations enforced by title vii extended to government contractors and women in the federal workforce. on paper, these back-to-back federal actions made the workplace seem like a place of universal equity, value, and respect. unfortunately, the mere passing of legislation does not always provide an sufficient impetus to change social outlooks. of course, male attitudes behind closed doors did not immediately align with the female-forward legislation of the 1960’s. indeed, widening the circle of responsibility in the office endangered male-centric power-complexes. this was abundantly clear in the workplace, greatly affecting women and creating another facet of animosity that impeded the progress which had been made. from a distance, however, companies seemed to be leaning into progressivity. in 1985, fortune 500 companies across the country, on average, elected their first female directors; but, a vast number of these women were grandfathered into the role, appointed after the death of their husbands or fathers.8 women started to question whether or not companies were using subterfuge in order to attain clout with the market, or if they were appointing women to high-caliber positions because of merit. this poignant question extended into the twenty-first century and is still grappled with today. history: 2000-2021 6 united states equal opportunity employment commission, “equal pay/compensation discrimination,” https://www.eeoc.gov/equal-paycompensation-discrimination. 7 donna batten, “women's rights,” 442. 8 david f. larcker and brian tayan, “pioneering women on boards: pathways of the first female directors,” stanford closer look series, september 3, 2013, https://www.gsb.stanford.edu/sites/default/files/publicationpdf/cgri-closer-look-25-boards-social-media.pdf. 8 among other systemic problems, twenty-first century activists have taken a keen interest in women's rights, especially by evaluating the efficacy of past legislation and making decisions about the necessity of future legislation based on such analysis. on a national scale, this contemporary celebration of femininity has led to an increasingly confident population of women that preaches the importance of understanding the burdens of the past. while the adoption of colloquialisms like “girlboss” is one measure of how far women have come, the participation in movements like me too, first started in 2006, is equally as compelling. harnessing strength to guide female survivors of sexual abuse and harassment towards achieving an empowered, independent headspace, the movement is not alone in its feat to spread general awareness and attack symptoms of imbedded gender-based injustice. efforts are also being directed towards improving the status of women in corporate environments, exemplified by the creation of campaigns like ‘50/50 women on boards.’ seeking to challenge and hold the workplace accountable, this is an advocacy movement that helps facilitate the equal representation of women on corporate boards. the campaign itself addresses the void of female leadership in the business world. aiming to have the maleto-female ratio equalized, 50/50 wob makes it very clear that its mission is not to overcompensate for the lack of female representation, but to appoint women to boardrooms based on the same standards used to evaluate men. in early 2018, governor jerry brown of california introduced the senate bill 826, the first piece of legislation to be passed in the united states mandating that women be on the boards of publicly traded companies. aimed at expediting the long-overdue process of women being appointed to boardroom positions, the bill offers unparalleled insight for understanding the corollaries of gender quotas in the united states. recognizing that “allmale boards of directors in america’s top corporations are becoming a thing of the past,” the s.b. 826 was signed into law to increase female leadership and ensure equitable boardroom representation.9 mandating that boardrooms of california-headquartered public companies become 50% women by 2021, s.b. 826 was signed into law by governor brown with the hopes of improving social and economic facets of the corporate environment of 9 patricia brown holmes, “regulating gender composition in corporate america,” gp solo 37, no. 2 (march-april 2020): 1. 9 these well-known companies.10 considering california’s politically progressive nature, a lack of surprise to this legislation’s passage is not unusual, just as arguments that s.b. 826 is a “virtue signaling” piece of legislation are not unusual.11 an academic dissection of this bill and the implications of gender quotas provides an accurate estimation of the hindrances women are facing in 2021. historically, discourse around race, class, and gender have been exceptionally polarizing. while the dichotomous stances on these topics still exist, they have most certainly evolved in their own ways. the introduction of gender quotas, both nationally and internationally, has revealed two contemporary thought processes, both of which acknowledge legal, economic, and social facets of this systemic issue. by examining the various repercussions of these quotas, we can analyze their duality and offer a respectful and sustainable path forward. analysis: pro-quota in 2016, american women only accounted for 12% of corporate boardroom positions.12 while this metric has gradually started to improve, rising to 26.5% in 2020, getting a seat at many well-regarded corporate boards has been a continuously difficult feat for most women.13 countries like norway, finland, and france were among the first countries to impose quotas to increase the equitability of the boardroom, and, in turn, their percentage of female boardroom representation has risen at a substantially faster rate. though some argue that the upward maturation of these countries’ statistics is not organic, the active commitment to diversify corporate leadership boards through government-mandated quotas has been a successful “diversity management” tactic.14 quotas have proven to change the gender dynamic of the boardroom more so than “voluntary models” that allow nature to ‘run its course’ and assume female representation will rise on its own. they have also been repeatedly praised for their “life-jacket” nature: on one hand, they ease companies into creating a more equitable leadership team by mandating 10 holmes, “regulating gender composition,” 1. 11 holmes, “regulating gender composition,” 1. 12 felix richter, “infographic: the countries with the most women in the boardroom,” statista infographics, may 23, 2016, https://www.statista.com/chart/4871/the-countries-with-the-most-women-in-the-boardroom/. 13 catalyst, “women on corporate boards (quick take),” november 5, 2021, https://www.catalyst.org/research/women-on-corporate-boards/. 14 erika collins, “global diversity initiatives,” 987. 10 change in the present so that over time, the appointment of women to directing boards will become a more unconscious decision. on the other hand, quotas increase female exposure in the boardroom, allowing women to “build up work experience and network mechanisms” that they can pass along to women in lower-level positions that are interested in obtaining a seat on the company’s board in the future.15 ultimately, the quotas gently ensure company growth and adaptability, two traits that are correlated with a corporation's current and future success. following in the footsteps of countries like norway, finland, and france, states like california, washington, colorado, pennsylvania, massachusetts, new jersey, michigan, ohio, illinois, and hawaii have started to draft legislation that prioritize female boardroom presence. despite arguments that condemn the tardiness of these policies, “corporations are [finally] paying attention” and realizing how muscular the female perspective truly is; these quotas are “good for the bottom line” of large corporations and uplift women in business, celebrating their plethora of talents and distinct leadership capabilities.16 after the passing of california’s s.b. 826, the “[s]hare of female board members in fortune 500 companies” jumped from 22.5% in 2018 to 27% in 2019, a significant 4.5% increase that reflects more progress than ever before.17 questions around whether this jump can be partially attributed to the passing of governor brown’s policy can be answered using recent statistics revealing the number of fortune 500 companies per state. out of the thirtyeight states that house the headquarters of fortune 500 companies, california tied with new york for the most headquarters (53). considering the mandates of s.b. 826, the increase in fortune 500 female boardroom representation between 2018 and 2019 is partially due to the progressive measure taken by the large and economically powerful state of california. these statistics speak to the efficacy of gender quotas in the united states thus far and provide incentive for other states to pass similar pieces of legislation. based on research conducted in 2018 regarding the female role in corporate leadership, quotas are praised because they ensure gender equality is not being achieved by “adding new 15 marcus noland and tyler moran, “study: firms with more women in the c-suite are more profitable,” harvard business review, february 8, 2016, https://hbr.org/2016/02/study-firms-with-more-women-in-the-c-suite-are-moreprofitable. 16 gopalan and watson, “an agency theoretical approach to corporate board diversity,” 2. 17 statista research department, “share of female board members in fortune 500 companies, 1995 to 2019,” april 27, 2021, https://www.statista.com/statistics/691204/share-of-women-board-members-fortune-500/. 11 board seats” for women, but rather through a process where “existing members are being replaced.”18 while replacing these seats can cause inter-gender contempt, it allows companies to put greater thought into the female candidate they are promoting and challenges the idea that quota-based appointments make women appear as “tokens” to the company as opposed to qualified professionals.19 other analyses have recognized the economic benefits of gender quotas. downstream implications of these quotas improve a company's financial performance and the nation’s overall economic well-being. indeed, an economic motivation seems to underlie the passing of california’s s.b. 826, as well as other similar pieces of legislation in other states. increasing the female boardroom demographic is also a “business case to increase shareholder value” as there seems to be an understood “relationship between boardroom heterogeneity and firm performance” and, therefore, the overall success of the company.20 additionally, studies have shown that companies with relatively more female board members “outperform companies with all-male boards with respect to earnings per share, return on equity, and stock performance.”21 understanding that gender parity cannot be met in the short-term is also important in realizing the economic benefits of gender statues. additionally, social implications cannot be neglected when studying economic trends. the same year that california’s new law was passed, the state reported $2.721 trillion gdp, a metric that made the state alone “the fifth largest economy in the world.”22 through a policy-making lens, california’s ability to produce this outstanding of a metric while simultaneously adapting to an impactful legislative statute is revelatory of s.b. 826’s positive ramifications. in a study conducted by the world-renowned consulting firm mckinsey & company, gender diversity is used as a basis on which to analyze the likelihood of a company outperforming its competitor. data from 2019 concludes that a company with a more diverse boardroom and executive team has a 25% chance of outperforming a 18 mich j. gender, “the plight of women in positions of corporate leadership in the united states, the european union, and japan: differing laws and cultures, similar issues,” 284. 19 gender, “the plight of women,” 284. 20 carly j. trainor, “the business case for boardroom heterogeneity,” 451. 21 christopher j. riley, et al., “an equal protection defense of s.b. 826.” california law review 12 (july 2020): 1. 22 reily, et al., “an equal protection defense,” 1. 12 company that does not prioritize these diversification efforts; in other words, the study emphasizes that “diversity wins.”23 despite the economic benefits of gender diversity on corporate boards, questions remain about whether these well-intentioned mandates pass the test of constitutional validity in the united states. the principal legal concerns in this area regard equal protection clause violations, or more specifically, the equal protection claims of the states seeking to implement boardroom diversity legislation.24 in a majority of cases, decisions about the legality of these statutes are made on precedent. when questioning statues used to increase boardroom gender diversity, like s.b. 826, many legal precedents have been referenced, though one of the most poignant from califano v. webster, a case regarding a provision in the social security act. in califano, the supreme court ruled that if a “provision’s purpose was to redress society’s longstanding disparate treatment of women,” then the favorable treatment can be considered justified.25 this ruling set a powerful legal precedent and has acted as an articulate defense for legislation aimed to achieve gender heterogeneity. analysis: anti-quota contemporary discourse around topics of injustice have made it clear that one of the most condemnable offenses is to participate in “performative activism,” or, “activism done to increase one social [or economic] capital rather than one’s devotion to the cause.”26 issues that are systemic in nature require advocacy that is fueled by one’s sincere interests; an absence of this devotion minimizes the strength of one’s contribution to a respective cause and ultimately creates more harm than good. on a global scale, gender quotas have been advertised as pro-women legislation. leveraging on the idea that the quotas finally offer women a sense of equal representation in the boardroom, many cases have framed s.b. 826esque pieces of legislation as measures aimed at eliminating symptoms of systemic gender inequality in the workplace. understanding the importance of an equitable boardroom, many 23 sundiatu dixon-fyle, et al., “diversity wins: how inclusion matters.” mckinsey & company, november 12, 2021, https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diversity-wins-how-inclusion-matters. 24 riley, christopher j., et al. “an equal protection defense of sb 826.” california law review, 12 july 2020, https://www.californialawreview.org/equal-protection-defense-sb826/. 25 lauren kim, “mandating women: defending s.b. 826 and female quotas in the corporate workplace,” loyola of los angeles law review 53, no. 3 (may 2020): 688. 26 “active citizen blog performative activism," wisconsin union, november 1, 2020, https://union.wisc.edu/getinvolved/wud/alternative-breaks/active-citizen-blog/performative-activism/. 13 women have questioned the social, legal, and economic rationale used to justify the passing of gender quotas, believing that there is a more cavalier undertone to the quotas that make them performative actions. in corporate america, there seems to be a universally-held respect for those that are able to rise the ranks and earn a top tier position. this makes sense, as it is indicative of hard work, grit, and always trying to be the best version of yourself—staples of the long-lived american dream.27 in a los angeles times article, author anastasia boden underscores this notion that gender quotas will and have compromised the respect awarded to women that have climbed to the top of the ladder on their own. indeed, she writes, the quotas “add a handful of women to corporate boards,” which challenges the “broader goal of equalitywhich requires not equal numbers, but equal dignity for women.”28 in short, quotas are far less innocuous than legislators think, and they impose residual effects that drive women to raise valid questions about the true intentions of these statues. a common concern is that gender quotas are rooted in motivations to improve the reputation of the company rather than dismantle systemic issues of gender inequality. this uncertainty strips women of all corporate worthiness and transforms them into mere means by which public corporations can better their image. this imposes adverse effects of discrimination, including that even if a policy is “neutral on its face applying equally to all individuals,” it can still have “disproportionately harmful effects upon some groups in society.”29 essentially, quotas act as a hindrance to women in the working world. they help companies check diversity boxes on their yearly reports and foster a further sense of distrust between women and their respective workplace. although quotas are not the best way to realize gender equality within corporate environments, there is still a looming disparity between men and women that must be addressed. according to data gathered in 2020, 53.72 million women held full-time working positions in the united states; of this population of women, only 26.5% of women held 27 gender and the economy, “the debate about quotas,” july 29, 2019, https://www.gendereconomy.org/the-debateabout-quotas/. 28 anastasia boden, “op-ed: setting quotas on women in the boardroom is probably unconstitutional. it also doesn't work,” los angeles times, july 8, 2019, https://www.latimes.com/opinion/op-ed/la-oe-boden-quotaswomen-corporate-boards-unconstitutional-20190708-story.html. 29 sheppard, “systemic discrimination and gender,” 234. 14 boardroom positions.30 while quotas could potentially cure this gap, they would be doing so while simultaneously working against these companies in the long run. in an attempt to satisfy quota regulations, large corporations are replacing male-occupied seats with “qualified female members, while others did not.”31 those that did not will face the consequences of hiring “unqualified or under qualified executive board members,” which will ultimately lead to a decline in the company’s performance, a caveat that most proponents of gender quotas fail to acknowledge.32 economically speaking, quotas have posed alternate burdens. the announcement of california’s s.b. 826 prompted the market to go down 1.2%, which highlights costly consequences of the bill. in response to its passing, companies have realized that there is a substantially higher expense associated with scouting qualified female boardroom candidates since the supply is extremely limited.33 in a different vein, the consequence of justifying gender quotas with economic principles promotes a very one-dimensional, unconcerned discourse. for example, several studies have revealed that firms are only compliant with mandates like s.b. 826 because they believe that appointing more women to their boards will provide “economic benefits to the firm.”34 a faculty member at the kellogg school of management, northwestern’s business school, even deemed efforts to diversify board gender a “business imperative,” a very sterile characterization to say the least.35 upon dissecting these economic motivations, women are left feeling like tools to inflate corporate numbers rather than the valuable boardroom members that they are.36 while the social and economic reverberations of gender quotas are compelling, the legal disdain for them that has been expressed in the courtroom is just as poignant. in fact, many corporations have started to question the constitutionality of the quotas. in a recent 30 “full-time employed women number in the u.s. 1990-2020,” statista, january 25, 2021, https://www.statista.com/statistics/192354/number-of-full-time-employed-women-in-the-us-since-1990/; catalyst, “women on corporate boards.” 31 julia glen, “affirmative action: the constitutional approach to ending sex disparities on corporate boards,” minnesota law review 101 (may 2017): 2089. 32 glenn, “affirmative action,” 2089. 33 daniel greene, et al., “do board gender quotas affect firm value? evidence from california senate bill no. 826,” journal of corporate finance 60 (february 2020): 11. 34 gender, “the plight of women,” 284. 35 victoria medvec adeline, “what will it take to get more women on boards?” kellogg insight, may 10, 2019, https://insight.kellogg.northwestern.edu/article/what-will-it-take-to-get-more-women-on-boards. 36 “california's gender board quota legislation is likely unconstitutional,” columbia business law review, august 13, 2019, https://journals.library.columbia.edu/index.php/cblr/announcement/view/191. 15 case, meland v. padilla, the plaintiff filed suit against california’s secretary of state, alex padilla, arguing that the state’s gender quota legislation violated the fourteenth amendment’s equal protection clause by “prohibiting actions by states that deprive individuals of civil rights.”37 creighton meland, shareholder of osi systems, inc., in california, claimed that the statue, requiring public companies to “add a female member by the end of 2019 and two more female board members by the end of 2021,” was discriminatory on the basis of sex.38 the court found meland lacking in standing to successfully pursue his claim, stating that in the instance the plaintiff cast a vote to appoint a “male board member nominee, there is nothing in s.b. 826 preventing him from casting a vote in favor of that nominee.”39 while the court ruled that meland’s civil and voting rights were not harmed, the foundation of his suit reveals valid frustrations regarding the arbitrary nature of workplace gender quotas. looking ahead: women and boardroom diversity looking forward, the relative infancy of american gender quotas should provide more solace than panic. gleaning insights from statues that are currently in place, the most mature of them being california’s s.b. 826, it is imperative that we capitalize on the malleability of our future and continue to direct our energy towards attaining equality in corporate boardrooms. whether it means implementing more quotas or less formal guidelines on a state level, it is increasingly clear that there is not a singular conspicuous solution that can be created to rid corporate boardrooms of gender inequality. that said, experience has proven itself to be the best teacher, even in the most trivial of cases. it is necessary that we continue to analyze the social, economic, and legal aftermaths of active quotas in order to proceed in an informed way and discern whether or not quotas are truly the best medication for curing the gender disproportionality of boardrooms. assuming that quotas are the best course of action, we must recognize that for any type of solution to be curated, a detailed exploration of the problem at hand must occur. gender quotas in twenty-first-century america are far too blunt, and their lack of tailoring 37 michael hatcher and weldon latham, “states are leading the charge to corporate boards: diversify!” the harvard law school forum on corporate governance, may 12, 2020, https://corpgov.law.harvard.edu/2020/05/12/states-are-leading-the-charge-to-corporate-boards-diversify. 38 meland v. padilla, us dist. ct. e.d. california (2020), 2:19-cv-02288-jam-ac. 39 meland v. padilla. 16 makes them as a blanket solution to a multi-tiered problem. instead of combating gender inequality in the corporate space, they have “inadvertently reinforced antiquated stereotypes” that have historically haunted women. therefore, gender quotas cannot fully rectify the problem of boardroom inequity because they are not sufficiently able to respond to the systemic nature of this problem.40 the best way to improve current and future gender quotas would be to refine them based on industry. detailed analyses of various industries’ histories and demographics would allow legislators to accurately gauge whether or not quotas would have a positive or negative impact. california’s s.b. 826, along with more recent legislation in illinois (h.b. 3395), are far too all-encompassing as they target every publicly traded corporation in their respective states. unfortunately, one size does not fit all when it comes to quotas. and, in order to produce the best results, legislators must pinpoint which industries have been inherently more biased towards women. in 2019, the top five male-dominated industries in the united states were civil engineering, computer programming, construction, driver/sales workers, and mechanical engineering. considering the lack of female representation in these fields, implementation of a quota system does not seem sustainable for the functionality of these businesses, as counterintuitive as that may seem. these industries lack female representation as it is, and, therefore, it is unrealistic to assume that creating an equal boardroom in a matter of years would be possible (let alone beneficial to the company’s performance). instead, states could turn to investing in public-awareness programs for these particular industries, illuminating to the public that female representation in male-dominated industries would challenge gender inequality. refining quotas by sector would pave a longer road to achieving an equitable boardroom; however, it is a far more considerate approach than enforcing a crude gender quota, the only specification being that the company be publicly listed. consideration of a company’s size and status would also help legislators ascertain whether or not quotas would be successful. as previously mentioned, american quotas are targeting a very large range of companies, the only requirement being that the company must be publicly traded. what many fail to recognize when analyzing this requirement is that not 40 anastasia. “op-ed: setting quotas on women in the boardroom is probably unconstitutional.” 17 all publicly traded companies are the same size or hold the same status. in california alone, the state’s gender quota affects both apple, arguably the most powerful company in the world earning $274.52 billion in 2021, and molina healthcare, which is a fraction of apple’s size and has significantly less notoriety.41 despite the tremendous chasm between these two companies, they are both obligated to follow the same set of regulations laid out in s.b. 826. even though these companies are both objectively successful, they should not be held to the same standards when it comes to maintaining and achieving an equitable boardroom. in a sense, imposing quotas upon companies like apple, facebook, or walt disney is meaningless, as unfortunate as that may sound. companies of this caliber have realized their success far before they were obligated to abide by a gender-forward legislation, making prioritization of gender equity in their boardrooms more of a task than a need. although it is important for companies with this level of fame to promote the importance of gender equality, their prior success is enough to conclude that their prioritization of an equitable boardroom is more performative than anything. instead, legislative energy should be funneled into smaller profile, publicly traded businesses, and the startup ecosystem. though inherently more progressive in nature than their tenured counterparts, legally mandating that younger companies appoint an equal number of male and female board members will condition them to weigh the social repercussions of their actions early-on and enable them to realize the supremacy of an equitable boardroom.42 quotas targeting a smaller and/or more youthful demographic of companies will ingrain an important set of social values that will increase these companies’ “freedom of choice” later on.43 with this increased respect for gender equality, these companies will set themselves apart in the relevant social and economic metrics. while it is difficult to predict the future, it is possible that the tensions around gender quotas will dwindle as time progresses. a plethora of qualified, well-educated young women will continue to saturate the corporate space from various institutions, including boston 41 “california's leading companies, by revenue 2021,” statista, july 9, 2021, https://www.statista.com/statistics/312707/california-s-top-companies-by-revenue/. 42 richard h. thaler and cass r. sunstein, “nudge versus boost: how coherent are policy and theory?” university of california san diego, https://pages.ucsd.edu/~mckenzie/grune-yanoff&hertwig2016minds&machines.pdf. 43 thaler and sunstein, “nudge versus boost.” 18 college. this should increase inter-gender competition and challenge the idea that woman can be merely a means for reaching a gendered equilibrium in the boardroom. instead, a focus on a woman’s respective skill set and educational credentials will finally allow her to 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abstract: the sociological concept of anomie, describing the breakdown of ethical standards, has been widely influential in the field of criminology. this article examines the explanatory power of classical and contemporary anomie theories (namely strain theory and institutional anomie theory) in understanding a vast array of crimes as well as exploring the effects of dramatic sociocultural changes in modern history. the article concludes that anomie theories provide robust explanations for certain types of crime (specifically property crime, violent crime, organized crime, and white-collar crime) and notes the empirical challenges in assessing the validity of such theories. introduction sociologist émile durkheim introduced anomie, the french term to describe a state of normlessness, to the study of crime and deviance in the late nineteenth century, leading to the development of strain theory and other similar extensions.1 the concept of anomie has been widely influential in the development of prominent sociological theories of crime, including of the chicago school. however, the study of merton’s strain theory, the first coherent theory of anomie, did not begin until the 1960s, at which point it was met with overwhelming criticism. according to british criminologists downes and rock, strain theory has become “a routine * ting fang tiffany lau is a final year undergraduate at boston college pursuing a b.s. in management, concentrating in finance and information systems, and a minor in philosophy. her academic interests lie in immigration policy, corporate social responsibility, and innovation management. the author wishes to thank professor nicola lacey at the london school of economics for her guidance and teaching in ll272, for which this paper was originally written. 1 tim newburn, criminology (florence, united kingdom: routledge, 2017), 187-191. 3 conceptual folly for students to demolish before moving on to more rewarding ground”.2 nonetheless, the development of contemporary anomie theories over the past three decades reflects the resurgence of this concept in understanding crime. contrary to sociologist colin sumner’s claim that the sociological study of deviance is dead, contemporary extensions of merton’s strain theory continue to influence modern criminology, improving the explanatory power of anomie in relation to crime and deviance.3 the concept of anomie is useful in situating crime within specific sociocultural contexts and provides compelling explanations for the factors and motivations underlying property crime, violent crime, organized crime, and white-collar crime. by the same token, however, theories of anomie demonstrate limited explanatory power for other types of crime (i.e. expressive crime) and are further limited by the challenges of operationalizing and empirically testing its key concepts. overview of anomie theories previous criminological work on anomie emphasizes the social and cultural elements that shape crime, thus de-emphasizing the role of legal construction. the central tenet in anomie theories is that human behavior is based on shared norms that shape people’s goals and the acceptable means through which to achieve those goals. anomie occurs when there is an imbalance between these goals and their means due to either an overemphasis on goals, as merton proposes, or insufficient moral regulations on individual desires, as durkheim argues.4 2 newburn, criminology, 187-191. 3 robert reiner, crime, the mystery of the common-sense concept (oxford, united kingdom: polity press, 2016), 53-55. 4 jón gunnar bernburg, “anomie, social change and crime. a theoretical examination of institutional-anomie theory,” the british journal of criminology 42, no. 4 (september 1, 2002): 729–42. 4 durkheim founded the sociological tradition of anomie that merton later built upon in the development of strain theory. consequently, these two are known as classical anomie theorists. extensions of anomie theory include messner and rosenfeld’s institutional anomie theory, vaughan’s “organisational deviance,” and passas’s “reference group analysis.” institutional anomie theory highlights the moderating power of non-economic institutions, vaughan’s theory analyzes deviance in the context of organizational misconduct, and reference group analysis applies anomic pressures to industry and trade. 5 durkheim: anomie and deviance durkheim first employed anomie in explaining crime by focusing on sociological explanations of deviance, specifically suicide, during the late nineteenth century.6 durkheim viewed crime as actions that offended the collective feelings of society, or what he termed the “conscience collective.” through this lens, conceptions of crime are relative, changing between different societies and in different historical contexts depending on what offends the moral code of a particular society. durkheim viewed crime as inevitable and integral component of society because it encourages social action in response to violations of accepted norms, thereby reinforcing collective values. as such, crime plays an adaptive role in introducing new practices to society, most especially by underscoring group norms. durkheim lived through the industrial revolution and developed the concept of anomie to rationalize the social and psychological changes he witnessed firsthand. he theorized that in times of social transformation, rapid and dramatic changes in economic and political circumstances contribute to the breakdown of existing social arrangements. consequently, new 5 bernburg, “anomie, social change and crime. a theoretical examination of institutional-anomie theory”. 6 newburn, criminology, 182-186. 5 forms of moral regulation must be introduced to maintain social cohesion. durkheim believed that modern industrial societies have a greater affinity for anomie because of the complex nature of new social systems.7 because anomie occurs when moral constraints are unable to limit individual desires sufficiently, without adequately adapted structural constraints in modernizing societies, individuals are pushed toward deviant behavior.8 merton: strain theory merton built on durkheim’s belief that anomie results from poor normative regulation to develop the concept of structural strain.9 merton contends that there are two key elements of social and cultural structure: the socially valued objectives and the acceptable means of reaching such objectives.10 these objectives, which are culturally defined and shared by all members of society, often involve prestige. in merton’s mid-twentieth century american context, this shared goal was financial success fueled by the consumption, greed, and materialism of the “american dream.” as such, merton contends that anomie arises from the misalignment between a society’s objectives and means. merton sought to understand how existing social structures exert substantial pressure on some groups, pushing them to nonconformist behaviors. he was most concerned with the disproportionate stress placed upon specific objectives since this could encourage people to disregard the permissibility of means and instead pursue expediency. he explains that 7 cecil l. willis, “durkheim’s concept of anomie: some observations,” sociological inquiry 52, no. 2 (1982): 106–13 8 newburn, criminology, 182-186. 9 newburn, criminology, 187-191. 10 robert k. merton, “social structure and anomie,” american sociological review 3, no. 5 (1938): 672–82 6 individuals can have five possible responses based on whether they accept or reject the goals and legitimate means to achieve those goals. the most common response is conformity, which occurs when both the means and the goals are accepted. conformity maintains the stability of the social structure and constitutes conventional behavior. on the other hand, the latter four adaptations—retreatism, rebellion, ritualism, and innovation—are deviant. retreatism, the least common, occurs when both goals and means are rejected. retreatists, such as drug addicts, psychotics, and vagabonds, are “in society but not of it.” rebellion can involve rejecting or accepting both the goals and means of society since it involves an overhaul of all existing standards and a desire for a new world order. ritualism describes situations where people lose a commitment to cultural goals but maintain a strong attachment to means. ritualists still conform to social expectations but are considered deviant because they abandon society’s shared aspirations. finally, innovation occurs when people are drawn to the same cultural values but relinquish legitimate means to achieve them. this is known as the illegitimacy adjustment when people assimilate to the culturally defined goals but not the moral norms otherwise governing so-called “legitimate” means.11 merton argues that the illegitimacy adjustment occurs because society holds the same goals for all members but provides differential access to such goals because of class structures. for populations that are taught to value the same achievements yet face institutional barriers to achieving them (namely the lower-class), vice and crime become attractive and efficient options to attain financial success. merton emphasizes that it is not just poverty in isolation that causes 11 newburn, criminology, 187-191. 7 antisocial behavior, but also the coupling of poverty with high barriers to compete for the objectives pursued by society.12 messner and rosenfeld: institutional anomie theory institutional anomie theory (iat), introduced by messner and rosenfeld in 1994, is arguably the most prominent contemporary theory of anomie. 13 messner and rosenfeld extend merton’s strain theory by further explicating the interplay between culture and social structure: though iat resembles strain theory in that american exceptionalism is at the root of anomic pressures, messner and rosenfeld further assert that the capitalist market economy is the structural source of anomie. as an unusually powerful institution, the market economy disrupts the value orientations of other social institutions, allowing values such as self-interest, ambition, and competition to dominate. in comparison, familial, educational, and political institutions struggle to regulate the dangerous values fueled by the market economy. the result is an institutional imbalance in societies where a capitalist economy dominates, placing greater emphasis on monetary success and consequently creating strong anomic pressures.14 anomie in understanding social change the concept of anomie provides a way to understand how social changes—specifically the changing role of social institutions and the dynamic nature of social arrangements— influence human behavior. durkheim used anomie to explain the breakdown of existing social conditions following the industrial revolution. industrialization was characterized not only by technological change but also socioeconomic and cultural shifts with the rise of urbanization, 12 merton, “social structure and anomie”. 13 bernburg, “anomie, social change and crime”. 14 bernburg, “anomie, social change and crime”. 8 workforce mobilization, and commercialization. consequently, society moved from what durkheim saw as a relatively primitive social order characterized by mechanical solidarity to a more complex order rooted in organic solidarity.15 according to durkheim, primitive, premodern societies have relatively undifferentiated divisions of labor, so social order was organized through uniformity and group norms were therefore enforced through retributive sanctions since identifying and excluding outsiders was key to maintaining group identity. as the industrial revolution created a highly differentiated divisions of labor, however, social inequalities were heightened as members of society began to unevenly accumulate wealth. thus, durkheim argues, social solidarity became rooted in heterogeneity under this complex state, with social cohesion resting on the interdependence of diverse individuals. the result was a decline in retributivism as the function of law and punishment later became regulating interactions between diverse members, rather than maintaining uniformity. moreover, durkheim noted that social inequality, family trouble, economic crises, and overconsumption of material goods were more prevalent in modern industrial societies. he purported that with the rapid modernization of society, new forms of moral regulation could not replace existent forms quickly enough—creating a state of anomie plagued by the social problems he observed.16 in a similar fashion, merton used anomie to describe the unique socioeconomic conditions of his time. merton’s strain theory can be seen of as a critique of the american dream’s fundamental ideology, most specifically its values of consumption, greed, and 15 newburn, criminology, 182-186. 16 willis, “durkheim’s concept of anomie: some observations”. 9 materialism.17 the american dream painted a picture of the united states as a land of opportunity where anyone could achieve success with hard work. these ideals attracted many immigrants to move to america to build better lives for themselves, but high unemployment, slumped financial markets, and poor business prospects defined a decade-long financial recession. despite the fact that president roosevelt’s new deal aimed to stimulate the economy and promised the same prosperous and egalitarian environment as before, merton asserts that the high institutional barriers to success for the lower-class precipitated anomie and nonconformist behavior from these groups. merton cites berkeley criminologist lohman’s study on high-crime areas in northern chicago to illustrate strain theory.18 he argues that while the american dream is fed to all members of society, the limited career advancement opportunities for unskilled laborers and lowincome workers reduces any prospects of true financial success. indeed, it is rare for members of these groups to achieve success through legitimate means given the lack of educational and economic resources in high-crime areas. differential access creates strain on this population, pushing them to pursue illegitimate means such as organized crime. the great depression only intensified this strain and prolonged the state of anomie as low-income groups struggled most from widespread unemployment. 19 the concept of anomie also applies to socio-historical contexts outside the western world. chinese criminal justice academic linda zhao used institutional anomie theory as a framework to analyze the surge in china’s crime rates after the market-oriented economic 17 newburn, criminology, 187-191. 18 merton, “social structure and anomie”. 19 newburn, criminology, 187-191. 10 reforms of 1978.20 that year marked the beginning of china’s “reform and opening up” period when premier deng xiaoping launched free market policies that have been credited for the twodigit gdp growth that china has experienced ever since. however, the first decade of reforms saw overall crime rates increase by 340% and serious crime rates increase ten-fold . violent, property, and white-collar crime rose steadily in the subsequent three decades, with, for example, robberies surging by seventeen times from 1981 to 2002. zhao theorizes that china’s sudden change to a market economy and the government-driven cultural shift to cultivate values of entrepreneurship, individual economic success, and wealth redefined socially valued goals. following the introduction of capitalist economic policies, there was a marked shift from a collectivist culture to one in which financial achievements became a measure of individual worth. as economic development became more concentrated in coastal, urban regions, however, rural migrant workers bore an increasingly heavy burden due to their exclusion from social welfare and housing programs in major cities. these workers were also vulnerable to exploitation as they lacked education and could rarely advance from a career of manual labor. zhao further argues that the lack of legitimate means for rural migrant workers to achieve success encouraged crime, thereby explaining the dramatic increase in violent and property crime. strains were also present for middleand upper-class citizens, specifically government officials, leading them to engage in corruption. government officials on low salaries witnessed non-party members accumulate wealth through new economic policies, thus creating anomic pressures towards white-collar crime. 20 linda shuo zhao, “anomie theory and crime in a transitional china (1978—),” international criminal justice review 18, no. 2 (june 1, 2008): 137–57 11 nevertheless, zhao notes that iat cannot fully account for the strains in china’s unique sociopolitical environment, especially because strains were a product of the disconnect between china’s marxist-leninist political ideology and the capitalist principles that sustained china’s economy. zhao contends that this ideological conflict amplified anomic tensions in both upper and lower classes, contributing to the surge in crime throughout china’s transitional period. hence, though anomie is a powerful concept in analyzing individual deviance as a result of social change, the nature of the strains may vary depending on particular sociocultural contexts. anomie in explaining certain types of crime the concept of anomie has proven useful in explaining organized crime, property crime, and violent crime. organized crime entails cooperation between individuals in pursuit of an organization’s goals and usually involves careful planning, recurring cycles of crime, and intricate organizational dynamics.21 it aligns closely with merton’s description of innovation as a deviant adaptation because innovators share the same cultural goals of monetary success but do not have access to legitimate means of achievement. merton asserts that these innovators become more susceptible to the “promises of power and high income from organized vice, rackets and crime” as organized crime is motivated by the promise of significant financial rewards but uses means that violate the law. 22 anomie also offers a compelling explanation for property crime such as theft, shoplifting, and burglary since property crime provides an expedient method to acquire material goods and progress towards material success. merton posits that this type of crime is concentrated in the lower classes because they have the least access to legitimate opportunities, consistent with a 21 j. miller, 21st century criminology: a reference handbook (thousand oaks, california, 2009), 590 22 merton, “social structure and anomie”. 12 large body of research that highlights income inequality as the strongest correlate of property crime. 23 furthermore, radicalized income inequality in major american cities has been attributed to fundamental labor market changes in the past, namely the removal of industrial jobs. this relates to durkheim’s theory that moral and regulatory norms struggle to keep up with rapid changes in socioeconomic conditions. the result is insufficient moral regulation, thus creating a state of anomie. empirical evidence supports the relationship between anomie and theft. in a multi-level study of over 58,000 households in twenty-six countries, marketing academics martin et al. found that greater wealth disparity, greater achievement orientation, heightened individualism, and less future orientation were all associated with higher levels of theft, consistent with merton’s work.24 martin et al. interpreted theft as deviant consumption in the context of consumer behavior. as material symbols of wealth become more visible through globalization and technological advances, the emphasis on materialistic goals is only strengthened. when consumers face difficulties achieving material satisfaction through conventional means, theft proves an immediate and effective method to satisfy these desires. iat also applies to violent crime, which is typically more prevalent among members of the lower-class. in fact, messner and rosenfeld’s 1997 study bolstered iat by using it to analyze cross-national homicide rates.25 specifically, messner and rosenfeld examined how political and economic institutions could account for cross-national variation in the homicide rates of forty-five modern industrialized countries. they found that the “decommodification of 23 miller, 21st century criminology: a reference handbook, 541-543. 24 kelly d. martin, john b. cullen, and michael w. martin, “what’s yours is now mine: deviant consumption through acquisitive crime,” journal of public policy & marketing 32, no. 1 (2013): 140–57. 25 steven f. messner and richard rosenfeld, “political restraint of the market and levels of criminal homicide: a cross-national application of institutional-anomie theory,” social forces 75, no. 4 (june 1, 1997): 1393–1416 13 labor,” or a measure of resources available to help citizens reduce their reliance on the market economy, was negatively correlated to homicide rates. america’s low decommodification score, accompanied by the dominance of its capitalist economy, is an explanation for its unusually high homicide rates. thus, messner and rosenfeld’s findings lend support to their hypothesis that non-economic social institutions should moderate all crimes. one criticism of anomie (and more specifically of merton’s theory), is that it does not provide an explanation for the crimes of the powerful. indeed, merton’s account focuses on how institutional barriers exert anomic strain on the lower class to commit crime. at the same time, however, members of the upper class have clear access to legitimate means of achieving socially valued objectives, so there is no motivation for deviant behavior under his theory. the theories of contemporary sociologists are more effective in explaining crimes of the powerful. nikos passas, professor of criminal justice at northeastern university, added the concept of reference groups to anomie theory in his 1997 publication “anomie and white-collar crime”.26 he argues that conceptions of the socially valued goal, including the meaning and content of the aspiration, vary by social status. passas purports that anomic tensions exist in all social classes, so members of different classes can similarly struggle in achieving their goals. relative deprivation occurs when individuals select comparative referents who are better off to compare themselves to, thereby generating a strain towards deviance. under this context, anomie theory becomes applicable to white-collar crimes. the term “white-collar crime” is used loosely to describe crimes committed in corporate settings by people 26 nikos passas, “anomie and white-collar crime,” in encyclopedia of criminological theory, 2 vols. (thousand oaks: sage publications, inc., 2010), 57–58 14 deemed respectable due to their occupation.27 driven by the goal of monetary success in relation to one’s wealthy colleagues as comparative referents, one could easily feel that his or her legitimate means are insufficient to achieve the level of success enjoyed by comparative referents. this is consistent with the majority of research on white-collar crime, which points to financial need as its primary motivator. while white-collar workers may not exhibit an objective financial need, the “fear of falling,” or losing one’s hard-earned financial security, can be amplified in comparison to one’s high-achieving reference groups. american criminologists schoepfer and piquero’s test of iat in explaining embezzlement in america found support for this revised theory: the study found that voter participation was negatively related to embezzlement, while high school dropout rates were positive correlated, consistent with the idea that political and educational institutions moderate crime. 28 furthermore, higher unemployment rates were associated with lower levels of embezzlement. though this may seem inconsistent with iat, it is as expected for white-collar crime because unemployment limits individual’s opportunities for offending. nonetheless, the explanatory power of anomie in other sorts of crime is subject to critique. for example, durkheim asserts that crimes shock society’s collective consciousness, yet not all crimes call for the kind of moral outrage that violent crimes or property crimes engender. speeding, recreational drug use, and tax evasion are all crimes that do not seem to violate core moral norms held by societies and are generally more accepted. likewise, merton’s strain theory does not seem generalizable to all types of crime. the key element in strain theory is society’s overemphasis on monetary success as the collective goal, but some types of crime cannot be 27 miller, 21st century criminology: a reference handbook, 549. 28 andrea schoepfer and nicole leeper piquero, “exploring white-collar crime and the american dream: a partial test of institutional anomie theory,” journal of criminal justice 34, no. 3 (may 1, 2006): 227–35 15 explained by this objective. expressive crimes, especially domestic and sexual violence, are largely a product of personal motivations with the aim of making a statement. as such, expressive crimes cannot be explained by cultural-level pressures in the same way that instrumental crimes can be. in addition, it is hard to make the case that vandalism or drunk driving are a product of the same strains on the lower-class as theft. merton concedes in his paper that his four deviant adaptations are not collectively exhaustive and that there may exist other adaptations not addressed by his means-ends matrix. given that so many different types of crime exist, a limitation of strain theory is the lack of adaptations available to address other types of offending. perhaps the greater issue though is merton’s assumptions about the types of goals shared by society. merton assumes that financial success is the core objective for all members of society. he acknowledges the presence of countercultures in american society but does not attempt to incorporate them into strain theory.29 for example, members of the lower-middle class tend to prioritize financial security over competition and therefore would not share the same fixation on financial success that merton suggests. likewise, craftspeople typically pursue the perfection of their skill over monetary compensation. to assume that financial success is the blanket objective for all members of american society seems myopic and limits strain theory’s explanatory power. empirical validity of theories of anomie while merton’s work on anomie was published over eighty years ago, there has been limited empirical assessment of its validity since, largely because anomie is an inherently elusive and difficult concept to test. researchers have yet to develop an accepted measure of anomie 29 merton, “social structure and anomie”. 16 because of its abstractness and differentiation in definition. with regards to durkheim, the idea of the conscience collective is highly abstract and his theory of social transformation and the inability of moral regulations to keep pace with changes requires longitudinal studies of the moral norms in society. likewise, any test of merton’s theory requires not only a measure of anomie, but also measures of the degree of emphasis placed on monetary success, the availability of legitimate means to achieve success, and more importantly, what constitutes achievement of the socially valued goal. for contemporary theories like iat, the strength of non-economic social institutions must also be accounted for. therefore, challenges with operationalizing anomie and related theoretical sociological concepts significantly limits their testability, and thus, their empirical validity. the limited empirical research on anomie has primarily relied on single-factor proxies to measure anomie. for example, researchers may rely on a measure of economic strength, such as gdp and unemployment rates, as a proxy for the emphasis on capitalist objectives. as for economic inequality, researchers may turn to absolute measures like life expectancy or infant mortality rates, as well as relative measures like the gini coefficient30.31 one study that analyzed the linkage between social organization and deviance was conducted by baumer and gustafson, leading american sociologists and criminologists, in 2007.32 the study used survey data from the american general survey study to gauge the degree of commitment to monetary success and degree of commitment to legitimate means. the study then used (1) official measures of 30 the gini coefficient is a measure of economic inequality which ranges from 0, indicating perfect equality, to 1, indicating maximal inequality 31 john k. cochran and beth bjerregaard, “structural anomie and crime: a cross-national test,” international journal of offender therapy and comparative criminology 56, no. 2 (april 1, 2012): 203–17 32 eric p. baumer and regan gustafson, “social organization and instrumental crime: assessing the empirical validity of classic and contemporary anomie theories,” criminology 45, no. 3 (2007): 617–63 17 instrumental crime rates across american communities, and (2) single proxies to address the strength of other social institutions. overall, the findings lend moderate support to both merton’s strain theory and iat. as predicted, the strong commitment to monetary success combined with weak commitment to legitimate means had a criminogenic effect. there was no evidence, however, to support merton’s emphasis on limited access to legitimate opportunities weakening commitment to legitimate means. indeed, what was actually significant were the real levels of attainment (as opposed to accessibility of opportunities), thus still supporting merton’s central claim about differential access. in addressing iat, the findings were consistent with the important role of welfare assistance and family socialization considering that reducing commitment to goals though the moderating role of education, political structure, and religion was not evident. one possible explanation for this observation is that welfare systems provide a direct means of increasing access to financial goals while families act as a form of social control. nevertheless, baumer and gustafson’s methodology reflects further challenges in testing theories of anomie. the study assessed commitment to goals and legitimate means by how much respondents agreed to the two statements: (1) “next to health, money is the most important thing,” and (2) “there are no right or wrong ways to make money, only hard or easy ways.” the statements are not only vague and insufficient to capture one’s goal-orientation, but they are also predicated on the assumption that monetary success is the main shared goal in society, an assumption which has not been proven. finally, another issue with testing iat is that the moderating role of the family could also be evidence of routine activities theory. in fact, greater socialization within families may increase the guardianship of potential targets, thus 18 discouraging others in the neighborhood to target them. in addition, the presence of guardians may also hinder the development of deviant subcultures that support groups. recent empirical work has attempted to capture the multiplicative effects of strain theory’s many facets, rather than considering each factor independently. cochran and bjerregaard, who specialize in capital punishment and gang membership respectively, conducted a cross-national study using official data from interpol33, united nations, and world bank for thirty-nine countries.34 examining strain theory and iat, the researchers noted that structural anomie requires three elements: (1) cultural emphasis on wealth accumulation, (2) economic structure that allows for individual wealth accumulation, and (3) presence of structural barriers limiting access to legitimate means of achieving monetary success for some members. to best capture anomie, they proposed the following equation: 𝑆𝑡𝑟𝑢𝑐𝑡𝑢𝑟𝑎𝑙 𝐴𝑛𝑜𝑚𝑖𝑒 = 𝐸𝑐𝑜𝑛𝑜𝑚𝑖𝑐 𝐹𝑟𝑒𝑒𝑑𝑜𝑚 𝐼𝑛𝑑𝑒𝑥 × 𝐺𝐷𝑃 × 𝐺𝑖𝑛𝑖 𝐶𝑜𝑒𝑓𝑓𝑖𝑐𝑖𝑒𝑛𝑡 to incorporate elements in institutional anomie theory, cochran and bjerregaard also used single proxies for non-economic institutions. for example. divorce rates were used to account for strength of family, voter turnout for political engagement, and educational expenditure for strength of education system. the findings suggest that their proposed measure of anomie has predictive efficacy, explaining nearly one third of cross-national variation in homicide and theft. while the study represents progress towards operationalizing anomie, empirical work still needs to be conducted on the implied causal linkages in these theories (i.e. the link between economic inequality and anomie). moreover, precise definitions must be developed to make the theories more testable. while conventional studies have relied on the size 33 international criminal police organization, an intergovernmental organization facilitating global crime cooperation 34 cochran and bjerregaard, “structural anomie and crime: a cross-national test”. 19 of welfare programs, as well as educational and vocational training programs available to determine access, these proxies do not capture the effect of possible institutional biases such as racism that could affect actual accessibility for certain populations. another criticism of empirical tests of anomie theory is their reliance on official data. most empirical research on anomie tests the strength of economic factors or social institutions using statistics from global organizations like the united nations. furthermore, crime is often solely represented with official crime rates extracted from government datasets. the issue with official statistics is that they tend to overrepresent lower-class crime or crimes committed by people fitting certain profiles. the “dark figure of crime” refers to the element that is not captured in official statistics either because victims do not report crimes or the police did not record crimes.35 because of this dark figure, it is difficult to ascertain how high actual levels of crime are simply by relying on official statistics, so self-reporting and victimization surveys are frequently used as alternative measures. the reliance on official data in empirical studies may not accurately capture the nature and distribution of crimes, thus limiting the validity of results. conclusion both classical and contemporary theories of anomie hold that shared norms define our goals and means to achieving these goals. however, institutions and social structures can exert a disproportionate pressure, or strain, on certain groups, pushing individuals in these groups towards deviance and crime. theories of anomie are useful in providing a lens with which to understand individual deviance, particularly within the context of social transformations ranging from the industrial revolution to market reforms of modern china. furthermore, anomic 35 newburn, criminology, 42-46. 20 pressures provide compelling explanations for the roots of organized, property, violent, and white-collar crime. nonetheless, strain theory’s focus on financial success as the predominate socially valued objective limits its explanatory power for expressive crime as well as other types of crime. in addition, the elusive nature of anomie makes it difficult to operationalize, thus presenting challenges for empirical validation. it is worth noting is that the concept of anomie is not only useful in explaining crime, but also presents significant policy implications for the prevention of crime. policies geared towards increasing social welfare and wealth redistribution can reduce the disproportionate strain on anomie and deviance among the lower-class. moreover, increasing investment and participation in educational, political, and familial institutions can have a moderating effect on crime. 21 bibliography baumer, eric p., and regan gustafson. “social organization and instrumental crime: assessing the empirical validity of classic and contemporary anomie theories*.” criminology 45, no. 3 (2007): 617–63. https://doi.org/10.1111/j.1745-9125.2007.00090.x. bernburg, jón gunnar. “anomie, social change and crime. a theoretical examination of institutional-anomie theory.” the british journal of criminology 42, no. 4 (september 1, 2002): 729–42. https://doi.org/10.1093/bjc/42.4.729. cochran, john k., and beth bjerregaard. “structural anomie and crime: a cross-national test.” international journal of offender therapy and comparative criminology 56, no. 2 (april 1, 2012): 203–17. https://doi.org/10.1177/0306624x10396071. martin, kelly d., john b. cullen, and michael w. martin. “what’s yours is now mine: deviant consumption through acquisitive crime.” journal of public policy & marketing 32, no. 1 (2013): 140–57. merton, robert k. “social structure and anomie.” american sociological review 3, no. 5 (1938): 672–82. https://doi.org/10.2307/2084686. messner, steven f., and richard rosenfeld. “political restraint of the market and levels of criminal homicide: a cross-national application of institutional-anomie theory.” social forces 75, no. 4 (june 1, 1997): 1393–1416. https://doi.org/10.1093/sf/75.4.1393. miller, j. 21st century criminology: a reference handbook. thousand oaks, california, 2009. https://doi.org/10.4135/9781412971997. newburn, tim. criminology. florence, united kingdom: routledge, 2017. passas, nikos. “anomie and white-collar crime.” in encyclopedia of criminological theory, 57–58. thousand oaks: sage publications, inc., 2010. https://doi.org/10.4135/9781412959193. reiner, robert. crime, the mystery of the common-sense concept. oxford, united kingdom: polity press, 2016. schoepfer, andrea, and nicole leeper piquero. “exploring white-collar crime and the american dream: a partial test of institutional anomie theory.” journal of criminal justice 34, no. 3 (may 1, 2006): 227–35. https://doi.org/10.1016/j.jcrimjus.2006.03.008. 22 willis, cecil l. “durkheim’s concept of anomie: some observations*.” sociological inquiry 52, no. 2 (1982): 106–13. https://doi.org/10.1111/j.1475-682x.1982.tb01242.x. zhao, linda shuo. “anomie theory and crime in a transitional china (1978—).” international criminal justice review 18, no. 2 (june 1, 2008): 137–57. https://doi.org/10.1177/1057567708318485. compliance in international lawthe role of legitimacy and effect on states’ material power 1 the bellarmine law society review volume xi issue i article 2 compliance in international law: the role of legitimacy and effect on states’ material power shavonne farrell boston college morrissey college of arts and sciences, farrelsn@bc.edu 2 compliance in international law: the role of legitimacy and effect on states’ material pwoer shavonne farrell* abstract: why do some states follow international laws while others do not, and why is this generally accepted? to explain variation in state compliance with international law, this article explores under what conditions international legal institutions are most effective. using a series of case studies, this article examines how two independent variables influence a law’s effectiveness: its legitimacy and effect on states’ material power. this article concludes that legitimacy and a positive (or neutral) effect on a state’s material power must be present for international legal compliance. if one of these factors is absent, then a state’s compliance is unpredictable, rendering the law ineffective as related to its ultimate purpose: increasing predictability between distinct states. to evidence its claim that both variables must be present to guarantee legal compliance, this article most critically examines china’s violation of unclos in the south china sea and japan’s respect for the un security council’s 1994 decision to impose sanctions on north korea. introduction in the midst of a global pandemic, cooperation among states has never been of greater importance. as of late april 2020, the united states center for disease control and prevention (cdc) reported over three million novel coronavirus cases across over two hundred countries, although the real number of cases may be much higher.1 effectively combating this global threat is imperative to decreasing the total number of deaths caused thereby and assisting the global economy with bearing the brunt of an impending economic downturn. to fulfill these ends, international institutions, such as the world health organization (who), are helping states coordinate mitigation efforts, medical research, and personal protective equipment distribution, * shavonne farrell is a third-year undergraduate student at boston college pursuing a b.a. in international studies with a concentration in cooperation & conflict. she is particularly interested in studying international law, human rights, and women’s and gender studies. the author wishes to thank her advisor and international relations professor, peter krause, ph.d., for guiding her through this research process, even amidst a global pandemic. 1 u.s. department of health and human services, "coronavirus disease 2019," centers for disease control and prevention, last modified april 27, 2020. 3 especially to those countries most seriously impacted by covid-19.2 despite the important work that the who and other international organizations are doing during this nearunprecedented crisis, the legitimacy of the who, for example, is being threatened by the united states and other countries who plan on withdrawing funding to organizations which allegedly mishandled the covid-19 outbreak.3 while it is unclear how this cut in funding will affect the who, there is no question that this pandemic has raised important questions about the role that international institutions play in world order. president donald j. trump’s repeated attacks on the who are not the first instance of powerful states questioning international organizations; in fact it is a continuation of the realist legal and institutional worldview that became prominent after the 1948 publication of hans morgenthau’s politics among nations. in this book, morgenthau argues that international institutions and laws are not effective because of their inability to be enforced, an issue that has plagued legal institutions for years, from the league of nations to the united nations’ conference on the law of the sea.4 nevertheless, the difficulty of legal enforcement on the international stage does not make them, as some might argue, completely useless. as in the case of the who and covid-19, international institutions are beneficial because they help states coordinate policy, thus increasing transparency and trust; however, these institutions and laws are most effective when they are recognized and adhered to by as many states as possible. to increase a law’s propensity to be followed, this article examines under what conditions international legal institutions are most effective, beginning with a discussion of the existing literature regarding the (in)effectiveness of international laws. afterwards, this article compares the geneva protocol banning chemical weapons, the league of nations, the united nations conference on the law of the sea (unclos), and japan’s 1994 decision to follow the un security council’s imposition of sanctions on north korea. although these are all different types of international legal institutions, they are not all widely followed: what explains this variation? for example, why is the geneva protocol 2 "coronavirus disease (covid-19) pandemic," world health organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019. 3 betsy klein and jennifer hansler, "trump halts world health organization funding over handling of coronavirus outbreak," cnn, april 15, 2020. 4 hans j. morgenthau, "the main problems of international law," in politics among nations (n.p., 1948), hathitrust. 4 followed by all member states, while unclos is only adhered to by small powers?5 comparing these cases elucidates how the legitimacy and effect on material power influence a state's propensity to comply with these specific institutions. evidence from these cases supports this article’s foundational argument that international legal institutions are most effective when they are regarded as legitimate by the international community, and do not damage the material power of the states interested in compliance. without both of these factors present, compliance with a law cannot be guaranteed. the arguments behind effectiveness an institution's effectiveness is measured by its ability to compel states of great power to comply with it, and numerous states at that. measuring the effects of two independent variables on an institution’s compliance propensity will help delineate under what conditions international legal institutions are most effective: these independent variables are (1) a law’s legitimacy, and (2) its effect on a state’s material power. in this context, legitimacy refers to “the normative belief by an actor that a rule or institution ought to be obeyed,” which is subjective and shaped by a state’s inherent perception of the institution.6 thus, the legitimacy of an institution is measured by the number of member states, or alternatively, the number of states which are a party to an international legal code. the general view which the member states have of the institution, and if they see it as a positive or negative entity, also impacts the institution or law’s legitimacy. the general presumption places institutions into two categories: legitimate or not legitimate. the second independent variable this article will analyze is the legal institution’s effect on a state’s material power during a state’s period of compliance; an institution affects a state’s material power insofar as it positively or negatively impacts the state’s economic resources or national security during the same period of compliance. the two categories this article uses to measure effects on material power are: (1) positive/no effect, and (2) negative effect. the 5 graham allison, "heresy to say great powers don't bow to tribunals on law of the sea?," the straits times, july 16, 2016. 6 ian hurd, "legitimacy and authority in international politics," international organization 53, no. 2 (spring 1999), jstor. 5 combination of these variables creates a matrix that lends itself to the more critical exploration of four case studies. legal institution legitimacy no legitimacy positive/neutral effect on material power case #1 case #2 negative effect on material power case #3 case #4 as mentioned earlier, many realists hold that international laws are not effective because of their inability to be enforced; in fact, on this topic, morgenthau writes that “there can be no more primitive and no weaker system of law enforcement than this.”7 this theory is championed by international realist scholars who would otherwise disagree with the premise of this article: that international laws are effective under specific conditions. in contrast to morgenthau, stephen kocs argues that international laws emerge “because they [correspond] to the needs and interests of the states in the system.”8 put in other words, he argues that when adhering to international law is advantageous for the party states, an enforcement system is not necessary because states will always comply with what is in their best interest. nonetheless, there are few organizations whose laws benefit all member states all of the time: for example, the un cannot benefit all 193 members with every decision it makes. in these cases, compliance variation in the international order emerges, which is thus the subject of this article’s inquiry. unlike morgenthau and kocs, however, the case studies cited by this article demonstrate that even if a law or policy is not advantageous to a particular state, compliance can still follow. institutional legitimacy is an important factor in its compliance potential, and some have even argued that it is the most important factor: in “the legitimacy of transnational legal institutions: compliance, support, and the european court of justice,” james gibson and gregory caldeira assert that for legal institutions, no attribute is more important than legitimacy 7 hans j. morgenthau, "international law and international politics: an uneasy partnership," proceedings of the annual meeting (american society of international law) 68 (april 27, 1974) 8 stephen a. kocs, "explaining the strategic behavior of states: international law as system structure," international studies quarterly 38, no. 4 (december 1994): [page 542] 6 because institutional legitimacy generates respect for the decisions thereby.9 in “legitimacy and authority in international politics,” ian hurd also argues that there are instances in which states comply with international agreements that are not necessarily in their best interest, contradicting kocs’s belief that laws only exist because of the benefits they afford. while legitimacy is of great importance, there are other factors that impact a state’s compliance with a law: most notably, the law’s effect on material power. taking into account the realist argument that compliance is tied to state interests, this article argues that a positive or neutral effect on material power is the second factor that determines compliance potential on the international stage. if one of these factors is absent, then a state’s compliance is unpredictable, rendering the law ineffective as related to its ultimate purpose: increasing predictability between distinct states. an understanding of this argument explains why the league of nations was practically ignored and why the geneva protocol is still respected: both factors of effectiveness are present in the case of the geneva protocol, but were not present in the league of nations. though it is more difficult to explain why china did not comply with unclos in the south china sea while japan did comply with the security council’s decision to impose sanctions on north korea, a detailed analysis reveals that the differential presence of these two factors created markedly different outcomes despite the fact that the united nations mediated both decisions. the league of nations’ failed attempt to ban war supports the realist argument that international laws are ineffective because they cannot be enforced, but also contradicts kocs’s argument that agreements are only upheld when they represent individual state self-interests. indeed, the league failed because (1) member states were not self-enforcing its laws, and (2) because having the ability to make war is in every state’s interest. thus, entering into an agreement to abolish war was not sustainable for member states. the geneva protocol disproves morgenthau’s argument insofar as the law has been in effect since 1925 and has prevented the use of these chemical weapons between states despite the fact that they were used quite effectively in warfare. this dichotomy supports this article’s argument that both legitimacy and a minimally neutral effect on material power must be present for international legal compliance. 9 james l. gibson and gregory a. caldeira, "the legitimacy of transnational legal institutions: compliance, support, and the european court of justice," american journal of political science 39, no. 2 (may 1995): [page 460] 7 admittedly, however, japan’s experience with the un security council certainly complicates this narrative as only one factor was present, a situation that thus warrants additional exploration. in all of the cases this article’s cites, morgenthau would assert that lack of enforcement potential made these institutions relatively useless, while kocs would assert that they were all effective because they would have not been created if not for the benefit of their constituent states. in this article’s estimation, both of these assertions are oversimplifications and thus encourage the case-specific balancing it explores in the unclos and security council examples. explaining variations in international legal compliance the geneva protocol banning the use of chemical weapons was signed on june 17, 1925. this is protocol has had near-unprecedented levels of compliance from both small and great powers, making it an ideal case study in this article’s two-part model. the geneva protocol exemplifies a success in international law because it: (1) aligns with state interests, per kocs’s argument, and (2) has legitimacy amongst the international community. with its net-zero impact on all states’ material power, the geneva protocol is an exemplary case #1.10 case #2 represents an institution that is not seen as legitimate but has a positive or neutral effect on a state’s material power; however, this combination does not exist because if an international law had a positive effect on a state’s material power, it would be seen as legitimate by at least one state. furthermore, if an institution existed that was neither legitimate nor impactful on a state’s material power, it would be wholly inconsequential. two cases of institutions perceived as legitimate, but with a negative effect on material power, will be used for case #3: both unclos and the un security council are entities of the un, which is seen as a legitimate institution, but both institutions damaged the material power of china and japan, respectively. despite the similar categories that unclos and the un security council fall under, china does not comply with unclos while japan recognized the security council’s 1994 sanction decision, even in light of the economic blowback it created. the variation in these two seemingly similar cases is critical to understanding what conditions are most important in international legal compliance. 10 when this article references case numbers, refer to the matrix found on page five. 8 case #4 represents an institution that (1) lacks legitimacy, and (2) has a negative effect on material power, perhaps the best example of which is the league of nations. as the league failed to achieve its goal of banning war, it supports morgenthau’s argument that international institutions will be ineffective without a method of enforcement. within the model that this article proposes, the league would have never been successful because it has neither factor of effectiveness. studying these four independent cases using the aforementioned matrix comparison will help determine under what conditions international legal compliance is most likely. legal institution legitimacy no legitimacy positive/neutral effect on material power geneva protocol n/a negative effect on material power unclos un security council league of nations the geneva protocol banning chemical weapons is an effective law because it is perceived as legitimate and it does not substantially affect state power. the geneva protocol was proposed by the allied powers following the widespread use of chemical weapons during world war i. although the united states did not sign the original protocol, it recognized in 1943 that “the protocol had become part of customary international law,” and the united nations also came to recognize the law after its formation in 1945.11 in addition to the un’s endorsement of the geneva protocol, the legitimacy of this legal norm can be traced to the fact that lethal chemical weapons have been used quite rarely since world war ii.12 indeed, in most of the instances where chemical weapons have been used, the battle was not between two separate states, but instead in the context of civil wars, and thus not under the jurisdiction of the geneva protocol. 11 thomas graham and damien j. lavera, "the 1925 geneva protocol," in cornerstones of security (n.p.: university of washington press, 2002), [page 8], jstor. 12 h. martin lancaster, why we need the chemical weapons convention (n.p.: stimson center, 1995), https://www.jstor.org/stable/resrep11010.9 9 perhaps the most well-known use of chemical weapons in recent years was in syria: the chemical weapons attack in ghouta, damascus was launched by the assad regime on rebel groups as part of the syrian civil war, but the non-discriminatory nature of the chemical weapons “killed hundreds of civilians, including large numbers of children.”13 this attack was publicly condemned by the united states, arab league, and russian federation, one of syria’s closest allies. while former president barack obama did not execute his “red line policy” threat and did not call for military strikes in syria, the united states and russia did reach an agreement on syrian chemical weapons: in september of 2013, the two states “called for syria’s arsenal of chemical weapons to be removed or destroyed by the middle of 2014.”14 this ability of an international law to compel russia’s allyship with the united states to disarm one of its closest allies makes a strong case for the legitimacy and relevance of the geneva protocol; in fact, the global reaction to the august 2013 chemical weapons attack on damascus remains a representation of the widespread acceptance and legitimacy of the geneva protocol. as much as the protocol’s legitimacy increases its compliance potential, its net neutral effect on material power cannot be forgotten either: considering the fact that nearly all states have the ability to produce chemical weapons, no advantage is lost when all states give them up. additionally, there is a clause in the geneva protocol that states the protocol “[will] cease to be binding in regard to any enemy states whose armed forces or allies do not observe provisions.”15 in other words, if an enemy state was to use chemical weapons, your state could respond with chemical weapons and still remain in compliance. ultimately, this is a mechanism of enforcement as no state prefers chemical weapons to be used on it, so it will not use them in the first place. thus, the combination of legitimacy and net neutral effect (albeit nuanced), makes the geneva protocol the gold standard for international legal structures. unlike the geneva protocol, the league of nations lacks both legitimacy and a positive/neutral effect on state power. the ineffectiveness of the league has no better historical champion than the fact that world war ii began just nineteen years after the league’s formation. 13 "attacks on ghouta," human rights watch, https://www.hrw.org/report/2013/09/10/attacks-ghouta/analysisalleged-use-chemical-weapons-syria. 14 michael r. gordon, "u.s. and russia reach deal to destroy syria's chemical arms," the new york times, september 14, 2013, [page #], https://www.nytimes.com/2013/09/15/world/middleeast/syria-talks.html. 15 graham and lavera, "the 1925," [page 12]. 10 the league of nations was unable to achieve its goal of lasting peace because it lacked important legitimizing factors. first, the organization’s membership did not represent the balance of power in the international community. most notably, although woodrow wilson and the united states were original proponents for the league of nations, the senate did not ratify the treaty, undermining the ability of one of the world’s greatest powers to join the league. moreover, germany and the ussr, two other great powers in the early twentieth century, were not members either. consequently, the league lacked the membership of three key decision makers in the international community as members. aside from the lack of ‘power-membership,’ unanimous consent was required for almost all league votes, prompting the fifty member states to agree to relatively few policies and initiatives.16 by this token, the league’s inability to make decisions and its small-state membership made it wholly lacking legitimacy on the international stage. complying with the league of nations would have also damaged a state’s material power: indeed, an important step in ensuring lasting peace was the disarmament of member states, an initiative that would have only been binding of the small member states, making them vulnerable to the military prowess of the united states and germany, for example. similarly, because the league had no mechanisms to enforce disarmament, the league’s primary goal was not achieved, furthering its illegitimacy. the united nations conference on the law of the sea is not as straightforward as the geneva protocol or the league of nations because it has one of the important factors of effectiveness, but not both. unclos was signed by over 150 un states in 1982, and went into effect in 1994. the conference standardized previously ambiguous laws regarding where coastal states have economic and military power and where they do not. unclos divides a state’s maritime territory into three categories: territorial waters, a contiguous zone, and an exclusive economic zone (eez). the eez gives states exclusive rights to the natural resources like fish and oil in the seabed within two-hundred miles of their coast.17 this latter detail has been a source of conflict in recent years, particularly in southeast asia, where some eezs overlap. 16 peter krause, "international institutions lecture" (lecture, boston college, chestnut hill, ma, march 12, 2020). 17 rebecca strating, "maritime territorialization, unclos and the timor sea dispute," contemporary southeast asia 40, no. 1 (april 2018). 11 china has been violating the eez of other states in the south china sea for over twenty years, and there is no indicating that this posture will change soon. the south china sea is rich in mineral and oil resources, and china has recently asserted a historic claim to eighty percent of the territory with their “nine dash line.” the basis for this claim is questionable not only because vietnam, malaysia, indonesia, and the philippines all have claim to this region under unclos, but also because “until the 1940s, china had never claimed sovereignty over the disputed islands in the region and officially staked sovereign claim to the four archipelagos only in 1958.”18 in 2016, the philippines took china to the permanent court of arbitration in the hague to argue this violation of unclos, and not surprisingly, the pca sided with the philippines. nevertheless, it is also not surprising that china stated they would ignore the ruling. to explain the lack of compliance with unclos, which is quite serious considering that no member of the un security council has ever complied with a unclos-related ruling,19 we need first look at legitimacy. perhaps most importantly, the united states is not even a signatory of the law of the sea tribunals, presenting a notable legitimacy issue for unclos. in this case, the legitimacy and material power considerations are inextricable. great powers do not comply with (china) or even recognize (united states) unclos because it damages their access to maritime resources. in this case, despite the fact that unclos is championed by the united nations, an internationally respected organization, it should be considered legitimate, but because great powers are not willing to abide by the law, its effect is undermined. this demonstrates the importance of the connection between material power and legitimacy: one factor alone cannot compel a state to comply. though the un security council’s imposition of sanctions on north korea in 1994 contradicts this article’s fundamental argument that both compliance factors must be present for a law to be effective, scholars of international relations have asserted that the legitimacy behind the un security council compelled japan to impose sanctions on north korea even in spite of the fact that it negatively impacted japanese material power.20 economically, japan was slated to suffer from sanctioning north korea as (1) many north koreans living in japan would return to 18 leishangthem singh, "china's strategy on the south china sea disputes," world affairs: the journal of international issues 21, no. 1 (spring 2017): [page 81], jstor. 19 graham allison, "heresy to say great powers don't bow to tribunals on law of the sea?," the straits times, july 16, 2016. 20 hurd, "legitimacy and authority," [page 402]. 12 their country, and (2) japan would lose north korea as a partner in trade. in the face of impending economic consequences, the decision to accept sanctions “is a strong sign that japan accepted the legitimacy of a security council decision, even with a medium probability of an adverse outcome.”21 this is a victory for international legal compliance, but as much as it places legitimacy at the summit of compliance factors, the unclos example cannot be ignored. this compliance variation between the unclos and security council cases demonstrates that without both legitimacy and a positive/neutral effect on material power, the ultimate outcome of legal compliance remains unsure. indeed, though both of these institutions are entities of the highly-legitimate un, differential outcomes prove that legitimacy is not the only requisite factor for compliance. without both factors of effectiveness present, compliance with the law cannot be guaranteed, which explains the variation in compliance between the unclos and security council cases. conclusion the central problem with international legal institutions is that there are more than twohundred countries in the world, and no law or organization will be seen as legitimate nor benefit the material power of every single state. nevertheless, there are conditions that heighten the compliance potential of laws, the best of which are evident in the geneva protocol and especially its relationship to the syrian civil war. this article’s exploration of unclos and the un security council also demonstrate that both factors must be present to accurately predict the compliance with international law: in both cases, only one factor is present, and thus, two different outcomes arise. both arguments from morgenthau and kocs oversimplify the complex situations that arise in international politics. indeed, morgenthau’s argument that institutions are ineffective because they lack enforcement mechanisms can be applied to the failure of the league of nations, but does not explain the success of the geneva protocol. by the same token, kocs’s argument that laws must be self-enforced by member states is exemplified by the geneva protocol, but does not account for organizations like the league of nations. these two 21 hurd, "legitimacy and authority," [page 402]. 13 arguments align well with realism and liberalism respectively, but overall, they are not faceted enough to explain the effectiveness of international laws. this article’s findings can be applied more broadly to international institutions and the unraveling relationship between the united states and world health organization. as the united states contributes far more financial resources to the who than china, the who disproportionately impacts the economic power of the united states as compared to china: it is unsurprising that the president decided to halt who funding. in the case of the united states and the who, the legitimacy factor is present, but the material power factor is not: while there is a case to be made for not decreasing funding to the who during a global pandemic under the conditions of my model, it follows that the united states would not financially support an organization that does not minimally have a neutral effect on its power. to regain support from the united states, the who would have to re-classify china as a developed country to increase its monetary contribution, or it would have to decrease the amount that the united states is compelled to give. in either situation, the effect on the material power of china and the united states would find a counterbalance and therefore increase the probability of the united states renewing funding to the who. 14 works referenced allison, graham. "heresy to say great powers don't bow to tribunals on law of the sea?" the straits times, july 16, 2016. accessed april 5, 2020. alter, karen j. international courts altering politics. vol. 2 of courts, politics, rights. n.p.: princeton university press, 2014. jstor. "attacks on ghouta." human rights watch. https://www.hrw.org/report/2013/09/10/attacksghouta/analysis-alleged-use-chemical-weapons-syria. "coronavirus disease (covid-19) pandemic." world health organization. https://www.who.int/emergencies/diseases/novel-coronavirus-2019. gibson, james l., and gregory a. caldeira. "the legitimacy of transnational legal institutions: compliance, support, and the european court of justice." american journal of political science 39, no. 2 (may 1995): 459-89. https://www.jstor.org/stable/2111621. gordon, michael r. "u.s. and russia reach deal to destroy syria's chemical arms." the new york times, september 14, 2013. https://www.nytimes.com/2013/09/15/world/middleeast/syria-talks.html. graham, thomas, and damien j. lavera. "the 1925 geneva protocol." in cornerstones of security. n.p.: university of washington press, 2002. jstor. hurd, ian. "legitimacy and authority in international politics." international organization 53, no. 2 (spring 1999): 379-408. jstor. klein, betsy, and jennifer hansler. "trump halts world health organization funding over handling of coronavirus outbreak." cnn, april 15, 2020. kocs, stephen a. "explaining the strategic behavior of states: international law as system structure." international studies quarterly 38, no. 4 (december 1994): 535-56. jstor. krause, peter. "international institutions lecture." lecture, boston college, chestnut hill, ma, march 12, 2020. lancaster, h. martin. why we need the chemical weapons convention. n.p.: stimson center, 1995. https://www.jstor.org/stable/resrep11010.9. 15 morgenthau, hans j. "international law and international politics: an uneasy partnership." proceedings of the annual meeting (american society of international law) 68 (april 27, 1974): 331-34. https://www.jstor.org/stable/25657843. morgenthau, hans j. "the main problems of international law." in politics among nations, 263-98. n.p., 1948. hathitrust. singh, leishangthem. "china's strategy on the south china sea disputes." world affairs: the journal of international issues 21, no. 1 (spring 2017): 80-99. jstor. strating, rebecca. "maritime territorialization, unclos and the timor sea dispute." contemporary southeast asia 40, no. 1 (april 2018): 101-25. jstor. u.s. department of health and human services. "coronavirus disease 2019." centers for disease control and prevention. last modified april 27, 2020. 19 drowning in debt: a legal analysis of pension systems in the state of illinois charles e. power introduction as of august 27th, 2018, illinois’ unfunded pension liabilities totaled $250 billion.43 mckinsey & company has identified illinois as the most fiscally unstable state in the nation.44 moody’s and s&p global ratings rate illinois’ debt at bbb-, the lowest credit record of all time for an american state.45 russia has the same debt rating as illinois.46 as moody’s wrote in its report, “the rating reflects illinois’ extremely large net pension liabilities and a long history of unbalanced financial operations that culminated in a record level of overdue bills last year.”47 moody’s outlook is negative, and the next downgrade will push illinois into junk status. illinois’ fiscal crisis has both shortand long-term components. more recently, the general assembly has simply been inadequate at spending within its means; illinois has not had a balanced budget since 2001. and while the damage that almost two decades of profligate spending, especially the recent 736 day budget standoff, have inflicted on the state’s finances cannot be dismissed, this paper will analyze the state’s fiscal health by focusing on the graver threat: billions in pension debt.48 organized into four sections, this essay will first document the 43there is actually some discrepancy over how much pension debt illinois is actually in. other estimates range between $110-130 billion. moody’s total is the most recent estimate this author was able to find. chea, pisei. “research announcement: moody's unfunded us state pension liabilities surge in fiscal 2017 due to poor investment returns.” moody's investors service, 27 aug. 2018. 44“these u.s. states are the most fiscally stable.” u.s. news & world report, u.s. news & world report, 2018. 45schuster, adam. “illinois bonds once again rated just above junk.” illinois policy institute, 10 apr. 2018. 46“russia credit rating.” trading economics, trading economics, 2018. 47 moody's investors service. 48for 736 days, illinois operated without a constitutionally-mandated budget. this was a political crisis, with newly elected republican governor bruce rauner and the democratic-controlled general assembly unable to agree on spending cuts and tax increases. the crisis ended when 10 republicans joined with democrats to override the governor’s veto on july 6th, 2017. but it was too late, for lasting damage had been done: over a billion in late payment interest penalties, stalled and shuttered public programs, a dearth of strategic investment in 20 general assembly’s decades-long dereliction of duty in its chronic underfunding of the state’s pension systems. next, the analysis section will examine the general assembly’s 2013 attempt at pension reform, and the illinois supreme court’s rationale for declaring that legislation unconstitutional in 2015 under article xiii § 5 of the illinois constitution. in light of the constraints this pension protection clause places on the ability of the general assembly and executive to modify existing pension contracts, this paper will then explore recommendations for reform, centered around municipal bankruptcy proceedings, adjustments to future state employee benefit contracts, and the passage of a constitutional amendment. history 1917-1970: the seeds are sown pension troubles have plagued the state of illinois for over a century.49 as early as 1917, the general assembly characterized the state of municipal pension systems as one of insolvency due to funding mechanisms which were “entirely inadequate for paying the stipulated pensions when due.”50 warnings continued over subsequent decades. the illinois public employees pension laws commission of 1949 noted “every fund in illinois suffers at this time from actuarial insolvency.”51 that same body, with strikingly similar rhetoric twenty years later, infrastructure and higher education—not to mention the evaporation of any semblance of any remaining public or investor trust in the government of the state of illinois. as a result of this crisis, the state’s total backlog unpaid bills reached $16.7 billion. while the state was able to refinance and payoff some of this load, over $8 billion remains. in addition, the most recent budget, oddly heralded as balanced by democrats and republicans, has a $1.2 billion deficit. forebodingly, this woe has taken place amidst a national economic upswing. one can only imagine the stress the next inevitable serious economic downturn will inflict on illinois—a state teetering on the brink in a period of healthy economic expansion. 49there are five separate state-funded pension systems for public employees: the general assembly retirement system (grs), the state employees’ retirement (sers), the state universities retirement system (surs), the teachers’ retirement system (trs), and the judges retirement system (jrs). 50report of the illinois pension laws commission of 1917. quoted in: supreme court of illinois. in re pension reform litigation (doris heaton et al., appellees, v. pat quinn, governor, state of illinois, et al., appellants). 8 may 2015, 4. 51report of the illinois pension laws commission of 1949. ibid., 4. 21 characterized the level of pension funds in 1969 as “below mandatory statutory requirements as expressly provided in the governing law… [and were] grossly insufficient.”52 in 1969, the overall funding rate for illinois’ public pension system was 41.8 percent. concern over this lack of funding was a potent issue at the state’s 6th constitutional convention, held in 1970. one delegate, arguing for constitutional protections for pensions, stated, “despite the consistent warnings from the pension laws commission… the general assembly has failed to meet its commitments to finance the pension obligations on a sound basis.”53 the supposed solution, which was eventually ratified, was the addition of article xiii § 5 to the state’s constitution. the provision states: “membership in any pension or retirement system of the state, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”54 1970-1993: the crisis begins however, if this provision was designed to send a message to the general assembly to clean up its act, it failed. in the decade that followed, no substantial reforms were implemented. up until 1981, illinois simply paid the costs of pension benefits as they came due. economic difficulties in 1982 caused the state to abandon this ad hoc approach, and from 1982-1995 the general assembly allocated a constant level of funds. but the state did not respond to rising costs, and the value of this steady contribution was corroded. pension reform was attempted in 1989, but it floundered. in the early 1990s, the general assembly even began to fail to keep up with its inadequate yearly contributions, diverting pension dollars into the state’s general 52report of the illinois pension laws commission of 1969. ibid., 5. 53“record of proceedings, sixth illinois constitutional convention.” illinois digital archives, the state of illinois, 1972. 54“constitution of the state of illinois.” illinois general assembly home page. 22 revenue fund. analyzing the state’s approach during this period in a 2013 cease and desist letter, the securities and exchange commission (sec) characterized it as having “no relation to actuarial calculations of liability.”55 1994-present: the crisis escalates in 1994, the general assembly was finally able to pass a plan to put the system on a path to solvency. the legislation mandated that the state contribute sufficient funds to meet 90 percent of the actuarial costs of the pension systems through 2045. but in reality, this reform was toothless. instead of immediately meeting 90 percent of the actuarial costs of the system, the state implemented a “ramp period.” this ramp period allowed the state slowly increase its contributions to the system, essentially betting that future legislatures would somehow find billions of extra dollars to contribute.56 by 1995, the pension system was only 50 percent funded. to make it worse, the general assembly could not even abide by the funding levels set forth in the ramp period, declaring pension “holidays” in 2005 and 2006. in these years, the state unilaterally decided it would only meet half of its required contributions. these gimmicks added $2.3 billion to the state’s pension debt. to top it off, these maneuvers were not adequately disclosed to the state’s bond holders.57 in the period between 1996-2010, the state’s unfunded pension liabilities increased by $57 billion. and while market crashes in 2001 and 2008 pushed the state’s pension systems 55the letter accused the state of misleading bondholders in its financial reports. “order instituting cease-anddesist proceedings pursuant to section 8a of the securities act of 1933, making findings, and imposing a ceaseand-desist order.” securities and exchange commission, 11 mar. 2013, 3. 56the state of illinois retirement systems: funding history and reform proposals, a civic federation issue brief. the civic federation, 30 sept. 2008, 13. 57as the sec damingly concludes in its 2013 letter “rather than controlling the state’s growing pension burden, the statutory funding plan’s contribution schedule increased the unfunded liability, underfunded the state’s pension obligations, and deferred pension funding. this resulting underfunding of the pension systems enabled the state to shift the burden associated with its pension costs to the future and, as a result, created significant financial stress and risks for the state.” sec, 3. 23 further into the red, there is no question where responsibility for the crisis lies: “the state’s insufficient contributions under the statutory funding plan were the primary driver of this increase, outweighing other causal factors, such as market performance and changes in benefits.”58 at the end of june 2013, the state had funding to cover 41.1 percent of pension liabilities.59 as the illinois supreme court drily observed in 2015, “the funding rate was thus nearly unchanged from the 41.8 percent funding rate prior to the ratification of the 1970 constitution and its protection clause.”60 in april 2018, the pew research center pegged the state’s pension funding at 36 percent.61 pension liabilities have begun to encroach on the government’s budget, consuming one fourth of all state spending. the nationwide average is 4 percent.62 analysis in another attempt at reform, the general assembly enacted public act 98-599 in 2013. this legislation combined cuts to benefits with an injection of funds into the pension systems. according to the plan’s drafters, the bipartisan plan would save the state between $90 and $100 billion by delaying retirement ages up to five years for employees under 45, capping the maximum salary used in benefit calculations, and ending three percent compounded cost of living increases.63 public employees immediately filed five separate lawsuits challenging the legislation, which were consolidated in heaton v. quinn. the plaintiffs claimed that the state, by reducing pension benefits, violated article xiii § 5 of the illinois constitution. 58sec, 4. 59godofsky, david r., and emily hootkins. “illinois supreme court affirms constitutional protection of public pensions.” benefits law journal, vol. 28, no. 3, 3. 60heaton v. quinn, 8. 61 the u.s. average is 66 percent. wisconsin’s pension systems are 99 percent funded. 62mennis, greg. “the state pension funding gap: 2016.” the pew charitable trusts, 12 apr. 2018. 63the state of illinois. the general assembly. public act 098-0599. 2013. 24 in heaton v. quinn, the state does not dispute the meaning of article xiii § 5, but instead attempts to argue its “reserved sovereign power,” or police power, permits the modification of pension contracts in the interest of the public good.64 the thrust of the state’s argument rests on three points. first, due to its police powers, the general assembly possesses the authority to modify obligations imposed on it by the state constitution when “such action is reasonable and necessary to advance an important public purpose.”65 further, due to havoc the great recession wreaked on state finances, a sluggish economic recovery, the state’s sheer amount of pension liabilities, and the state’s poor credit rating, a reduction in pension liabilities is necessary to stave off greater fiscal disaster. public act 98-599 represents a fair and reasonable compromise under such circumstances. thus, the state’s “reserved sovereign power” trumps article xiii § 5, the pension protection clause.66 the illinois supreme court rejected the state’s reasoning. in a 7-0 ruling, the court began by acknowledging that the state, exercising its police powers, may enact “regulations reasonably necessary to secure the health, safety, morals or general welfare of the community, even though contracts may thereby be affected.”67 however, the court refuses to accept the state’s reasoning because it would render article xiii § 5 a nullity. the state’s police powers and economic emergency are not adequate justifications, for it “would require that we allow the 64by the time heaton v. quinn was argued in 2015, there was no discrepancy on the meaning of article xiii § 5. kanerva v. weems is an important precedential case. in a 2014 6-1 decision, the illinois supreme court found the meaning of the language of the pension protection clause to be plain and unambiguous. this holding is essential to understanding the court’s opinion in heaton v. quinn, for the court cites its kanerva v. weems ruling: “we held in that case that the clause means precisely what it says: ‘if something qualifies as a benefit of the enforceable contractual relationship resulting from membership in one of the state’s pension or retirement systems, it cannot be diminished or impaired.” kanerva vs. weems further tied the state’s hands, for the court ruled that health benefits and cost of living adjustments in pensions, if offered at the time of an employee’s hiring, may not be reduced. 65 heaton v. quinn, 13. 66godofsky, 3. 67heaton v. quinn, 18. the illinois supreme court cites a 1954 case: city of chicago v. c. & nw ry. co. 25 legislature to do the very thing the pension protection clause was designed to prevent it from doing.”68 the court finds that the state of illinois has not surrendered its sovereign authority. in contrast, the people of illinois, the ultimate sovereign, have rightfully and legitimately restricted the power of the general assembly to act through the authority of the state constitution: “if police powers could be invoked to nullify express constitutional rights and protections whenever the legislature felt that economic or other exigencies warranted, it is not merely pension benefits of public employees that would be in jeopardy. no rights or property would be safe from the state. today it is nullification of the right to retirement benefits. tomorrow it could be renunciation of the duty to repay state obligations… under the state’s reasoning, the only limit on the police power would be the scope of the emergency.”69 the illinois supreme court was not dismissive of the financial challenges facing the state, but it was adamant that the law must be upheld: “crisis is not an excuse to abandon the rule of law. it is a summons to defend it. how we respond is the measure of our commitment to the principles of justice we are sworn to uphold.”70 while the court’s lofty language is laudable, it neither tempers the crisis nor offers a solution. the facts remain: illinois has $250 billion in pension liabilities, and the state descends deeper in debt every year.71 pension contracts: a brief state and federal comparison the illinois supreme court’s ruling does not leave the state much room for addressing its pension liabilities. article xiii § 5 does not permit unilateral pension benefit reductions under 68ibid., 22. 69the opinion goes on to read: “the legislature could do whatever it felt it needed to do under the circumstances. and more than that, through its funding decisions, it could create the very emergency conditions used to justify its suspension of the rights conferred and protected by the constitution. if financial markets were rational, this prospect would not buoy our economy, it would ruin it.” the court’s understanding of the fundamental importance of trust in a market-based system is quite philosophically sophisticated and eloquently stated. ibid., 25. 70ibid., 26. 71 it is the author’s opinion that the negative ramifications of striking down public act 98-599 cannot be overstated. actuarial projections stated that the state’s pension systems would have reached full funding by 2039. required 2016 pension contributions would have been reduced by $1.2 billion. these cost savings could have given the general assembly more room to negotiate, possibly nipping the state’s budget impasse in the bud and preventing the subsequent income tax increases. instead of lasting reform, the past five years have seen further degeneration in the state’s finances, with no solution in sight. 26 any circumstances. while most states protect pensions under contract law, illinois is an outlier in the sense that it expressly prohibits any negative alteration, even in instances of fiscal emergency.72 even more unusually, not only are current benefits a worker has earned protected, but also the formula under which those benefits are calculated throughout an employee’s career.73 such jurisprudence conflicts with how other states have interpreted pension contract law: “other state supreme courts have upheld pension reforms very similar to illinois’ 2013 reforms, even when recognizing that pensions are contractual benefits that cannot be diminished or impaired.”74 one of these states is colorado, where the courts ruled that reducing cost of living increases did not violate state employees’ contractual rights, making a distinction between earned pension benefits and predicted increases stemming from a cost of living adjustment.75 such a proposal was part of public act 98-599’s package of reforms. it contrast to the illinois supreme court, other state courts have been more willing to show deference to good-faith legislative actions seeking to address unsustainable pension benefit systems.76 the illinois supreme court’s jurisprudence is also a departure from how contract law has been interpreted at the federal level. derived from supreme court precedent, federal courts apply a three-part test to determine whether legislation altering contracts is permissible under the contract clause, which nominally prohibits states from “impairing the obligation of contracts.”77 first, the courts determine if a contract exists. if a contract exits, the next question is whether the 72 new york is the only other state. godofsky, 4. 73 the state is free to unilaterally increase benefits, but once the benefit accrual formula has been set, it may not be altered. 74 schuster, 13. 75 colorado is also significant because its pension systems, while not as bad as illinois, are less than 50 percent funded. 76another example is hawaii. while that state’s constitution protects earned pension benefits, courts have ruled that future benefits are not necessarily protected. 77u.s. constitution. art. i, § 10. 27 legislation imposes an impairment to the execution of the contract. if the impairment is found to be substantial, the court must decide whether the legislation is “reasonable and necessary to serve an important public purpose.”78 but while the three-part contract clause test is widely accepted, “the decisions of state courts applying this analysis to state pension contracts vary considerably.”79 illinois is a case in point. as this paper has explored, there is no question pension contracts exist, and the invalidated public act 98-599 attempted to significantly impair the execution of those established contracts. further extrapolating the federal test, it would appear that the threat of insolvency would represent an interest compelling enough to allow illinois to seek relief—which public act 98599 represents. but the illinois supreme court decided otherwise; the explicit guarantees of article xiii § 5 are too strong to be subordinated by the state’s police powers. proposals the illinois supreme court’s ruling naturally raises the question of what avenues remain available to policymakers and citizens who seek pension reform. this section of the paper will outline several broad possibilities, including municipal bankruptcy, legislative action to alter the structure of future benefit contracts, and the passage of a constitutional amendment to modify article xiii § 5. municipal bankruptcy: a possible escape hatch in a hypothetical scenario, a federal court could possibly trump illinois’ pension protection clause in bankruptcy proceedings, assuming state bankruptcy would function similar to municipal bankruptcy—although nobody is quite sure how the state bankruptcy would work. 78cloud, whitney. “state pension deficits, the recession, and a modern view of the contracts clause.” the yale law journal, vol. 120, no. 8, 2011, 2204. 79ibid. 28 at the moment, this discussion is moot, for federal bankruptcy law does not allow states to declare bankruptcy.80 however, municipalities with their state’s consent can seek chapter 9 federal bankruptcy relief. two recent cases illustrate how bankruptcy proceedings can address pension debt and how they could offer some relief for illinois taxpayers. in 2013, the city of stockton, california filed for bankruptcy, with significant pension liabilities included among the city’s debts. while stockton ultimately decided to honor its pension contracts, in the course of proceedings, a federal bankruptcy judge ruled that retirement debt can be reduced in bankruptcy—as with any other debt: “california public employee retirement law … is simply invalid in the face of the supremacy clause of the united states constitution.”81 a similar ruling was made in detroit 2013 bankruptcy proceedings, where city employees ultimately saw their pensions cut 4.5 percent and the end of cost of living increases. in a ruling that allowed detroit to cut its pensions, putting it on a path to solvency, a federal bankruptcy judge stated, “pension rights are contract rights under the michigan constitution… it has long been understood that bankruptcy law entails the impairment of contracts.”82 extrapolating these cases to the illinois context, municipal bankruptcy could offer some relief to taxpayers, for local governments’ pension debts—$50 billion of the total—would then be eligible to be renegotiated.83 of course, illinois is not a municipality, and the state itself remains on the hook for the rest of its unfunded liabilities. but since illinois’ pension debt is held at both 80state bankruptcy is uncharted territory, and if authorized by congress would present the supreme court with several novel questions, including whether the contracts clause prohibits states from declaring bankruptcy in in the first place. on the other side, the u.s. constitution does give congress power to enact “uniform laws on the subject of bankruptcies throughout the united states.” u.s. constitution. art. i, § 8. 81megerian, chris. “stockton bankruptcy ruling a blow to pensions.” los angeles times, los angeles times, 1 oct. 2014. 82“judge picks supremacy clause in detroit's bankruptcy battle.” national constitution center – 3 dec. 2013. 83chicago being one of those localities with significant debts. ingram, jonathan. “$203 billion and counting: total debt for state and local retirement benefits in illinois.” illinois policy institute, 4 apr. 2017 29 local and state-wide levels, municipal bankruptcy is a possible escape hatch to simplify two intertwined debt crises and reduce taxpayer liability.84 working in tandem: legislative action & constitutional reform in evaluating the options for the state itself, it appears there are three: improbably clawing together the money to meet its massive liabilities, reducing pension benefits for future employees, and repealing article xiii § 5. the first option should be taken off the table. while it may be seductive to speculate that illinois could simply raise enough tax revenue to pay off its debt, this is not economically sound policy in a state that already has a high tax burden, especially in relation to its midwestern peers.85 the second option, while an important part of any potential reform package and crucial to the state’s ultra-long term fiscal health, does not address the liabilities the state already owes. the third option is time-consuming with no guarantee of success. alone, neither the second nor third options is sufficient. but enacted together, these two reforms may be able to offer a glimmer of hope. without raising the tax burden or changing the constitution, there are substantial reforms illinois can enact. first, the state should stop paying for the employer share of pension and health care costs for public school employees. as the system currently operates, local districts negotiate contracts, but the state pays the agreed upon benefit levels, even though teachers are not state employees. this practice creates a moral hazard, for local districts negotiate teacher 84due to space constraints, this paper is only attempting to give a broad outline of what municipal bankruptcy might entail and will not be addressing the intricacies of municipal bankruptcy or which illinois towns should pursue it. 85income and corporate taxes were recently raised as a condition to end the recent budget standoff. greater taxes threaten to make the problem worse, for illinois is already experiencing a net population outflow and is ringed by low-tax states: indiana, wisconsin, iowa, and missouri. however, to reach a compromise, tax increases may be necessary. this author is not against raising taxes per se, but is simply attempting to criticize the pervasive ‘tax and spend’ mentality that dominates illinois politics. raising revenue without attempting to address the underlying costs is no longer enough. a report by the commission of government forecasting and accountability calculated illinois would need to raise taxes by more than 30 percent, or $224 billion, to cover pension liabilities. 30 contracts without ever paying for the pension benefits themselves. instead, local districts should bear the burden of these costs, saving an estimated $2 billion per year over the next several years.86 in a cash-strapped state, every potential cost-savings option needs to pursued. along with having local districts fully assume the pension contracts they negotiate, the state should institute a 401(k)-style benefit plan for new hires.87 while the state has made its pension benefits less generous for employees who were hired after 2010, these plans are still part of a definedbenefit system. a 401(k)-style plan for future hires would save the state money, would be more flexible for employees if they change jobs, and would comply with the illinois constitution.88 but while these reforms would do much to help illinois put its future fiscal house in order, they leave the state’s current liabilities, the pensions owed to present employees, unaddressed. unless the state wants to enact a lengthy program of austerity worse than the twoyear budget standoff or risk a fatal negative feedback loop with spiraling tax increases, comprehensive reform that puts the state on a path to solvency similar to public act 98-599 will require a constitutional amendment. article xiii § 5 does not necessarily have to be repealed entirely, but it would need to be modified to allow for the reduction of the unearned pension benefits of current employees. such an approach is ethical and practical, for it fairly protects benefits that have been already earned while giving the state fiscal flexibility to adjust how future unearned benefits are calculated.89 86schuster, 17. 87 a 401(k) is a retirement plan where employees and employers allocate an agreed upon percentage of the employee’s salary, instead of agreeing upon defined benefits. 88since the constitution only specifies that benefits must not be reduced, not the type of retirement plan. under a 401(k)-plan, employees would also have greater savings. in one hypothetical scenario, if teachers had enrolled in 401(k)-type plans in 1976 and retired in 2016, they would have accrued $400,000 more than what the state pension systems pays out. in fairness, 401(k) returns are rooted in market performance, and so the past is not necessarily indicative of the future. however, pension funds also rely on market returns (and sometimes vastly overestimate their predicted performance), so either way all retirement systems involve an element of inherent risk. 89 assuming employees are given fair notice. 31 it is admittedly an uphill battle, but if a constitutional amendment can be enacted, fortunately the legislative program already exists: public act 98-599.90 since illinois has accrued more liabilities in the years since it was struck down, the reforms within the original package would have to be stiffened. but the act remains a viable blueprint. to save more money, possible tweaks include further raising the retirement age for younger employees and suspending the cost of living increase for a specified time period.91 conclusion in closing, this paper has analyzed the state of illinois’s pension liabilities, the state’s pension contract jurisprudence, and presented a few possible avenues for reform. while the situation is dire, it is not hopeless. never has the necessity been greater for swift and bold action. while it is easy to lampoon decades of incompetent state government, readers should heed illinois’ fiscal crisis as an early warning, for other states and even the federal government are threatened with looming pension and entitlement crises. this author is not hopeful that current state officials have the political and moral courage to challenge the status quo and enact meaningful pension reform and constitutional change. on november 6th, voters elected j.b. pritzker as governor, who campaigned on fresh spending and tax increases. while governor-elect pritzker should be given a fair and genuine opportunity to lead, his campaign rhetoric does not bode well for the state’s finances.92 90 a constitutional amendment would need a three-fifths majority in general assembly then approval by voters. the earliest this could happen is 2020. 91public employees would cry foul, but given that given that inflation is 2%, a constitutionally protected 3% cost of living adjustment represents a real pension benefit increase, compounded year after year. further, with life spans increasing, any pension system, including social security, will likely need to raise its retirement age to remain solvent. as long as employees close to retirement are exempt, this author would argue freezing cost of living adjustments and raising the retirement age are fair and equitable proposals. 92with democrats now in control of both the legislative and executive branches, one positive is that a unified government will bring an end to the partisan budget spats of that dominated the rauner administration. maxwell, mark. “how rauner, pritzker pension plans compare.” wcia, 19 july 2018. 32 for decades, policymakers have been able to shirk and avoid effectively dealing with the pension crisis, but as lincoln said, “you cannot escape the responsibility of tomorrow by evading it today.” the laws of gravity have not been suspended, and if the state does not enact structural reforms, sooner or later the house will come crashing down. it is illinois taxpayers who will be forced to pick up the pieces. 53 the latest on the anda review backlog. (2016, september 15). retrieved from https://pharmdevgroup.com/latest-backlog-anda-reviews/ united states, government accountability office. (2016, august). generic drugs under medicare. retrieved from united states, government accountability office. (2016, august). https://www.gao.gov/assets/680/679022.pdf. u.s. senate, special committee on aging. (2016). special report of the u.s. senate special committee on aging on the sudden price spikes in off-patent prescription drugs: the monopoly business model that harms patients, taxpayers, and the u.s. health system(s. m. collins & c. mccaskill, authors) [s. rept.]. utah pie co. v. continental baking co. (april 24, 1967) (lexisnexis, boston college libraries, dist. file). drowning in debt: a legal analysis of pension systems in the state of illinois chea, pisei. “research announcement: moody's unfunded us state pension liabilities surge in fiscal 2017 due to poor investment returns.” moody's investors service, 27 aug. 2018, http://www.moodys.com/research/moodys-unfunded-us-state-pension-liabilitiessurge-in-fiscal-2017-pbm_1139183?wt.mc_id=am~rmluyw56zw4ubmv0x1jtql9syxrpbmdzx05ld3 nftm9fvhjhbnnsyxrpb25z~20180827_pbm_1139183. cloud, whitney. “state pension deficits, the recession, and a modern view of the contracts clause.” the yale law journal, vol. 120, no. 8, 2011, pp. 2199–2212. jstor, jstor, http://www.jstor.org/stable/41149590. “constitution of the state of illinois.” illinois general assembly home page, http://www.ilga.gov/commission/lrb/conent.htm. dabrowski, ted, and john klinger. “pensions 101: understanding illinois' massive, government-worker pension crisis.” illinois policy institute , 9 sept. 2017, https://www.illinoispolicy.org/reports/pensions-101-understanding-illinois-massivegovernment-worker-pension-crisis/. ellman, jeffrey b.; merrett, daniel j. "pensions and chapter 9: can municipalities use bankruptcy to solve their pension woes," emory bankruptcy developments journal vol. 27, no. 2 (2011): p. 365-414. heinonline, https://heinonline.org/hol/p?h=hein.journals/bnkd27&i=373. godofsky, david r., and emily hootkins. “illinois supreme court affirms constitutional protection of public pensions.” benefits law journal, vol. 28, no. 3. ingram, jonathan. “$203 billion and counting: total debt for state and local retirement benefits in illinois.” illinois policy institute , 4 apr. 2017, http://www.illinoispolicy.org/reports/203-billion-and-counting-total-debt-for-state-andlocal-retirement-benefits-in-illinois/. 54 “judge picks supremacy clause in detroit's bankruptcy battle.” national constitution center – constitutioncenter.org, national constitution center, 3 dec. 2013, https://constitutioncenter.org/blog/judge-picks-supremacy-clause-in-detroits-bankruptcybattle. lyman, rick. “illinois legislature approves retiree benefit cuts in troubled pension system.” the new york times, the new york times, 3 dec. 2013, http://www.nytimes.com/2013/12/04/us/politics/illinois-legislature-approves-benefitcuts-in-troubled-pension-system.html?module=inline. madair, eric. “is welching on public pension promises an option for illinois? an analysis of article xiii, section 5 of illinois constitution.” the john marshall law review, vol. 48, no. 1, 2014, 172–305. maxwell, mark. “how rauner, pritzker pension plans compare.” wcia, 19 july 2018, www.wcia.com/news/local-news/how-rauner-pritzker-pension-planscompare/1310714344. megerian, chris. “stockton bankruptcy ruling a blow to pensions.” los angeles times, los angeles times, 1 oct. 2014, www.latimes.com/business/la-fi-stockton-bankruptcy20141002-story.html. mendoza, susana a. “consequences of illinois' 2015-2017 budget impasse and fiscal outlook.” state of illinois comptroller, state of illinois, 18 sept. 2018, https://illinoiscomptroller.gov/financial-data/find-a-report/special-fiscal/consequences-ofillinois-2015-2017-budget-impasse-and-fiscal-outlook/. mennis, greg. “the state pension funding gap: 2016.” the pew charitable trusts, 12 apr. 2018, http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/04/the-statepension-funding-gap-2016. miller, rich. “think that progressive tax will fix illinois finances? well...” crain's chicago business, 4 may 2018, https://www.chicagobusiness.com/article/20180504/issue11/180509910/progressiveincome-tax-plan-won-t-fix-illinois-finances. monahan, amy. “public pension plan reform: the legal framework.” education, finance & policy, vol. 5, 2010; minnesota legal studies research no. 10-13. ssrn. https://ssrn.com/abstract=1573864 “order instituting cease-and-desist proceedings pursuant to section 8a of the securities act of 1933, making findings, and imposing a cease-and-desist order.” securities and exchange commission, 11 mar. 2013. http//:www.sec.gov/litigation/admin/2013/339389.pdf. “record of proceedings, sixth illinois constitutional convention, v. 1.” illinois digital archives, the state of illinois, 1972, www.idaillinois.org/cdm/ref/collection/isl2/id/1703. “russia credit rating.” trading economics, trading economics, 2018, https://tradingeconomics.com/russia/rating 55 schuster, adam. “illinois bonds once again rated just above junk.” illinois policy institute , 10 apr. 2018, http://www.illinoispolicy.org/illinois-bonds-once-again-rated-just-abovejunk/. schuster, adam. “tax hikes vs. reform: why illinois must amend its constitution to fix the pension crisis.” illinois policy institute, july 2018, https://www.illinoispolicy.org/reports/tax-hikes-vs-reform-why-illinois-must-amend-itsconstitution-to-fix-the-pension-crisis/. supreme court of illinois. ann b. jorgenson et al., appelees, v. rod r. blagojevich, governor, et al., appellants. 20 may 2004. http://www.illinoiscourts.gov/opinions/supremecourt/2004/may/opinions/html/97624. htm supreme court of illinois. city of chicago v. c. & nw ry. co. 18 nov. 1954. https://law.justia.com/cases/illinois/supreme-court/1954/33316-5.html supreme court of illinois. in re pension reform litigation (doris heaton et al., appellees, v. pat quinn, governor, state of illinois, et al., appellants). 8 may 2015. http://www.illinoiscourts.gov/opinions/supremecourt/2015/118585.pdf supreme court of illinois. roger kanerva et al., appellants, v. malcolm weems et al., appellees. 3 july 2014. https://law.justia.com/cases/illinois/supreme-court/2014/115811.html the state of illinois retirement systems: funding history and reform proposals, a civic federation issue brief. the civic federation, 30 sept. 2008, http://www.civicfed.org/file/4885/download?token=lmdn2dol. the state of illinois. the general assembly. public act 098-0599. 2013. http://www.ilga.gov/legislation/publicacts/98/pdf/098-0599.pdf “these u.s. states are the most fiscally stable.” u.s. news & world report, u.s. news & world report, 2018, http://www.usnews.com/news/best-states/rankings/fiscal-stability. u.s. constitution. art. i, sec. 10. https://www.archives.gov/founding-docs/constitution-transcript walstrum, thomas. “the illinois budget crisis in context: a history of poor fiscal performance.” monetary goals and strategy federal reserve bank of chicago, 2016, www.chicagofed.org/publications/chicago-fed-letter/2016/365. shackling pregnant prisoners: cruel and unusual or justified and necessary? 730 ill. comp. stat. § 5/3-6-7 cal. penal code § 6030 hope v. pelzer, 536 u.s. 730 (2002) jouvenal, justin. “bipartisan bill would outlaw shackling of pregnant inmates in federal prisons.” the washington post, wp company, 13 sept. 2018. leonie stoute, “break every chain: bringing an end to the unconstitutional shackling of pregnant inmates,” 60 howard l.j. 749 (2017) nelson v. corr. med. servs., 583 f.3d 522 (8th cir. 2009) microsoft word mendes_final_blsr.docx bellarmine law society review volume xii issue i article 2 analyzing “sunny” california: a study of the role of solar energy subsidies in the golden state grace mendes boston college, mendesg@bc.edu 20 analyzing “sunny” california: a study of the role of solar energy and subsidies in the golden state grace mendes1* abstract: with a reputation for mild climate and progressive politicians, it is not surprising that california is at the forefront of the push towards renewable energy, particularly solar energy. but is solar really the energy panacea public opinion makes it out to be? taking california as an explanatory microcosm, this article delves into the state’s own history with energy legislation and the energy market, as well as the consequences to the public psyche when energy is mismanaged. the article then explores the logistics and statistics of california solar production, while raising questions about the efficacy, extent, and direction of state and federal involvement in the process. this article ultimately concludes that in order to continue progress in the sphere of renewable energy, the focus of the movement should shift away from increasing solar construction and focus instead on increased solar access and the development of high capacity solar storage. introduction in an age dominated by concerns about climate change, it seems like everyone is grasping at ways we can reduce our carbon footprint; people all over the nation are going vegan, ditching plastic grocery bags, and purchasing prii2 in an effort to counteract the effects of global warming. one of the most exciting solutions for western states, particularly california, is the prospect of solar energy. all across the state, miles and miles of black solar panels are being installed at light speed, and, just as quickly, policies incentivizing the use of solar are accelerating rapidly. but is this clean energy source really the cure-all enthusiasts hope it will be? this paper examines the ambitious goals california has for its future in renewable energy, as well as successes and failures of the steps it has taken in its efforts to achieve them. by first charting the stages and effects of the california energy crisis, this paper will 1* grace mendes is a fourth-year student at boston college, studying english and philosophy with a concentration in the perspectives program. she has an interest in political influences on environmental and judicial ethics, as well as their legal and philosophical consequences. special thanks are due to professor thomas wesner, whose unrelenting energy and care has enabled this student and countless others to discover their passions. 2 “toyota announces the plural of prius,” toyota usa newsroom, february 20, 2011 pressroom.toyota.com/toyotaannounces-the-plural-of-prius/. “prii” is the official plural of “prius”, according to toyota 21 lay out the conditions that contributed to california’s extensive development of solar technology. in addition, it will outline the current projects the state and federal governments are investing in solar energy projects. additionally, it will also map out the causes of concern with regard to widespread deployment of solar panels, specifically ways in which the efficacy of solar can be increased in more thoughtful ways than just placing solar panels wherever there is space. it will analyze battery storage, subsidized solar technology development, and the incentives provided to commercial and residential customers for installing solar systems. this paper will ultimately conclude that california’s current policy path is inefficient, and, by divesting certain funds toward other projects, how california can more effectively incentivize the use of solar energy. history california represents a unique microcosm in the rapidly approaching future of renewable energy. starting in 1974 with californian politicians charles warren and al alquist, the two men co-authored the warren-alquist act, which created the california energy commission. the commission was born out of a tense energy industry and the increasing demand for electricity, as well as the mounting concern with environmental impacts.3 california has long been a state concerned with the environment, and with the authority of the cec, california had the power as to set its own standards for sustainability where the federal government was lagging on.4 ever since, the renewable market has exploded, and california is the sustainable energy market par excellence. seemingly determined to master renewable energy, california’s ambition has surpassed the rest of the country by leaps and bounds. as of 2020, california is nearly five times ahead of the rest of the rest of the country in terms of solar capacity5; this increase is the result of a decade’s worth of the state’s efforts to increase its reliance on solar power. 3 “45 years of energy leadership: a look back at the cec,” youtube, uploaded by calenergycommission, december 7, 2020, https://www.youtube.com/watch?v=z8-1eob5ido. 4 four years later, congress eventually passed two important pieces of legislation: the public utility regulatory policies act (purpa) and the energy tax act. purpa was created to encourage energy conservation as well as set the groundwork for net metering. it also permitted independent power producers the ability to interconnect with their local utility. the energy tax act on the other hand, was the first statute to offer tax credits to consumers who invested in renewable energy for their homes. 5 madhumitha jaganmohan, “u.s. solar pv capacity by key state 2020,” statista, january 27, 2021, www.statista.com/statistics/183531/renewables-in-the-us-leading-states-in-pv-capacity/. 22 in 2006, the state passed ab 32, or the california global warming solutions act.6 this was the first nationwide program to attempt a long-term, comprehensive approach to address climate change in a way that would also boost the economy. in creating a law that required a steep reduction in the emission of greenhouse gases, california set a precedent across the country. the act included an executive order from governor arnold schwarzenegger that provided rebates to residents who invested in installing renewable energy technology, particularly in solar. termed the california solar initiative, it aimed to install 1,940 mw of new solar generation capacity by 2016. the initiative worked so well that the state exhausted its incentives two years early, and the program surpassed its production target. ahead of schedule and riding this success, governor jerry brown signed the 2015 clean energy and pollution reduction act, which stated that california must produce half of its power from renewable sources by 2030. the act has since been updated to strengthen these targets; california now aims for 50% renewable energy by 2030 and 100% renewable energy by 2045. by all accounts so far, california seems to be on track. however, it has not always been a smooth transition for the state. in order to get the ball rolling in 2006, california had to first survive its 2001 energy crisis. in 1995, the 6 “ab 32 global warming solutions act of 2006,” california air resources board, september 28, 2018, www2.arb.ca.gov/resources/fact-sheets/ab-32-global-warming-solutions-act-2006 23 california public utility commission (cpuc), which sets consumer energy rates, determined the long-established system of energy regulation in the state was “fragmented, outdated, arcane and unjustifiably complex,”7 and resultingly voted in december to deregulate the state’s electricity industry, opening it up to competition. on september 23, 1996, governor pete wilson signed the deregulation bill, ab1890. this legislation required utility companies to turn over control of their transmission lines to an independent agency, thus incentivizing them to sell their generating plants to private companies. this move towards deregulation was supported by three major privately held utility companies— southern california edison, pacific gas & electric, san diego gas & electric—in the form of $4.3 million in lobbyists and $1 million on political campaigns.8 ideally, this reform would give customers lower rates, revitalize the slowing economy, and pave the way forward for other states. legislators also hoped that the new rules would end the monopoly the three big utility companies had over the energy market. unfortunately, these lofty ideals led to devastating consequences. the law required utility companies to freeze their rates until they had completed the sale of their assets. additionally, it required them to buy power in an open market auction for electricity, where rates were set by the highest bidders. in this auction, certain trading companies such as enron took their newly purchased plants off the market “for maintenance” on days of peak demand and then sold power at premium prices. on top of these market manipulations, that summer also saw a drought and unusually high temperatures which caused the demand for electricity to spike. unfortunately, however, there had been no new generation plants built in almost a decade. as a result, wholesale prices jumped, and with their rates frozen as part of the deregulation legislation, utility companies were unable to pass these increasing costs on to their customers. by 2000, california was facing an unprecedented energy emergency. in the summer of 2000, california suffered its largest scheduled blackout since world war ii, and such blackouts continued all summer. the crisis continued through the winter, and on january 17, 2001, governor gray davis officially declared a state of emergency. california was forced to buy power from out of state suppliers at an incredibly high price, nearly 7 “frontline: california – timeline, blackout,” public broadcasting service, www.pbs.org/wgbh/pages/frontline/shows/blackout/california/timeline.html. 8 “frontline: california – timeline, blackout.” 24 bankrupting the three main utility companies. pacific gas & electric filed for chapter 11 after failing to pay the $9 billion they owed to their more than 10,000 creditors – which at the time was the largest ever bankruptcy involving a utility.9 utility companies could no longer purchase power on behalf of their customers, and in order to bail them out, the state had to step in. to do this, the california department of water resources was tasked with buying power. it would not be until 2003 that this temporary measure was lifted. eventually, on november 13, 2003, governor davis announced the end of the state of emergency that he had delcared nearly three years earlier, effectively ending the energy crisis. in those three years, the emergency authority had allowed the state to buy energy from the insolvent utility companies and permitted the cec to streamline the application process for new plants. by the time the state of emergency was lifted, california had granted licenses for 38 new plants, totaling 14gw of production power. following the end of the crisis, companies like enron were investigated by the federal energy regulatory commission and were forced to pay reparations. while market prices eventually returned to normal and california recovered, the memory of this crisis and its consequences still looms in the minds of many. nearly two decades later, solar has changed significantly, but as it has gotten less expensive and more accessible, the market has once again started to deregulate. this time, it is not a result of any legislation, but rather because residential and commercial solar installation is now an option. the original crisis can be partly blamed on inefficient government activities, and the failure to act immediately or efficiently. now the question is, what is the best way for california to reach its ambitious renewable energy goals without slipping into another energy crisis. analysis while the pursuit of a clean, green future is certainly a noble and worthwhile goal, it is one that needs to be approached more judiciously than it is at present. a huge contributor to the california energy crisis was a gap between supply and demand of energy; ever since, california has done everything it can to ramp up energy production through solar power. with the reputation of “sunny california,” people were convinced that laying down a few more black panels to trap sunshine would solve all the energy problems. in reality, it’s not 9 “frontline: california – timeline, blackout.” 25 quite as simple. while solar energy is promising, it has some serious drawbacks that the general public often turns a blind eye. two of the biggest drawbacks are variability and storage. solar energy is not a source of constant supply, rather it is diurnal; there are around 12 hours where there is no sunlight striking the solar panels to produce power. additionally, there are times when solar is not at its full capacity, such as on cloudy days or during the winter season. as such, solar is not a very reliable source of power on its own. this is where statewide, governmental neglect of other renewable sources can become detrimental. solar can be easily supplemented by other renewable sources; data from the california independent supply operations (caiso) shows that on days when solar output is low, wind tends to pick up the slack.10 wind is going to be crucial to diversifying california’s power sources, but it is being overshadowed by california legislators’ captivation with solar power. the other significant technical problem with solar is that it is incredibly challenging to store. california is certainly capable of generating more power than it uses, an excess known as curtailment. in march 2021, the monthly solar and wind curtailment was 341,959 mwh.11 for perspective, that amount of electricity could power almost 88 million homes if used all at one time. the caveat is as implied: used all at once. the reason the monthly curtailments are so high is because renewable energy storage is inadequate. having a high curtailment is not only inefficient; it can also be quite dangerous. if too much energy is produced, it stands the chance of flooding the grid. this oversupply could lead to blackouts and delays in energy delivery, and overloaded grids are also dangerous to repair. unfortunately, as of right now, california has neither the number of batteries needed nor the technology to efficiently store solar power in the long term.12 that is not to say that the current system is completely inefficient; it actually works quite well on a small scale, such as replacing one natural gas plant. the moss landing power plant, for instance, was formerly a natural gas plant that was recently converted to a solar facility with an 10 “california’s renewable energy problem,” youtube, uploaded by real engineering, may 25, 2019, https://www.youtube.com/watch?v=h5cm7hoaqzy 11 “managing oversupply,” california iso, april 11, 2021, www.caiso.com/informed/pages/managingoversupply.aspx. 12 the most commonly used battery, made of lithium, is simply not designed for long term storage. 26 unprecedented 567mw capacity of battery storage.13 the hope is that, with such a large storage capacity, the converted plant will be able to supply power at peak times when solar generation drops off, there will no longer be a need to supplement renewable energy with natural gas during peak time. however, the days when solar power is reliably capable of this lay ahead in the future. the caiso website provides an interactive breakdown of the supply, demand, and prices of the statewide electrical grid being generated in real time.14 taking a look at the graph of demand for saturday, may 8, 2021, demand begins to climb around 4:00pm (16): people may be headed back home from wherever they spent the day and are ready to shower, turn on their appliances, and enjoy their saturday night. turning attention to the supply graph, one can see all the different supply sources, but for our purposes, electricity from hydroelectric, imports, coal, and others have been blocked out. peak demand is approached around 7:00pm (19); at this point, solar generation drops off for the night, and natural gas begins to increase proportionately in order to pick up the slack. assuming a baseline of about 2,300 mw coming from nuclear power, we can clearly see we are going to need at least 6,000 additional mw of battery storage. providing this kind of storage is no small task. once again for perspective, the moss landing power plant, which is just now being converted into a solar facility, is reported to come with a price tag of $80 million15 and can only store 567 mw. therefore, moss landing is, at best, a small step in the right direction; if california is 13 “california’s renewable energy problem,” youtube, uploaded by real engineering, may 25, 2019, https://www.youtube.com/watch?v=h5cm7hoaqzy 14 “today’s outlook,” california iso, may 8, 2021, www.caiso.com/todaysoutlook/pages/default.aspx. 15 j.d. morris, “monterey bay power plant now a record-breaking battery project to ward off blackouts,” san francisco chronicle, january 16, 2021, www.sfchronicle.com/business/article/monterey-bay-power-plant-now-arecord-breaking-15872503.php. 27 to reach its goal of being 100% reliant on renewable energy sources by 2045, this serious storage problem will need to be solved, and soon. another misconception about solar is the idea that these new plants and solar installations are going to create “green jobs,” so the government should be funding as many promising start-ups as possible. while this idea is alluring, government subsidies of these green entrepreneurs is not the solution many hoped it would be. in august of 2011, solyndra, a solar panel manufacturer based in fremont, california, filed for bankruptcy, and while unfortunate, it should have been unremarkable, except for the fact that it had been the recipient of about $535 million in federal loans.16 the company had received its first batch 16 "green jobs: should the u.s. government invest in green jobs?" issues & controversies, dember 27, 2011, www.icof.infobaselearning.com/recordurl.aspx?id=2032. 28 of loans from the obama administration in march 2009, and, by january 2011, solyndra needed an additional $75 million from private investors. even then, the company had still gone bankrupt by august of that same year. this development sparked huge controversy as emails began to surface from the white house that reflected the administration’s lack of confidence in the company from the beginning. the president had planned to visit solyndra’s plant in may of 2010, but many officials voiced their concerns that it might not be a wise idea to be seen publicly endorsing a company on the brink of failure. one advisor said of the visit, “hope [solyndra] doesn’t default [on its loans] before then.”17 the failure of solyndra would go on to spark a big question: should the government actually be financing companies developing solar technology? proponents of federal investment into solar development assert that the private sector is simply too impatient to wait for start-ups to get on their feet; the development of groundbreaking technology in any industry is not the straight path developers might pitch, and private investors want secure returns. the developers need funding at each stage of the development, including the hiccups, and, traditionally, that funding has come from the government. additionally, in not developing and supporting american companies, the government sacrifices jobs that could be held domestically instead of importing overseas solar technology. also, proponents know that anything that can be done to wean the u.s. off the whims of fossil fuels abroad will be a good thing; the sooner the u.s. can reliably produce its own power in ways that are both economically and environmentally sustainable, the better. in order to get there though, solar developers need government subsidies. even so, critics argue that the government is actually a very poor judge of the viability of companies. despite receiving immense funding, solyndra ultimately proved unsuccessful, and the 1,100 jobs it created disappeared along with it. this suggests that not only is the government not good at determining the strengths and weaknesses of a business, but by subsidizing weak enterprises, it negatively interferes with operations of the free market. if a company can produce a product that is truly viable, they will be able to secure their own venture capital from private investors. by injecting an unnatural element into the natural process of the free market, the government hinders the invisible hand in a way that 17 "green jobs: should the u.s. government invest in green jobs?" 29 results in net harm: with solyndra, 1,100 people lost their jobs and the parties making loans collectively lost $610 million. that said, the government is not currently planning on pulling funding from nationwide investments based on solar technology. president biden recently released a $4 trillion plan to address widespread problems across the u.s., and embedded in it is an emphasis on tackling climate change.18 while most of the emphasis is focused on an increased use of electric cars,19 president biden’s plan suggests creating a $100 billion program to update and modernize the electric grid to make it more reliable and less susceptible to blackouts, like those that recently devastated parts of texas. the plan also intends to build more transmission lines from wind and solar plants to large cities. it also proposes the creation of a “clean electricity standard,'” which is essentially a federal mandate requiring that a certain percentage of electricity in the united states be generated by zero-carbon energy sources like wind and solar power. however, that mandate would have to be enacted by congress, where its success is uncertain at best; similar efforts to pass such a mandate have failed multiple times over the past 20 years. while the plan seems optimistic, at this time there are not many details suggesting the logistics of how this energy panacea plan is going to be enacted. president biden is attempting to cover a lot of ground with this resolution, so it is not surprising that he does not have all the kinks worked out yet. however, it is worth remembering that the last time there was a political attempt to “revamp an antiquated system” without a well-thought out plan all three of california’s major utilities were nearly wiped out. nonetheless, the doi recently approved a 350 mw, $550 million solar facility called the crimson solar project, which will be built on 2,500 acres in southeast california.20 announced may 3, 2021, the project will be a part of the desert renewable energy conservation plan, which the doi hopes will streamline the transformation of 10.8 million acres of public land in the california desert into renewable energy development facilities. 18 jim tankersley, “biden details $2 trillion plan to rebuild infrastructure and reshape the economy,” the new york times, march 31, 2021, www.nytimes.com/2021/03/31/business/economy/biden-infrastructure-plan.html. 19 the plan proposes spending $174 billion to encourage the manufacture and purchase of electric vehicles by granting tax credits and other incentives to companies that make electric vehicle batteries in the united states instead of china, with the goal of reducing the price tags on vehicles. 20 morgan conley, “interior dept. greenlights $550m calif. solar project,” law360, may 3, 2021, https://www.law360.com/california/article. 30 the project is supposed to create 650 construction jobs and 40 jobs in operations and maintenance over the facility’s 30-year lifetime, all of which will be temporary: the doi notes that the project will most likely only create 10 permanent jobs. the project is supposed to be up and running by the end of may 2021, suggesting a certain degree of urgency. the exciting part of the project is that, in addition to the 350 mw of generation capacity, the facility is also planning to have 200 mw of storage.21 this design is encouraging because it suggests that the government is considering storage capacity in addition to generation capacity, and it is taking steps to utilize california’s enormous curtailment, not add to it. while the crimson solar project is a huge endeavor that will provide power to thousands of california residents, it is important to also consider what solar generation will actually look like at the residential level. for as much as california has marketed solar as the energy source of the future, the state of california actually no longer offers residents tax credits for installing solar panels. as such, customers often confuse the federal solar tax credit for the nonexistent state one. the solar investment tax credit (itc) was executed in 2006, and, since then, has helped the national solar industry grow by more than 10,000%.22 the ict currently provides a 26% tax credit for solar systems installed in either commercial or residential properties. moving forward, it will give 23% in 2023, eventually being phased out for residential properties by 2024. the program was originally set to phase out by 2022, but congress passed a two year delay in the phasedown in 2020. this program has been crucial in increasing residential and commercial access to solar systems, and, by all accounts, has accomplished the goals it set out to achieve. but, as much success as this program has had, it seems to have one big problem: only those who can afford to install solar can take advantage of the credits. the average cost to install solar panels in california as of may 2021 is about $2.91 per watt, which when multiplied by the average sized system, 5 kw, translates to an average price of $14,550.23 thereby, the people who have the most to gain by installing 21 scott dawson, “re: battery storage at crimson solar,” message to grace mendes, may 8, 2021. scott dawson is the director of permitting at sonoran west solar holdings, llc, the sponsor contact for the crimson solar project. 22 “solar investment tax credit (itc),” seia, www.seia.org/initiatives/solar-investment-tax-credit-itc. the program has an average annual growth of 50% over the last decade alone. 23 “how much do solar panels cost in california in 2021?” energysage, may 8, 2021, www.energysage.com/localdata/solar-panel-cost/ca/. with ict credits, the number comes down to an average of $10,767. while solar technology will get increasingly cheaper, it is important to remember that the ict will give decreasing credits before it is completely phased out in two years. 31 solar— low-income electric customers— are prevented from doing so because they cannot afford the upfront costs of installation. however, where there is currently a lack of support from the state and federal governments, certain nonprofit organizations in california have instituted their own programs for low-income families. the single-family affordable solar homes program, or sash, is one such program. managed by the oakland-based nonprofit grid alternatives, sash supplies fixed, up-front, capacity-based incentives to qualified low-income homeowners to try and offset the initial cost of a solar electric system. in order to be eligible for the benefits, applicants must own and live in their home, have a household income that is at or below 80% of the area median income (ami), live in a home defined as “affordable housing” by california public utilities code 2852, and receive electrical service from pg&e, sce, or sdge.24 the incentive itself offers $3 per watt and strives to not only promote sustainable energy, but also provide job training and employment opportunities in the solar economy as well as reducing costs across the board for qualified participants. the program has been fairly successful; a total of 9,264 pv25 systems have been installed, generating almost 30 mw of solar capacity and conferring about $132.3 million in incentives. the program administrators of the general market csi program manage a similar program for multifamily homes, appropriately named, mash, with similar success: it is expected to produce 59.8 mw of solar capacity and has supplied $162.3 million in incentives towards 480 projects across the state.26 between the two programs, they have incorporated tens of thousands of tenant units into a more sustainable energy system, both economically and environmentally. the benefits of such programs are better understood when compared to a state like texas, whose energy market is formally deregulated. much like california, texas offers no state subsidies for installing solar, but, as a result of deregulation, there are also no programs incentivizing landlords to make solar pv systems available, especially not to those residing 24 california public utilities commission, “csi single-family affordable solar homes (sash) program,” www.cpuc.ca.gov/general.aspx?id=3043. 25 photovoltaic is one of two solar systems; the other is solar thermal. pv has photovoltaic cells that capture energy straight from sunlight, while thermal uses the sun’s rays to heat water to move a turbine. pv is the more effective system these days, as its capacity and efficiency passed thermal around 2012. 26 california public utilities commission, “csi multifamily affordable solar housing (mash) program,” www.cpuc.ca.gov/general.aspx?id=3752. 32 in affordable multifamily housing. also as a result of deregulation, the texan electricity industry is run by the free market, which has its advantages. consumers can choose their own providers and competition amongst retail providers keeps prices low. cecilia turchetti charts the fiscal differences between being an electricity consumer in texas and being an electricity consumer in california: the average monthly consumption in kilo-watt per hour ("kwh") in texas is around 1,112, and residential bills for that usage averaged around $122.47, around 11c per kwh. quotes for 1000 kwh are as low as 7.5c in areas such as houston, putting bills as low as seventy-five dollars without including the cost of energy transmission, which was no more than ten dollars per billing cycle. in california, the monthly average was 554 kwh, with an average bill for that usage at $101.49, or 18c per kwh.27 while this seems like a great reason to live in texas instead of california, especially as a low-income individual, these numbers actually only offer short term benefits. texas customers lack opportunities to benefit from pv power over time, so they will continue to depend on their chosen utility company and pay their monthly rates. in california, on the other hand, customers have ever increasing access to solar systems, which decreases reliance on utility companies and places power usage in the hands of the consumers. furthermore, californians are increasingly adopting a system of net metering, a process by which consumers sell their excess power back to the grid, which will further lower total costs. so, despite the upfront costs in california seeming considerably less advantageous, the long haul seems to favor individual access to solar systems, especially for low-income customers. conclusion and implications like any problem worth solving, what to do about solar energy in california is a problem that does not have one clear-cut solution. but, there are actions that can be taken so that california can meet its goals as efficiently as possible. i argue that while it is not necessary to fund further solar development nor construction, it is necessary for the federal government to subsidize solar access because it can then set the necessary conditions solar systems need to meet, which can prevent an energy crisis and make solar power available to low-income consumers. 27 cecilia turchetti, "here comes the sun: bringing efficiency and renewable energy solutions to affordable housing in the u.s," georgetown environmental law review, 32, no. 399 (winter 2020): 414. 33 as exciting as it is to think that soon california will be totally reliant on renewable power and that much of that power will be solar, the most efficient way to do that is not by installing even more solar generation plants wherever there is space. while part of the reason the early 2000’s energy crisis occurred was that there was a gap between skyrocketing demand and frozen supply, that is just not a problem we will have to face again. we are not only meeting our demand for electricity, but we are oversupplying by thousands and thousands of mw per day. as california strives to meet its goals, our astronomical curtailment will only continue to climb higher as we recklessly expand commercial sized generation, and it is just not economically or practically effective. individual residential and commercial pv installation is more than sufficient to meet the demand of the grid; so, the answer is not more generation facilities, it is investing in more storage facilities. the solar storage industry creates just as many, if temporary, jobs as solar installation, and is only marginally more expensive (though no doubt battery prices will continue to fall as development improves) while making the statewide grid more stable than increased generation. with more stability, blackouts are significantly less likely, and california can make use of its enormous curtailment instead of letting it go to waste. that said, it is inefficient for the state to finance loans to solar technology developers. it is tempting to want to throw money at the technology sector to develop the next big thing as fast as possible; but, as cases like solyndra show, the government is not necessarily the best judge of the strengths and weaknesses of innovators. as it is, the cec invests approximately $130 million annually through the electric program investment charge (epic) for electric system research and development projects.28 while unlikely that the government could, or should, pull all funding, it is worth considering whether this is an overly generous amount. investing in the solar future is an incredibly lucrative venture, and as solar technology continually becomes better, it will continue become more competitive. in turn, solar energy will push out coal and natural gas for purely economic reasons. with coal and natural gas on their way out, those former sponsors of fossil fuel power will need to invest towards the next big thing, likely renewable energy. as such, the free market is more than capable of selecting the best, most efficient hardware of the future without much governmental intervention. 28 california public utilities commission, self-generation incentive program, www.cpuc.ca.gov/sgip/. 34 the government should also be subsidizing access to solar and reforming their application process, potentially by making programs like sash and mash, stewards of federal funding. the main problem with these programs is that they are out of money and are being phased out as a result of necessity, not because they are obsolete. by furthering these programs, the government can fund specific income-based incentives. these can not only increase access to solar, but also set specific regulations to take advantage of the incentives, thereby managing with a degree of certainty that solar is efficiently installed in a deregulating market. however, to ensure that the incentives are not abused, it might be worth adding that the incentives received are proportional to the energy efficiency of the system in order to discourage excessive energy consumption.29 federal policy makers might also consider adding to these policies a program like the cpuc’s self-generation incentive program (sgip). while in its current form it does not support solar systems, sgip provides rebates for other renewable energy systems while also supporting the installation of storage systems.30 this could be a really useful program to appropriate because, by coupling tax credits for installing solar in low-income areas with rebates for solar storage, california can incentivize a more efficient expansion of the solar industry without full regulation. after the crisis in the early 2000’s, enron executives were put on trial for a variety of crimes including wire, securities, and mail fraud, as well as money laundering and conspiracy. during the trial, s. david freeman, the chairman of the california power authority, testified to a conversation he had in 2000 with kenneth lay, the ceo of enron. lay ridicules the efforts to stop the malicious practices of energy wholesalers, saying: “in the final analysis, it doesn’t matter what you crazy people in california do, because i got smart guys who can always figure out how to make money.”31 while lay’s remark is certainly haunting, it reminds us that, while the problem seems to have been fixed through legislation that ensures something like the energy crisis will never happen again, the private sector has influence and power. clever, greedy, and without clear regulations, companies 29 alexande ritschel and greg p. smestad, “energy subsidies in california's electricity market deregulation,” energy policy, october 28, 2022, www.sciencedirect.com/science/article/pii/s0301421502001970?via%3dihub. 30 california public utilities commission, “self-generation incentive program,” www.cpuc.ca.gov/sgip/ 31 “testimony of s. david freeman.” commerce.senate.gov, may 3, 2003, web.archive.org/web/20060301072016/commerce.senate.gov/hearings/051502freeman.pdf. 35 are more than capable of squeezing the market and putting the greater good in danger once again. in that same testimony, freeman states very poignantly: there is one fundamental lesson we must learn from this experience: electricity is really different from everything else. it cannot be stored, it cannot be seen, and we cannot do without it, which makes opportunities to take advantage of a deregulated market endless. it is a public good that must be protected from private abuse. if murphy's law were written for a market approach to electricity, then the law would state 'any system that can be gamed, will be gamed, and at the worst possible time.' and a market approach for electricity is inherently gameable. never again can we allow private interests to create artificial or even real shortages and to be in control.32 electricity is a public good that must be protected from private abuse. as california charges headfirst into a renewable future, americans must not forget the lessons of the past. additionally, while deregulation is not something to be feared, it is not something to be taken lightly either. as the energy industry enters unprecedented times and americans reach for a fully renewable tomorrow, it is important to remain realistic. solar is an unparalleled energy alternative because, unlike other renewable options, solar can be influenced by consumer choice; it has been uniquely developed directly for the customer. unlike hydroelectric, wind, or geothermal energy, solar energy is an energy source that consumers can also be generators of; while customers cannot put an entire wind farm on their property, they can install solar panels. as such, solar has the singular ability to make individuals feel like they have a hand in the energy industry, and this promotes an important mindset going forward. the reason solar is such an essential step is because people are more aware that they are living on borrowed time, and regardless of the things that divide people, the solution will require collective action. even so, it is just as imperative to not get carried away by this sense of unity; people can save themselves not with more solar, but smarter solar. by focusing on subsidizing low-income solar deployment and increasing quantities of solar storage, americans give themselves the best chance of not only meeting their sustainability goals but also exceeding them. 32 “testimony of s. david freeman.” commerce.senate.gov, 3 may 2003, web.archive.org/web/20060301072016/commerce.senate.gov/hearings/051502freeman.pdf. 15.1 editor's note bellarmine law society review volume xv | issue i editor’s note: volume xv no. i of the bellarmine law society review isabella calise boston college, calisei@bc.edu editor’s note: volume xv no. i of the bellarmine law society review isabella calise with great pride and bittersweet reflection, we present to you the first edition of volume xv of the boston college bellarmine law society review. this issue marks a milestone—not just in our publication’s journey, but in ours as editors, contributors, and graduating students. this is the fifth edition tommy dee and i have had the privilege of publishing together, and it is also our final one. this past monday, alongside many of our fellow authors and associate editors, we graduated from boston college. we are immensely grateful to have ended our time here with the publication of this powerful issue, and we thank our readers for being part of this journey. we owe special thanks to our graduating associate editors—william dee, jenna gilhooly, kelly schomber, alexander shube, and therese sparacio—whose sharp editorial insight, tireless work, and enduring dedication have helped shape the review into what it is today. in this edition, our authors tackle some of the most pressing legal and policy challenges of our time. freshman ines hwang argues for stronger, more adaptive legal protections in the wake of covid-19-era housing instability. senior julia kuhn explores the climate-driven insurance crisis and proposes policy solutions to protect both economic stability and equitable access. emily riccardi examines how airbnb’s platform design enables racial discrimination, calling for legal reform to meet the realities of the digital age. john villa traces the evolution of federal minimum wage policy and advocates for a gradual increase supported by targeted tax credits. finally, benjamin ward dissects the expanding reach of fisa surveillance and proposes a three-pronged strategy to better protect civil liberties. each of these works reflects the passion, rigor, and intellectual curiosity that define the bellarmine law society. they represent not only scholarship but a commitment to justice, reform, and progress. we are thrilled to pass the baton to two of our most dedicated associate editors—simon hoefling and jessica orrell—who will serve as next year’s editor-in-chief and managing editor, respectively. to our readers, thank you. whether this is your first issue or your fifteenth, your engagement gives meaning to our efforts. as we turn the page on our time at boston college, we do so with pride in this publication and confidence in the voices that will carry it forward. 2 ��� 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:duehorz��6dudk��hw�do��³�����6wdwh�(txdolw\�,qgh[�´�+xpdq�5ljkwv�&dpsdljq�)rxqgdwlrq������������� kwwsv���dvvhwv��kuf�ruj�ilohv�dvvhwv�uhvrxufhv�6(,������5hsruw�sgi� =dugd�y��$owlwxgh�([suhvv��,qf�������)��g�����������8�6��$ss��/(;,6�����������)dlu�(pso��3udf��&dv���%1$��� ����������(pso��3udf��'hf���&&+��3�������������:/����������8qlwhg�6wdwhv�&rxuw�ri�$sshdov�iru�wkh� 6hfrqg�&lufxlw�)heuxdu\�����������'hflghg��� kwwsv���dgydqfh�oh[lv�frp�sur[\�ef�hgx�dsl�grfxphqw"froohfwlrq fdvhv lg xuq�frqwhqw,whp��55.�)%� ��)&6%�6������������ frqwh[w �������� � � � � � � � � � � � � � � � � � � � � � � � � 7kh�&rqvxphu�)lqdqfldo�3urwhfwlrq�%xuhdx¶v�6lqjoh�'luhfwru�6wuxfwxuh��$�9ldeoh�dqg� &rqvwlwxwlrqdo�5hjxodwru\�$ssurdfk"� � ³$gplqlvwudwlrq�ri�%dudfn�2edpd�´ ���*ry w�3xeolvklqj�2iilfh���-xqh���������������� kwwsv���zzz�jrylqir�jry�frqwhqw�snj�333������errn��sgi�333������errn��grf�sj������sgi� editor's note vol 13 no. 2 bellarmine law society review volume xiii | issue ii editor’s note: volume xiii no. ii of the bellarmine law society review isabella calise boston college, calisei@bc.edu editor’s note: volume xiii no. ii of the bellarmine law society review isabella calise in the second issue of the bellarmine law society review's (blsr) thirteenth volume, a diverse group of scholars, including four undergraduates and a standout high-school senior, delve into compelling legal topics. the exploration encompasses a broad spectrum, ranging from supreme court rationale and psychiatry to the intricacies of lgbt+ rights and rap music—all viewed through the discerning lens of legal analysis. first, high-school senior alex chen navigates the uncertainties surrounding stare decisis interpretation with a thematic approach that unveils the foundational aspects of the court's opinions and anticipates their future applications. second, joshua darrish's analysis highlights cases like mccreary county v. aclu and van orden v. perry to accentuate the widening gap between separationist and accommodationist interpretations of the bill of rights. in doing so, darrish argues that maintaining the establishment clause's vague nature will safeguard the secularity of the judicial system. third, simon hoefling explores the insanity defense through a cognitive lens rather than one of volition. his argument posits that this approach establishes a higher standard for comprehending criminal culpability. fourth, brendan mahoney dissects the implications of rico charges, examining their impact on the admission of rap lyrics in the judicial system. notably, mahoney invokes topical cases such as state of georgia v. kahlieff adams et al. to argue that restricting charges threatens a rapper's civil liberties. finally, darya treanor examines the historical interpretations of the second amendment under d.c. v. heller to advocate for a broader perspective that not only incorporates but also expands the liberties of lgbtq+ americans. the release of this edition marks the inaugural venture of the blsr under the guidance of managing editor tommy dee and myself. since the fall, tommy and i have taken strides to expand the editorial board by welcoming new associate editors, whose dedication has made the entire editorial process both effortless and gratifying. as a board, we were genuinely impressed by the abundance and caliber of submissions this year and fervently anticipate that you, our esteemed readers, will discover them as engaging as we did. microsoft word ulziibold_final_blsr.docx bellarmine law society review volume xiii | issue i article 1 intellectual property rights on covid-19 vaccines in the u.s. sunderya ulziibold boston college, ulziibol@bc.edu 4 intellectual property rights on covid-19 vaccines in the u.s. sunderya ulziibold * abstract: the global development and distribution of covid-19 vaccines have raised concerns over intellectual property rights in the united states. in particular, the two pharmaceutical giants, pfizer/biontech and moderna, have been embroiled in a contentious dispute over the intellectual property rights surrounding their covid-19 vaccine technology since august 2022. the stakes are high, as the outcome of this legal battle could determine who ultimately controls this newfound and lucrative market. this paper delves into the legal framework of intellectual property rights in the united states as they apply to covid-19 vaccines. it also raises critical ethical questions about the implications of these rights for public health and access to lifesaving treatments. by examining these issues, this paper sheds light on the ongoing tension between incentivizing innovation and ensuring equitable access to crucial medical breakthroughs. introduction this paper discusses the legal issue of intellectual property rights on covid-19 vaccines in the u.s. beginning with a description of the industry in the u.s. and the world. from there, i explain intellectual property and patent laws in the u.s. before moving on to a description of new mrna technology used for covid-19 vaccines and its patentability through an analysis of an ongoing patent infringement lawsuit filed by modern against pfizer/biontech. i. description of the covid-19 vaccine industry the u.s. covid-19 vaccine industry was formed in early 2020 when the world health organization (who) declared the covid-19 outbreak a pandemic. to battle the novel coronavirus, pharmaceutical companies like astrazeneca, moderna, pfizer/biontech, and johnson & johnson were funded by who and many other donors to accelerate the research and development of vaccines. in december of 2020, the first covid-19 vaccine was added to the emergency use listing (eul), overseen by the who, and distributed to healthcare * sunderya ulziibold is a second-year student at boston college studying political science and communications. she is interested in the role of mass media in the politics of developing countries. she would like to express special thanks to professor rachel spooner who taught her introduction to business law class that she much enjoyed and which further developed her interest in law. 5 workers, those with high-risk medical conditions, and people older than 65. eventually, the vaccine became available for everyone, including ordinary citizens and children. currently, 11 vaccines are listed on the eul and have been mass produced and distributed to countries all over the world. the u.s. alone has approved and authorized four vaccines: moderna, pfizer/biontech, johnson & johnson, and novavax. as of november 2022, 15.477 billion vaccines were delivered worldwide,1 and the u.s. had distributed over 905 million doses and administered over 646 million doses. in the u.s., pfizer/biontech makes up 56.2% of the covid-19 vaccine market while moderna makes up 37.8% and the remaining 6.0% belongs to novavax and johnson&johnson.2 the size of the u.s. covid-19 vaccine industry has grown dramatically over the past two years, increasing from a value of $190 million in 2020 to $10.81 billion in 2021.3 ii. intellectual property: patents iia. intellectual property rights intellectual property (ip) is any product of human intellect that the law protects from unauthorized use by others, which effectively enables original creators to hold a monopoly on their ip.4 ip rights are crucial to our society as they encourage individuals and companies to be creative while offering them protection. there are four ways to protect intellectual property: trademarks, copyrights, trade secrets, and patents. patents are the “exclusive right of its owner to exclude others from making, using, or selling the invention as defined in the claims of the patent for a period of time.”5 trademarks and trade secrets are indefinite as long as they are in use. copyrights are valid for 70 years plus the author’s lifetime and 95 years after first publication if anonymous. patents cover the shortest duration, as they span 1 “covid-19 market dashboard,” unicef supply division, accessed 15 november 2022, https://www.unicef.org/supply/covid-19-market-dashboard. 2 “covid data tracker,” centers for disease control and prevention, accessed 15 november 2022, https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-additional-dose-totalpop. 3 “covid-19 vaccines,” statista, accessed 16 november 2022, https://www.statista.com/outlook/hmo/pharmaceuticals/vaccines/covid-19-vaccines/united-states. 4 “intellectual property,” legal information institute, cornell law school, accessed 16 november 2022, https://www.law.cornell.edu/wex/intellectual_property#:~:text=overview,monopoly%20in%20the%20protected%2 0property. 5 rachel spooner, “intro+f22+ip,” powerpoint presentation, boston college, chestnut hill, ma. accessed fall 2022. 6 from 14 to 20 years depending on the patent type. once the patent is expired, the invention enters the public domain and anyone can make, use, or sell the product. iib. patent law under the constitution under article i, section 8, of the u.s. constitution, congress has the power to promote scientific progress by allowing inventors to secure exclusive rights to their discoveries for a limited amount of time.6 this law is important because it fosters innovation and incentivizes individuals and companies to make new scientific discoveries and advancements that may be helpful to the world. moreover, inventors can gain profit due to the exclusive rights that protect their inventions. iib(i). patent act of 1952 the patent act of 1952 requires that a patent must be novel, non-obvious, useful, and a valid subject matter. “novel” means the patent should propose something new, like an innovative technology or a scientific discovery. it must be non-obvious “to a person of ordinary skill and knowledge in the art or technology to which the invention is related.”7 the usefulness of the invention is determined by its intended purpose. a valid subject matter must not be abstract, the product of nature, or within the laws of nature. a patent can be found invalid if it does not fulfill all four requirements. iic. patent infringement patent infringement occurs when the owner of the patent files a suit for infringement for unauthorized use of their patent, and obtains appropriate monetary damages and injunctive relief. iii. ip and covid-19 vaccines iiia. mrna and patentability there are three main types of covid-19 vaccines approved in the united states: “messenger rna (mrna), viral vector, and protein subunit.”8 while mrna technology is new to the field, viral vector and protein subunit vaccine technologies have long been used 6 twomey, david p., “chapter 9,” in business law: principles for today's commercial environment (australia: cengage learning, 2017). 7 twomey, business law, chapter 9. 8 “overview of covid-19 vaccines,” centers for disease control and prevention, updated 1 november 2022, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/overview-covid-19vaccines.html?s_cid=11758:types%20of%20covid%20vaccines:sem.ga:p:rg:gm:gen:ptn:fy22. 7 and are considered the “traditional” methods. “mrna vaccines use mrna created in a laboratory to teach our cells how to make a protein—or even just a piece of a protein—that triggers an immune response inside our bodies. this immune response, which produces antibodies, is what helps protect us from getting sick from that germ in the future.”9 while mrna technology has been researched for decades, it was not implemented in vaccines until the covid-19 pandemic. similar to how viral vector and protein subunit vaccine methods have been used for effective vaccines in the past, the mrna method can be a new way of making more effective vaccines in the future. pfizer/biontech and moderna were the first pharmaceutical companies to make effective mrna vaccines for humans. with an expanding global vaccine industry, patenting this new technology will be profitable in the long run and allow patent holders to eventually shape the future of mrna vaccines. iiib. association for molecular pathology v. myriad genetics case the association for molecular pathology and other medical associations sued the united states trademark and patent office (ustpo) and myriad genetics to challenge its humangene-related patents. myriad genetics discovered specific mutations in human genetics, called brca1 and brca2, that marked a high risk of breast and ovarian cancer. to test whether a person is at high risk, it is necessary to isolate their genes. therefore, myriad patented the process that isolates brca1 and brca2, which would give them the exclusive right to breast and ovarian cancer testing as well as gene isolation. however, the u.s. supreme court ruled that myriad’s patents are invalid because human genes are found in nature and merely isolating them is unpatentable. unlike this case, the technology of mrna in vaccines is novel. mrna can be found in nature as it is “genetic material that tells your body how to make proteins,”10 but for covid19 mrna vaccines, the mrna is laboratory-made. moreover, it is nonobvious to an ordinary person without any knowledge of mrna and it is useful because it triggers the immune system against a virus. it is also a valid subject matter, fulfilling all four criteria and rendering the mrna technology patentable. 9 “understanding how covid-19 vaccines work,” centers for disease control and prevention, updated 3 february 2023, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/how-they-work.html. 10 “understanding how covid-19 vaccines work,” cdc. 8 iiic. moderna v. pfizer/biontech ongoing case in august 2022, nine months after the first mrna vaccine, moderna sued pfizer/biontech for three patent infringements related to mrna technology. the company stated that “pfizer and biontech’s covid-19 vaccine comirnaty infringes patents moderna filed between 2010 and 2016 covering moderna’s foundational mrna technology. this groundbreaking technology was critical to the development of moderna’s own mrna covid-19 vaccine, spikevax. pfizer and biontech copied this technology, without moderna’s permission, to make comirnaty.”11 under the patent act of 1952, moderna has the right to sue pfizer/biontech for patent infringement and seek appropriate monetary damages and injunctive relief. moderna is seeking damages, including royalties and lost profits incurred since march 2022 and license fees from high-income countries. however, the company chose not to seek damages from pfizer’s sales of its vaccine to the world’s poorest countries and the u.s. government, which bought pfizer/biontech vaccines.12 to moderna’s claim, pfizer/biontech responds that their “work is original, and [they] will vigorously defend against all allegations of patent infringement.” 13 the case has important ramifications for the future profitability of both companies. experts have already started speculating on the matter and believe that it could either come to a relatively quick decision or drag on for years.14 the ruling of this ongoing lawsuit will likely shape the future of mrna technology, not only in the covid-19 vaccine industry, but also in the medical industry. conclusion intellectual property rights promote and incentivize the covid-19 vaccine industry to flourish and develop groundbreaking technology. however, patents on covid-19 vaccines, 11 “moderna sues pfizer and biontech for infringing patents central to moderna’s innovative mrna technology platform,” moderna, 26 august 2022, https://investors.modernatx.com/news/news-details/2022/moderna-suespfizer-and-biontech-for-infringing-patents-central-to-modernas-innovative-mrna-technologyplatform/default.aspx. 12 rebecca robins and jenny gross, “moderna sues pfizer and biontech over covid vaccine technology.” new york times, 26 august 2022, https://www.nytimes.com/2022/08/26/business/moderna-covid-vaccine-lawsuit.html. 13 “press release: statement on patent infringement lawsuit filed by moderna,” biontech, 26 august 2022, https://investors.biontech.de/news-releases/news-release-details/statement-patent-infringement-lawsuit-filedmoderna. 14 jon cohen, “scientists question moderna invention claim in covid-19 vaccine dispute.” science, 29 august 2022, https://www.science.org/content/article/scientists-question-moderna-invention-claim-covid-19-vaccine-dispute. 9 specifically mrna technology, can be a hindrance to inoculation during the ongoing pandemic as patent license fees can increase the price of vaccines. it is important to remember that the public is still at risk, with 33% of the u.s. and 39% of the world population not fully vaccinated.15 one might argue that the moderna lawsuit is justifiable because they are protecting their rights under the u.s. constitution. in reality, however, the case brings awareness to the ethical dilemma of whether intellectual property rights should be prioritized over life-saving technology. 15 the visual and data journalism team, “covid vaccines: how fast is progress around the world?” bbc news, 1 june 2022, https://www.bbc.com/news/world-56237778. 15.2 editor's note bellarmine law society review volume xv | issue ii editor’s note: volume xv no. ii of the bellarmine law society review simon k. hoefling boston college, hoeflisi@bc.edu editor’s note: volume xv no. ii of the bellarmine law society review simon k. hoefling it is my pleasure to present the second issue of volume xv of boston college’s bellarmine law society review. i am delighted to step into the role of editor-in-chief, and i am joined by our new managing editor, jessica k. orrell. we are both grateful for the opportunity and excited to help promote undergraduate legal scholarship at boston college and beyond. i would also like to welcome our new associate editors to the team: lily hillis, genevieve morrison, jocelyn tucker, sabrina reyes, tim niemann, and logan corvisiero. we are confident that their contributions will strengthen the quality and consistency of the review. for this fall edition, we are featuring four papers from authors inside and outside of the boston college community. first, valerie kandel of cornell university undertakes a topical exploration of the use of ai in hiring and how it may perpetuate discrimination against disabled individuals, ultimately presenting a thorough policy framework for ensuring that these communities are not disparately affected by ai tools. next, joseph murphy of boston college, a second-time author for the review, discusses how arbitration clauses in terms of service agreements can restrict legal action against companies, raising important questions about the scope and fairness of these clauses. after that, kiruthiga balamurugan of georgetown university examines the constitutional issues around the ban of tiktok, utilizing both state and federal cases to unpack and understand the supreme court ruling that upheld the biden administration’s ban of the app. finally, cindy toh of stanford argues that the supreme court’s decision in dobbs v. jackson (2022) created a new rule of law rooted in new textualism and characterized by skepticism towards stare decisis. these works represent a broad range of topics and reflect the inter-disciplinary orientation of the bellarmine law society review, illustrating how law intersects with every aspect of life. we are excited to feature contributions from three authors at universities outside boston college, reflecting our commitment to expanding the review’s reach and promoting undergraduate legal writing nationwide. this cycle brought in many high-quality submissions, and we are proud that the pieces selected for this issue showcase that standard of excellence. we hope that this broader scope will foster greater engagement with the review and encourage deeper legal discourse. to 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bellarmine law society review the role of socioeconomic status in the college admissions process taline ratanjee boston college lynch school of education and human development, ratanjee@bc.edu volume xi issue ii article 1 2 the role of socioeconomic status in the college admissions process taline ratanjee1 abstract: policy regarding college admissions has always worked to achieve equality within the admissions processes. cases like california vs bakke (1978) establish legislature regarding what is considered constitutional within the admissions process. colleges claim that socioeconomic status is not involved in the admissions process, yet it is never truly excluded. colleges know the ses of a student based off specific extracurriculars and if attendance of a public vs private high school. colleges further advertise to students of specific ses groups, and high tuition cost can future exclude low ses students, resulting in lack of equality within the admissions. this paper works to explore legislature outlining the college admissions process and provide recommendations to eliminate biases that still exist within the college admissions process. introduction this paper analyzes the key legal and economic issues surrounding the role of socioeconomic status (ses) in the college admissions process. as noted by numerous scholars, affirmative action is one of the most contentious issues in education policy, and challenges to raceconscious admissions policies, both in courts and at the ballot box, have become regular occurrences over the past three decades. when these challenges enacted changes, colleges and universities recognized the need to alter their admissions policies to accept more minority students. this new age of affirmative action called upon top-tier universities to focus on diversity within their applicant pool to create a well-rounded campus consisting of divergent backgrounds, values, 1 taline nicole ratanjee is a fourth-year undergraduate student at boston college pursuing a b.a. in applied psychology and a b.s. in economics with a minor in marketing. her academic interests lie at the intersection of behavioral economics, social advocacy, and public policy. the author wishes to thank her parents, joe and georgette ratanjee, for their unwavering love and support, and professor thomas wesner for his guidance and inspiration. 3 and experiences. as these policy changes were implemented, scholars began calling for a focus on socioeconomic diversity—not as a substitute for racial diversity, but as a value in its own right. they claimed a focus on ses would more accurately identify those applicants who had to overcome hardships in their paths to higher education.2 since socioeconomic status is not a “suspect classification” under the fourteenth amendment’s equal protection clause,3 class-based policies are not subject to the same legal uncertainties that race-conscious admissions policies are. because of this, many universities decide to target groups of applicants who have faced significant disadvantages and oppression within society. the inclusion of these groups in the academic community is an essential part of fostering authentic diversity and equal opportunity. universities have grown more diverse by instituting these new policies that are oriented towards race-conscious affirmative action, but they continue to exclude the factor of ses on applications. they still strongly evaluate one’s background on the basis of traditional qualifiers, like standardized test scores, attendance of public or private school, and participation in extracurricular activities, all of which are predominantly determined by family income. utilizing socioeconomic factors to admit or reject students is otherwise known as class-based affirmative action, or “socioeconomic affirmative action,” which is loosely characterized as “admissions preferences for low-income students.”4 class-based policies are designed to place a “thumb on the scale” for applicants who have faced obstacles toward upward economic mobility. since ses significantly impacts academic measures that admissions officers use to gauge applicants’ college readiness (like standardized test scores, gpa, and ap tests), class-based affirmative action needs further investigation to better 2 kahlenberg, “the remedy: class, race, and affirmative action,” pgs. 83-120 3 the equal protection clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws” u.s. const. amend. xiv §1 4 gaertner & hart, “considering class: college access and diversity,” pg. 6 4 allow all college applicants the opportunity to attend institutions of higher education. not only does ses affect college admissions, but it also significantly impacts economic factors in society, such as gross domestic product (gdp)5 and human and social capital. with this context in mind, this paper analyzes the relationship between socioeconomic (ses) and college admissions. specifically, it analyzes whether or not college admissions processes disfavor low socioeconomic students and how they do so by reviewing previous college cases that attended to similar legal and ethical issues. this paper provides an analysis of classbased affirmative action by establishing: (1) how affirmative action is followed but flawed, (2) how top tier universities limit entry based on socioeconomic status which heavily impacts social and human capital in society, (3) how this limit of entry negatively affects gdp and other economic aspects within society, and (4) how affirmative action excludes ses to exacerbate factors affected by it. history in 1961, the term “affirmative action” was first introduced by president john f. kennedy as a method of rectifying discrimination that had endured in spite of civil rights laws and constitutional guarantees. in the 1950s and 60s, the supreme court’s brown v. board of education (1954)6 decision outlawed school segregation, and the civil rights act of 1964 outlawed any discrimination based on race, color, religion, sex, or national origin. in 1965, president lyndon johnson enforced affirmative action policies via executive order 112467 to advocate for civil 5 gross domestic product (gdp) is the total monetary or market value of all the finished goods and services produced within a country’s borders in a specific time period. as a broad measure of overall domestic production, it functions as a comprehensive scorecard of a given country’s economic health (investopedia). 6 brown v. board of education, 347 u.s. 483 (1954) 7 executive order 11246 “requires affirmative action and prohibits federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations (1965). 5 rights and ensure equality within american society. since the 1960s, colleges and universities have adopted similar acceptance policies, causing the acceptance rates of minority students to increase. by 1978, flaws in affirmative action began to show despite the good intentions of the policy. in regents of university of california v. bakke (1978), the supreme court ruled that the use of racial quotas is unconstitutional within the admissions process, while a school’s endorsement of affirmative action to focus on admitting more minority applicants is constitutional. thus, this case proved a high-water mark for socioeconomic disadvantage in case law. specifically, justice powell’s opinion in bakke famously held that racial and ethnic disadvantage could be considered in the holistic review of applicants. contrary to other judges’ and scholars’ opinions on this case, powell listed socioeconomic disadvantage as an aspect of diversity, essentially treating it on par with both racial and ethnic disadvantage during the college admissions processes.8 since bakke, the u.s supreme court and other federal courts have largely ignored justice powell’s stance on socioeconomic disadvantage and have focused instead on the relation between ses and underrepresented racial and ethnic groups.9 hopwood v. texas (1996) was the first successful legal challenge to a university’s affirmative action policy in student admissions since bakke (1978). in this case, four white plaintiffs who had been rejected from the university of texas at austin’s school of law challenged the institution’s admissions policy on equal protection grounds and prevailed. the court ruled that the “university of texas school of law may not use race as a factor in deciding which application to admit in order to achieve a diverse student body…to alleviate the law school’s poor reputation in the minority community, or to eliminate any past discrimination.”10 this 8 regents of the univ. of cal v. bakke, 438 u.s. 265 (1978) 9 pruitt, “the false choice between race and class and other affirmative action myths,” pg. 5 10 hopwood v. texas, 78 f.3d 932 (5th cir. 1996) 6 decision rendered the debate about economic and racial affirmative action to persist throughout the 2000s, with several landmark cases concerning unfair college admissions. in 2003, the supreme court ruled that although affirmative action was no longer justified as a way of addressing past injustices, it did help to promote a “compelling state interest” in diversity at all levels of society in gratz v. bollinger and grutter v. bollinger (2003). for one, the court ruled in gratz v. bollinger (2003) that the university of michigan’s point system’s “predetermined point allocations” that awarded 20 points towards admission to underrepresented minorities “ensure that the diversity contributions of applicants cannot be individually assessed” and, thus, was unconstitutional.11 furthermore, grutter v. bollinger (2003) held that the equal protection clause of the fourteenth amendment12 does not prohibit university of michigan law school to narrowly tailor its use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.1314 the supreme court invalidated the hopwood (1996) decision in grutter (2003) when it found that the u.s. constitution did not prevent the use of race as a factor in admissions. to further justice powell’s opinion in bakke (1978), justice souter’s dissent in gratz (2003) reaffirms the same idea by noting that the michigan undergraduate admissions scheme at stake valued socioeconomic disadvantage as highly as racial/ethnic disadvantage.15 the majority in gratz (2003) mentioned “socioeconomic disadvantage only in passing,” whereas neither the fifth circuit in hopwood v. university of texas (1996) nor the majority opinion in grutter (2003) discussed socioeconomic disadvantage. this 11 gratz v. bollinger, 539 u.s. 244 (2003) 12 u.s. const. amend. xiv §1 13 grutter v. bollinger, 539 u.s. 306 (2003 14 both gratz (2003) and grutter (2003) failed to end the government’s use of racial preferences, it achieved a minor victory of placing limits on when and how institutions may use such preferences. 15 pruitt, “the false choice between race and class and other affirmative action myths,” pg. 21 7 omission of ses in discussing the college admissions process has allowed universities to continue to circumvent class as a discriminatory measure when admitting students. fisher v. university of texas (fisher ii)16 (2016) is today’s precedent for future cases17 regarding the policy of affirmative action due to the supreme court’s ruling that the use of race as a consideration in the admissions process does not violate the equal protection clause of the fourteenth amendment. fisher (2016) invoked the debate over whether affirmative action based on socioeconomic disadvantage – which would not invoke constitutional scrutiny – should replace affirmative action of race. regarding class, the plaintiff, abigail n. fisher, “turned the value sometimes associated with socioeconomic disadvantage on its head” by claiming that she should be compared in the admissions process to other middle-class applicants specifically, across all races. not only was fisher a socioeconomically disadvantaged white, she creatively (if not convincingly) attempted to leverage her relative affluence into an argument that skirted the value of socioeconomic disadvantage as a type of diversity. instead, fisher essentially argued that those alike on the basis of class should be compared to one another instead of giving racial or ethnic preferences to other underrepresented minority applicants.18 although bakke (1978) previously outlawed the use of quotas in the college admissions process, the students for fair admissions inc. (sffa) v. harvard (2014) case likewise cited the use of unfair ethnicity quotas in the college admissions process, resulting in the underrepresentation of minority groups. sffa inc. alleged specific discrimination against asian 16 fisher v. university of texas (2013) (alternatively called fisher i), 570 u.s. ____ (2013), a case which ruled that strict scrutiny should be applied to determine the constitutionality of a race-sensitive admissions policy. 17 fisher v. university of texas (fisher ii) is an important case towards sffa v. harvard since harvard has been involved in the fisher case since november 2015 when filing for an amicus brief. this amicus brief supported “ut austin’s use of race-conscious admissions policies to create a diverse student body, writing that a diverse student population is a compelling interest that justifies race-conscious admissions in higher education” (ellis). 18 pruitt, “the false choice between race and class and other affirmative action myths,” pg. 25 8 americans, who consistently score the highest percentages on the sat and act, arguing that they were underrepresented “by a factor of half or even two thirds relative to the number of applications from asian-americans that harvard received.” 19 the complaint also strongly advocated increased use of socioeconomic factors in lieu of racial factors when seeking diversity in an admitted class.20 in october 2019, judge burroughs rejected sffa’s claims, ruling that harvard’s admissions practices met constitutional requirements and did not discriminate against asian-americans.21 sffa appealed and the u.s. court of appeals for the first circuit upheld judge burroughs’ decisions.22 even today, there are many unresolved issues among the use of ses advantages in the college admissions process. for example, the varsity blues scandal highlights how increased wealth allows for unfair admittance into elite academic institutions through monetary payments.23 federal appellate court attention to the content of diversity has since waned. in hopwood (1996), the fifth circuit hinted that the plaintiff represented diversity, perhaps partly on the basis class, but the supreme court majorities in gratz and grutter (2003) were silent on the content of diversity. similarly, the supreme court in fisher (2016) said nothing about the meaning of diversity, not even hinting at a response to the plaintiff’s argument that her application should be assessed in relation to those within the same socioeconomic class as she. the role of ses in the 19 students for fair admissions, inc. v. president of harvard coll., no. 1:14-cv-14176-djc, (d. mass. nov. 17, 2014) 20 pruitt, “the false choice between race and class and other affirmative action myths,” pg. 6 21 u.s. district court, district of ma sffa v. harvard case findings 22 united states court of appeal for the first circuit amicus brief-sffa v. harvard 23 in 2019, a scandal arose over a criminal conspiracy to influence undergraduate admissions decisions at several top american universities. thirty-three parents of college applicants were accused of paying more than $25 millions between 2011 and 2018 to william rick singler, organizer of the scheme, who used part of the money to fraudulently inflate entrance exam test scores and bribe college officials. singer unethically facilitated college admission for children in more than 750 families. among the accused parents are prominent business-people and well-known actors, like felicity hauffman, lori laughlin, mossimo giannulli, douglas hodge, and peter dameris (federal bureau investigation affidavit, 2019). 9 admissions process, although previewed in the variety of cases discussed, still warrants additional attention to ensure fair acceptance into universities. analysis as history has shown, ses has been utilized as a factor in the college admissions process in more ways than one, emphasizing the need for further investigation. elite colleges — which have far more applicants than admitted students — experience pressure to be seen as “diverse” and have “diverse” student bodies. as deil-amen (2011) points out, “diversity” is a term that can be broadly applied to any number of deviations to the typical student.24 however, in practice, the term refers primarily to racial and ethnic diversity. due to this narrowed definition of diversity, universities can still apply exclusionary practices during the admission process, allowing for underrepresentation of low-income students at elite universities. research has shown that there is less socioeconomic diversity than racial or ethnic diversity at the most selective colleges.25 looking at table 3.1, 26 seventy-four percent of the students at the top 146 highly selective colleges came from families in the top quarter of the socioeconomic status (ses) scale, which is measured by combining family income with the education and occupations of the parents. a little more than twenty-two percent of the students in the top tier of college selectivity are asian, african american, or hispanic (eleven 24 deil-amen, “the ‘traditional’ college student: a smaller and smaller minority and its implications for diversity and access institutions,” pgs. 5-8 25 carnevale & rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 106-107 26 carnevale & rose, “socioeconomic status, race/ethnicity, and selective college admissions,” table 3.1 pg. 106107 10 percent asian, six percent black, and six percent hispanic), whereas only three percent are from families in the lowest socioeconomic status quartile, and ten percent are from the bottom of the socioeconomic status scale. thus, this research (table 3.1)27 weakens the claim that college institutions are representative of the total population, especially given that three fourths of an institution’s student body is composed of individuals within the highest socioeconomic status bracket. even though institutions of higher education are utilizing affirmative action, many are reforming their admissions process to admit those in higher ses quartiles. colleges tailor recruitment toward racial minority students at a much higher rate than recruitment geared toward low ses students: “the percentage actively encouraging applications from economically disadvantaged students remained the same in four-year private colleges (twenty-four percent) and declined in two-year private colleges (from twenty-four to sixteen percent).”28 even though colleges marginally recruit economically disadvantaged students, more than eighty percent of all institutions continued admitting students before aid was considered, creating “sticker price shock” 29 to discourage low-income student applications. contrary to higher educational institutions’ goals to recruit and retain economically disadvantaged students, many schools implicitly dissuade these students from attending their institutions, allowing higher ses students to be admitted and pay full tuition. this “sticker price shock” not only affects low ses students heavily, but also creates compounding impacts on society as a whole by decreasing the number of low-income students in higher education. 27 1988 national education longitudinal study of 1988 28 carnevale & rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 118 29 “sticker price shock” is defined as showing the full cost of attendance to deter students from attending the university secondary to financial concerns (levine et al, 2020). 11 economically speaking, higher education institutions' creation of this limited entry for low ses students affects the human and social capital within the nation. this failure to maximize raw human capital undermines the competitiveness of the nation, resulting in economic consequences for future generations. this is just one damaging implication of the current failure to value and support poor and working-class students in elite higher education.30 lani guinier convincingly argues that this exclusion of low-income students thwarts the “american dream” storyline by undermining the country’s egalitarian ideals. failure to include the socioeconomically disadvantaged in this elite pipeline to the nation’s leadership means that our future leadership will lack representation of a significant cohort: those who know the realities of a poor or working-class existence.31 specifically, exclusion of low-income whites has adverse consequences as this cohort shares an experience and understanding of economic disadvantage, even though they also enjoy the benefits of racial advantage, secondary to whiteness.32 this cohort of low-ses students will not be the only group that benefits from their admittance and entrance into top-tier universities: high-ses students will improve by learning and understanding their peers’ stories, backgrounds, and experiences. therefore, by limiting admittance based on ses, college institutions are not only failing to maximize human and social capital among low ses students, but they are also diminishing human and social capital among high ses students who are unable to integrate themselves with this identified “cohort.” 30 pruitt, “the false choice between race and class and other affirmative action myths,” pg. 3 31 guinier, “admissions rituals as political acts: guardians at the gates of our democratic ideals” 32 guinier, “admissions rituals as political acts: guardians at the gates of our democratic ideals” 12 research 33 (table 3.7) has shown that americans associate disadvantage with income more than race — eighty-three percent of those surveyed viewed lowincome status as a disadvantage, and seventy-one percent claim that being both white and from a low-income family is a disadvantage. a majority of respondents noted that being black (49 percent) or hispanic (51 percent) is a disadvantage if the person is also from a low-income family (78 percent and 77 percent), highlighting that these inequalities can be compounded. growing up in a family that does not speak english (84 percent) and growing up in a single-parent family (80 percent) were also viewed as major drawbacks. overall, americans recognize the link between higher education and success: “educational institutions have a primary role among american institutions for promoting upward mobility.”34 many americans believe that college institutions play a leading role in an individual’s success as the economic benefits of attending a selective college are clear. those who graduate from top-tier universities are typically known for being in the upper-echelon of society, with incomes in the top one percent of the nation. further, top-tier colleges “spend as much as four times more per student 33 carnevale & rose, “socioeconomic status, race/ethnicity, and selective college admissions,” table 3.7 pg. 123 34 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg.122 13 and subsidize student spending by as much as $24,000, compared to a student subsidy of as little as two thousand at least selective colleges,”35 demonstrating the differences between higher ranking academic institutions and general higher educational programs. this highlights why the exclusion of low ses students at high academic institutions stifles access to much needed resources and decreases one’s access to social capital. overall, this demonstrates that decreasing access to academic institutions not only affects low ses students, but also significantly affects the diversity of an institution's student body, thus, reducing the understanding of oppression and privilege amongst all students. furthermore, these factors affect one’s social and human capital, resulting in societal consequences. in addition, as presented in table 3.236, students at selective colleges have higher graduation rates than similarly qualified students at less selective colleges, proving that campuses “have long been associated with socioeconomic reproduction, or passing along socioeconomic advantages and positions across generations.”37 these elite colleges are strong pathways into high-status occupations and professional work; for example, all but one of the current supreme court justices attended either stanford, princeton, harvard, or georgetown), which are all considered top-tier schools. uniformly, elite colleges provide 35 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 107 36 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” table 3.2 p. 108 37 lee, “elite colleges & socioeconomic status,” p. 789 14 increased access to postgraduate degrees, such as business, law, and medicine, all careers associated with high incomes post-grad.38 student support, preparation, and prestige at selective colleges results in higher rates of acceptance to graduate and professional schools compared to similarly qualified students graduating from lower-tiered universities. in this way, top-tier universities are uniquely positioned. on one hand, they pass along privileges and social connections for students from middle-and upper-socioeconomic status families, cementing advantages for the new generation of young adults. conversely, they provide substantial financial aid support39 to invest in student services so low-ses students may also benefit from these advantages.40 it is of the utmost importance that admissions officers at higher educational institutions understand the effects of their ses exclusion in the admissions process on the nation through the loss of gdp. mckinsey & company calculated the cost of the gdp loss in 2008 due to the inequitable access to higher education: “$400 billion and $670 billion — some three to five percent of total gdp.”41 elite academic institutions allow for upward mobility in society through increased spending per student, connections introduced while at the institution, and access to higher-paying postgraduate jobs. exclusion of low ses students in this academic sector therefore limits the monetary capital this group can obtain, further restricting the overall gdp of the nation. this increases the wealth gap without fostering any substantial progress towards equal access to education, the one proven remedy that could mitigate the growing economic divide. as the relationship between education and income grows, families with the highest 38 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pgs. 107-115 39 astin and oseguera, “the declining ‘equity’ of american higher education.” 40 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 107 41 pruitt, “the false choice between race and class and other affirmative action myths,” pg. 3 15 incomes are increasingly likely to be those with the highest levels of educational achievement. researchers agree that the relationship between parental education and income creates an intergenerational cycle of success. 42 simply, “parental education brings strong returns to household income, which in turn tends to raise time and resource investments in children and educational expectations.”43 this contributes to higher rates of high school completion and college readiness, allowing more individuals to enroll, graduate, and then secure jobs with long-term earnings potential. growing up in a household with both high earnings and levels of parental education therefore perpetuates this cycle into future generations. conversely, low-income families statistically are headed by single-parents’ low educational levels, perpetuating the cycle for future generations.44 as a result, the united states is composed of families with both high parental education and elevated incomes, and those with neither. as a result, these two paths to college converge in a single application that favors the already economically advantaged group. with the financial reward for accessing elite education remaining concentrated amongst high income students, failure to include avenues for low-income students will result in the continued economic polarization seen at these high-achieving academic institutions.45 the college admissions process appears to exclude ses as a subsection of affirmative action, only exacerbating disadvantages in a student’s application: low standardized test scores due to tutoring, limited extracurricular activities, and attendance at a private or public school. most admissions officers agree that admissions should be based on “merit,” resulting in the development of “merit-based admissions” approach. here, universities 42 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 129 43 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 129 44 carnevale & rose, “socioeconomic status, race/ethnicity, and selective college admissions,” table 3.7 pg. 123 45 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 129 16 judge applicants on the basis of their high school achievements — students are often categorized based on class ranking, test scores, personal recommendations, leadership, and other achievements. particularly, merit-based admissions aim to evaluate all of these factors regardless of the applicant’s socioeconomic background. even though this approach is widely utilized,46 college admissions counselors disregard that these factors are heavily determined by ses. for example, standardized test scores, like the scholastic aptitude test (sat) or the american college test (act), are profoundly influenced by ses since higher income students are more likely to be able to afford and receive private tutoring that greatly improves their scores. although a small number of elite colleges have become “test-optional,” ninety-four percent of four-year colleges still require standardized test scores in their admissions process. in 2006, fifty-nine percent of top-tier universities deemed standardized tests as “considerably important” in garnering admission to their institution. 47 the role of extracurriculars in the admissions process have becoming increasingly important metric to determine qualified applicants, but extracurriculars yield increased opportunities for high ses students. these extracurricular activities are severely restricted for low ses students whose parents are less able to marshal resources or help their children participate in these activities, thereby further limiting their access to top-tier institutions that use merit-based admissions. 46 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 115 47 alon, “the declining ‘equity’ of american higher education.’ pg. 1476 17 research findings in table 3.1448 show that the pool of students with high scores on college entrance exams is highly skewed by ses. two out of three students who score in the top sat percentile (score of 1300 or greater) come from the top eight percent of the ses quartile nationwide. for reference, a perfect sat score is a 1600. of those who score between 1200 and 1300, fiftyeight percent are from the top socioeconomic status quartile. by contrast, just three percent of those who score above 1300 and four percent of those who score between 1200 and 1300 come from the lowest socioeconomic status quartile. scholars have noted that high school grades predict college success better than standardized tests49 and that selective colleges with sat-optional policies receive more applicants from low-income and minority students,50 indicating that standardized tests are a barrier for low ses applicants. 51 conversely, the standardized test scores of low-ses student provide a greater indication of whether or not they are qualified for academic work at an elite college as they typically receive high scores based on merit 48 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 130 49 alon, “the declining ‘equity’ of american higher education.’ pgs. 1475-99 50 lee, “elite colleges & socioeconomic status,” p. 789 51 a growing number, including depaul university and the university of chicago, have opted to stop requiring the sat and act in their admissions process, saying the tests place an unfair cost and burden on low income and minority students, and ultimately hinder efforts to broaden diversity on campus. critics argue that these standardized tests, which some families spend thousands of dollars to prepare for, do not accurately measure a student’s qualifications. for example, the undergraduate dean john boyer at university of chicago explains that, “there’s a big industry of test prep, and the system as it’s existed serves them very well...allowing zip codes to basically define the future of american life...four years of high school is a better predictor than three hours in a testing room” (rhodes, 2018). 18 instead of privatized tutoring that most students enrolled in elite colleges receive.52 the issue of standardized test scores is further compounded in the admissions process by the segregation of students based on high schools and their overall ses. students with higher ses generally attend high schools that are more successful in providing access to colleges, especially highly selective colleges. these high schools provide a diverse range of academic courses, including advanced placement, 53 dual enrollment, 54 or international baccalaureate (ib) 55 programs,56 extracurricular activities, sports, and test preparation. there is the further stratification of students within high schools, as low ses students are less likely to take more rigorous college preparatory classes than high ses students. this separation of ses students “reduces the positive ‘peer effects’ that come from mixing youth with different social characteristics.”57 american high schools vary widely in terms of teacher qualifications, personal safety of students, workload, access to technology, and family, peer, and community relationships. notably, upper-ses students use a wide range of resources to increase their chances of admission to high-achieving institutions including: teachers and counselors, family, friends, the internet, and college promotional materials. low-ses students have restricted access to these resources as their social circles are less likely to 52 haveman and smeeding, “the role of higher education in social mobility,” pgs. 12-13 53 advanced placement is “a program in the united states and canada created by the college board which offers college-level curricula and examinations to high school students. american colleges and universities may grant placement and course credit to students who obtain high scores on the examinations (college board, 2020). 54 dual enrollment, “or concurrent enrollment as it is also known, is the practice of allowing a student to be enrolled in two academic institutions at once. usually, this involves a high school and a college. the credits apply both to high school diploma requirements and college graduation requisites (bestvalue schools). 55 the international baccalaureate program (ib) is a european-based academic program for children and teenagers. high school students can take classes that will prepare them for college through learning key subject areas as math, science, and the arts. there are also core career classes and community service projects (bestvalue schools). 56 there are differences between the ap and ib programs. “the ap program is very subject focused, while ib programs takes a holistic approach to learning. most american high school students participate in the ap program. in the end, both programs have rigorous academic standards and will help the student prepare for college (bestvalue schools). 57 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 130 19 include those that can aid them with the college admissions process. research has shown that guidance counselors only provide information about expensive top-tier universities to students who they believe can afford tuition, pushing low-ses students to attend community colleges instead of rigorous schools.58 finally, elite colleges tend to prioritize “well-roundedness” in their admissions process. high school extracurricular activities allow students to “stand out” amongst their peers by providing them a diverse range of experiences. some extracurricular examples include volunteering, sports, community-based projects, and service projects. such factors increase the likelihood of admission to an elite college59 by providing experiences that make students appear “well-rounded.” indeed, prioritizing a “well-rounded” student, as done in merit-based admissions, disadvantages low-ses students who cannot afford to participate in extracurricular, or cultural capital building, activities.60 even though standardized test scores, extracurricular activities, and academic achievement are heavily affected by ses, a group of college officials convened by the college board noted that the college admissions process “should consider what a student has to overcome in order to qualify for a competitive selection process. not all students have had the same educational opportunities,” 61 which can be explained by standardized test scores, participation in extracurricular activities, and rigor and achievement in academic courses. contrary to the general public, employing an applicant’s ability to “overcome educational obstacles as a selection criterion 58 lee, “elite colleges & socioeconomic status,” p. 788 59 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 114-117 60 lee, “elite colleges & socioeconomic status,” p. 788-90 61 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 115 20 is not a simply a means to correct past inequities.”62 as such, we must demonstrate new methods to ensure ses diversity within academic institutions. conclusion and implications ever since the bakke (1978) case brought the topic of diversity in higher education to the supreme court, there has been a “compelling government interest”63 for diversity in college admissions. universities have attempted to reform their admissions policies to ensure an equal and fair process for their applicants that can create a diverse, well-rounded student body. while most universities have addressed race-based affirmative action issues, many have altered their policies to segregate applicants based on other factors such as ses. there is a relationship of inequity between admissions to elite colleges and ses. for one, data has shown that affirmative action is followed but flawed as college admissions circumvent race and ethnicity by looking at factors that are skewed to benefit high ses students (such as standardized test scores, gpa, attendance of private versus public school). second, in focusing on these factors, college admission officers are limiting entry to low ses students at top-tier universities. this hindrance not only affects college applicants, but also impacts society as a whole by reducing the nation’s gdp cost and human and social capital. college admissions further limit upward mobility for low ses students by rejecting their applications to top-tier universities –– a place that could provide the mobility such students need. since affirmative action cases have established legal precedent for racial and ethnic diversity in the college admissions process, many colleges seem to have greater diversity in regard to these demographics. however, even though colleges might have greater racial and ethnic diversity, they do not have the same amount of socioeconomic diversity. this is mainly due to the fact that there 62 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pgs. 115-116 63 regents of the univ. of cal v. bakke, 438 u.s. 265 (1978) 21 is no legal precedent for class-based affirmative action, allowing many universities to exploit this fact during the admissions process. who would institutions rather accept: a student willing to pay $250k in tuition or a student needing $250k in aid to attend your university? ultimately, college admissions and higher educational institutions must invest more resources into bettering affirmative action for the purpose of avoiding class-based affirmative action and improving the college admissions process. higher educational institutions must alter their admissions strategies to empower the future leaders of society: the students they produce. although there may be pushback from high ses individuals, elite universities need to change their admissions process to ensure equitable access for all students. possible solutions to address class-based affirmative action include the following: 1. eliminate early action policies: in an effort to increase diversity, universities can eliminate early action programs.64 for example, harvard eliminated its early action program for the class of 2012 through 2015, believing that these programs disproportionately benefited affluent students. even though eliminating early action might prove to be beneficial, unintended consequences might arise such as a possible increase in applications, since an increased number of students will be incentivized to apply to universities during the regular admissions cycle. on the other end, colleges might receive less applications, since prospective applicants may choose to attend other schools that do offer early admittance programs.65 2. eliminating standardized testing: some higher education institutions, like depaul university and the university of chicago, have eliminated standardized test scores from 64 “according to the national association for college admission counseling, early action means that ‘students apply early and receive a decision well in advance of the institution’s regular response date.’” (u.s. news). 65 u.s. district court, district of ma sffa v. harvard case findings, pg. 86 22 their applications. these and other universities have stated that such “tests place an unfair burden on low-income and minority students, and ultimately hinder efforts to broaden diversity on campus.”66 even though eliminating test scores might lead to a reduction in the academic qualifications of applicants, standardized test scores have been recognized to be “imperfect measures” of one’s intellectual capacity and other academic abilities.67 research has already found that many high ses students receive greater amounts of standardized test preparation from school resources or private tutors.68 therefore, eliminating standardized test scores is likely to improve diversity by relieving low ses students from the unfair burden of standardized tests. furthermore, eradicating standardized tests from the admissions process could remove a key indicator of first year college success, as many universities see a strong correlation between high standardized test scores and first-year success.69 3. amended merit-based admissions criteria: the college board and college admissions officials have published merit-based admissions methods70 to ensure improved representation among colleges. this method fails to incorporate evaluation metrics that establish challenges students have overcome in lieu of looking for “well-roundedness” in applicants. future admissions criteria processes should have criteria that evaluates students on the basis of personal background and academic capabilities in order to provide a better snapshot of the true challenges a student has overcome. doing so will 66 rhodes, dawn. “the university of chicago to stop requiring act and sat scores for prospective undergraduates.” the chicago tribune, 2018. 67 u.s. district court, district of ma sffa v. harvard case findings, pgs. 87-88 68 lee, “elite colleges & socioeconomic status,” p. 789 69 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 116-118 70 carnevale and rose, “socioeconomic status, race/ethnicity, and selective college admissions,” pg. 115 23 help holistically view students, providing a true metric of their aptitude towards a certain university. while this amendment has never been implemented, it might prove beneficial and also attract underprepared students to elite universities, no matter their background. these solutions prove to be worthwhile alternatives to the current process of college admissions, but research is still needed. the best solution is to both eliminate standardized test scores and institute an amended merit-based admission criterion. this combination will likely allow for low ses students to equally compete with their high ses counterparts while also allowing all students to receive an equitable review of their applications. moving forward, all parties — college applicants, high schools, exterior resources, and college institutions — must come to an agreement that grants all students a fair and equitable college admissions experience and process to ensure diversity. universities are the “choice architects” as they hold “the responsibility for organizing the context in which people make decisions.”71 it is critical that they establish these changes within the admissions process so that other institutions may be nudged into similar changes. given the role that universities play in alleviating poverty, increasing gdp, and ensuring equal access, it is critical these “choice architects” establish this change for the benefit of society. as horace mann, the massachusetts secretary of education, once expressed, “education then, beyond all other devices of human origin, is a great equalizer of the condition of men -the balance well of ‘social machinery.’ in the face of historical and 71 thaler, “nudge: improving decisions about health, wealth, and happiness,” pgs. 3-5 24 persistent inequality, educational opportunity is among the best tools for increasing equal opportunity more broadly.”72 without equitable access to education, there will continue to be disparities within our society. solutions to eliminating class-based affirmative action are diverse in nature. the need for change in both economic and social policy is required to ensure systemic changes to the college admissions process. academic institutions are the training centers for the future generations of students in their providing of both intellectual and social growth. elite institutions have consistently proven to produce the future leaders of society, the same leaders that earn the top one percent of earnings and create the policies that govern the lives of the american people. by continuing to exclude those with low ses, society excludes these narratives from future policies and continues to inhibit them from escaping the poverty cycle that encompasses those with low educational levels. by implementing changes to the college admissions process to include classbased affirmative action, society is one step closer to achieving true equality for all. 72 gaertner & hart, “considering class: college access and diversity,” pg. 5 25 bibliography alon, sigal. 2007. “overlapping disadvantages and the racial/ethnic graduation gap among students attending selective institutions.” social science research 36 (4): 1475–99. https://doi.org/10.1016/j.ssresearch.2007.01.006. astin, alexander, and leticia oseguera. 2004. “the declining ‘equity’ of american higher education.” the review of higher education 27 (march): 321–41. https://doi.org/10.1353/rhe.2004.0001. brown v. board of education, 347 u.s. 483 (1954) college board. n.d. “what is ap? – ap students | college board.” the college board. accessed december 17, 2020. https://apstudents.collegeboard.org/what-is-ap. deil-amen, regina. 2011. “the ‘traditional’ college student: a smaller and smaller minority and its implications for diversity and access institutions.” mapping broad access higher education. https://cepa.stanford.edu/conference-papers/traditional-college-studentsmaller-and-smaller-minority-and-its-implications. “executive order 11246 – equal employment opportunity | u.s. department of labor.” n.d. government. us department of labor. accessed december 17, 2020. https://www.dol.gov/agencies/ofccp/executive-order-11246/ca-11246. fern, jason. n.d. “gross domestic product (gdp).” investopedia. accessed december 17, 2020. https://www.investopedia.com/terms/g/gdp.asp. fisher v. university of texas (fisher i), 570 u.s. ___ (2013) fisher v. university of texas at austin (fisher ii), 579 u.s. ___ (2016) gaertner, matthew, and melissa hart. 2012. “considering class: college access and diversity.” harvard law & poicy review 7 (367). https://doi.org/10.2139/ssrn.2137126. guinier, lani. 2003. “admissions rituals as political acts: guardians at the gates of our democratic ideals.” law school admissions, november. https://arc.accesslex.org/diadmissions/33. gratz v. bollinger, 539 u.s. 244 (2003) grutter v. bollinger, 539 u.s. 306 (2003) levine, phillip b., jennifer ma, and lauren c. russell. 2020. “do college applicants respond to changes in sticker prices even when they don’t matter?” w26910. national bureau of economic research. https://doi.org/10.3386/w26910. mcdonough, peter, jessica l ellsworth, stephanie j gold, and jo-ann tamila sagar. n.d. “brief amici curiae of the american council on education and 40 other higher education organizations in support of defendantappellee and affirmance,” 42. 26 hopwood v. texas, 78 f.3d 932 (5th cir. 1996) moody, josh. n.d. “what to know about early action and early decision.” us news & world report. accessed december 17, 2020. https://www.usnews.com/education/bestcolleges/articles/what-to-know-about-early-action-early-decision-in-college-admissions. pruitt, lisa r. n.d. “the false choice between race and class and other affirmative myths.” buffalo law review 63: 87. regents of the university of california v. bakke, 438 u.s. 312 (1978) rhodes, dawn. n.d. “university of chicago to stop requiring act and sat scores for prospective undergraduates.” the chicago tribune. accessed december 17, 2020. https://www.chicagotribune.com/news/breaking/ct-university-chicago-sat-act-20180614story.html. smith, laura. n.d. “affidavit in support of criminal complaint,” 204. staff writers. 2020. “what is dual enrollment?” bestvalueschools. july 21, 2020. https://www.bestvalueschools.com/faq/what-is-dual-enrollment/. students for fair admissions, inc. v. president and fellows of harvard college (harvard corporation) no. 1:14-cv-14176-djc, (d. mass. nov. 17, 2014) thaler, richard, and cass sustein. 2008. “nudge: improving decisions about health, wealth, and happiness.” in , 312. yale university press. u.s. constitution. amendment xiv, sec. 1. wilson wj. review of the remedy: class, race, and affirmative action by richard d. kahlenberg. new york times book review. 1996. microsoft word zarrella_final_blsr.docx bellarmine law society review volume xiii | issue i article 2 is the equal rights amendment “lost?”: a contemporary analysis of the era lila zarrella boston college, zarrelll@bc.edu 10 is the equal rights amendment “lost?”: a contemporary analysis of the era lila zarrella * abstract: in january of 2020, virginia became the thirty-eight state to ratify the equal rights amendment (era). a constitutional amendment becomes law when three-quarters of the states––or thirty-eight out of fifty––ratify the amendment. to this day, the era remains in limbo and as of yet has not been added to the constitution due to numerous controversies surrounding its ratification–– principally, the deadline for ratification passed in 1982, and five states have rescinded their ratification of the era. this paper seeks to examine the current state of the era from an analysis of the ratification process as well as the best ways to achieve gender equality under the law. it seeks to explore whether the era is legally viable as well as if it is politically prudent. introduction in 1972, both houses of the u.s. congress passed the equal rights amendment (era), and sent it to the states for ratification. within five years, thirty-five states had ratified the amendment, three states away from meeting the requisite thirty-eight for full ratification. despite initial momentum, by the extended deadline for ratification in 1982 the number of states that had ratified the era remained at thirty-five, marking a legislative defeat for the amendment. four years later, political scientist jane mansbridge published her seminal work, why we lost the era, which served as a critical evaluation of the ratification period and the factors that ultimately led to the era’s spectacular defeat. mansbridge contended that the era is “lost,” but recent developments reveal a reemergence of the “lost” amendment. since the 1977 impasse, twenty-four states have added their own equal rights amendments to their state constitutions and over ten of the “unratified” states have introduced bills to ratify the original era. nevada and illinois became the thirty-sixth and thirty-seventh states to ratify the era in 2017 and 2018, respectively.1 on january 27, 2020, virginia * lila zarrella is a fourth-year student at boston college studying political science and history. she is interested in the intersection of gender, sexuality and the law as well as the interplay between law and politics. she would like to express special thanks to professor kay schlozman and her inequality and politics seminar for bringing attention to this issue as well as promoting lively and illuminating discussions. 1 deborah machalow, “the equal rights amendment in the age of #metoo,” depaul journal for social justice 13, no. 1 (2019): 8. 11 became the thirty-eighth state to ratify the equal rights amendment (era), almost fifty years after the era originally passed in both houses of congress and the ratification process began.2 this ratification marked an important milestone for the era, serving as the moment when three-fourths of the states ratified the amendment, reaching the mandatory minimum for an amendment to be added to the constitution. over two years later, the constitution remains untouched. the national archivist refuses to add the amendment officially due to controversy surrounding both the deadline for ratification and the attempted rescission by several states. the era finds itself at another impasse. a 2020 pew research center report found that 78% of u.s. adults, including majorities of both men and women as well as democrats and republicans, would at least “somewhat favor” adding the era to the constitution. yet, the era remains in limbo as legal questions regarding ratification are settled in the courts. in the same pew report, however, a plurality of era supporters (49%) and a majority of era opponents (69%) believe that adding the amendment to the constitution “would not make much of a difference” for women’s rights.3 this paper seeks to examine the nuances of the era and the ratification process in the twenty-first century. given the expired ratification deadline and the rescission of five states, would the ratification of the era be a fair representation of the will of the people and the broader ratification process? moreover, in light of the belief that the era would have little impact on women’s rights, it is worth examining the likely effects of the amendment in the twenty-first century, as well as if the language from 1972 provides the best basis for gender equality under the law today. this paper argues that, as currently situated, the era does not represent the ideal opportunity to enshrine gender equality under the law due to the controversy surrounding its ratification and the language of the amendment itself, but perhaps represents the most practical and feasible opportunity to guarantee gender equality. back from the dead(line): extension or expiration 2 timothy williams, “virginia approves the e.r.a., becoming the 38th state to back it,” the new york times, 15 january 2020, sec. u.s., https://www.nytimes.com/2020/01/15/us/era-virginia-vote.html. 3 juliana menasce horowitz and ruth igielnik, “a century after women gained the right to vote, majority of americans see work to do on gender equality,” pew research center’s social & demographic trends project (blog), 7 july 2020, https://www.pewresearch.org/social-trends/2020/07/07/a-century-after-women-gained-the-rightto-vote-majority-of-americans-see-work-to-do-on-gender-equality/. 12 much of the current debate regarding the state of the era centers around the question of whether congress can, or should, amend the original 1982 deadline. after nevada ratified the amendment in 2017, its legislature firmly asserted that this ratification was not symbolic, and argued that congress could simply waive the deadline once three-fourths of the states ratified the amendment. 4 in early 2020, however, as virginia began engaging in the ratification process, the department of justice under former president trump issued a memo arguing that because the deadline for ratification had expired, the era could “not become part of the constitution, and the archivist could not certify its adoption,” so era supporters would have to begin the entire process anew.5 ultimately, both arguments have merit, and the issue regarding the deadline is a complicated one, with crucial legal and political aspects worth considering. congress initially included a seven-year deadline for the ratification of the era, mirroring prior amendment proposals from past decades. in 1977, however, era proponents pushed for a deadline extension; representative elizabeth holtzman introduced a bill to extend the deadline to expire in june of 1982, adding three years to the ratification period. holtzman’s bill passed both the house and the senate with a simple majority and was sent to the desk of president carter, as era proponents thought that the president’s signature would help legitimize the extension. ultimately, carter signed h.j.res 638, but asserted that his signature was superfluous, reaffirming congress’s sole responsibility in the amendment ratification process.6 justice ginsburg viewed the deadline extension as a “middle ground,” as it reinforced the relevance and importance of the era without giving states an indefinite period for ratification.7 this original debate offers insight to the current question surrounding the deadline of the era and serves as a salient example of past congressional action and logic. many supporters of the current “three-state strategy” argue that because congress has 4 gerard n. magliocca, “buried alive: the reboot of the equal rights amendment,” rutgers university law review 71, no. 2 (2018): 634. 5 qtd. in amber phillips, “the never-ending fight over whether to include the equal rights amendment in the constitution,” the washington post (online), 31 january 2022, sec. politics, https://www.proquest.com/docview/2624041233/citation/8139901394e64912pq/19. 6jessica neuwirth, equal means equal: why the time for an equal rights amendment is now (new york, ny: the new press, 2015), 96. 7 jon o. shimabukuro, “equal rights amendment: close to adoption note,” equal rights amendment: close to adoption, 2 july 2018, 3. 13 already extended the deadline for ratification in 1978, congress has the power to do so again in 2023.8 in order to assess the viability of the era, many legal scholars have returned to the text of the constitution and prior legal precedent. article v of the constitution, which discusses the amendment process, offers little insight into procedural matters of the ratification process, such as the ability to impose a deadline or even a suggested time period for ratifying.9 given this immense responsibility with nebulous procedural regulations, a few influential supreme court cases have guided the ratification process in congress. in the 1921 case dillon v. gloss, the court determined that an amendment should be ratified in a “sufficiently contemporaneous” time period following its proposal to ensure the reflection of “the will of the people in all sections at relatively the same period.”10 here, the court viewed the proposal and ratifications not as two separate processes, but as one closely interrelated act. in 1939, the court expanded on factors that determine whether or not an amendment remains “sufficiently contemporaneous” when they noted that there are a wide variety of “political, social, and economic” factors that can influence the relevance of the amendment, but maintained that the specifics should be left up to congress. justice ginsburg argued that these cases “bracketed” the issues of procedural fairness, with the courts endowing congress with the responsibility to assess the contemporaneity of each amendment during the ratification process.11 given these two influential cases, a pertinent question regarding the deadline extension for the era is, therefore, whether or not a fifty-year-old amendment can be considered “sufficiently contemporaneous.” most proponents of the era point to the case of the twenty-seventh amendment, colloquially known as the madison amendment, which was ratified 203 years after it was initially proposed in 1789.12 the congressional research service has established that the ratification of the madison amendment does in fact bolster 8 lindsley armstrong smith and stephen a. smith, “keeping hope alive: a case study of the continuing argument for ratification of the era,” frontiers: a journal of women studies 38, no. 2 (2017): 174, https://doi.org/10.5250/fronjwomestud.38.2.0173. 9 shimabukuro, “equal rights amendment: close to adoption note,” 3. 10 qtd. in allison l held, sheryl l herndon, and danielle m stager, “the equal rights amendment: why the era remains legally viable and properly before the states,” william & mary journal of race, gender, and social justice 3, no. 1 (1997): 118-119. 11 shimabukuro, “equal rights amendment: close to adoption notes,” 3. 12 held et al., “the equal rights amendment,” 114. 14 the argument for ratification of the era.13 however, other legal scholars find this argument less convincing. scholars first point out that the madison amendment did not contain a time limit for ratification, whereas the era has faced two such limits already. additionally, brandon denning and john vile highlight that “courts and most members of congress have tended to treat the 27th as a ‘demi-amendment,’ lacking the full authority of the 26 that preceded it.”14 furthermore, scholars and politicians alike have pointed out the dangerous precedent the twenty-seventh amendment has set, and how the ratification of the era would reinforce such precedent. if the long-forgotten twenty-seventh amendment and the once-expired era are to be ratified, “then why cannot states ratify other long-forgotten amendments?” asked senator william roth.15 some scholars wonder if the ratification of the twenty-seventh amendment has made the ratification process into a perpetual, neverending one, and believe that the ratification of the era would confirm this. as a result, many scholars and politicians alike question whether the history and implications of the twentyseventh amendment should encourage or worry era proponents. another important aspect of the historic debate surrounding the extension of the era in the late 1970s, as well as the renewed debate today, has been the location of the deadline within the proposing clause of the amendment, as opposed to the text of the amendment itself. as legal scholars and proponents of the era have noted, states only ratify the text of the amendment, not any proposing clauses, which are purely legislative and subject to the determination of congress.16 many of the congressional supporters of the era argued that when they initially accepted the seven-year ratification deadline in the proposing clause, they viewed the addition as “customary,” and not anything worth disputing. legal scholars, such as justice ginsburg, concur, and argue that the location of the deadline in the preamble “entails a determination qualitatively different from agreement on the substantive content of the amendment.”17 however, those opposed to the amendment point out that it only passed in congress because it contained such a deadline. judge robert l. wilkins argued in 2022 13 smith and stephen a. smith, “keeping hope alive,” 174. 14 brannon p. denning and john r. vile, “necromancing the equal rights amendment,” constitutional commentary 17, no. 3 (2000): 600. 15 qtd. in magliocca, “buried alive,” 639-640. 16 held et al., “the equal rights amendment,” 115. 17 ruth bader ginsburg, “ratification of the equal rights amendment: a question of time observations,” texas law review 57, no. 6 (1978-1979): 923. 15 that if the deadline is removed, “wouldn’t then the result be that we invalidate the proposed amendment as opposed to just striking the deadline?”18 this controversy over the location of the deadline speaks to issues that era proponents must grapple with, namely the legality of a deadline extension, but also the political and ethical considerations of removing the deadline. those opposed to the deadline extension find the “proposing clause” argument without merit, arguing instead that the entire text of the amendment, including the proposing clause, served as a contract of sorts, one that both the states and congress should uphold. historian mary frances berry notes that for a contract to be valid, there must be agreed-upon terms. for the era, congress and the states agreed upon a time limit of seven years for ratification. she declares that “when seven years passed, all pre-existing ratifications expired.”19 legal scholar grover rees iii expands on this argument, noting that extension runs on the assumption that “the states which ratified the era with a seven-year time limit also would have ratified with a longer time limit,” and thus, the deadline extension may be changing the terms of agreement.20 for at least one state, south dakota, rees’s argument holds true, as it rescinded its ratification once the deadline had been extended to ten years, believing this decision to have changed the terms for ratification.21 with all these factors taken into consideration, what are the current options for the future of the era? currently, the three-states that have ratified the amendment since the 1982 deadline are in the process of suing the federal government. they purport that the national archivist should, by law, have already added the era to the constitution, as it has been ratified by the requisite 38 states. on the other hand, the department of justice under president biden has exhorted congress to simply pass a resolution extending the deadline of the amendment once again. in 2021, a resolution to do just that passed in the house of representatives, but considering the current filibuster in the senate, the possibility of this resolution passing is highly unlikely.22 in addition to the infeasibility of these options, era 18 qtd. in rachel weiner, “appeals court debates whether equal rights amendment is really dead,” the washington post (online), 28 september 2022, sec. local, https://www.proquest.com/docview/2718752574/citation/8139901394e64912pq/2. 19 qtd. in thomas h neale, “the proposed equal rights amendment: contemporary ratification issues,” congressional research service, 2014, 22. 20 qtd. in neale, “the proposed equal rights amendment,” 22. 21 magliocca, “buried alive,” 638. 22 phillips, “the never-ending fight.” 16 proponents both in and out of congress must ask themselves the consequences of extending such a deadline. will doing so create a dangerous precedent for future amendments, or even the revival of past amendments? does an era ratified in this way represent the amendment process as intended? either way, future actions regarding the era will have significant consequences on the amendment process as well as the legal rights and protections of u.s. citizens. the fight for thirty-eight: not quite there? notwithstanding the impending question of the ratification deadline, ratification of the era currently faces another barrier: the rescission of five states since the early 1970s. although thirty-eight states have ratified the era since 1972, five have rescinded this ratification, meaning that there remains a question of whether or not the era has truly been ratified in three-quarters of the states. the first state to rescind its ratification was nebraska in march of 1973. legal analysts hired by the state of nebraska were unable to come to an agreement on the legality of rescission, as it is an ill-defined legal term which has never truly been settled in the courts.23 since nebraska’s rescission in 1973, tennessee, idaho, kentucky, and south dakota have similarly rescinded their earlier ratifications. legal scholar gerald magliocca remarks that usually the ratification of an amendment only requires “simple arithmetic.” however, like many other aspects of the era, this issue too is complex and difficult to resolve.24 currently, the ratification of the fourteenth amendment in 1868 serves as the most pertinent historical example regarding the question of rescission. although both ohio and new jersey had already ratified the fourteenth amendment, the election of 1867 brought democratic majorities to both states, and the states promptly attempted to rescind their ratifications. in july of 1868, the secretary of state announced that the ratification of the fourteenth amendment was shrouded in “doubt and uncertainty” due to the two rescissions 23 veronica monique lerma, “the equal rights amendment and the case of the rescinding states: a comparative historical analysis” (m.a., united states -california, university of california, merced), accessed 1 november 2022, https://www.proquest.com/docview/1698104108/abstract/5342cc3fa5f64f16pq/19, 13-14. 24 magliocca, “buried alive,” 649. 17 in ohio and new jersey.25 congress, ignoring the proclamation, pronounced the fourteenth amendment as part of the constitution, including ohio and new jersey in the total of the three-quarters of states and thus, indirectly declaring their recessions invalid.26 proponents of the era point to this decision as demonstrating the illegitimacy of rescission, but some legal scholars have questioned this interpretation. given the specific context and circumstances surrounding the fourteenth amendment, some scholars have wondered whether congress intended to promulgate a general rule regarding the amendment process or if this decision was specific to the circumstances surrounding the fourteenth amendment and the end of the civil war.27 as a result, it appears that this historical precedent on its own may not be enough to justify the rejection of era rescissions. a more recent example, the court case of idaho v. freeman, addresses the legality of an era rescission, although once again, the applicability of this case has been called into question. in 1979, idaho, washington, and arizona brought forth a lawsuit in the idaho district court, arguing that the states have a right to rescind their ratifications of an amendment. the presiding judge in the case, marion callister, agreed that a rescission is within a state’s rights, asserting that rescission “is clearly a proper exercise of a state’s power [...] especially when that act would give a truer picture of local sentiment regarding the proposed amendment.”28 this case gained traction nationwide, with newspapers in other states referring to it as “life or death for the era.” proponents of the era, such as the national organization for women, argued that judge callister should be dismissed from the case because of his high-ranking position in the mormon church. these groups further pointed out that this issue lies under the jurisdiction of congress, not the courts.29 ultimately, the supreme court decided to “stay” the case, limiting its legal effect, and once the ratification deadline for the era expired, it vacated the district court decision.30 as a result, much like the fourteenth amendment, the freeman decision holds little weight over the current rescission debate, although the argument and logic contained in its vacated decision are still employed by era opponents today. 25 magliocca, “buried alive,” 651. 26 held et al., “the equal rights amendment,” 133. 27 magliocca, “buried alive,” 652. 28 qtd. in shimabukuro, “equal rights amendment,” 3. 29 lerma, “the equal rights amendment and the case of the rescinding states,” 14. 30 neale, “the proposed equal rights amendment,” 18. 18 the current defenses for rescission continue to mirror the language that judge callister employed in his 1981 freeman decision, often referencing the idea of “fairness” as well as ensuring that the ratification process continues to represent the “consensus” of the country. many proponents of rescission argue that since the ratification of an amendment requires a “contemporaneous consensus,” it therefore requires that three-quarters of the states reach a consensus on the amendment at the same time.31 rees further contends that “a consensus, by nature, cannot include anyone who does not wish to be included,” and that the ratification of the era would thus not represent a consensus of the states, nor the will of the american people.32 furthermore, some era opponents maintain that if congress blocked rescissions, it would infringe upon the states’ rights during the amendment process. 33 other era opponents more explicitly used the language of “fairness,” noting that if a deadline extension was allowed, so too should rescissions be allowed. they also reasoned that if a state can change their vote from “no” to “yes” on an amendment, then why should the reverse be disallowed?34 ultimately, these defenses of rescission will be seriously considered by era proponents in the coming months. on the other hand, those opposed to the rescission of ratification speak to the importance of the clarity and finality of the amendment process. according to a literal interpretation of article v, a state that has not ratified an amendment may reconsider ratification, but a state that has already ratified may not rescind its ratification.35 the department of justice operated under this understanding during the initial legal fight over rescission during the late 1970s; justice ginsburg summarized this position on ratification as “an act that cannot be accompanied by strings or conditions, a final act that cannot be withdrawn.” 36 many politicians and scholars alike highlight the importance of the finality of a ratification, as it provides a “fixed terminus to the amendment process.”37 if congress were to allow the rescission of state ratifications, this “fixed terminus” would be completely upended and would thus undermine the functioning of the entire amendment process. the importance of 31 ginsburg, “ratification of the equal rights amendment,” 939. 32 grover rees, “throwing away the key: the unconstitutionality of the equal rights amendment extension,” texas law review 58, no. 5 (1980): 878. 33 rees, “throwing away the key,” 891. 34 lerma, “the equal rights amendment,” 18. 35 held et al., “the equal rights amendment,” 131. 36 ginsburg, “ratification of the equal rights amendment,” 939. 37 held et al., “the equal rights amendment,” 133. 19 a clear and straightforward amendment process cannot be underscored enough.both opponents and proponents of the era continue to argue the importance of the “finality” of the amendment process, with proponents employing this argument to block possible rescissions and opponents to block a deadline extension. ultimately, like the question of a deadline extension, the debate regarding the rescission of state ratifications is complex. proponents of the era and the “three-state strategy” argue that these rescissions are invalid, evidenced by the precedent of the fourteenth amendment and the importance of keeping the amendment process both clear and straightforward. opponents of the era, on the other hand, declare that rescissions actually allow for a “consensus” and the will of the people to be better expressed, making the process all the more “fair.” both arguments clearly have merit to them and the current debate becomes more muddled once one considers how this debate does not occur in a vacuum, but instead has significant implications for enshrining gender equality in the constitution and eliminating discrimination on the basis of sex. as a result, proponents of the era must ask themselves if they are willing to make these sacrifices to the amendment process and if the goal of gender equality through the era is worth these sacrifices. gender inequality in the twenty-first century: why the era matters clearly, there are currently many political and legal barriers preventing the era from officially becoming a part of the u.s. constitution. with the uncertainty of whether or not these obstacles can be overcome, the question remains of whether or not the era is worth fighting for. even ignoring these legal questions, some politicians and scholars find the fight for the era to be of little value, arguing that in the decades since the ratification process began, gender inequality no longer presents an issue to americans that needs to be solved with a constitutional amendment. as jane mansbridge herself argues, “taking all of these changes together, it is hard to avoid the conclusion that while the era would have changed quite a lot in 1972, by 1982 most of this had been accomplished by other means.”38 during renewed discussions over the ratification of the era in arkansas during the 2010s, state senator gilbert baker reiterated a similar sentiment, proclaiming, “to change the 38 jane j. mansbridge, why we lost the era (chicago, united states: university of chicago press, 1986), http://ebookcentral.proquest.com/lib/bostoncollege-ebooks/detail.action?docid=4003828, 98. 20 constitution for the sake of making a statement— we just don’t need to go there.”39 these claims are worth investigating, as it is important to consider whether the era would simply be “making a statement.” has the united states already accomplished most of what the era had set out to do? since the house of representatives and senate approved the era in 1972 and the ratification process began, it is true that significant steps towards achieving gender equality have been made, and it would perhaps be naive to think otherwise. many legal scholars argue that the supreme court’s interpretation of the equal protections clause of the fourteenth amendment in regard to gender discrimination has led to a “de facto era.”40 congress has also passed many forms of targeted legislation aimed at reducing gender inequality, such as the equal pay act of 1963, title vii of the civil rights act of 1964, title xi of the educational amendments of 1972, the pregnancy discrimination act of 1978, and the violence against women act of 1994. more recently, the affordable care act has helped to eliminate certain forms of gender discrimination present in the insurance industry. jessica neuwirth, founder of the era coalition, points out that these laws do not hold the same weight as a constitutional amendment though. they are also not comprehensive when it comes to eliminating gender inequality, and can be (and have been) struck down in whole or in part by the supreme court or repealed by congress, such as aspects of the violence against women act and the affordable care act.41 the idea of a “de facto” era clearly does not offer women the same protections a de jure era enshrined in the constitution would; a de facto era is highly susceptible to revisions and retractions, whereas a de jure era is not. given the limitations of gender equality under the law without the era, many proponents of the amendment highlight the continued disparities between men and women in many aspects of american society and the ways in which the era could eliminate or diminish those disparities. a 2020 pew study found that over 57% of americans believe that “the country has not gone far enough on gender equality,” many of whom pointed to the 39 qtd. in smith and smith, “keeping hope alive,” 177. 40 julie c. suk, “an equal rights amendment for the twenty-first century: bringing global constitutionalism home,” yale journal of law and feminism 28, no. 2 (2017 2016): 393. 41 neuwirth, equal means equal, 10; sarah m. stephens, “at the end of our article iii rope: why we still need the equal rights amendment,” brooklyn law review 80, no. 2 (2015 2014): 419. 21 prevalence of sexual harassment and continued inequalities under the law as exacerbating this disparity.42 neuwirth highlights the persisting gender discrimination that greatly impacts the financial standing of women, such as hiring practices, unequal wages, and pension policies.43 congresswoman carolyn maloney, a major proponent of the era, has frequently called attention to the 2011 supreme court decision in wal-mart v. dukes, where the court decreed that all the women who had been denied promotions at wal-mart could not join a class action lawsuit. maloney argues that this decision points to the persisting economic inequality empowered by the court without the era to guide their decisions.44 proponents of the era further assert that the era could offer greater protections for pregnant women and bolster reproductive rights and freedom.45 in fact, in states with their own gender equality amendments, high court decisions reveal that the era offers better protections to women under the law and have helped reduce discrimination based on reproductive capabilities.46 currently, the equal protections clause of the fourteenth amendment serves as the constitutional basis for gender discrimination protection. even so, proponents of the era proclaim that this interpretation does not go far enough in protecting against gender discrimination. the supreme court first used the equal protections clause to protect against gender discrimination in 1971, but the 1976 decision in craig v. boren codified this interpretation, creating an “intermediate scrutiny” test to determine sex discrimination.47 in craig, the court developed a two-prong test, wherein to withstand intermediate scrutiny, the law must serve government interests and be substantially related to government objectives.48 this interpretation continued to develop, reaching a zenith in the 1996 united states v. virginia decision, after which justice ginsburg declared, “there is no practical difference between what has evolved and the [era.]”49 however, unlike “strict scrutiny,” which applies to suspect classifications such as race and ethnicity, the idea of “intermediate scrutiny” 42 horowitz and igielnik, “a century after women gained the right to vote.” 43 neuwirth, equal means equal, 8. 44 suk, “a equal rights amendment for the twenty-first century,” 388-389. 45 kate kelly, “op-ed: the best way to protect abortion rights? finalize the equal rights amendment,” los angeles times (online), 23 may 2022, sec. opinion, https://www.proquest.com/docview/2667740385/citation/8139901394e64912pq/3. 46 stephens, “at the end of our article iii rope,” 419. 47 mansbridge, why we lost the era, 50. 48 lorraine dusky, still unequal: the shameful truth about women and justice in america, 1st ed., (new york: crown publishers, 1996), 102. 49 qtd. in stephens, “at the end of our article ii rope,” 399-400. 22 is extremely nebulous and ambiguous. the two-pronged test has been applied in dramatically different ways since the virginia ruling and has created more leeway than strict scrutiny would have allowed. proponents of the era argue that it would require a strict or absolute scrutiny test as well as removing the idea of “intent” as a consideration when looking at possible discrimination.50 ultimately, it is clear that the current protections against gender discrimination under the law leave much to be desired. although the country has made strides towards gender equality in the decades since the introduction of the era, current legislation and constitutional protections still enable and allow a certain degree of discrimination. moreover, laws can always be struck down or repealed and, as evidenced by past supreme court actions, even the interpretation of legal tests can change over time. the author of the era, alice paul, once declared that “we shall not be safe until the principle of equal rights is written into the framework of our government.”51 however, it is important to acknowledge that nowhere in the language of the era does it guarantee strict scrutiny or protection against disparate impact.52 therefore, although it is clear that more legal protections for gender equality must be enacted, the question remains of whether the era is the most effective mechanism for achieving those goals. starting over?: a new, better equal rights amendment? considering the recent developments in nevada, illinois, and virginia, the “three-state strategy” for ratification has been frequently referenced as the most pragmatic approach to achieving the ratification of the era. the aforementioned obstacles of the expired deadline and the rescission of five states still remain in the way of ratification. what would an era that overcame these obstacles look like? magliocca argues that a ratification of the era which ignores the deadline and the rescinded states would delegitimize the amendment and “might lead a future congress to contest that recognition.”53 given the view of the twentyseventh amendment as a “demi-amendment” without the full weight or authority of other amendments, it is quite possible that the era could suffer a similar fate. in the courtroom, judges may use the narrowest possible reading of the era given its ambiguous ratification, 50 machalow, “the equal rights amendment in the age of #metoo,” 27-28. 51 qtd. in smith and smith, “keeping hope alive,” 197. 52 suk, “an equal rights amendment for the twenty-first century,” 394. 53 magliocca, "buried alive,” 635. 23 meaning that the legal protection offered under the era may be undermined. if congress tried to contest or even repeal the era under the assumption that its ratification was “illegitimate,” not only would this act be disruptive to the fight for gender equality, but it would also be dangerous for maintaining trust in democracy and the rule of law.54 given such concerns, the likely strategy for ratifying the era faces obstacles not only in the interim, but possible consequences that could have an adverse effect on ensuring equality under the law in the long-term. since the 1982 ratification deadline expired, many politicians have advocated for a “start-over strategy.” this approach would simply reuse the text of the 1972 amendment and begin the ratification process anew; this strategy has been offered since the deadline for ratification passed in 1982 and was long championed by senator ted kennedy.55 more recently, however, representative carolyn maloney has reintroduced the era to congress, but with a substantive change in the language of the amendment. maloney added a sentence to the beginning of the amendment, which reads, “women shall have equal rights in the united states and every place subject to its jurisdiction.”56 this change of language would serve as an explicit reference to “women” in the constitution–the first reference of its kind, carrying a certain symbolic weight. additionally, neuwirth notes that instead of simply covering non-discrimination, this new approach also will “more readily cover substantive equality.”57 some legal scholars take issue with the original text being explicitly focused on prohibiting discrimination, wishing that the era would enshrine “a right to egalitarian institutions rather than a right against discrimination.”58 by using more affirmative language, legislators can craft an amendment that makes gender equality a goal the country can move towards, rather than just eliminating gender-based discrimination. legal scholars kimberlé crenshaw and catharine mackinnon have gone even further than the changes proposed by maloney, advocating for an amendment that acknowledges intersectionality in terms of race, gender, and other relevant aspects of a person’s identity. women across and within racial groups have widely different experiences and those with 54 magliocca, “buried alive,” 655. 55 neuwirth, equal means equal, 101. 56 qtd. in jessica neuwirth, “time for the equal rights amendment,” harbinger 43 (2018-2019): 160. 57 neuwirth, equal means equal, 102. 58 suk, “an equal rights amendment for the twenty-first century,” 384. 24 multiple marginalized identities experience various forms of oppression at disproportionately higher rates than those with fewer marginalized identities. as the legal system of the united states is inadequately equipped to deal with the disparate impact of these various identities, crenshaw and mackinnon seek to enshrine the concept of intersectionality and equal protection on account of both race and sex.59 crenshaw and mackinnon’s “equality amendment” also explicitly defines sex to include “pregnancy, gender, sexual orientation, and gender identity.”60 crenshaw and mackinnon included these terms under the broader concept of sex “because they are all facets of the unified but diverse system of inequality that privileges maleness and masculinity over femaleness and femininity.”61 since the original text of the era only referred to “sex” and legal scholars are split on whether these protections could carry over to transgender or non-binary individuals, era proponents have understudied this question.62 ultimately, this equality amendment offers the broadest and most inclusive interpretation of gender equality, while also enshrining the protection of those with intersecting identities within the constitution. conclusion: where does this leave the era? currently, the united states faces multiple options to enshrine gender equality into law. historically, the equal rights amendment is the most well-known and most successful attempt at achieving gender equality under the law. with thirty-eight states ratifying the amendment, as well as twenty-four adding their own versions of the era to their state constitutions, it is hard to call the era defeated by any means, even if it has not been officially added to the constitution. even so, proponents of the era have clearly not given up on the viability of the amendment, especially considering the recent victories in the past five years. the 1972 amendment still serves as perhaps the most feasible path toward codifying legal protection based on gender under the law, but its proponents could consider shifting their perspective towards a new fight over an amendment that better reflects the contemporary realities of gender-based inequality in the united states. 59 crenshaw, kimberlé, and catharine mackinnon. “reconstituting the future: an equality amendment.” the yale law journal 129 (26 december 2019): 356. 60 qtd. in neuwirth, “time for the equal rights amendment,” 160. 61 crenshaw and mackinnon, “reconstituting the future,” 360. 62 hanna h. white, “the equal rights amendment in the twenty-first century: ratification issues and intersectional effects,” dttp: documents to the people 47, no. 4 (2019): 36. 25 crenshaw and mackinnon acknowledge that, “it is the responsibility of ‘we the people’ to adapt the constitution to the society we live in; to grow in our recognition of problems and potential solutions; to strengthen our democracy in an intimately interconnected world.”63 with this statement in mind, a reflection of the era reveals that it is perhaps inappropriate for the “society we live in.” in order to ratify the amendment, congress and the courts would need to ignore a decades-expired deadline as well as five rescinded states. given this reality, perhaps gender equality advocates should undertake a different means of achieving their goals. would ratifying the era undermine other aspects of the constitution, hampering other ways to achieve equality under the law? should the united states seek to enshrine gender equality with a more nuanced definition of gender, looking past the binary and acknowledging the importance of intersecting identities? is anti-discrimination enough to guarantee gender equality? these complicated questions demand complicated answers. given the lack of coverage and attention on this issue, it is unlikely we will see a resolution in the coming months. even so, as crenshaw and mackinnon note, it is up to “we the people” to decide the path forward and find a way to reckon with these difficult questions. jane mansbridge seeks to answer “why we lost the era,” but perhaps now the question is “how should we salvage it?” 63 crenshaw and mackinnon, “reconstituting the future,” 364. final darrish, joshua.docx bellarmine law society review volume xiii | issue ii article ii establishment along the borderline: supreme court jurisprudence on ten commandments displays joshua darrish university of california, santa barbara, jdarrish@umail.ucsb.edu establishment along the borderline: supreme court jurisprudence on ten commandments displays joshua darrish 1 abstract: throughout the 20th and subsequent centuries, the united states supreme court has debated the first amendment's regulations on religious establishment. particularly, the belief in the "separation between church and state" has become a bedrock constitutional value for some, while for others, it has been rejected for a more accommodationist approach to religion and government intermingling. in 2005, the debate over the legality of religious establishment became further muddied through mccreary county v. aclu and van orden v. perry. both cases revolved around whether a state institution would be allowed to display the ten commandments on its property: for the former, in a kentucky courthouse; for the latter, the texas state capitol. mccreary ruled the display unconstitutional, yet van orden decreed otherwise. these decisions created incongruity in the supreme court's line of reasoning, worsening the divide between separationist and accommodationist interpretations of the bill of rights. however, by situating these cases in a chronology of similarly back-and-forth decisions on the establishment, it becomes clear that the supreme court has purposefully adopted a vague interpretation of the establishment clause. doing so ensures that separation of church and state remains a viable ideal and realistic to popular american christian sentiment. i craft my argument using justice stephen breyer's employment of a "borderline" to which the court must adhere. along it, there is a critical respect for judeo-christian values that underscore the american social fabric that the bench must not uproot. meanwhile, the 2005 cases place barriers on allowing religious imagery on public grounds by forcing governments to seriously weigh legal consequences, wherein overt attempts to establish a religion can be entirely struck down. thus, i argue that the establishment clause must be kept in vague language that neither entirely codifies separationism nor accommodationism for the sake of lasting societal cohesion. mccreary and van orden necessarily came to opposing conclusions on the ten commandments displays' constitutionality to enshrine the establishment clause as a truly secular guide. 1 joshua darrish is a third-year undergraduate student at the university of california, santa barbara (ucsb). he is pursuing a b.a. in history with a focus on the united states. he has a particular interest in the early republic, comparing and contrasting the constitution from the time of its writing to its application today, especially in the realm of privacy rights and civil liberties. beyond his passion for constitutional analysis, joshua is an avid rower, reader, squash player, and a lover of classic rock music. 24 in his 1952 zorach v. clauson majority opinion, justice william douglas declared, “we are a religious people whose institutions presuppose a supreme being.”2 the supreme court of the united states has attempted to marry the foundational protestant religiosity of the american people with first amendment restrictions on establishment. specifically, ten commandments case law has struck at the legality of government-sponsored religious iconography. mccreary county v. aclu (2005) and van orden v. perry (2005) saw the overturning of kentucky courthouse ten commandments displays and the approval of another at the texas state capitol, respectively, seemingly creating incongruity. the opinions, however, reveal a line of constitutional reasoning that protects a separationist approach with the necessary flexibility. the outcomes prevent national division that the very spirit of the establishment clause implies. mccreary and van orden do not reach the same conclusion on the ten commandments displays’ constitutionality by design. together, they follow the establishment clause precedent that reasonably delineates a necessary but situational relationship between religion and government derived from national tradition and political harmony. mccreary v. aclu sparked a constitutional challenge to a king james’ bible ten commandments display alongside an exodus passage in the mccreary county, kentucky courthouse. since its creation, the american civil liberties union of kentucky has held a strict separationist view of the establishment clause. thus, the ten commandments display being “‘readily visible to…county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to vote’” came as a flagrant violation.3 mccreary county argued that the ten commandments served a secular purpose as the basis for kentucky law. two other subsequent displays were added to better adhere to secular principles and to avoid a federal district court ruling. the second display included “eight other foundational documents, including the declaration of independence.”4 however, the apparent religious passages continued to make mccreary county’s 4schaps, mike, “vagueness as a virtue: why the supreme court decided the ten commandments cases inexactly right,” california law review, inc. 94, no. 4 (july 2006): 1243–69, https://doi.org/10.2307/20439063, 1255. 3 dunman, l. joe, “religion in the law: an open access casebook (1st ed.),” ssrn electronic journal, august 20, 2021, https://doi.org/10.2139/ssrn.3903347, 194-195. 2 douglas, william o, “zorach et al. v. clauson et al,” legal information institute, n.d. https://www.law.cornell.edu/supremecourt/text/343/306. 25 https://doi.org/10.2307/20439063 https://doi.org/10.2139/ssrn.3903347 https://www.law.cornell.edu/supremecourt/text/343/306 secular claims suspicious. the final attempt included documents of equal physical size to the ten commandments display, such as the magna carta, mayflower compact, and the kentucky constitution’s preamble; in spite of this, the aclu continued its pursuit, leading to the united states supreme court’s involvement. primarily utilizing the lemon test, a three-pronged assessment to determine if a religious establishment has occurred, justice david souter maintained that “the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.”5 the majority concluded that the display violated the establishment clause for having an unavoidable religious agenda that no later secular additions could obfuscate. in a contrasting outcome, a majority ruled the ten commandments displayed in van orden v. perry constitutional. petitioner thomas van orden filed a suit against the texas government for placing a ten commandments display on the state capitol grounds. this exhibit was privately donated by the fraternal order of the eagles of texas to spread their anti-delinquency message and engraved with “two stars of david and the superimposed greek letters chi and rho, which represent christ.”6 van orden argued that his first amendment right had been violated due to a religious expression on the public grounds he frequented. moving away from the lemon test as a definitive marker of constitutionality, the court aligned with chief justice william rehnquist’s accommodationist view of the establishment clause. though often “the rehnquist court did not go nearly as far as rehnquist would have liked in changing the law regarding the establishment clause,” van perry v. orden successfully upheld a religious and governmental relationship.7 one of the primary objectives of chief justice rehnquist was relaxing the establishment clause’s restrictions.8despite van orden identifying a religious image on state property, it held a passive and historically relevant position that could not be construed as coercive. its non-imposing nature gained credence as the display had been in place for 40 years without challenge, whereas in mccreary, the displays were newly placed. justice breyer agreed the lack of legal battles over four decades “suggest more strongly than any set of 8 chemerinsky, “assessing chief justice william rehnquist,” 1343. 7 chemerinsky, erwin, “assessing chief justice william rehnquist,” university of pennsylvania law review 154, no. 6 (2006): 1331-64, https://doi.org/10.2307/40041341, 1354. 6 dunman, “religion in the law,” 205. 5 dunman, “religion in the law,” 197. 26 https://doi.org/10.2307/40041341 formulaic tests that few individuals…are likely to have understood the monument as amounting…to a government effort to favor a particular religious sect…”9 conforming to the rehnquist position against strict separation, the plurality rejected van orden. in combination with mccreary’s focus on a display’s intent regarding time, van orden made the constitutionality of public ten commandments scenes dependent on physical, situational context. legal precedent for religious display cases oscillates between separation and accommodation, justifying the opposing decisions from mccreary and van orden. the court relied on stone v. graham (1980) to uphold the ten commandments exhibition display in van orden. chief justice rehnquist placed importance on the setting of the display in determining how intrusive it is on onlookers. he writes that “the placement of the ten commandments monument on the texas state capitol grounds is a far more passive use of those texts than was the case in stone, where the text confronted elementary school students every day.”10 stone focused on a ten commandments display in elementary schools that created a coercive environment for impressionable students. meanwhile, in van orden, the mere existence of the ten commandments in the open space of the texas state capitol did not comparably pressure onlookers. conversely, the displays in kentucky courthouses in mccreary were required “[to] be posted in ‘a very high traffic area’…”11 kentucky eventually created an exhibit with a more secular title and theme of “the foundations of american law and government,” but justice souter was not convinced that the secular purpose of the display outweighed the clearly religious intent. he deferred to the reasonable observer who would have had a memory of the original display’s sole focus on judeo-christian passages.12 thus, the framing, both in a physical and a temporal sense, of the displays played a significant role in the supreme court’s contrasting decisions in 2005. lynch v. donnelly preceded graham in 1984, now approving the public display of a crèche during the holiday season in pawtucket, rhode island. accepting religious involvement as inextricably linked to the american national identity and civil life, pawtucket “has principally 12dunman, “religion in the law,” 197. 11dunman, “religion in the law,” 194. 10 dunman, “religion in the law,” 207. 9 dunman, “religion in the law,” 209. 27 taken note of a significant historical religious event long celebrated in the western world.”13 by placing the crèche alongside secular objects such as reindeer and santa’s house, the crèche integrated into the widely celebrated holiday tradition. combined with other historic christian invocations, such as “congressional and executive recognition of the origins of christmas, or the exhibition of religious paintings in governmentally supported museums,” the court could not have realistically singled out the crèche.14 if violative, government buildings across the united states would be unreasonably scrutinized for containing religious images deemed essential to the foundational values of the nation, like the supreme court, capitol, and library of congress’s jefferson building. in van orden, chief justice rehnquist makes further reference to the ten commandments as a source of american values. he asserts that “since 1935, moses has stood, holding two tablets that reveal portions of the ten commandments written in hebrew” in the supreme court building.15 while religious in nature, the ten commandments fundamentally shaped western law and, thus, american law, giving them civic value. following the reasoning from lynch, van orden ensures that the establishment clause respects the core religious identity of the united states, as “simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause.”16 the 2005 decision keeps with the 1984 court to preserve the national spirit. placing mccreary and van orden in the chronology of other display case law unravels their contradictory appearance. the 2005 decisions present the back-and-forth precedent as “borderline cases.”17 justice stephen breyer applies the “borderline cases” reasoning in his van orden concurrence. establishment clause vagueness mitigates attempts at serious religious encroachment. before mccreary, “government actors inclined to erect a display of dubious constitutionality had little reason for refrain” because “at worst they might be sued.”18 after the decision, if a government attempts to place a display and hopes to eventually gain governmental approval by gradually secularizing the piece, “government actors stand to lose all by violating the 18 schaps, “vagueness as a virtue,” 1265. 17dunman, “religion in the law,” 208. 16 dunman, “religion in the law,” 207. 15dunman, “religion in the law,” 206. 14 burger, “dennis lynch, etc., et al., petitioners v. daniel donnelly et al.” 13 burger, warren e, “dennis lynch, etc., et al., petitioners v. daniel donnelly et al,” legal information institute, n.d, https://www.law.cornell.edu/supremecourt/text/465/668. 28 https://www.law.cornell.edu/supremecourt/text/465/668 establishment clause in the first instance.”19 the kentucky counties attempted to retain a ten commandments display by slowly conforming to judicial approval. however, the vague case law between mccreary and van orden effectively forces the state or local government to weigh the potentially heavy legal implications of installing the display. the supreme court noted that the religious primary legislative purpose of the mccreary display had always existed since its first rendition, only being insincerely softened to fit establishment clause parameters. to the benefit of separationists, there is a higher chance for a display to be completely removed by avoiding a universal constitutional standard that local governments could work around much in the way mccreary county attempted. justice breyer’s concurrence in van orden further advanced the necessary vagueness of the establishment clause in religious display cases because he departed from the lemon test. he writes, “the removal of longstanding depictions of the ten commandments from public buildings across the nation…create the very kind of religiously based divisiveness that the establishment clause seeks to avoid.”20 he emphasized the responsibility vested in the justices to uphold social order that removing religious images central to the nation’s heritage would undermine. the reasoning follows lynch by recognizing the cohesive role that religion plays. by making the establishment clause universally antagonistic toward the ten commandments, justice breyer argues that “religious divisions…recognized in van orden, number among the most dangerous risks to americans’ sense of themselves as coparticipants in a venture shaped by a common heritage and shared ideals.”21 an establishment clause that restricts all governmentally-sponsored religious symbolism turns the judicial system against the spirit of the nation. the supreme court has a duty to preserve religious guardrails that separate church from state. yet, the mccreary and van orden rulings also underscored necessary flexibility that does not charge the government strictly against the religious beliefs of the american people: in 2014, over 70% of americans had no objections to public ten commandments displays.22 justice 22 klarman, michael j, “judicial statesmanship: justice breyer’s concurring opinion in ‘van orden v. perry,’” the harvard law review association 128, no. 1 (november 2014): 452–56, https://www.jstor.org/stable/24643935, 456. 21 fallon, jr., richard h, “a salute to justice breyer’s concurring opinion in ‘van order v. perry,’” the harvard law review association 128, no. 1 (november 2014): 429–33, http://www.jstor.org/stable/24643933, 433. 20 dunman, “religion in the law,” 209. 19 schaps, “vagueness as a virtue,” 1266. 29 https://www.jstor.org/stable/24643935 http://www.jstor.org/stable/24643933 breyer’s concurrence hoped to prevent the judiciary from alienating the majority of americans from their own political institutions. justice breyer’s concurrence also leverages vagueness to mitigate the supreme court’s more radical voices as well. justice john paul stevens dissented in van orden, pushing for a strict separationist interpretation of the establishment clause: the ten commandments, as a “judeo-christian message of piety would have the tendency to make nonmonotheists and nonbelievers feel like outsiders in matters of faith, and strangers in the political community.”23 to him, the display made religious morality paramount to the fraternal order of the eagles of texas’ anti-delinquency efforts, with the state sponsoring the effort. opposingly, in mccreary, justice scalia believes that the establishment clause legally discriminates against polytheists and non-believers, with judeo-christian monotheism given a protected status emanating from the nation’s protestant origins.24 the concurrence uplifts the moderate voice in the judiciary as a vehicle for civil discourse on religion’s role in the american people’s lives. the court appears split between strict separationism and loose accommodation, with breyer searching for a compromise between both. hence, justice breyer emphasizes the “borderline” in the ten commandments cases to practice a rational establishment clause. by over-enforcing strict separationism, expansive removal of the ten commandments and other images would become “fodder for political ads…the inevitable political backlash would make it more likely that future presidents and senators, and the future supreme court justices they nominate and confirm, would be hostile” to church-state neutrality.25 by generating hostility toward all ten commandments displays, the separationist justices work contrary to their vision. their decisions do not exist in a political vacuum. popular backlash leads to politicians who take advantage of the electorate’s anger; then, the supreme court is downstream, being appointed and confirmed by those elected leaders. justice breyer recognizes that separationism can only persevere in the long term through selective permission of religious displays rather than complete removal in a more uniform jurisprudential manner. historically, such aggression toward religious involvement in public life 25 schaps, “vagueness as a virtue,” 1264. 24 dunman, l. joe, “religion in the law,” 202-203. 23 dunman, “religion in the law,” 211. 30 has “contributed significantly to the reemergence of religious fundamentalists in american politics and the rise of the religious right,” consequent of the proliferation of strict separationist rulings in the 1960s that 70 to 80% of americans still oppose.26even a liberal justice like breyer recognized the profoundly political and popular role judeo-christian images play in the united states. he also appears to signal to liberal voters who may have felt betrayed by his decision to support the display’s constitutionality by suggesting that it is for their electoral benefit in the long term. to prevent the heavy incursion of religion on government that justice scalia endorsed, concessions need to be made that give leeway to the ten commandments’ legality based on temporal and physical setting, not the display itself. mccreary v. aclu and van orden v. perry represent the court’s historic balancing of religious interests intrinsic to national identity with that of government neutrality. while the cases come to independent conclusions on the constitutionality of ten commandments displays, when placed together in precedent, they outline a deliberately vague and flexible interpretation of the establishment clause. as expressed through justice breyer’s swing vote, the survival of separationism rests on its ability to accept religion’s integrated role in american life. no test, whether under lemon standards, endorsement, or coercion, properly determines the role of the ten commandments in civil affairs. the “borderline” allows for context to be the scrutable issue instead of the commandments themselves. mccreary and van orden necessitate each other to define an establishment clause respectful of american tradition while avoiding social upheaval that could threaten democratic processes. 26 klarman, “judicial statesmanship,” 456. 31 final chen, alex.docx bellarmine law society review volume xiii | issue ii article i finding judicial constellations: a relational thematic content analysis of stare decisis during the roberts court alex chen west chester east high school, alexwchen39@gmail.com finding judicial constellations: a relational thematic content analysis of stare decisis during the roberts court alex chen 1 abstract: the supreme court’s recent overturning of the long-standing precedent roe v. wade has cast uncertainty over the future of stare decisis application and interpretation. as the court continues to shift ideologically, understanding the thematic frameworks in cases that fail to abide by the doctrine could prove valuable in consolidating an approach to the roberts court’s interpretation of stare decisis. this paper explores a set of cases, the relationships between them, and the underlying themes in opinion rationale in order to unearth the intentions and potential implications of the roberts court’s stare decisis application. introduction on june 24th, 2022, the supreme court of the united states handed down its decision in the case dobbs v. jackson women’s health organization (2022), reversing its nearly fifty-year-old precedent in roe v. wade (1973) and subsequently overturning the federal right to an abortion.2 while outrage and controversy diffused across the nation, the interest in a singular two-word term among citizens and scholars alike spiked: stare decisis. translated literally from latin as “to stand by things decided,” stare decisis is the legal and judicial doctrine that encourages, if not constrains, courts to abide by their previous decisions.3 thus, it enshrines precedent and creates a steady hand in the judicial sphere. the supreme court in dobbs elected to break with the doctrine of stare decisis in overruling roe. with many recent decisions from the court overturning past precedents, a shifting understanding of a modern interpretation of stare decisis has arisen. despite the notion that precedent is ideally binding, decisions like dobbs have suggested that precedent is less binding than previously thought. this problem has negatively affected the ability of judges, lawyers, and 3 “understanding stare decisis.” american bar. december 16, 2022. https://rb.gy/ofh7q4. 2 sherman, mark, “supreme court overturns roe v. wade; states can ban abortion.” ap news. june 24, 2022. https://apnews.com/article/abortion-supreme-court-decision-854f60302f21c2c35129e58cf8d8a7b0. 1 alex chen is a senior at west chester east high school in pennsylvania. at school, alex advocates for bylaws and social structures to increase student representation. he has competed in the harlan institute moot supreme court competition, placing second nationally for the petitioner position this year. his interests surround how the law interacts and influences communities, and he hopes that his research can underscore steps that legislators at all levels should consider. upon graduation, alex hopes to study government and one day attend law school. 4 scholars to understand, interpret, and apply stare decisis because of the recent shifting justifications for overturning precedent. indeed, stare decisis’ newest applications have shown “alarming effects … on legal stability, doctrinal consistency, and judicial legitimacy.”4 at the public level, decisions like dobbs have led to 53% of americans having “little or no trust in the supreme court to operate in the best interests of the american people.”5 this has led scholars to stress the importance of restoring a consolidated understanding of the doctrine in order to “reestablish the public’s faith.”6 to rectify this, many scholars have sought to create comprehensive guides to supreme court stare decisis.7 however, in many cases, these guides fall short in analyzing the rationale of the cases in question. thus, in order to address this exceedingly relevant research issue, further investigation into the doctrine’s relationship with the court is necessary. the key to understanding the court’s interpretation of stare decisis lies in the rationale of their opinions that deal with breaking or overturning the doctrine. it is there that the court reveals its justification or adds understanding to the doctrine. in sidestepping stare decisis, the court typically outlines — in a summary known as a syllabus — the primary component or case supporting their justification. still, this conversation is not new; in fact, the court has weighed in on stare decisis dozens of times since chief justice john roberts assumed his position and began the roberts court. indeed, each overturned case revitalizes the scholarly conversation surrounding the doctrine in some way. in investigating individual cases over a set time period where stare decisis was not followed and looking at the primary reasons in its rationale, one can evaluate the changing foundation for the doctrine and, in turn, provide insight into the legal sphere and the american public as a whole. literature review the existing literature surrounding this research primarily weaves findings from four major works; collectively, they analyze the supreme court’s interpretation and application of 7 murrill, brandon, “the supreme court’s overruling of constitutional precedent.” congressional research service. september 24, 2018. https://crsreports.congress.gov/product/pdf/r/r45319. 6 tilghman, james, “restoring stare decisis in the wake of janus v. afscme, council 31” new york law school law review, 64(2), (2019), 136. 5 “over half of americans disapprove of supreme court as trust plummets.” annenberg public policy center october 10, 2022. https://www.asc.upenn.edu/news-events/news/over-half-americans-disapprove-supreme-courttrust-plummets. 4 gerhardt, michael j., “the role of precedent in constitutional decisionmaking and theory.” george washington law review. (1991). 83. https://scholarship.law.wm.edu/facpubs/980/. 5 stare decisis from a thorough spectrum of approaches. despite their individual contributions to the scholarly canon, they fail to connect to each other in a manner that creates a cohesive picture. nestled between the extent of their research, there exists an ever-present academic gap. through detailing each, this literature review will unravel the complex connections between them and bring to light the components that have yet to dovetail and give way to my research. professor michael gerhardt’s famous publication on precedent’s influence on decision-making provides an exceedingly comprehensive view of the topic. he identifies “two kinds of structural functions” that “maintain government operations and relationships” and “inform the choices … of other branches.”8 along with historical purposes, these functions provide for the role of precedent on the supreme court. although precedent is often used to “immunize prior decisions from overruling,” ultimately, it is not an unbreakable tenet of the court.9 throughout his research, he looks not only at “what the court already has decided expressly” but also why stare decisis was applied.10 using a wide range of cases, he expounds on the doctrine’s ability to provide a scope for approaching familiar cases. in short, through analyzing dozens of important cases, he finds that the role of stare decisis is to provide stability in the application of the law. although they clearly establish the role of precedent, gerhardt’s findings do not explicitly detail the broader reasons that are considered by the court when determining when and how to apply precedent. looking at monumental decisions such as planned parenthood v. casey, randy kozel established these very reasons when exploring the details of judicial doctrine in stare decisis. publishing his work in the washington and lee law review, he conducted his research by analyzing and summarizing findings from keystone cases on stare decisis. his findings worked “to isolate the various components of the supreme court’s stare decisis jurisprudence and to study their individual and collective functions.”11 despite discovering precedent to be collectively “indeterminate,” kozel succeeded in unearthing a number of primary factors in the rationale of applying stare decisis: soundness, workability, and reliance.12 in other words, the 12 id. at 465. 11 kozel, randy, “stare decisis as judicial doctrine,”washington & lee law review, 67(2) (2010), 414. 10 gerhardt, “the role of precedent in constitutional decisionmaking and theory,” 77. 9 id. at 77. 8 gerhardt, “the role of precedent in constitutional decisionmaking and theory,” 86. 6 court may maintain or overrule a precedent because of the quality of its reasoning, its ability to be shaped, and whether its absence would be detrimental to legal doctrine. combining the research of both gerhardt and kozel, segal and spaeth looked at the roles and factors of stare decisis to determine the doctrine’s influence on the votes of individual justices in 346 landmark cases. they found that individual justices (with the exceptions of justices powell and stewart) were not influenced by the roles and factors of precedents they disagree with ideologically.13 most notably, segal and spaeth brought the use of content analysis as a research method for analyzing court precedents into the scholarly conversation. their substantial use of past cases represents a quantitative analysis. in line with previous research, their extraction of ideas about gerhardt’s roles and kozel’s factors from the philosophies of individual justices is a strong qualitative addition to the research. segal and spaeth, however, did not explore the influence of stare decisis on the court as a whole, specifically, the rationale found in the final opinions of the court. fowler and his colleagues used a full court content analysis in their research that determined “case centrality” or a “complete network of 26,681 majority opinions written by the u.s. supreme court” to “identify the most legally relevant precedents.”14 their findings, as published in the peer-reviewed journal political analysis, demonstrated a systematic approach to evaluating which cases were cited the most by other cases.15 furthermore, their research marks the first time case mapping was used to find connections between cases. despite its groundwork in content analysis research of the supreme court, the publication does not apply case mapping to stare decisis and, specifically, its rationale to draw connections. moreover, fowler and his colleagues’ work concludes at the beginning of the ascension of chief justice roberts in 2005. in total, these four publications combine and share key research findings on the judicial application and interpretation of stare decisis. yet, they leave a considerable gap in the existing literature. while gerhardt and kozel give foundation to the doctrine by determining the role and rationale, they do not explore its application to reversals in court rationale. similarly, while segal and spaeth explore its application to rationale, they fail to do so at a court-wide scale, 15 id. at 324–346. 14 fowler et al., “network analysis and the law: measuring the legal importance of precedents at the u.s. supreme court.” political analysis, 15(3), (2007) 325. http://www.jstor.org/stable/25791897325. 13 segal, j.a. and spaeth, h.j., “the influence of stare decisis on the votes of united states supreme court justices,” american journal of political science, 40(4), (1996) 971–1003. https://doi.org/10.2307/2111738. 7 leaving valuable research out of the conversation. furthermore, while research exists mapping these doctrinal relationships on the court, no mapping exists for the rationale of stare decisis specifically. throughout all of this, the four publications fail to apply their various findings to the roberts court. though inherently intertwined, the four works leave a gap in what primary reasons of opinion rationale using stare decisis have revealed about the roberts court’s analysis of precedent as a whole. research is needed that can bring an understanding of the role and rationale behind not abiding by stare decisis for the court as a whole by mapping changes across a modern time span. any resulting research would not only bridge key ideas from the aforementioned four publications but also provide a new framework for understanding the shift and direction of the supreme court’s application of stare decisis. this would be consequential to judges, scholars, lawyers, and the public seeking to understand the doctrine. thus, this study seeks to address and close that gap with research regarding the following research question: what have the primary rationales in the opinions of cases that overturned precedent revealed about changes to the supreme court’s application of stare decisis during the roberts court? for the purposes of this research, “primary rationale” refers to the main reason the court did not apply stare decisis in all cases that overturned other cases. additionally, the roberts court refers to the timespan since chief justice roberts led the court: september 29th, 2005, to the present day. it must be noted that the key assumption was made that primary rationales could be identified in all cases that overturned others. prior to conducting the research and in line with my research question, i hypothesized that the primary rationales of many overturning cases would demonstrate a chronological progression of more willingness to rely on the principles of stare decisis. this would indicate a fundamental shift in the court's outlook toward the future. methodology my research utilized a relational thematic content analysis research method. to standardize and establish what is specifically meant by a relational thematic content analysis for the purposes of this study, a concrete definition has been provided and explicated. this definition represents the paradigm on which i based my methodology. 8 generally speaking, content analysis is “any technique for making inferences by systematically and objectively identifying special characteristics of messages.”16 researchers ‘code’ a set of media using regimented guidelines and then extrapolate qualitative conclusions based on the quantifiable data set produced. researchers may code for “words, themes, or concepts” among other qualitative aspects; when researchers specifically code and search for themes in a given set of media, the research method is known as a thematic content analysis.17 moreover, this research employs a subset of the method known as relational content analysis. this method adds a component that “involves exploring the relationships between concepts. individual concepts are viewed as having no inherent meaning and rather the meaning is a product of the relationships among concepts.”18 in order to accomplish this, cognitive mapping is typically used. cognitive mapping can be defined as any “graphic map that represents the relationships between concepts” in order to “create a model of the overall meaning of the text.”19 in aggregate, these definitions provide the framework for what a relational thematic content analysis establishes for my methodological path. the rationale behind my decision to use this method stems from three primary reasons, each supporting a different component of what the method entails. first, i chose a content analysis method because using a large dataset of media (supreme court opinions) would provide the greatest selection of insight into the supreme court’s changing use of stare decisis. since the court writes its opinions over time, these insights can be extrapolated chronologically and applied to see change over time. second, a thematic approach was taken because it offered the most comprehensive and rational way to extract the broader concepts, something words or paragraphs alone would be insufficient to achieve. these themes could additionally be coded such that the primary rationale behind the reversal of a precedent could conveniently be categorized as the theme itself. third, because supreme court opinions are intrinsically related to other opinions, the relations between cases were considered. the only way to accomplish this was to incorporate the 19 id. 18 id. 17 “content analysis.” columbia mailman school of public health. 2019. https://www.asc.upenn.edu/news-events /news/over-half-americans-disapprove-supreme-court-trust-plummets. 16 holsti, o. r. “content analysis for the social sciences and humanities.” addison-wesley pub. 1969. 3. 9 relational aspect of content analysis. in order to visualize this component, the aforementioned process of cognitive mapping was produced to demonstrate relationships. overall, this methodological design aligns incredibly well with my research question because it produces a useful quantitative data set of themes based on complex qualitative court opinions. when mapped, this data set can be interpreted, and conclusions regarding the themes in the primary rationale of opinions can be made to determine changes in the interpretation of stare decisis. this is crucial because both substantive data and defensible inferential analysis could be interlaced. furthermore, concepts from both segal and spaeth’s research and fowler and his colleagues’ research served as very broad guidelines. this research also deals with large quantities of case data, similar to segal and spaeth’s work; likewise, case mapping is performed similarly to fowler’s work. although no explicit methodology is copied, replicated, or simulated from either’s research, it should still be acknowledged that these ideas were inspirational to my research. given all this, i followed three distinct steps, each with its own substeps, to gather my research data: selection, coding, and organization. first, i had to choose how to select the media set i would perform the thematic analysis on. while some researchers may select a group of 100 songs or 30 news articles, i selected all of the cases that overturned other supreme court cases from september 29th, 2005, to the present. i did this because these cases would give the most insight into stare decisis. i was able to select these cases out of over a thousand based on explicit lists from two reputable sources.20, 21 cases appearing on both sources were kept. cases on one but not the other were scanned for an explicit mention of overturning a precedent in the opinion or a legal scholastic appraisal indicating that a de facto overturning occurred. if either of these conditions were met, the case was kept in the set. this ensured high accuracy. future research could easily apply this using the same data lists over any timespan of interest. second, the primary rationales had to be read for each case and categorized into an extrapolatory theme. i identified the main case, principle, or reason behind the justification. take, for example, knick v. township of scott (2019), a case that overturned a precedent from the 21 “table of supreme court decisions overruled by subsequent decisions.” constitution annotated. (n.d.). https://constitution.congress.gov/resources/decisions-overruled/. 20 murrill, “the supreme court’s overruling of constitutional precedent,” 27–50. 10 1980s. the court’s opinion primarily cites one individual case to defend stare decisis’ absence: janus v. afscme (2018). while clearly, expository case information about stare decisis is present in the opinion, the main reason for their decision explicitly states the use of factors from janus, as pictured below. (knick v. township of scott, 2019, slip op. at 20).22 this process was repeated for each case with varying rationales resulting from each. the primary rationale for all cases was identified — for the sake of replicability — by either one of two indicators: an explicit explanation or the presence of the explicit reason in the syllabus. a hypothetical example of this would be an objective citation of four separate cases that establish why stare decisis did not counsel the decision. alternatively, a hypothetical general description of the principle based on decades of precedent in the syllabus would also constitute the primary rationale. this approach was used because it offered the least subjective approach to extracting rationales. common threads for the nature of the primary rationale were conglomerated into groups that represented overarching themes. these themes were meticulously defined to ensure future researchers could replicate them. the organization of these rationales was the crucial final step in my research. once the qualitative data was collected, it was tabled, graphed on time, and cognitively mapped. this visualization was critical in determining the relationship between cases and projecting these results to a broader scale. limitations in my methodology, there exist inherent limitations that should be considered and acknowledged. the preeminent limitation present was the human bias in converting extremely 22 “knick v. township of scott, no. 17-647,” united states supreme court. june 21, 2019. https://www.supremecourt.gov/opinions/18pdf/17-647_m648.pdf. 11 sophisticated and complex legal rationales into subjective themes. it is thus plausible that because of the more qualitative nature of thematic content analyses, my own evaluation and judgment skewed the data. although my themes for primary rationale are defined quite explicitly, it is still possible that human error in misinterpretation or misattribution of rationale gently influenced the results. consequently, i may have misassigned cases. since i do not possess formal educational training in law, my evaluation of the rationale and justification may not encompass the same effectuated assessment that a scholar or attorney would. it is also possible that the two lists of overturned cases have differing definitions that leave valuable case data omitted. accordingly, the conclusions this research finds should be contextualized within these limitations. findings after completion of the selection of cases steps, exactly twenty cases from the roberts court that overturned precedent were identified. these cases were all doubly appearing or scholastically verified from the two lists. table 1 gives them in reverse chronological order. years that did not have any cases overturning precedent have been skipped over for the convenience of the reader. furthermore, after application of the thematic categorization to the selected case opinions above, five main themes for reasons the court chose to break with stare decisis emerged: (1) direct citation, (2) eclectic, (3) principle, (4) de facto, and (5) other. in table 2, each primary rationale theme has been clearly defined and categorized by the frequency of appearance. these themes and their frequency were subsequently plotted over time in each year of the roberts court. doing so gave chronological perspective and aided in unearthing insights and inferences about the court. the graph in figure 1 demonstrates this. finally, a cognitive map or ‘constellation’ that demonstrates the relational connections between cases, especially those of the direct citation theme, was produced as seen in figure 2. the colors for each box indicate which primary rationale theme that case used and match the colors in the legend of figure 1. the arrows indicate the case that each case cited as its direct citation for that theme. time progresses right to left within the horizontal lane for each year. table 1, table 2, figure 1, and figure 2 are produced below. table 1: case set 12 year of roberts court case(s) overturning precedent 2022 dobbs v. jackson women’s health organization kennedy v. bremerton school district 2021 edwards v. vannoy 2020 ramos v. louisiana 2019 franchise tax board of california v. hyatt herrera v. wyoming knick v. township of scott rucho v. common cause 2018 janus v. american federation of state, county, and municipal employees, council 31 (afscme) south dakota v. wayfair trump v. hawaii 2016 hurst v. florida 2015 johnson v. united states obergefell v. hodges 2013 alleyne v. united states 13 2010 citizens united v. federal election commission 2009 montejo v. louisiana pearson v. callahan 2007 bowles v. russell leegin creative leather products inc. v. psks inc. table 2: definitions and thematic frequency primary rationale theme definition of theme number of cases exhibiting primary rationale theme direct citation the primary rationale for not abiding by stare decisis relies chiefly on one singular past decision during the roberts court that is directly cited. if a brief supplementary case is attached to the rationale, it does not detract from the main direct citation. expository details about the nature of stare decisis neither detract from the primary role of the direct citation nor change the theme. 8 eclectic the primary rationale for not abiding by stare decisis relies chiefly on an 4 14 eclectic selection of cases that each provide different and relatively equal justification for the rationale. expository details about the nature of stare decisis neither detract from the cases nor change the theme. principle the primary rationale for not abiding by stare decisis relies on decades or centuries old concepts regarding the broader nature or principles that govern stare decisis. in order to meet this theme, the court may not fulfill the “direct citation” or “eclectic” themes first. expository details about the nature of stare decisis do not affect this primary theme. 3 de facto the primary rationale for not abiding by stare decisis is not expressly stated or addressed. rather, the decision to overrule a past precedent is done de facto by the nature of the opinion. 3 other the primary rationale for not abiding by stare decisis is addressed but not by typical citation or principle. the court cites other authorities or special circumstances. in order to meet this theme, the court may not fulfill the “direct citation,” “eclectic,” or “principle” themes first. expository 2 15 details about the nature of stare decisis do not affect this primary theme. figure 1: graph 16 17 discussion from the findings, two novel understandings emerge about changes to the court’s application of stare decisis during the roberts court. a thorough interpretation of the primary rationales provides substantiation for these understandings. since i performed a relational thematic content analysis, the relationships between themes and cases formed the basis for these new understandings. first, in applying stare decisis the court has demonstrated a new willingness to consolidate eclectic primary rationale authorities on stare decisis into a single case which can be directly cited thereafter using the direct citation rationale theme. a fifth of cases utilized an eclectic primary rationale, illustrating the court’s willingness to cite various cases and combine them to formulate a justification. however, the high number of eclectic rationales is masked by these cases’ relationships with other cases. three explicit progressions of cases and their relationships to each other in the cognitive map provide evidentiary support for this study’s first new understanding. between 2009 and 2010, the court overturned three cases. the rationale relationship between them demonstrates the consolidation of eclectic rationale into a stream of direct citation rationale. the court first overruled a precedent from eight years prior in deciding pearson v. callahan (2009), a case that used an eclectic rationale as indicated by the cognitive map. in doing so, the court created a consolidated approach to stare decisis that not only collected their past decisions but also could be cited individually as a cohesive authority. the court later that term decided montejo v. louisiana (2009) and, using the primary rationale of direct citation, cited pearson and its consolidated authority on stare decisis. this then created a stream of citations with citizens united v. fec (2010) citing montejo and thus indirectly citing pearson and all of its individual eclectic citations as shown in figure 2. the court repeated this process with alleyne v. united states (2013) and hurst v. florida (2016). because alleyne was justified using an eclectic primary rationale, it was able to create a consolidated rule that combined doctrine from multiple past cases. when combined, they produced a rule that could be applied moving forward. in hurst, the court took advantage of this convenient consolidation and used it to justify their overruling of precedent. however, the most notable example of this eclectic-to-direct-citation pipeline is janus v. afscme (2018) and the five subsequent cases that directly cite it as their primary rationale. 18 decided in 2018, janus utilized several different cases to justify overturning a past case. it produced a consolidated rule that gave the court an easy rationale to apply in the future whenever it sought to break with stare decisis. as indicated by figure 2, five cases, either directly or through a stream of citations, all cite janus as the primary rationale in justifying their overruling of precedent: knick v. township of scott (2019), franchise v. hyatt (2019), ramos v. louisiana (2020), edwards v. vannoy (2021), and dobbs v. jackson women’s health organization (2022). collectively, these three separate instances of consolidating and directly citing eclectic opinions provide sufficient evidence that these thematic relationships are present. looking primarily at the cognitive map, the intrinsic relationship between these two themes delivers a clear new understanding that could only be unearthed through my methodology. more specifically, a second new understanding could also be made. namely, the case janus v. afscme (2018) seems to be a powerful genesis and main authority for rationale that breaks with stare decisis in the court’s recent history. looking at figure 1 and figure 2, it is clear that janus was the last time the court applied any rationale other than direct citation or de facto. this is because it consolidated all other typically isolated rationales into a rule that has been convenient to apply for future cases. in janus, the court collected different cases to identify the quality of reasoning, workability, consistency, new developments, and reliance as the five factors in sidestepping stare decisis.23 this is significant because it demarcates a substantial shift away from justifying opinions with eclectic and principle primary rationale themes. this also makes logical sense because these varying ideas and principles have already been consolidated into a direct citation case. the cognitive map indicates a clear stream of cases that have all either directly or indirectly relied on janus’ consolidated rationale, something not seen anywhere else in the roberts court. the density of direct citation themes in table 2, when plotted chronologically in figure 1, shows how janus has ignited a greater prevalence of reliance on the case. janus signifies this by being the midway point between the shift from eclectic and principle themes to a direct citation theme. therefore, it can be inferred that janus is a large reason behind direct citation being the most prevalent theme in table 2. the increased 23 janus v. american federation of state, county, and municipal employees, council 31, no. 16-1466,” united states supreme court. june 27, 2018. 34-35 at https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf 19 application of direct citation themed cases suggests a willingness to apply the five-factor consolidated rule in janus and overturn more cases that systematically check the rule’s requirements. although the findings of my research dealt with more than just an analysis of the principle theme, my hypothesis was still soundly rejected based on these two new conclusions. quite the opposite has been demonstrated to have occurred in the court’s application of stare decisis. clearly, there has been less emphasis on the principle primary rationale theme following janus. with four new justices in just over five years, the court is continuously changing its approach to doctrines. luckily, the scholarly conversation around stare decisis continues to grow, and my research furthers the conversation with earlier research. it substantiates the idea that janus is a key case that has the potential for reshaping doctrine, as put forth by research from michael gentithes.24 also, my research expands on many of the capabilities of content analyses in legal research that hall and wright put forth by using a thematic approach.25 finally, it adapts scholarly work from fowler and his colleagues by applying case mapping to a different yet specific aspect of the law. my research’s interconnectedness to other legal research helps to improve our understanding of the court. conclusion ultimately, this research was successful in identifying two new conclusions that fulfill the research question: what have the primary rationales in the opinions of cases that overturned precedent revealed about changes to the supreme court’s application of stare decisis during the roberts court? namely, the court has both a new receptiveness to consolidating eclectic primary rationale authorities on stare decisis into a single citable direction citation theme case and a newfound reliance on janus v. afscme (2018) for justifying modern overturning of precedent. this research underscores the importance of using creative but operationally effective and well-defined methodology to understand changes to the court’s interpretation of stare decisis and successfully fill the intended gap. 25 hall, m. a., and wright, r. f., “systematic content analysis of judicial opinions.” california law review, 96(1), (2008) 63–122. http://www.jstor.org/stable/20439171. 24 gentithes, michael, “janus-faced judging: how the supreme court is radically weakening stare decisis,” william & mary law review, 62(1) (2020). 20 this research has multiple key implications for the community of practice in the legal field. in a scholarly sense, these findings add more analysis to janus v. afscme (2018), a case that has primarily been analyzed through a labor law perspective. by understanding that janus has effects in other fields, such as stare decisis, this research improves upon our understanding of both the case and the doctrine. additionally, this research expands on the abilities of case mapping and thematic content analyses by producing interpretable results. legal research is not typically approached using content analyses, let alone a thematic one. the success of this research hence affects the legal field by potentially expanding our tools for analyzing cases. this research additionally has implications for appellate lawyers and those practicing law. for lawyers arguing before the court, this research could provide insight into which arguments to propose when asking the court to overturn precedent. for example, a lawyer might reasonably see more success arguing for the application of janus factors than general stare decisis principles. they might use this research to look at the direction of the court and which arguments are seen more favorably. thereby, my research allows more insight for lawyers seeking to tailor their arguments surrounding stare decisis. my research has targeted implications because it is crucial that appellate lawyers are able to recognize the court’s preferred interpretation of rationale application regarding a doctrine as important as stare decisis. apart from the limitations to the methodology discussed earlier, there were additional limitations to interpreting the results. the analysis failed to produce results that could comment on relationships between the cases studied and the overturned case itself. by reading the opinions of both, additional data could have enhanced the conclusions made. with more time for extensive cognitive mapping, further relationships could have been included. furthermore, because the sample size of cases was twenty, there was not enough data to formulate statistically significant conclusions about a quantifiable change to the court. this was a large limitation that restricted my research to making qualitative conclusions only. accordingly, it would be beneficial for future researchers to potentially expand the selection of cases to cover the rehnquist and even the burger court. this larger data set would allow for trend lines and statistical interpretation that would enrich the qualitative conclusions made in this research study. alternatively, this research could inspire future research in applying my methodology of relational thematic content analysis to other doctrines of the court, such as the miller test or chevron test. it is reasonably plausible that thematic content analyses could 21 have the potential to reveal changes to key doctrines that have experienced great uncertainty on the court. this research similarly suggests future investigation of the origins of stare decisis using my methodology. while the law is often depicted blindfolded, it is nonetheless important to take a deep look into the specific directions of its interpretation, especially in regard to stare decisis. in the end, this research follows the hope of all supreme court researchers — that out of a web of cases, a constellation of truth may be found. 22 microsoft word chris_final_blsr.docx bellarmine law society review volume xii issue i article 3 from the magna carta to the mca: the development of the right to habeas corpus for enemy combatants of the united states christopher j. siegert boston college, siegerch@bc.edu 37 from the magna carta to the mca: the development of the right to habeas corpus for enemy combatants of the united states christopher j. siegert1* abstract: the writ of habeas corpus is one of the foremost rights entrenched in the common law system. however, the courts' varying interpretations of the “suspension clause” of the american constitution have resulted in a varied protection of this right in cases where claimants are found to be enemy combatants to the united states. to begin, this article will detail the history of the writ of habeas corpus. then, it will offer a reflection on the instances where the supreme court has considered the government’s proper use of the suspension clause, first in the civil war and next in world war ii. finally, this article will analyze the supreme court’s decisions in three landmark post-9/11 cases, rasul v. bush (2004), hamdi v. rumsfeld (2004), and boumediene v. bush (2008), assessing how the court balanced competing standards set forth during the civil war and world war ii. introduction in federalist 84, alexander hamilton asserts that “the establishment of the writ of habeas corpus, the prohibition of ex post facto laws…are perhaps greater securities to liberty and republicanism than any [constitution] contains.”2 habeas corpus, latin for “that you have the body,” one of the most important rights granted to americans under the constitution, allows for a detainee to appeal to the courts that their imprisonment is unlawful. this provision protects against improper government interference into the lives of individuals, and grants individuals the right to check government power through the judicial system.3 in this way, the right of habeas corpus prevents individuals from serving unlawful jailtime. article i, section 9, clause 2 of the u.s. constitution asserts, “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or 1* christopher siegert is a third-year political science honors student in morrissey college of arts and sciences at boston college. he possesses an academic interest in education politics, and rights-based issues of law decided by the american courts. he would like to express special thanks to sam hayes and boston college professor kay schlozman’s rights in conflict seminar for directing my attention to the issue of habeas corpus claims by enemy combatants to the united states. 2 alexander hamilton, john jay, and james madison, the federalist papers (redditch, uk: read books ltd, 2018). 3 jonathan kim, “habeas corpus,” legal information institute, june 2017, https://www.law.cornell.edu/wex/habeas_corpus. 38 invasion the public safety may require it.”4 this instance is the only time where the u.s. constitution explicitly mentions “the writ of habeas corpus.” it is paired with the so-called “suspension clause,” which provides for certain instances in which this right can be suspended, those being “in cases of rebellion or invasion.” the rationale behind the suspension clause is that the government’s role to protect “public safety” outweighs the individual’s claim for false imprisonment in times when national security is threatened. however, the constitution provides no further explanation of what the writ of habeas corpus entails or who is authorized by the suspension clause. questions concerning the right to habeas corpus have plagued american politics throughout its 245-year history, with tensions most often arising during times of war. the most prominent instances of the suspension clause’s use include the civil war, world war ii, and most recently september 11th and the “war on terror.” through the exploration of cases which address the rights of enemy combatants of the united states during times of war, one can achieve a full understanding of the supreme courts shifting jurisprudence. throughout its history, the supreme court has, at times, supported the rights of enemy combatants to habeas corpus in the name of individual liberties. however, in other instances like world war ii, the right has been abridged. thus, the supreme court’s shifting interpretations have led to a murky understanding of u.s. domestic courts’ jurisdiction to hear habeas corpus claims from enemy combatants. to understand the scope and complexity of this legal clause, it is important to start at the beginning, with the first instance of the writ of habeas corpus in common law. historical analysis of habeas corpus claims by enemy combatants of the united states the magna carta, penned in 1215, was europe’s first constitution and the first legal document to establish the rights of those subject to the king of england. clause 39 of the magna carta formalized the writ of habeas corpus as it asserts that: “no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or 4 u.s. const. art. i, § 9 cl. 2 39 deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”5 here, the precedent for the writ of habeas corpus in the united states constitution can be found, as the u.s. adopted the british common law system. directly following the ratification of the u.s. constitution, the first congress passed the judiciary act of 1789, which granted federal courts the “power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment.”6 in 1830, chief justice john marshall delivered the majority opinion in ex parte tobias watkins in which the court held that the term habeas corpus “is used in the constitution, as one which was well understood [...] for the purpose of inquiring into the cause of commitment.”7 thus, the court held that habeas corpus must be understood in the context of the time in which it was established. here, the understanding of habeas corpus as a “well understood” right, suggests that the right is known and possessed by all. the insinuation of universal possession supports claims that the right may not be denied to enemy combatants. this position would prove to have long-lasting effects regarding the proper suspension of the right. the writ of habeas corpus and the suspension clause appear in article i, section 9 of the u.s. constitution. section 9 of the constitution sets forth the powers denied to congress. in addition, the right to habeas corpus differs from the explicit rights granted in the bill of rights, as its only mention is in the extreme conditions when the right may be legally abridged. understanding habeas corpus as an assumed right lends credence to those who reject the government’s ability to deny habeas corpus to enemy combatants, as a universally granted right may not be exclusionary. though the suspension clause does not explicitly declare who holds the power to suspend the writ of habeas corpus, its location within the constitution has led the majority of scholars to hold it as a power granted to congress, not the executive.8 until very late in the constitutional congress, the suspension clause was located within article 3, which would have made it a power of the judiciary. on september 5 “british library treasures in full: magna carta english translation,” magna carta, last updated september 2007, https://www.bl.uk/treasuresmagnacarta/translation/mc_trans.html. 6 u.s. congress, an act to establish the judicial courts of the united states, 1st cong., 1st session, congressional record 11, group 1, 82 § 14 https://www.loc.gov/law/help/statutes-at-large/1st-congress/session-1/c1s1ch20.pdf. 7 ex parte tobias watkins, 28 u.s. (3 pet.) 193, 201 (1830). 8 amy barrett and neal katyal, “interpretation: the suspension clause,” the national constitution center, accessed april 15, 2021, https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/763. 40 12, 1789, just five days before the final draft of the constitution was signed, the suspension clause was moved to article i.9 in this way, the suspension clause was made a power of the legislature. abraham lincoln challenged the scope of the suspension clause at the outset of the civil war. on april 27, 1861, less than two weeks after the south’s secession, president lincoln sent an executive order to general winfield scott in which he asserted: “you are engaged in suppressing an insurrection against the laws of the united states. if at any point […] you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ.”10 with this sweeping authorization, general scott and his army responded to the rumors that general robert e. lee would soon be invading maryland. in order to suppress this potential threat, union forces began to arrest prominent baltimore county elites, one of whom was plantation owner john merryman. soon after his arrest, merryman was imprisoned at fort mchenry. he then sent word to his lawyers, who petitioned for the writ of habeas corpus to the u.s. circuit court for baltimore on the grounds that he was arrested without a warrant and denied due process. merryman was issued the writ, and the court called general cadwalader to explain merryman’s arrest. cadwalader denied the court’s request, asserting that president lincoln granted him the authority to arrest merryman when he suspended the writ of habeas corpus. chief justice rodger taney, who also served on the u.s. circuit court, held that president lincoln had no authority under the constitution to suspend habeas corpus, citing both the clause’s location within article i and the writ’s historical origin as rationale. taney asserted that if lincoln had the right to suspend habeas corpus, then the constitution “conferred upon him more regal and absolute power over the liberty of the citizen, than the people of england have thought it safe to entrust to the crown.”11 thus, as is revealed by taney’s opinion, the 9 tor ekeland, suspending habeas corpus: article i, section 9, clause 2, or the united states constitution and the war on terror, 74 fordham l. rev. 1475 (2005). , available at: https://ir.lawnet.fordham.edu/flr/vol74/iss3/11 10 “order from president abraham lincoln to general winfield scott suspending the writ of habeas corpus, april 27, 1861,” u.s. capitol visitor center, accessed april 16, 2021, https://www.visitthecapitol.gov/exhibitions/artifact/order-president-abraham-lincoln-general-winfield-scottsuspending-writ-habeas. 11 bruce ragsdale, “ex parte merryman and debates on civil liberties during the civil war,” federal judicial center, 2007: 4, https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civilwar. 41 powers under the suspension clause must be granted to congress in order to safeguard individual liberties. despite taney’s opinion, lincoln largely ignored the court’s ruling and continued to arrest individuals suspected of joining the insurrection or those who criticized his practice. one journalist, frank key howard, the grandson of “the star-spangled banner” writer francis scott key, was imprisoned at fort mchenry for fourteen months for criticizing lincoln’s behavior.12 as is evident during times of war when national security becomes the most important issue for the nation, the expansion of the executive’s power, though at times met with pushback, is largely accepted as necessity. consequently, the rights of individuals are abridged at times in order to guarantee liberty and justice for all. at the height of the civil war, on march 3, 1863, congress passed an act relating to habeas corpus, and regulating judicial proceedings in certain cases, which formally enacted the suspension clause, asserting that president lincoln “whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case in the united states, or any part thereof.”13 despite the act, there was still substantial discord between lincoln and congress at this time, as lincoln held that he did not need congressional authorization to suspend the writ. scholars such as george sellery of the university of wisconsin have attempted to capture the motives behind congress’ actions in passing the bill. sellery explained in his 1907 dissertation that, in drafting the bill, congressmen were determined not to comment on the illegality of lincoln’s previous suspension. as a result, sellery asserts that congress’ “phraseology is not accidental […] the long acquiescence of congress in the president's suspension of the privilege of the writ coupled with its formal enactment in the habeas corpus act that the president is authorized to suspend were, in truth, recognition by congress of the president's right to suspend.”14 here, sellery suggests that congress’ authorization of the suspension of habeas corpus, though a legal necessity under the constitution, was a “recognition” of the right of the 12 frank key howard, fourteen months in american bastiles, 3rd ed. (baltimore, md: kelly, hedian & piet, 1863), 7. 13 abraham lincoln, an act relating to habeas corpus, and regulating judicial proceedings in certain cases. by the president of the united states a proclamation. general orders. no. 315, september 17, 1863 (washington: war department, adjutant general's office, 1863) 14 george clarke sellery, lincoln’s suspension of habeas corpus as viewed by congress (chicago, il: university of chicago, 1907), 264-265. 42 president “to suspend.” though current scholars tend to believe that the president has no authority under the suspension act, it is helpful to recognize this pattern of congressional “acquiescence” to the executive concerning the suspension of the writ of habeas corpus. a similar relationship between the executive and the legislature has appeared during other times of national security crises such as the passing of authorization for the use of military force in 2001 and the military commissions act of 2006, both of which were a direct result of the 9/11 terrorist attacks. after the habeas corpus act of 1863 was made law, questions concerning the procedural nature of the suspension clause died down. even so, more issues arose surrounding the writ of habeas corpus during the civil war, most notably in the case of ex parte milligan (1866). in october of 1864, lambdin milligan of indiana was arrested and tried by a military court for conspiracy against the government, aiding the rebels, inciting insurrection, disloyal practices, and violating the laws of war. he was arrested after the government learned of a plot that he and his co-conspirators devised to free confederate pows from a union arsenal. though milligan had never served in the u.s. armed forces and the indiana judicial courts were operational, a military tribunal found him guilty and sentenced him to death.15 milligan and his co-conspirators petitioned for habeas corpus, and on april 3, 1866 the supreme court issued a ruling in favor of milligan. the courts’ opinion, written by justice davis, holds that the constitution is the law for both the rulers and the citizens of the united states in times of war and in times of peace. davis asserts that the laws of war “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” moreover, though the constitution allows for the suspension of habeas corpus, “it does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law.”16 at the time, the court’s ruling in milligan was seen by some republicans as having the potential to undermine reconstruction efforts in the south.17 since then, however, it has been championed by civil liberty advocates such 15 bruce ragsdale, “ex parte merryman and debates on civil liberties during the civil war,” 19. 16 john p. frank, “ex parte milligan v. the five companies: martial law in hawaii,” columbia law review 44, no. 5, (september 1944): 639, https://doi.org/10.2307/1117929. 17 peter j. barry, “ex parte milligan: history and historians,” indiana magazine of history 109, no. 4 (2013): 355– 79, https://doi.org/10.5378/indimagahist.109.4.0355. 43 as john p. frank as “a bulwark for the protection of the civil liberties of every american citizen.”18 in the face of potential backlash during times of war, the supreme court defended the rights of american citizens to a fair trial. thus, the milligan ruling would prove to have the most long-lasting effects on the relationship between the judicial process and american citizens found to be enemy combatants. the supreme court’s decision in ex parte milligan came into question during world war ii in the case of ex parte quirin. in quirin, eight german saboteurs, all of whom had previously spent time in the united states, and one of whom was a naturalized american citizen, were arrested after landing on the u.s. mainland in u-boats with nazi uniforms, explosives, and cash.19 the saboteurs later revealed that the german government was compensating them in exchange for their services, which designated them as unlawful enemy combatants in the eyes of the government. after the arrest of quirin and his co-conspirators, president roosevelt issued proclamation 2561 on july 2, 1942, entitled, "denying certain enemies access to the courts of the united states” in which he asserted: whereas, the safety of the united states demands that all enemies who have entered upon the territory of the united states as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage, or other hostile or warlike acts, should be promptly tried in accordance with the law of war; […] and to the jurisdiction of military tribunals.20 as a result of this proclamation, the german saboteurs were tried by military tribunal and appointed colonel kenneth royall as their defense attorney. royall sent a writ of habeas corpus to the supreme court “to test the constitutionality and validity of the president's order and the president's proclamation,” and on july 27, 1942 the supreme court agreed to hear the case.21 their decision to was met with mixed feelings from the media. some outlets denounced the court for getting involved in the war, while others such as the new york times and the washington post praised the court for its defense of the constitution.22 while 18 frank, “ex parte milligan v. the five companies,” 639. 19 andrew kent, “judicial review for enemy fighters: the court’s fateful turn in ex parte quirin, the nazi saboteur case,” ssrn electronic journal, 2012: 161, https://doi.org/10.2139/ssrn.2189037. 20 brad luebbert, “the laws will fall silent : ex parte quirin, a troubling precedent for military commissions.” (university of louisville, 2010): 42, https://doi.org/10.18297/etd/864. 21 leubbert, 53. 22 michal r. belknap, “alarm bells from the past: the troubling history of american military commissions,” journal of supreme court history 28, no. 3 (2003): 300–322, https://doi.org/10.1111/1540-5818.00068. 44 it is clear that the tides of war brought forth with them a patriotic fever that accepted the president’s authority to safeguard national security, there was still substantial opposition to potential government infringement on civil liberties. the question before the court was how to balance national security interests during a time of war with the right to due process guaranteed by the constitution. professor andrew kent of fordham university explained in a 2013 vanderbilt law review article that the “defense counsel framed the court access issue as an unconstitutional attempt by the president to suspend habeas corpus in an area where no martial law could prevail because it was far from the front lines.”23 in response to this argument, the government’s prosecution contended that military tribunals were authorized for “enemy belligerents,” and that the constitution granted these saboteurs no rights. the court sided with the government’s prosecution, allowing for the military tribunal, and outlined its reasoning in a full opinion delivered three months after its per curium opinion. it explained that quirin differed from milligan because while milligan did conspire for the confederacy, he was not “a part of or associated with the armed forces” of the confederacy, so he was “a non-belligerent, [and thus] not subject to the laws of war.”24 in addition, the court held that despite one defendant’s status as a naturalized american citizen: citizenship in the united states of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. citizens who associate themselves with the military arm of the enemy government, and with its aid guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the hague convention and the law of war.25 here, the court rejected citizenship status as a grounds for excusing “the consequences of a belligerency.” in this way, the court in quirin more fully delineated between the rights granted to citizens and those deemed enemy combatants. the rights granted to enemy combatants under the u.s. constitution was further defined in another world war ii case brought to the supreme court, johnson v. eisentrager (1950). in this case, twenty-one german soldiers who were captured by u.s. forces in china after 23 kent, “judicial review for enemy fighters,” 165. 24 anthony f renzo, “a call to protect civilian justice: beware the creep of military tribunals,” american constitution society for law and policy, february 2008, 16. 25 ex parte quirin, 317 u.s. 1, 38 (1942). 45 the german high command’s unconditional surrender on may 8, 1945, petitioned the district court of the district of columbia for the writs of habeas corpus.26 their petition asserted that they had been denied the rights granted to them under the fifth amendment, article i and iii of the constitution, and the geneva convention. the u.s. government’s response asserted that non-resident enemy aliens during times of war do not have the right to access the u.s. courts, and that the quirin ruling denied enemy aliens the writ of habeas corpus. in a 6-3 decision, the supreme court denied eisentrager et al. their petition. the court held that because the petitioners were held and tried in an allied prison, the case was outside the jurisdiction of the united states, so the petitioners did not possess any constitutional rights to habeas corpus.27 writing for the majority, justice robert jackson asserted that “the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.”28 moreover, the court clarified the provisions granted to resident aliens, making clear that “in extending constitutional protections beyond the citizenry, […] it was the alien’s presence within its territorial jurisdiction that gave the judiciary power to act.” in johnson v. eisentrager, the court more fully defined the constitutional rights of enemy aliens, ruling that the jurisdiction of the court and the alien’s residency status determine their eligibility for the writ of habeas corpus. evidently, this ruling seems to contend with quirin, in which the court denied the writ of habeas corpus to germans detained on u.s. soil, one of whom, hans haupt, was a naturalized american citizen. the distinction between the rights of citizens, enemy combatants, and citizen enemy combatants is complex and constantly disputed. the jurisprudence of the court regarding these rights has shifted throughout american history. at some points in the case of milligan, for example, due process has been secured in the face of pressing national security matters, while at other times like in quirin, national security has taken precedence over individual rights. in his dissent in hamdi v. rumsfeld (2004), justice antonin scalia explained that the 26 johnson v. eisentrager, 339 u.s. 763, 765-766 (1950). 27 dawinder s. sidhu, shadowing the flag: extending the habeas writ beyond guantanamo, 20 wm. & mary bill rts. j. 39 (2011), https://scholarship.law.wm.edu/wmborj/vol20/iss1/347 28 johnson v. eisentrager, 339 u.s. 763, 766 (1950). 46 court’s lack of attention to the unique case of herbert hans haupt, the american citizenturned german saboteur, “was not this court’s finest hour.”29 in this way, the specific nature of the different national security threats that the nation faces has a large effect on how the courts rule in cases of habeas corpus petitions from enemy combatants. during the civil war, the judiciary was more sympathetic towards petitioners like merryman and milligan; however, when faced with as large of a threat to national security as world war ii, the courts tended to abridge the rights of enemy combatants in favor of executive power. justice jackson asserted in eisentrager that “executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.”30 this opinion which justice jackson accurately captured regarding the necessity of an energetic executive who has “power over enemy aliens” during times of war became nearly unilateral following the national tragedy on september 11, 2001. the war on terror and modern habeas corpus claims at approximately 8:46 am on september 11, 2001, the first plane, american airlines flight 11, hit the north tower of the world trade center. shortly thereafter, a second plane hit the south tower and a third was crashed into the pentagon in arlington, va. the news of the hijacking sent shockwaves throughout the country, as the security of american life and travel was stripped away. responses from the bush administration and congress were prompt. bush asserted in his address to the nation on the night of the tragedy, “these acts shatter steel, but they cannot dent the steel of american resolve.”31 a week later on september 18, 2001, congress passed the “authorization for the use of military force” (aumf) with only one congresswoman voting nay to the joint resolution, which reads: the president is authorized to use all necessary and appropriate force against those nations organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on september 11, 2001, or harbored such organizations or persons, in order to prevent any future acts 29 scalia, hamdi v. rumsfeld (scalia, j., dissenting), 542 u.s. 507 (u.s. supreme court 2004). 30 “johnson v. eisentrager, 339 u.s. 763 (1950).” (774) 31 george bush, “statement by the president in address to the nation,” the white house, september 11, 2001, https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010911-16.html. 47 of international terrorism against the united states by such nations, organizations or persons.32 as a result of the aumf, the war on terror began, and with it came unprecedented power for the executive to “use all necessary and appropriate force” against anyone deemed to have a connection with the september 11th attacks. as expected, in times of national security crisis, the legislature tends to grant the executive the necessary powers to protect the nation, though sometimes at the cost of individual liberties. the sole congresswoman who voted against the aumf, barbara lee, expressed her apprehensions during debate on the house floor, warning that the unilateral powers granted to president bush would result in an unnecessary and prolonged war mimicking lindon b. johnson’s involvement in vietnam. as a result, lee instructed “[a]s a member of the clergy so eloquently said, ‘as we act, let us not become the evil that we deplore.’”33 in this example, lee’s comments somewhat foreshadow the events that would come in the wake of 9/11. the united states engaged itself in a long-drawn-out war, with no clear enemy or end in sight. moreover, highly dubious activities took place involving the treatment of detainees targeted by the aumf, most often occurring at the guantanamo bay detention facility. the bush administration’s practices at guantanamo, such as depriving prisoners the ability to appeal their cases to the judiciary and isolating prisoners in solitary confinement, reveals how the posture of the united states changed rapidly following 9/11. permitted by the precedent of quirin, the bush administration operated military tribunals in guantanamo independent from the judicial branch and detained about 640 individuals following the military invasion of afghanistan. the bush administration also believed the detainees to be unlawful enemy combatants, which would exempt their sentencing from the geneva convention’s prohibition of indefinite sentences.34 moreover, the government held that because the guantanamo bay prison facility was located on a naval base within the sovereign territory of cuba, they would apply the precedent set by johnson v. eisentrager 32 u.s. congress, senate, authorization for the use of military force, s.j. res. 23. 107th cong., 1st sess., senate introduced september 18, 2001, https://www.govinfo.gov/content/pkg/bills-107sjres23enr/pdf/bills107sjres23enr.pdf 33 mike ryan, “rep. barbara lee’s speech opposing the post 9-11 use of force act,” nuclear age peace foundation (blog), september 14, 2001, https://www.wagingpeace.org/rep-barbara-lees-speech-opposing-the-post-9-11-use-offorce-act/. 34 michael c. dorf, “the detention and trial of enemy combatants: a drama in three branches,” political science quarterly 122, no. 1 (2007): 47–58, 49, https://www.jstor.org/stable/20202808. 48 that enemy aliens detained outside u.s. soil do not have access to the judicial system.35 nevertheless, the rights of detained enemy combatants came into question multiple times during the height of the bush administration’s war on terror. the case which first considered the rights of those detained at guantanamo bay was rasul v. bush (2004). in rasul, fourteen kuwaitis and australians were captured in afghanistan and sent to guantanamo without a hearing or any charges filed against them. they petitioned for a writ of habeas corpus, once again leading the supreme court to decide whether federal courts had the jurisdiction to review petitions of habeas corpus from detainees at guantanamo bay.36 diverging from its previous ruling in eisentrager, the supreme court held in rasul that federal courts did have proper jurisdiction over the guantanamo bay. the court reached this conclusion after framing the jurisdictional question as “whether the habeas statute [28 u.s.c.§ 2241] confers a right to judicial review of the legality of executive detention of aliens in a territory over which the united states exercises plenary and exclusive jurisdiction, but not 'ultimate sovereignty.’”37 in answering this question in the affirmative, the court provided the following rationale of the differences between eisentrager and rasul in order to extend the jurisdiction of federal courts: petitioners in these cases differ from the eisentrager detainees in important respects: they are not nationals of countries at war with the united states, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the united states exercises exclusive jurisdiction and control.38 as a result of the differences between rasul and eisentrager, the legality of detention at guantanamo bay began to erode. the court’s peculiar interpretation of the differences between the two cases rests on the petitioners not being “nationals of countries at war with the united states.” here, the court seems to make a false equivalency between world war ii, when the u.s. was engaged with enemy states, and the war on terror, when the president 35 ryan mckaig, “aid and comfort: rasul v. bush and the separation of powers doctrine in wartime,” campbell law review 28, no. 1 (2005): 123, 125-127. 36 sidhu, shadowing the flag: extending the habeas writ beyond guantanamo, 49. 37 ekeland, suspending habeas corpus: article i, section 9, clause 2, or the united states constitution and the war on terror, 1505 38 stevens, rasul v. bush (opinion of the court), 542 u.s. 466 (2004). 49 was authorized under the aumf to engage in conflict against those connected with 9/11. the aumf did not, however, authorize the president to use force against a specific nation, only terrorist groups. as a result, the nationalities of the petitioners in rasul should not have carried as much weight because despite their nationalities, they still may have been involved with terrorist organizations. in the end, though, the court held that enemy combatants detained at guantanamo bay retained the right to petition the federal courts for a writ of habeas corpus. on the same day that the supreme court issued its ruling in rasul v. bush, it also issued a ruling on hamdi v. rumsfeld (2004). the case involved yaser esam hamdi, who was detained in afghanistan by an american ally, the northern alliance, then handed over to americans and held at guantanamo bay after being designated an enemy combatant. born in louisiana, hamdi was a citizen of the united states under the 14th amendment; however, due to his status as an enemy combatant, he was denied council, not given a formal charge, and held indefinitely.39 the u.s. government contended that despite his citizenship, he could still be detained according to his status as an enemy combatant due to the precedent set in ex parte quirin. justice sandra day o’connor delivered the opinion of the court, conceding on two points to the government. first, she acknowledged that the constitution did not bar citizens from being held in military detention. second, she held that the aumf allowed for the detention of enemy combatants.40 nonetheless, justice o’connor condemned the behavior of the bush administration, asserting that “a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.”41 in this way, although the supreme court allowed the government to hold u.s. citizens deemed enemy combatants in military custody, they did so under scrutiny of the judiciary. in an effort to balance the right to due process of american citizens with national security interests, the court set forth a balancing test using the same procedure as outlined in mathew v. eldridge (1976). as a result, american citizens deemed enemy combatants would be granted the right to council and must “receive notice of the factual basis for his classification, and a fair opportunity to rebut the government's factual assertions before a 39 luebbert, “the laws will fall silent,” 106. 40 dorf, “the detention and trial of enemy combatants,” 51. 41 o’connor, hamdi v. rumsfeld (opinion of o’connor, j.), 542 u.s. 507 (2004). 50 neutral decisionmaker.”42 overall, the court in hamdi attempted to balance national security with individual rights. its effort to not infringe upon the power of the executive resulted in a stern denouncement and an acknowledgment of the legality of the government to hold american citizens in military detention. despite the court being handcuffed by the precedent set in quirin, it was still able to protect u.s. citizens’ rights more adequately than before, as it limited the unchecked power of the executive. thus, while civil liberties in hamdi were not protected much past providing a test for the judiciary to deem the legality of an abridgment of due process, this was an important step in checking the executive’s power during national security crises. in contrast with their initial stance of allowing for executive energy during times of threats to national security, the supreme court delivered a series of substantial blows to executive power following the rasul and hamdi rulings. in hamdan v. rumsfeld (2006), the supreme court held that the aumf and the more recent detainee treatment act of 2005 did not give the president the authority to establish military commissions to try detainees and that military commissions could not be used under any circumstances without congressional approval.43 in addition, the court asserted that “whether or not hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of […] common article 3 of the third geneva convention because it had the power to convict based on evidence the accused would never see or hear.”44 as a result, the court narrowed the scope of ex post quirin and johnson v. eisentrager, upon which the bush administration had relied for precedent in previous cases like rasul and hamdi. instead, as michael dorf of cornell university explained, “the hamdan court asserted the primacy of what it deemed ‘the seminal case of ex parte milligan.’”45 consequently, the federal government’s power was substantially curbed because of hamdan and, in an effort to restore this power, congress passed the military commissions act of 2006 (mca). thus, the supreme court’s judgment in hamdan can be seen as a departure from its previous holding in relation to enemy combatants’ rights, as it seemed to ignore the precedents it had 42 o’connor, 542 u.s. 43 michael c dorf, “the orwellian military commissions act of 2006,” n.d., 10. (11) 44 “hamdan v. rumsfeld brief (merits),” october 21, 2014, https://www.justice.gov/osg/brief/hamdan-v-rumsfeldbrief-merits. 45 dorf, michael c., “the orwellian military commissions act of 2006” (2007). cornell law faculty publications. paper 55, 11. http://scholarship.law.cornell.edu/facpub/55 51 previously cited and reverted back to the court’s rationale from the 19th century civil war cases. on october 17, 2006, president bush signed the mca into law following a 65-34 vote in the senate.46 as a result of the mca, congress formally granted the president the power to “establish military commissions for areas declared to be under martial law or in occupied territories should circumstances so require.”47 moreover, section 7 of the mca, entitled “habeas corpus matters” reads: (1) no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the united states who has been determined by the united states to have been properly detained as an enemy combatant or is awaiting such determination. (2) except as provided in paragraphs (2) and (3) of section 1005(e) of the detainee treatment act of 2005 (10 u.s.c. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the united states or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the united states and has been determined by the united states to have been properly detained as an enemy combatant or is awaiting such determination.48 in restricting the ability of the judiciary to fulfill their role of considering petitions for writs of habeas corpus as designated under the judiciary act of 1789, the mca abridges the rights of those designated enemy combatants. moreover, as dorf explains, under the mca “the president could make his own determination that a permanent resident alien is an unlawful enemy combatant, order that permanent resident alien detained and tortured within the united states, and no court would have jurisdiction to hear any complaint filed on that alien’s behalf challenging the lawfulness of his custody and treatment.”49 thus, in the wake of the mca signing, many civil liberties advocates denounced it as unconstitutional. regardless, the tides of patriotism and the salience of national security allowed for the bill 46 “s. 3930 (109th): military commissions act of 2006,” govtrack, accessed april 19, 2021, https://www.govtrack.us/congress/votes/109-2006/s259. 47 u.s. congress, senate, military commissions act of 2006, s.3930, 109th congress, introduced in senate september 22, 2006, https://www.loc.gov/collections/military-legal-resources/?q=pdf/pl-109-366.pdf. 48 military commissions act of 2006, § 7. 49 dorf, “the orwellian military commissions act of 2006,” 16. 52 to be rushed through congress with minimal debate, and led to its acceptance by many as a necessary provision.50 despite this, in 2008 the supreme court heard the case boumediene v. bush, which directly challenged the legality of the mca. after an initial rejection, the court eventually granted the certiorari and heard the case in december of 2007. on june 12, 2008 justice kennedy delivered the opinion of the court, which ruled in favor of boumediene in a 5-4 majority.51 the court held that the petitioners had a “constitutional privilege of habeas corpus,” and because “the dta’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the habeas writ, mca §7 operates as an unconstitutional suspension of the writ.”52 in this way, the mca was struck down as unconstitutional, as the court did not to submit to the notion that “the constitution necessarily stops where de jure sovereignty ends.”53 thus, the court’s opinion, though slightly narrow in its respect to the treatment of enemy combatants in general, restricted the u.s. government’s ability to deny those designated enemy combatants at guantanamo bay prison the writ of habeas corpus. in reviewing these post-9/11 cases, it becomes clear that the bush administration’s motivations for using the guantanamo bay prison involved the freedom it granted them to act beyond the jurisdiction of the u.s. judicial system.54 the supreme court’s decision in boumediene maintained the trend in the early 2000s of the courts reigning in the executive’s persistent abridgment of civil liberties in the interest of national security. after boumediene, the designated enemy combatants held at guantanamo bay now have a legal right to petition u.s. domestic courts for habeas corpus relief. however, boumediene and cases like it narrowed the scope, as their rulings on jurisdiction only pertain to guantanamo. the question still remains on what rights are extended to enemy combatants held outside the u.s. and guantanamo.55 evidently, justice black’s critique contained in his dissent in johnson v. eisentrager still remains true: “the court is fashioning wholly indefensible doctrine if it permits the executive branch, by deciding where its prisoners will be tried and imprisoned, 50 neal kumar katyal, “hamdan v. rumsfeld: the legal academy goes to practice,” harvard law review 120, no. 65 (2006): 104. 51 boumediene v. bush / odah v. united states, 553 u.s. 723 (2008) 52 boumediene v. bush / odah v. united states, 553 u.s. 723 (2008) 53 “boumediene v. bush: leading case,” harvard law review 122, no. 1 (november 2008): 395, 397. 54 “boumediene v. bush: leading case,” harvard law review, 402. 55 sidhu, “shadowing the flag: extending the habeas writ beyond guantanamo,” 43. 53 to deprive all federal courts of their power to protect against a federal executive's illegal incarcerations.”56 the history of united states military conflicts has brought with it not only domestic concerns about national security but also more fundamental questions regarding the rights extended to those deemed enemy combatants. the progression of supreme court opinions throughout the civil war, world war ii, and the war on terror reveals a variation in its jurisprudence. more importantly, however, this progression reveals the important role of the courts in balancing and even restraining the energy of the president in times of war. during world war ii, the courts tended to err on the side of minimal restraint. after the events of the vietnam war and other drawn-out armed conflicts though, the court returned to a civil war era interpretation of the writ of habeas corpus, aiding in the protection of civil liberties (specifically in guantanamo bay). the court’s decisions in the early 2000s seem to cast aside precedent set in world war ii in favor of returning to the civil war-era interpretations. thus, as is revealed by the cases examined above, the supreme court has varied substantially in its treatment of some of the most undesired people to american citizens: enemy combatants. 56 johnson v. eisentrager, 339 u.s. 763 (1950). 2_murphy.docx bellarmine law society review volume xv | issue ii article ii disney’s hidden mouse trap: the arbitrariness of arbitration clauses joseph murphy boston college, murpbdg@bc.edu disney’s hidden mouse trap: the arbitrariness of arbitration clauses joseph murphy1 abstract: with an increased reliance on technology and a surge in digital agreements, people have become desensitized to the binding nature of the terms to which they consent in everyday online interactions. this was made readily visible in the aftermath of the death of a woman named kanokporn tangsuan due to an allergic reaction in disney springs and how her widower found himself legally constrained by the terms of service of a free disney+ trial that he had signed up for without second thought. this paper analyzes the case brought forth by tangsuan’s husband, jeffrey piccolo, the scope of arbitration clauses like those utilized by disney, and how they restrict possible avenues of legal action. it brings into conversation the power imbalance often apparent in such legal clauses, the question of their continued validity on the basis of legal precedent, and why a reexamination of their prevalence in today’s legal landscape is necessary. the streaming platform disney+ currently has over 150 million subscribers, and approximately half of internet users with children under ten years old in the united states are subscribed to the platform.2 with countless titles, and now encompassing the works of marvel and lucasfilm, it is obvious why people would sign up for it. what many did not know was that they would be forfeiting their opportunity to pursue litigation if wronged as a condition of their subscription to disney+. disney has conveniently failed to mention in their advertising of the platform that the act of paying for this service, or even just signing up for a free trial, would restrict people’s ability to take walt disney company to court, as well as limiting discovery, 2 tom grater, “half of u.s. families with young children now subscribe to disney+ – report.” deadline (blog), march 17, 2020. https://deadline.com/2020/03/half-of-us-families-young-children-subscribe-disney-report-1202885339/. 1 joseph murphy is a senior at boston college studying political science and latin. upon graduation, he hopes to attend law school, focusing specifically on the rule of law, employment and labor law, and administrative law. joseph would like to extend special thanks to his parents and sisters for their constant and much-needed support, as well as to professor elizabeth hendler for her guidance and mentorship throughout his undergraduate career. 39 https://deadline.com/2020/03/half-of-us-families-young-children-subscribe-disney-report-1202885339/ class actions, and other comprehensive remedies. after a new york university doctor died at a restaurant on disney property and her family attempted to get restitution and justice for her death, disney cited the terms of use agreed to on their disney+ and walt disney parks and resort (wdpr) website as to why they could not pursue anything besides arbitration. this case raises many questions regarding the scope of these arbitration clauses, their applicability to this specific situation, and what this means in a wider sense regarding transparency in agreements and terms of service. on october 5, 2023, jeffrey piccolo, his wife kanokporn tangsuan, and her mother dined at a restaurant in disney springs, which is an outdoor shopping and dining complex. they had chosen to eat at raglan road irish pub and restaurant, specifically because “both wdpr and raglan road advertised and represented to the public that food allergies and/or the accommodation of persons with food allergies was a top priority and that patrons/guests could consult with a chef and/or special diets trained cast member before placing a food order.”3 tangsuan had informed the group’s server about her food allergies and was assured that the restaurant could properly accommodate them. after eating at raglan road irish pub and restaurant, tangsuan soon died of anaphylaxis resulting from elevated levels of nut and dairy. piccolo filed a wrongful death lawsuit against raglan road and wdpr, but wdpr, in response, filed a motion to compel arbitration and stay proceedings. it cited how piccolo had no choice but to arbitrate because he had agreed to the terms of use when signing up for a free trial of disney+ and using the wdpr website to buy park tickets for epcot.4 interestingly enough, despite their apparent ability to force arbitration, disney decided to back down from this position. disney experiences chairman josh d’amaro said in a statement: 4 ibid. 3 jeffrey j. piccolo, as personal representative of the estate of kanokporn tangsuan, deceased, v. great irish pubs florida, inc., et al., case no. 2024-ca-001616-o (ninth judicial circuit, may 31, 2024). 40 “at disney, we strive to put humanity above all other considerations. with such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss. as such, we’ve decided to waive our right to arbitration and have the matter proceed in court.”5 whether this decision was made because of an emotional epiphany regarding the victim’s “humanity” or because of the immense backlash and publicity incited by the case is an issue that will not be discussed by this paper. before discussing the relevant statutes and cases that would inform the analysis of disney’s position, it is important to examine the arbitration clause at the heart of the dispute and the terms of use as a whole. in the disney terms of use, it does clearly and concisely state at the beginning that: “any disputes between you and us, except disputes resolved in small claims court or relating to the ownership or enforcement of intellectual property rights, are subject to a class action waiver and must be resolved by individual binding arbitration. please read the arbitration provision (section 8. below) as it affects your rights under this contract.”6 furthermore, within section 8, there are two clauses to note regarding the applicability and longevity of this arbitration clause. section 8, clause f, entitled “arbitration agreement survival,” states, “this arbitration agreement will survive the termination of your relationship with disney, including any revocation of consent or other action by you to end your engagement 6 “english – disney terms of use – united states.” disney terms of use. accessed january 4, 2025. https://disneytermsofuse.com/english/. 5 michael bartiromo, “disney no longer trying to dismiss wrongful death lawsuit after claiming protections from disney+ usage terms.” kxan austin, august 24, 2024. https://www.kxan.com/news/national-news/disney-no-longer-trying-to-dismiss-wrongful-death-lawsuit-after-claimin g-protections-from-disney-usage-terms/. 41 with or use of any disney products or any communication with us.”7 this means that even if the agreement to the terms of use occurred in the pretense of entering into a free trial, the arbitration waiver forgoing one’s ability to bring disney to court reaches to infinity and beyond. interestingly enough, disney does have an “opt-out” clause, which states: “you may opt out of this arbitration agreement via mail. if you do so, neither party can force the other party to arbitrate. to opt out, you must notify us in writing no later than thirty (30) calendar days after first becoming subject to this arbitration agreement; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with this agreement.”8 in the relevant case, piccolo had not notified disney in writing of his unwillingness to be bound by the arbitration clause, but it is fair to assume that he, along with many others before the widespread coverage of this case, did not know of the binding aspect of the terms. an area of interest in this case surrounds the location in which the incident occurred. disney springs, although utilizing the company name and being technically within disney property, consists of many independent restaurants and stores that would seem to be outside of strict disney management. given the fact that raglan road is a third-party restaurant that is not owned by disney but rather is a part of a mall-like complex, how could the plaintiffs be successful in their lawsuit against disney? the plaintiff’s complaint states, “upon information and belief, disney had control over the menu of food offered, the hiring and/or training of the wait staff, and the policies and procedures as it pertains to food allergies at disney springs restaurants, such as raglan road.”9 even though raglan road’s status as an independent restaurant not owned by the disney corporation might appear to limit liability and disney’s role 9 piccolo v. great irish pubs florida, inc., et al. 8 ibid. 7 ibid. 42 in the case, the fact that disney had control over various aspects of operation of raglan road makes them a viable and suitable candidate for piccolo’s wrongful death lawsuit. from a perspective of precedent, wdpr’s position of arbitration is supported. originally in the case of discover bank v. superior court of los angeles in 2005, where discover bank had forced arbitration despite blatantly inflicting large amounts of damages to be dispersed amongst many consumers, the california supreme court ruled that “class action waivers,” such as the one within disney’s terms of use, “in certain consumer arbitration agreements are unconscionable.”10 yet, in the case of at&t mobility llc v. concepcion of 2011, in which customers of at&t had claimed that the company engaged in fraudulent behavior regarding the promotion of a free phone offer, the supreme court decided that the federal arbitration act, whose purpose was to “ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings,” preempted the discover bank rule.11 thus, “class-action waivers in consumer arbitration agreements are enforceable even where those waivers are unconscionable under applicable state law.”12 another case validating disney’s position is meyer v. uber technologies, inc., which is particularly relevant given it relates to the validation of the arbitration clause of a company’s terms of service. in meyer v. uber technologies inc., the plaintiff-counter-defendant-appellee spencer meyer had alleged that the uber application allowed third-party drivers to illegally fix prices; they had attempted to force arbitration because meyer had made an uber account and had thus agreed to an arbitration clause in the terms of service. the district court asserted that meyer 12 ibid., 114. 11 ibid., 114. 10 smith, steven, et al., “international commercial dispute resolution.” the international lawyer 46, no. 1 (2012): 113–27. http://www.jstor.org/stable/23827354. 43 “did not have reasonably conspicuous notice of and did not unambiguously manifest assent to uber’s terms of service when he registered.”13 meyer’s case was appealed to the united states court of appeals for the second circuit which emphasized the role of state contract law in determining the validity of the agreement and noted, “where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a reasonably prudent user would be on inquiry notice of the terms.”14 the second circuit also commented on the fact that the signage of the terms of service occurred over the internet, which adds layers of nuance, saying: “courts around the country have recognized that [an] electronic [click] can suffice to signify the acceptance of a contract…[t]here is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement.’”15 just as in the disney terms of use, the uber terms have a hyperlink that direct the user to the specific sections and clauses. even though this seems to add a barrier to the user, the second circuit noted that “a reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not.”16 in the end, the second circuit vacated the initial order of the district court that denied the motion to compel arbitration and remanded the case to the district court to determine whether or not disney had waived its rights to arbitration. the manner in which piccolo acted is also a major area of interest for the case. the capacity by which he acted when he originally signed disney’s terms of use, (when he signed 16 ibid. 15 ibid. 14 ibid. 13 “meyer v. uber technologies, inc., no. 16-2750 (2d cir. 2017),” justia law, https://law.justia.com/cases/federal/appellate-courts/ca2/16-2750/16-2750-2017-08-17.html. 44 up for the free trial or used the website to buy park tickets,) differs from the capacity by which he is acting when filing a lawsuit against wpdr and raglan road. indeed, it was jeffrey piccolo who signed the agreement of disney+ that included the arbitration clause. this does not extend to piccolo’s role in the lawsuit, though, as the plaintiff in the case is “jeffrey j. piccolo as personal representative of the estate of kanokporn tangsuan, deceased.”17 kanokporn tangsuan was the individual who was wronged by disney, and it was piccolo, not her, who entered the agreement with disney. it is on her behalf and estate that piccolo is bringing forth the lawsuit, and thus the arbitration clause is not truly applicable to the plaintiff in question. raglan road and other restaurants in the disney springs complex have been highlighted in recent news as well because of their ‘independent’ status, which is of much interest with liability cases such as this one. in september 2024, workers of restaurants in disney springs banded together to demand better conditions, such as higher wages and benefits like health insurance. in reference to this situation, jeremy haicken, president of the unite here local 737, which represents disney employees said, “we’ve discovered that there is a second class of workers at walt disney world, those workers are the subcontracted employees of restaurants that are not operated by disney…these are restaurants that are operated by subcontractors at disney springs.”18 not only does disney distance itself from issues arising within these establishments by designating them as independent, but it provides reason by which it can deny these workers the same rights and benefits granted to those who work within the disney parks themselves. this case brings the scope of disney’s agreement and the arbitration clause as a whole into question and public scrutiny. it seems unconscionable that agreeing to terms and conditions 18 james wilkins, “‘second class’ in disney springs: restaurant workers push for better pay, benefits,” tampa bay times, september 19, 2024, https://www.tampabay.com/news/business/2024/09/19/second-class-disney-springs-restaurant-workers-push-better-p ay-benefits/. 17 piccolo v. great irish pubs florida, inc., et al. 45 of a free trial of a streaming service means waiving the ability to litigate for damages and death caused by a restaurant at a disney property. what does this mean going forward for entering into agreements with companies like disney? should consumers be more meticulous in their scanning of the terms of conditions, or should companies as expansive as disney be forced to be more forthcoming and transparent with possible legal restrictions one may incur by entering into agreements with them? arbitration clauses have been criticized greatly for being situationally manipulative and skewed towards the larger entities including them. drahozal (2001) notes concerns that arbitration clauses are “mandatory,” referring to the fact that refusing to comply with these clauses precludes the obtaining of the good or service in question.19 he also comments on the perception of arbitration itself as “unfair” because of “limited discovery, lack of a jury trial or a right to appeal, repeat-player advantages in selecting arbitrators, no class relief, and excessive fees unfairly disadvantage individuals bringing claims.”20 finally, he considers the fears of arbitration clauses as “unfair” due to the fact that “clauses drafted by corporations provide for biased tribunals and distant locations for hearings, preclude recovery of attorneys’ fees and punitive damages, shorten time limits for filing claims, and give the corporation, but not the individual, the ability to go to court for some or all claims.”21 he simultaneously assuages some concerns and claims that arbitration clause critics overlook information that would, to an extent, prevent corporations from abusing these clauses. he enumerates that business reputation’s major role in how corporations operate in agreements and arbitration institutions’ impetus to promote fairness as two constraining factors.22 regardless of whether or not fears of arbitration clauses 22 ibid., 766 21 ibid., 697 20 ibid. 19 christopher r. drahozal, “unfair arbitration clauses,” university of illinois law review 2001, no. 3 (2001). 46 are overstated, it is undeniable that their use could cause unimaginable damage if not put under strict scrutiny and regulation. although it is the consumer’s duty to read through terms of service when entering into agreements, it seems truly unconscionable to slip something as far-reaching and substantial as an arbitration clause into something as inconspicuous as a free trial to a streaming service. the terms of a streaming service should pertain to the streaming service itself, not realms completely disconnected from the agreement at hand. should someone be forbidden from bringing any lawsuit against amazon if one used a week-long free trial to the amazon prime streaming service a number of years ago? it is completely unjust for companies to take advantage of the pages and pages of legal jargon that comprise the terms of even the most inconspicuous contracts. the average person would not even consider that subscribing to disney+ in any capacity would hinder their legal rights vis-a-vis the walt disney company, and to sift through the implications of such agreements would require the assistance of legal aid or one’s own legal expertise. in order to ameliorate the divide between consumers’ duties in assessing agreements and the underhand nature of such minute clauses, it should be a necessity that companies at a minimum summarize what is being asked of the individual for the sake of contract clarity. 47 benjamin ward.docx bellarmine law society review volume xv | issue i article v foreign surveillance turned domestic: the foreign intelligence surveillance act (fisa) on trial benjamin ward boston college, wardbs@bc.edu foreign surveillance turned domestic: the foreign intelligence surveillance act (fisa) on trial benjamin ward 1 abstract: this review first contextualizes the history of the foreign intelligence surveillance act (fisa) and explores the ways that its scope has expanded through amendments such as section 702. in addition, this review considers the procedures used in fisa surveillance, with a focus on the practices of minimization and querying. with this grounding, the review then investigates a recent case (united states v. hasbajrami) where the defendant, a u.s. person, challenged the use of fisa and section 702 against him. the court ruled that warrantless section 702 surveillance, as it was carried out against hasbajrami, violated his fourth amendment protections. however, the court ultimately ruled in favor of the government, pursuant to the good faith exception. after analyzing the logic of the ruling, the review assesses the impact for future investigations. finally, the review offers a three-tiered approach to limiting fisa overreach in the future, looking at legislative, corporate, and individual steps. 1 benjamin ward is a graduating senior at boston college, where he majors in international studies and has a minor in faith, peace and justice. he is interested in the intersection of law and ethics. next year, ben will continue his education at boston college law school. finally, he has many thanks for prof. ashly scheufele, jd, for her guidance and support in the legal writing process. 107 introduction in this article, i begin with a review of the foreign intelligence surveillance act (fisa) and its evolution to contextualize the current discussion about balancing national security and individual privacy. i then turn to a recent ruling where fisa evidence factored into the arrest and conviction of a u.s. person. this case illustrates how fisa impacts the lives and privacy of u.s. persons, despite the statute’s stated foreign scope. after discussing why the ruling is worth our attention, i will work through how this ruling is a good starting point for a broader discussion of how to limit government overreach while also protecting national security. i offer three levels of limitations in this discussion: legislative, corporate, and individual. striking the balance between individual privacy and national security is deeply complex, so i intend for this article to be a starting point to grapple with these questions and consider the different roles of societal actors. overview history of the foreign intelligence surveillance act (fisa) in 1978, congress passed the foreign intelligence surveillance act (fisa) to enable law enforcement agencies to work around fourth amendment protections in foreign intelligence investigations and “get court orders for wiretaps and searches with a much lower standard of proof than required in a criminal investigation.”2 fisa warrants are issued by the foreign intelligence surveillance court (fisc), whose proceedings “are sealed and remain secret to even the subject of the warrant.”3 the powers of surveillance granted by fisa were enhanced by the usa patriot act (2001), most notably by expanding circumstances where surveillance is 3 jaeger, bertot, and mcclure, “the impact of the usa patriot act,” 298. 2 paul t. jaeger, john carlo bertot, and charles r. mcclure, “the impact of the usa patriot act on collection and analysis of personal information under the foreign intelligence surveillance act,” government information quarterly 20, no. 3 (july 2003): 297, https://doi.org/10.1016/s0740-624x(03)00057-1. 108 https://doi.org/10.1016/s0740-624x(03)00057-1 acceptable, adding a bolstered secrecy clause that further limits disclosures about fisa investigations, and broadening the power to surveil electronic communications.4 it is important to note, however, that the usa patriot act did not alter the exclusively foreign scope of fisa. while these laws were passed to promote national security, particularly against the threat of terrorism, they have the potential to undermine americans’ civil liberties. section 702 fisa was amended in 2008 by the fisa amendments act (faa) to include section 702, which allows for the attorney general (ag) and the director of national intelligence (dni) to jointly authorize the surveillance of non-u.s. persons, circumventing even the streamlined, secretive fisc warrant process.5 a u.s. person is defined as a “citizen of the united states or an alien lawfully admitted for permanent residence.”6 the goal of section 702 is to empower national security agencies to adapt to modern forms of electronic surveillance to collect foreign intelligence information. in practice, the ag and dni authorize the surveillance of certain categories of people, allowing intelligence agencies to determine the particular individuals to target.7 section 702 allows for surveillance to proceed without a court order/warrant, which, according to the office of the dni, is critical to national security because security services “couldn’t always meet the probable cause standard.”8 one key aspect of section 702 is that the 8 office of the director of national intelligence, “section 702 overview,” n.d., 2, https://www.dni.gov/files/icotr/section702-basics-infographic.pdf. 7 pclob, 35. 6 foreign intelligence surveillance act (fisa), 50 u.s. code § 1801(i) 5 the privacy and civil liberties oversight board, “report on the surveillance program operated pursuant to section 702 of the foreign intelligence surveillance act,” september 28, 2023, 2, https://documents.pclob.gov/prod/documents/oversightreport/d21d1c6b-6de3-4bc4-b018-6c9151a0497d /2023%20pclob%20702%20report,%20508%20completed,%20dec%203,%202024.pdf. (“pclob”) 4 jaeger, bertot, and mcclure, “the impact of the usa patriot act,” 299-300. 109 https://www.dni.gov/files/icotr/section702-basics-infographic.pdf https://documents.pclob.gov/prod/documents/oversightreport/d21d1c6b-6de3-4bc4-b018-6c9151a0497d/2023%20pclob%20702%20report,%20508%20completed,%20dec%203,%202024.pdf https://documents.pclob.gov/prod/documents/oversightreport/d21d1c6b-6de3-4bc4-b018-6c9151a0497d/2023%20pclob%20702%20report,%20508%20completed,%20dec%203,%202024.pdf target of surveillance must be reasonably believed to be located outside of the united states, and any targeting must not intentionally intercept data which was sent or received by a u.s. person.9 given the wider surveillance powers granted by fisa section 702, the risk of “reverse targeting” must be considered. reverse targeting refers to the practice of intentionally targeting someone outside the country to obtain communications with a person within the united states.10 using section 702 to intentionally target u.s. persons and circumvent the fourth amendment is plainly unlawful. however, the incidental collection of data on u.s. persons does occur and creates questions of how fourth amendment protections apply. to better understand how incidental collection occurs, a brief overview of section 702 procedure is necessary. surveillance procedure first, the government identifies a specific “selector” for surveillance, which may include a target’s email address or telephone number.11 with the compelled assistance of communication service providers, the government collects data on targets (those who are reasonably believed not to be u.s. persons).12 despite procedures to reduce instances of incidental collection of data on u.s. persons, the reality is that u.s. persons are inadvertently swept up in these surveillance operations. this occurs when a selector email/phone has had contact with a u.s. person, meaning that any contact between the target and the u.s. person also gets intercepted. for example, if a target exchanges emails with a u.s. person, both sides of the exchange are collected, sweeping data on the u.s. person into the surveillance. this incidental collection of data from u.s. persons without a warrant raises fourth amendment concerns. minimization & querying 12 pclob, 67. 11 pclob, 59. 10 pclob, 36. 9 fisa, §1802(a)(1)(b) 110 https://documents.pclob.gov/prod/documents/oversightreport/d21d1c6b-6de3-4bc4-b018-6c9151a0497d/2023%20pclob%20702%20report,%20508%20completed,%20dec%203,%202024.pdf government agencies each have their own “minimization” procedures to “reduce the privacy and civil liberties impact of the acquisition, retention, and dissemination of incidentally collected u.s. person information.”13 according to the u.s. code, surveillance data on u.s. persons must be minimized within 72 hours unless the data is useful in understanding foreign intelligence, is evidence of a crime that has occurred, or is authorized for retention by the attorney general under the belief that the data indicates bodily harm/death to any person.14 these exceptions to minimization procedures are vague, based on subjective evaluations of what might be useful, giving wide latitude to security services to retain data on u.s. persons. as a result, not all data is minimized, and troves of unminimized data are stored in massive agency databases.15 these databases have not been purged of data from u.s. persons. an agent can search through these databases through a process called “querying.”16 the data resulting from a query is presumed to have already been lawfully obtained through a fisa section 702 surveillance operation.17 through querying these massive, unminimized databases, the government can gain access to communications data of u.s. persons, incidentally collected through a prior section 702 surveillance operation targeting a non-u.s. person for foreign intelligence purposes. some refer to this procedure as “backdoor searching,” which is a circuitous loophole that creates an opportunity for security services to collect sensitive, personal data from u.s. persons without a warrant.18 evidence resulting from an alleged “backdoor search” was the primary issue in united states v. hasbajrami, 2016 u.s. dist. lexis 30613 (united states district court for the eastern district of new york, march 8, 2016, filed). 18 pclob, 185. 17 pclob, 88. 16 pclob, 88. 15 pclob, 155. 14 fisa, §1801(h)(1–4) 13 fisa, §1801(h) 111 section 702 on trial: hasbajrami facts the defendant, hasbajrami, was subject to an investigation by the federal bureau of investigation’s joint terrorism task force (jttf).19 in 2011, jttf agents arrested hasbajrami and charged him with attempting to provide material support to a terrorist organization.20 hasbajrami was a legal permanent resident located within the united states, making him a u.s. person. the defendant was arrested while traveling to pakistan, where he allegedly planned to join a terrorist organization and later fight against u.s. forces. the government disclosed that some of the evidence used in the case against hasbajrami was obtained through fisa collection, and the defendant was convicted after he pleaded guilty. after hasbajrami was already serving his sentence, the government made a further disclosure that some of the evidence against him originated from a warrantless fisa section 702 query. the absence of the warrant for the section 702 surveillance was significant because it may have violated hasbajrami’s constitutional rights as a u.s. person. based on this disclosure, the court permitted hasbajrami to withdraw his initial guilty plea and filed a motion to exclude the section 702 evidence.21 procedural history in 2015, the united states district court for the eastern district of new york ruled on hasbajrami’s motion to exclude the section 702 evidence, and the court released a memorandum 21 united states v. hasbajrami, 2024. 20 united states v. hasbajrami, 2024 u.s. dist. lexis 239431, 2025 wl 447498 (united states district court for the eastern district of new york, february 10, 2025, filed). substantial portions of this decision remain redacted. specific details of the investigation are omitted. however, the general facts of the case are well defined. this analysis is limited to the unredacted opinion issued in february 2025. 19 united states v. hasbajrami, 2016 u.s. dist. lexis 30613 (united states district court for the eastern district of new york, march 8, 2016, filed). 112 explaining the opinion in 2016.22 in the opinion, judge john gleeson denied the motion to suppress on the grounds that even though the surveillance constituted a search without a warrant on a u.s. person, the search met the reasonableness standard.23 the initial target of surveillance was a legitimate, non-u.s. target, and thus, the warrantless section 702 surveillance is unproblematic. the court ruled that the incidental interception of hasbajrami’s data, despite being a u.s. person, did not require a warrant because the initial surveillance was legitimate. gleeson wrote: “when surveillance is lawful in the first place—whether it is the domestic surveillance of u.s. persons pursuant to a warrant, or the warrantless surveillance of non-u.s. persons who are abroad—the incidental interception of non-targeted u.s. persons' communications with the targeted persons is also lawful.”24 hasbajrami appealed this ruling, and the united states court of appeals for the second circuit issued a ruling in 2019. the circuit court ruled in agreement with the district court that the incidental surveillance of the defendant was not in itself a violation of the fourth amendment. however, the circuit court took issue with the procedures used to store and query the data on the defendant. the court stated that “the storage and querying of information raises challenging constitutional questions, to which there are few clear answers in the case law.”25 the circuit court acknowledged that there was some precedent on how to treat querying, citing an earlier oregon district court ruling that “subsequent querying of a § 702 collection, even if u.s. person identifiers are used, is not a separate search and does not make § 702 25 united states v. hasbajrami, 945 f.3d 641, 2019 u.s. app. lexis 37583, 2019 wl 6888567 (united states court of appeals for the second circuit december 18, 2019, decided). 24 united states v. hasbajrami, 2016; citing united states v. mohamud, 2014 u.s. dist. lexis 85452, 2014 wl 2866749 (united states district court for the district of oregon, portland division june 24, 2014, filed). 23 united states v. hasbajrami, 2016. 22 united states v. hasbajrami, 2016. 113 https://advance.lexis.com/document/documentlink/?pdmfid=1519360&crid=88bcf1cc-bcda-4627-9667-2830108f3d73&pddocfullpath=%2fshared%2fdocument%2fcases%2furn%3acontentitem%3a5xsb-hrm1-jbdt-b0nk-00000-00&pdpinpoint=page_645_1107&pdcontentcomponentid=6386&pddoctitle=hasbajrami%2c+945+f.3d+at+645&pdproductcontenttypeid=urn%3apct%3a30&pdiskwicview=false&ecomp=g2x8k&prid=6a9c588d-b980-4683-a4d0-18410e7f9ec2 https://advance.lexis.com/document/documentlink/?pdmfid=1519360&crid=88bcf1cc-bcda-4627-9667-2830108f3d73&pddocfullpath=%2fshared%2fdocument%2fcases%2furn%3acontentitem%3a5xsb-hrm1-jbdt-b0nk-00000-00&pdpinpoint=page_645_1107&pdcontentcomponentid=6386&pddoctitle=hasbajrami%2c+945+f.3d+at+645&pdproductcontenttypeid=urn%3apct%3a30&pdiskwicview=false&ecomp=g2x8k&prid=6a9c588d-b980-4683-a4d0-18410e7f9ec2 surveillance unreasonable under the fourth amendment.”26 the circuit court stated, however, that it did not find the logic of that ruling to be persuasive. due to a lack of information on the specific nature of the storage and querying of hasbajrami’s data, the circuit court remanded the case back to the district court, directing the district court to specifically analyze the constitutionality of querying and whether it constituted a separate fourth amendment event. if deemed a separate fourth amendment event, the querying would require a warrant. the united states district court for the eastern district of new york ruled again on this case in 2024 and released the first opinion in january 2025.27 the district court’s opinion, which focused on querying, is detailed below. fourth amendment violation the district court in hasbajrami ruled that the government’s query into section 702-obtained communications from the defendant constituted a separate fourth amendment event. judge dearcy hall affirmed that “a search that relies on an initial warrant or exception to the warrant requirement is limited by its original justification, and to intrude further on lawfully acquired items requires new and independent approval.”28 therefore, the government’s querying implicated hasbajrami’s fourth amendment rights and required independent justification for the fruits of the query to be lawfully introduced as evidence at trial. the collection of data on the defendant was not, in itself, problematic (as established by the circuit court). the issue arises in that the data on hasbajrami was stored, and then later queried from an agency database.29 even though the data was in the possession of the government (in a database), the court ruled that the government needed a separate warrant to query this data. the opinion 29 hasbajrami v. united states, 2024. 28 united states v. hasbajrami, 2024. 27 an updated version of the opinion was released in february 2025, with no significant changes. the february decision is cited in this review. 26 united states v. hasbajrami, 2019; citing united states v. mohamud, 2014. 114 https://advance.lexis.com/document/documentlink/?pdmfid=1519360&crid=88bcf1cc-bcda-4627-9667-2830108f3d73&pddocfullpath=%2fshared%2fdocument%2fcases%2furn%3acontentitem%3a5xsb-hrm1-jbdt-b0nk-00000-00&pdpinpoint=page_645_1107&pdcontentcomponentid=6386&pddoctitle=hasbajrami%2c+945+f.3d+at+645&pdproductcontenttypeid=urn%3apct%3a30&pdiskwicview=false&ecomp=g2x8k&prid=6a9c588d-b980-4683-a4d0-18410e7f9ec2 relied on the supreme court decision in riley v. california, which held that law enforcement officers could not, without a warrant, search the digital contents of a cell phone lawfully seized during an arrest.30 this precedent has been applied to computers as well: the government “should not be able to comb through…computers plucking out new forms of evidence that the investigating agents have decided may be useful, at least not without obtaining a new warrant.”31 the district court in hasbajrami (2024) applied this precedent to the context of stored surveillance data, departing from the oregon district court’s reasoning in united states v. mohamud. judge hall concluded that “just as the officers in riley were required to obtain a warrant to search the seized cell phone, so too was the government required to obtain a warrant to view defendant’s communications that were lawfully intercepted” pursuant to section 702.32 exclusion of evidence: good faith exception evidence that is acquired in violation of the fourth amendment is, as a general rule, inadmissible in court.33 courts apply the exclusionary rule to exclude unlawfully seized evidence and any fruits of this evidence.34 the exclusionary rule functions by serving as a deterrent against law enforcement agencies using unlawful tactics, but is not without exception. where the benefit of deterrence is outweighed by substantial social costs, for example, courts have ruled it is inappropriate to apply the exclusionary rule.35 35 utah v. strieff, 579 u.s. 232, 136 s. ct. 2056, 195 l. ed. 2d 400, 2016 u.s. lexis 3926, 84 u.s.l.w. 4430, 26 fla. l. weekly fed. s 288 (supreme court of the united states june 20, 2016, decided) 34 segura v. united states, 468 u.s. 796, 104 s. ct. 3380, 82 l. ed. 2d 599, 1984 u.s. lexis 150, 52 u.s.l.w. 5128 (supreme court of the united states july 5, 1984, decided) 33 mapp v. ohio, 367 u.s. 643, 81 s. ct. 1684, 6 l. ed. 2d 1081, 1961 u.s. lexis 812, 84 a.l.r.2d 933, 86 ohio l. abs. 513, 16 ohio op. 2d 384 (supreme court of the united states june 19, 1961, decided). 32 united states v. hasbajrami, 2024. 31 united states v. sedaghaty, 728 f.3d 885, 2013 u.s. app. lexis 22234, 2013-2 u.s. tax cas. (cch) p50,492, 112 a.f.t.r.2d (ria) 2013-5864 (united states court of appeals for the ninth circuit august 23, 2013, decided). 30 riley v. california, 573 u.s. 373, 134 s. ct. 2473, 189 l. ed. 2d 430, 2014 u.s. lexis 4497, 82 u.s.l.w. 4558, 42 media l. rep. 1925, 24 fla. l. weekly fed. s 921, 60 comm. reg. (p & f) 1175, 2014 wl 2864483 (supreme court of the united states june 25, 2014, decided). 115 despite the ruling that the querying of hasbajrami’s data was unconstitutional, the district court rejected exclusion as a remedy. there are various exceptions to exclusion that may apply, and the district court worked through the relevant exceptions in its discussion. the court determined that the foreign intelligence exception did not apply, nor did other factors (e.g. exigency) that would have made the warrantless search reasonable. rather, the court determined that exclusion of section 702 evidence was inappropriate because the good faith exception applied.36 the good faith exception applies when an agent of the state acts with “an objectively reasonable good-faith belief that their conduct is lawful.”37, 38 the district court contends that when agents act in good faith, the deterrent rationale of the exclusionary rule loses its force.39 in this case, the court ruled that the good faith exception applied because the surveillance agents did not (and could not) have known that the court would rule that querying required a separate warrant. in fact, the 2014 united states v. mohamud ruling had indicated the opposite. impact of ruling the ruling by the district court in hasbajrami has now made it clear that querying requires a warrant, which means that a court must approve a query search of data, even if that data was initially acquired and stored lawfully under fisa section 702. therefore, it logically follows that a good-faith exception could not apply again to an agent who queries without a warrant. in the case of hasbajrami, the court ruled that the good faith exception applied, even 39 see this argument made in davis. 38 see also, herring v. united states, 555 u.s. 135, 129 s. ct. 695, 172 l. ed. 2d 496, 2009 u.s. lexis 581, 77 u.s.l.w. 4047, 21 fla. l. weekly fed. s 582 (supreme court of the united states january 14, 2009, decided). 37 davis v. united states, 564 u.s. 229, 131 s. ct. 2419, 180 l. ed. 2d 285, 2011 u.s. lexis 4560, 79 u.s.l.w. 4495, 68 a.l.r. fed. 2d 665, 22 fla. l. weekly fed. s 1144 (supreme court of the united states june 16, 2011, decided) 36 united states v. hasbajrami, 2024. 116 though hasbajrami correctly advanced the argument that his fourth amendment rights had been violated. limiting government overreach balancing national security and civil liberties laws like fisa and section 702 enable important efforts that mitigate risk to americans and american assets. however, unbridled access to surveil u.s. persons is a level of overreach that is unacceptable. the suggestions for restricting section 702 that i advance below are aimed at both empowering security services to do their job while also protecting personal privacy. to do this, i propose legislative, corporate, and individual steps to establish a middle ground that keeps government surveillance accountable to judicial review. legislative: amending section 702 section 702 of the fisa amendments act (faa) is codified in 50 usc § 1881a. currently, the statute outlines the following requirement for querying unminimized data on a u.s. person: federal bureau of investigation personnel must obtain prior approval from a federal bureau of investigation supervisor (or employee of equivalent or greater rank) or attorney who is authorized to access unminimized contents or noncontents obtained through acquisitions authorized under subsection (a) for any query of such unminimized contents or noncontents made using a united states person query term.40 this requirement can be circumvented, however, if the agent has “a reasonable belief that conducting the query could assist in mitigating or eliminating a threat to life or serious bodily harm.”41 other than the requirement of a supervisor's approval, the statute does not require a 41 fisa, §1881a (f)(3)(a)(ii) 40 fisa, §1881a (f)(3)(a)(i) 117 warrant or court order to run a query. to better reflect the district court decision in united states v. hasbajrami (2024), i propose a legislative amendment to 50 usc §1881a. specifically, the statute should reflect that running a query requires a warrant from the fisc. due to the sensitive nature of national security investigations, there must be exceptions to this warrant requirement, such as exigent circumstances.42 these exceptions rely on the standard of reasonableness, meaning that security services would have latitude to run queries without a warrant, but must then be prepared to defend those actions as reasonable in court. by amending 50 usc §1881a to include a warrant requirement for queries, congress would add a measure of protection for u.s. persons in the form of judicial oversight, while still preserving the power of security services to run such queries. corporate: the role of telecommunication companies a key element of the fisa telecommunications surveillance process is the compelled assistance of electronic communication service providers (ecsps). fisa requires that, if an ecsp receives a surveillance request from the government, it must “immediately provide the government with all information, facilities, or assistance necessary to accomplish the acquisition.”43 an intelligence agency on its own does not have access to a person’s email correspondence. rather, the agency requests that the relevant email service provider share that user’s data. the government compensates the company “at the prevailing rate” for the requested information.44 given the critical role that ecsps play in government investigations, they are 44 fisa, §1881a (i)(2) 43 fisa, §1881a (i)(1) 42 united states v. mcconney, 728 f.2d 1195, 1984 u.s. app. lexis 25576 (united states court of appeals for the ninth circuit february 10, 1984, decided); exigency defined as “circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” 118 sometimes referred to as “surveillance intermediaries.”45 while the government wields significant power of compulsion over these surveillance intermediaries, there are legal steps that an ecsp can take to resist transferring user information. an ecsp may challenge a request from the government by filing a petition to the foreign intelligence surveillance court (fisc) and following appeal procedures up to the supreme court.46 given ecsp’s crucial role in the section 702 process, some commentators argue that these companies have the power to shape and negotiate surveillance practices in a more meaningful way than even the courts.47 when an ecsp resists a data request from the government, it forces the surveillance agency to justify its request in court. therefore, ecsps have the power to force surveillance agencies to undergo a more thorough process of judicial review. along with this logic, some argue that the ecsps are best equipped to pursue surveillance-related litigation (rather than individuals), given the experience these companies have with surveillance requests and the legal resources at their disposal.48 therefore, i argue that in addition to a legislative amendment to fisa section 702, ecsps ought to take a more active role in protecting users’ privacy from government oversight. there are competing incentives for an ecsp to assist or resist government surveillance. the obvious incentive to assist is that doing so puts the company in good graces with its regulators. telecommunication companies also are (or should be) driven by profit-maximization, and therefore, there remains a strong incentive to protect their public reputation. current events play a large role in this incentive matrix. for example, in the wake of the 9/11 attacks, ecsps, 48 “more data, more problems,” 1739. 47 “more data, more problems,” 1722. 46 fisa, §1881a (i)(4) 45 “developments in the law: more data, more problems,” harvard law review 131, no. 6 (2018): 1722, https://www.jstor.org/stable/pdf/44865881.pdf. 119 https://www.jstor.org/stable/pdf/44865881.pdf without precedent, yielded almost entirely to the needs of security services.49 here, the companies perhaps acted out of patriotism, a sentiment shared by consumers at the time. in contrast, after the snowden disclosures, many ecsps began to challenge national security-compelled assistance requests.50 this behavior reflected consumer aversion to the perception of “big brother” surveillance. these examples demonstrate the key role ecsps play in the surveillance process and provide a precedent for resisting government overreach, particularly when doing so aligns with consumer sentiment. individual: the role of consumers compared to courts and corporations, the individual holds relatively little power in the process of resisting government surveillance. nonetheless, there are important steps for individuals to take to counter government overreach in the realm of surveillance. one commentator summarizes some of the methods of individual resistance as the following: “voting, litigating, hiding, and buying.”51 the first method, voting, involves electing privacy-minded officials. it remains uncertain, however, the degree to which individually elected officials can influence the massive structure of the national security apparatus. litigating refers to individuals suing the government for privacy infractions. the issues of harm and standing make litigating at the individual level quite challenging, especially given that most surveillance occurs in secret (i.e., a person would generally never know that surveillance occurred).52 hiding refers to individual efforts to protect data, such as encrypting communications. there is value in this step, but the reality is that the government can often still interpret or break encryptions.53 while these 53 calo, “can americans resist surveillance?” 38. 52 calo, “can americans resist surveillance?” 34. 51 ryan calo, “can americans resist surveillance?” the university of chicago law review 83, no. 23 (2016): 30. 50 “more data, more problems,” 1726. 49 “more data, more problems,” 1725. 120 individual tactics should certainly not be written off, there is most value in the method of ‘buying,’ or using market pressure to influence ecsps to take steps to protect their consumers’ privacy. in the previous section, i argued that ecsps have immense power to protect individual privacy if properly incentivized to do so. therefore, the most effective individual strategy to resist surveillance may be to give telecommunication companies the incentive they need to resist compelled assistance and force judicial review. to be sure, there are challenges to this tactic. for example, promises of privacy by a company are relatively unenforceable, leaving the consumer with few resources in the event of surveillance cooperation. one commentator highlights that it is extremely unlikely that the federal trade commission (ftc) would penalize an ecsp for deceptive statements if that company is cooperating with another government enforcement agency, as would be the case in a surveillance collection.54 i argue, however, that the risk of large-scale consumer mistrust is incentive enough for ecsps to at least make efforts to respect privacy. if not, more privacy-minded companies will win over consumer bases. therefore, an individual can resist surveillance overreach by being informed about the policies of the telecommunication companies they use and selecting ecsps that best align with the level of privacy that they desire. this market pressure, at least on a large scale, has the potential to encourage ecsps to add more hurdles to the practice of compelled assistance. conclusion the foreign intelligence surveillance act, including the more recent section 702, empowers the government to perform critical national security functions. through its use, fisa 54 calo, “can americans resist surveillance?” 41. 121 section 702 has grown into a pathway to deploy intelligence resources against u.s. persons, a reality that deeply contravenes the stated scope of fisa. through a series of highly secretive procedures, and despite policies of minimization, data on u.s. persons is stored and used in investigations and trials, as seen in the case against hasbajrami. the recent ruling in united states v. hasbajrami (2024) has set an important precedent that querying data is its own fourth amendment event and thus requires a court-issued warrant. building off this important ruling, i propose a three-level approach to resisting government overreach in surveillance. on the legislative level, i urge amending section 702 to reflect the hasbajrami reasoning and require a warrant for any querying of fisa data. on the corporate level, i argue that electronic communication service providers have a role to play in resisting (not flatly rejecting) compelled assistance requests to require some degree of judicial review. finally, at the individual level, i argue that individual consumers have a role to play in shaping market pressures to encourage ecsps to keep government surveillance in check. 122 final treanor, darya.docx bellarmine law society review volume xiii | issue ii article v awell-regulated militia: a historical reading of the second amendment darya treanor boston college, treanoda@bc.edu awell-regulated militia: a historical reading of the second amendment darya treanor 1 abstract: the second amendment is one of the most controversial parts of the united states constitution, and since its reinterpretation in the 2008 supreme court case d.c. v. heller, it has officially been understood to protect the individual right to own and bear arms. even the opponents of this view, who often point to the militia clause to argue that the amendment is not about individual gun ownership, do not pay enough attention to the military history and language behind the second amendment. this paper will argue that the second amendment was initially written to protect the rights of service members, not civilians. if it were to be interpreted and applied according to this originalist reading, the second amendment would be able to invalidate laws and regulations against lgbtq+ people in the military or restrictions on women in combat. this paper lays out a historical explanation of why the second amendment should be read this way and an example of how the legal reasoning springing from this reading could be used to protect the civil rights of members of the american armed forces. introduction the exact wording of the second amendment to the united states constitution is “a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”2 there are many ways to read this passage, but in the 2008 case d.c. v. heller, the united states supreme court chose to interpret the amendment as a protection of the individual right to gun ownership, despite the wealth of historical data showing that the framers of the constitution had no such intention. this interpretation of the second amendment, however, completely overlooks the militia clause, which is consequentially underutilized and too often ignored in contemporary debate. this is a misgiving because while the militia clause is not of much use in the political and legal fight over gun control laws, it shows promise as a defense of the rights of soldiers. in particular, a historically informed reading 2 u.s. constitution, amend. ii. 1 darya treanor is a senior at boston college studying philosophy and political science. she is interested in the legal and constitutional history of the united states, and plans on attending law school starting in the fall of 2024. 65 of the second amendment might provide legal grounds for a constitutional defense of lgbtq+ soldiers facing discrimination in the united states military. summary to summarize the legal argument, based on the exact language of the constitution and its author’s own interpretation, the second amendment establishes the right of states to maintain a militia and the right of citizens to join their state militia. the national guard, the legally recognized successor of state militias, has now been incorporated into the standing military, so regulations about joining the military should match those of the national guard. in other words, by incorporating the national guard into the standing military, the government also incorporated laws and provisions like the second amendment so that they now apply to the standing military. the second amendment, therefore, protects an individual’s right to join the military and serve their country, and given the fourteenth amendment, sex (and therefore sexuality and gender identity, which are reliant on sex) are protected categories against which the government cannot discriminate. any policy that would discriminate against lgbtq+ americans seeking to join the military violates the second amendment and is consequently argued unconstitutional. origins of the second amendment the second amendment to the us constitution was passed in 1971, along with the other amendments that make up the bill of rights. as congress deliberated on the need for the bill of rights and for specific amendments, many issues had to be discussed and clarified. however, during the discussion of what would become the second amendment, “what was not mentioned at all, by anyone, was any private use of arms.”3 instead, the congressmen discussed the purpose of a militia and how to ensure that the states were able to maintain militias without interference from the federal government, thus allowing states to protect themselves from federal overreach. states’ rights and autonomy, and the role of a militia in securing the same, are the proper subject of the amendment. there is no sign that the amendment addressed private gun ownership or use. in fact, the debate surrounding what later became the second amendment invoked the rights of individuals, specifically, religious freedom. future vice president elbridge gerry argued that congress should alter a clause from the proposed amendment reading, “but no person 3 robert a. goldwin, “from parchment to power,” (washington: the aei press, 1997), 128. 66 religiously scrupulous shall be compelled to bear arms.”4 gerry worried that this clause, meant to allow conscientious objectors to avoid military service, could be co-opted by the federal government to designate members of certain religious groups as religiously scrupulous and then ban them from bearing arms and joining the militia. by misusing the clause in this way, gerry believed that the federal government could arrogate state power over the state militias and even stop the formation of effective militias altogether. gerry’s concern was that the federal government might strip the right to bear arms from individuals based on their religious backgrounds; this fear suggests that the right to bear arms was not only intended to allow the establishment of state militias, but it would also protect the rights of individuals to join those state militias. gerry’s suggestion that the conscientious objector clause should be changed in order to close this loophole was narrowly defeated, but the debate continued on the amendment’s original draft, which read: “[t]he right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”5 this expanded attempt to summarize the founders’ thoughts on the right to bear arms makes it very clear that the second amendment is, at its core, a military regulation. between the initial debate about the amendment and its ultimate ratification and adoption, the language evolved and changed. nevertheless, the origins of the second amendment strongly suggest that it was intended to protect the right of citizens to organize in regulated and state-run military groups. there is no textual or contextual suggestion of an individual right to bear arms. the military origins of the second amendment appear to be largely ignored in debates over its role in modern law and jurisprudence; however, they are relevant to certain contemporary military applications. pre-heller second amendment law many americans would be surprised to learn that until 2008, the supreme court had never held that the us constitution provides for the individual right to own a gun. although people claimed that it was a constitutionally protected right before the supreme court recognized 5 annals of congress, 1st cong., 1st sess., 451. available at: https://web.archive.org/web/20110111095149/http://memory.loc.gov/cgi-bin/ampage?collid=llac&filename=001%2 fllac001.db&recnum=227. 4 ibid 127. 67 https://web.archive.org/web/20110111095149/http://memory.loc.gov/cgi-bin/ampage?collid=llac&filename=001%2fllac001.db&recnum=227 https://web.archive.org/web/20110111095149/http://memory.loc.gov/cgi-bin/ampage?collid=llac&filename=001%2fllac001.db&recnum=227 that right, individual gun ownership only came to be understood as a right very late in american constitutional discourse. many twentieth-century scholars of the constitution believed that when the second amendment refers to arms, it means specifically arms for use in well-regulated state militias. david hutchinson, for example, argued in 1928 that the relevant "arms" were “those of the soldier to be used for defence [sic], and [does] not include knives, daggers, sling-shots, or other such weapons.”6 while his specific assertion about second amendment relevance to weapons other than firearms would not be readily accepted today, the implication here is not only that “arms” are for use in a regulated militia but also that “[t]he carrying of concealed weapons may, therefore, be prohibited by law under the police power.”7 hutchinson cites the supreme court case us v. cruickshank and several federal and state laws to support this claim. it is telling that, in his nearly four-hundred-page book on the origins of the ideas within the constitution, he dedicates less than a full page to the second amendment. in contrast, the first amendment is the focus of four and a half pages of detailed dissection, and even the oft-ignored third amendment is the subject of one and a half pages. this suggests that, in the early 20th century, hutchinson considered his interpretation of the second amendment to be so blatantly obvious that he did not have to go to any great lengths to prove it or address any other opinions. in short, in this period, it was widely understood that the second amendment did not invalidate the existence of regulations and limits on individual gun ownership. the landmark 2008 case that changed the understanding of the law was district of columbia v. heller. while this case has been praised as a long-awaited recognition of individual freedoms, it has also been criticized as blatant judicial activism from a conservative court. the case concerns a dc law that placed limits and regulations on the ownership of handguns, including a ban on the registration of handguns and requirements for how legally owned firearms had to be stored when not in use.8 the plaintiffs, including the case’s namesake dick anthony heller, asked the courts “to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home” on 8 district of columbia v. heller, 478 f.3d 370 (u.s. 2008). 7 david b. kopel, clayton e. cramer & joseph e. olson, knives and the second amendment, 47 u. mich. j. l. reform 167 (2013). available at: https://repository.law.umich.edu/mjlr/vol47/iss1/4. david hutchinson, the foundations of the constitution (new jersey: university books, inc., 1975), 291. 6 david hutchinson, the foundations of the constitution (new jersey: university books, inc., 1975), 291. 68 https://repository.law.umich.edu/mjlr/vol47/iss1/4 second amendment grounds.9 after the district court dismissed the suit, the plaintiffs appealed, and the supreme court reversed the lower court’s decision and held that the second amendment protects the individual right to own firearms, regardless of militia or military service, and to use those firearms for lawful purposes. until heller, the legal consensus was that the second amendment did not prevent the creation and enforcement of gun regulations, and in fact, “no federal appellate court had ever invalidated any law as a violation of the second amendment.”10 as such, heller represents a marked shift in judicial behavior as well as mainstream thought about the amendment. most judges and legal scholars, such as justice james c. mcreynolds in united states v. miller, understood the militia clause to mean that the second amendment only applied to the right to own and operate firearms so long as it had “some reasonable relationship to the preservation or efficiency of a well-regulated militia.”11 regulations on gun ownership in the us date back to the british colonies in america, and the presence of these largely unchallenged laws suggests that early americans did not view gun control as conflicting with the second amendment or the american value of freedom. even after gaining independence, most states continued using english common law, complete with traditional restrictions on gun use, such as a prohibition on traveling with concealed weapons in populated areas and strict regulations about how firearms should be stored.12 in fact, according to john adams’ autobiography, during the american revolution, the founders recommended that state and local governments “cause all persons to be disarmed, within their respective colonies, who are notoriously disaffected to the cause of america.”13 this is more evidence that the founders were comfortable with gun regulations and that they intended the right to bear arms to mean that the people could fight for, rather than against, or in spite of, the government. the right to bear arms was explicitly tied to military service, with potential enemies of the patriots stripped 13 john adams in the adams papers, diary and autobiography of john adams, vol. 3, diary, 1782–1804; autobiography, part one to october 1776, ed. l. h. butterfield, (cambridge: harvard university press, 1961), 369–370. 12 saul cornell and nathan dedino, a well regulated right: the early american origins of gun control, 73 fordham l. rev. 487 (2004). available at: https://ir.lawnet.fordham.edu/flr/vol73/iss2/3. 11 us v miller, 307 us 174, 178 (u.s. 1939). 10 lainie rutkow, stephen p. teret, jon s. vernick, and daniel w. webster, “changing the constitutional landscape for firearms: the us supreme court’s recent second amendment decisions,” american journal of public health 101, (2011): 2021-2026, https://doi.org/10.2105/ajph.2011.300200. 9 “district of columbia v. heller,” legal information institute (cornell law school), accessed february 3, 2023, https://www.law.cornell.edu/supremecourt/text/07-290. 69 https://ir.lawnet.fordham.edu/flr/vol73/iss2/3 https://ajph.aphapublications.org/doi/abs/10.2105/ajph.2011.300200 https://www.law.cornell.edu/supremecourt/text/07-290 of their arms and those with religious objections to military service subject to a higher tax rate.14 moreover, in many states, the right to bear arms was contingent on the swearing of loyalty oaths in which a person pledged allegiance to their individual state or the united states altogether, or at least repudiated allegiance to the british king.15 the diversity of the gun regulations during colonial and post-colonial america shows the long history of laws restricting gun ownership and that the very founders who created the second amendment were entirely comfortable with some regulation on firearms. state militias and the national guard it is clear that the second amendment’s phrase “bear arms” has had a primarily military context throughout much of history, and indeed, the second amendment was originally intended to apply to the state militias. scholars have argued that the phrase has two separate meanings: a natural meaning relating to the literal carrying of firearms and an idiomatic meaning relating to military service and activities. several post-heller researchers attempting to determine exactly what the authors of the second amendment thought “bear arms” to mean have agreed that it “was mostly used in its idiomatic or military sense during this period, but not solely or exclusively so.”16 it, therefore, cannot be definitively concluded from this phrase alone that the second amendment is meant to refer to military activity, but in conjunction with the militia clause, it seems to suggest that there is a military connotation to the amendment’s text as a whole. the militia clause or the phrase “bear arms” on its own would not necessarily mean that the second amendment refers to military weapons, but when considered together, the framers’ concern with the military is clear. before writing his book armed in america, patrick j. charles performed a detailed historical analysis of the antecedents of the second amendment, which produced two historical conclusions: in eighteenth-century militia laws, all of the language that comprised the second amendment–“well-regulated militia,” “necessary to the security of a free state,” “bear arms,” 16 e. gregory wallace, “legal corpus linguistics and the meaning of ‘bear arms,’” duke center for firearms law, duke university, july 16, 2021, https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/. 15 john d. sinks, “oaths of allegiance during the american revolution,” district of columbia society, sons of the american revolution, may 8, 2021, https://www.dcssar.org/resources/documents/publications/oaths%20of%20allegiance%20during%20the%20ameri can%20revolution%208%20may%202021.pdf. 14 ibid. 70 https://firearmslaw.duke.edu/2021/07/legal-corpus-linguistics-and-the-meaning-of-bear-arms/ https://www.dcssar.org/resources/documents/publications/oaths%20of%20allegiance%20during%20the%20american%20revolution%208%20may%202021.pdf https://www.dcssar.org/resources/documents/publications/oaths%20of%20allegiance%20during%20the%20american%20revolution%208%20may%202021.pdf and “keep arms”–appeared regularly. conversely, in all the other eighteenth-century laws, including the laws pertaining to crime, self-defense, weapons, and hunting, none of the languages that comprised that second amendment was present–not even different variants of the term “bear arms”--i.e., “to bear arms,” “bearing arms,” etc. even more telling was the fact that not one eighteenth-century legal commentator or one eighteenth-century legal case used the term “bear arms” or any variant of the terms to describe the act of carrying arms or using arms in the act of self-defense.17 given this, even if the evidence does not overwhelmingly prove that the language of the second amendment applies only to the military, it certainly establishes that there is no historical basis for the individualist reading of the second amendment. the weight of the historical evidence shows that the language of the second amendment implies a military context, and although there are occasional instances of other uses of the phrase “bear arms,” the framers clearly had the military, and more specifically, the state militias, in mind while drafting the amendment. the state militias of the late eighteenth century were meant to provide a mechanism for national defense while avoiding the creation of a standing army, which was viewed as a potential weapon that the federal government could use to exert tyrannical power over the states. each state raised a militia of its own, but because these militias might have needed to work together, they had to be “well-regulated,” meaning that the standards for the different militias would be set by the federal government so that there would not be irreconcilable differences between discipline or training that might complicate a combined endeavor. these militias became somewhat obsolete, however, with the advent of the national standing army. the continental army, which won the revolutionary war, was ordered to disband in 1784 (although two companies remained active in order to protect military equipment.)18 later, under the militia act of 1792, the state militias were legally recognized, and additionally, the law gave the president the right to call on the militias of any state.19 this law made the state militias a part of the federal military system; they no longer answered only to the individual states. in presser v. illinois, an 1886 supreme court case, the unanimous court ruled that the illinois national guard was “the regular organized volunteer militia of [the] state” and that no 19 militia act of 1792, may 2-8, 1792. 18 “the u.s. army: america’s first national institution,” u.s. army, accessed february 16, 2023, https://www.army.mil/1775/. 17 patrick j. charles, armed in america (amherst: prometheus books), 23-24. 71 https://www.army.mil/1775/ other group was legally recognized as a military organization.20 presser effectively declared that the national guards are the modern successor or equivalent of the state militias to which the second amendment refers, and the decision was reinforced by congress when it passed the militia act of 1903, which reorganized the national guard out of the militia system.21 the national guard itself seems to conform to this view as well; they claim that december 13th, 1636, the date on which the first massachusetts militias were organized, is the birthday of the national guard.22 today, however, the national guard is not solely under the jurisdiction of the states; rather, the national guard is considered a special unit of the american military that answers to both the president and the governors of states.23 the national guard, and therefore the state militias, was effectively absorbed into the national military. it seems plausible that once the national guard was incorporated into the rest of the military, the second amendment was also incorporated into the legal corpus surrounding the military. in other words, while the second amendment was originally designed to apply to state militias, the evolution of the relationship between the state militias and the standing military has resulted in an expansion of the meaning and role of the second amendment. the constitutional framework pertaining to the militias now applies to the national guard and the rest of the standing military as well. anti-lgbtq+ laws in the military there are a number of reasons why a person might want to join the united states military. putting aside the obvious points of patriotism and a desire for public service, working in the military can offer americans who may not have many other options a job and steady salary, benefits like healthcare that might otherwise be out of reach, preference for future government positions, funding for their education, and retirement pensions.24 benefits like these can make a 24 “va benefits for service members,” u.s. department of veterans affairs, last modified october 4, 2022, https://www.va.gov/service-member-benefits/. “veterans’ preference information,” u.s. department of labor, accessed february 17, 2023, https://www.dol.gov/agencies/vets/programs/vetspref. 23 anshu siripurapu, “a unique military force: the u.s. national guard,” council on foreign relations, last modified january 15, 2021, https://www.cfr.org/backgrounder/unique-military-force-us-national-guard. 22 “about the guard: how we began,” national guard, accessed february 16, 2023, https://www.nationalguard.mil/about-the-guard/how-we-began/. 21 militia act of 1903, 32 stat. 775 (1903). 20 “presser v. state of illinois,” legal information institute (cornell law school), accessed february 17, 2023, https://www.law.cornell.edu/supremecourt/text/116/252. 72 https://www.va.gov/service-member-benefits/ https://www.dol.gov/agencies/vets/programs/vetspref https://www.cfr.org/backgrounder/unique-military-force-us-national-guard https://www.nationalguard.mil/about-the-guard/how-we-began/ https://www.law.cornell.edu/supremecourt/text/116/252 substantial difference in an individual’s life and help them to support themselves and their families. however, there are many limits on who can join the military. the government cites a variety of reasons for these limits, ranging from the rational to the absurd, and historically, one of the groups that has been discriminated against in military service is lgbtq+ americans. the first reported case of an officer in the us military being discharged due to their sexuality was in february 1778, in the middle of the revolutionary war, when two soldiers were found together in bed.25 one of them was lieutenant gotthold frederick enslin, who was court-martialed and subsequently expelled from the continental army on the orders of george washington himself. this is to say that military discrimination against gay americans is as old as the country itself—or arguably even older, given that the united states had not formally won independence in 1778. however, the united states did not formally ban gay individuals from the military or even technically forbid homosexual behavior until much later. in 1917, congress adopted the articles of war of 1916, which criminalized sodomy and the intent to commit sodomy.26 consensual sodomy remained criminalized in the military even after the supreme court case of lawrence v. texas declared anti-sodomy laws unconstitutional in 2003.27 it was not until ten years later that barack obama signed the national defense authorization act of 2014, repealing the ban.28 these anti-sodomy provisions did not technically exclude homosexual americans from joining the military, but in 1982, the department of defense created a policy stating that “[h]omosexuality is incompatible with military service.”29 although this was the first explicit ban on homosexual members of the military, in practice, american soldiers could be discharged for homosexual activity throughout the nineteenth and twentieth centuries.30 30 “uniform discrimination,” humans rights watch, accessed february 17, 2023, https://www.hrw.org/reports/2003/usa0103/usa0103final-02.htm. 29 william a. woodruff, “homosexuality and military service: legislation, implementation, and litigation,” 64 umkc l. rev. 121 (1995-1996): 131, https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1037&context=fac_sw. 28 chris johnson, “defense bill contains gay-related provisions,”washington blade, december 20, 2013, https://www.washingtonblade.com/2013/12/20/defense-bill-contains-gay-related-provisions/. 27 jeremy j. gray, “the military’s ban on consensual sodomy in a post-lawrence world,”washington university journal of law and policy 21 (2006): 379-406, https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1235&context=law_journal_law_policy. 26 ibid. 25 “uniform discrimination,” humans rights watch, accessed february 17, 2023, https://www.hrw.org/reports/2003/usa0103/usa0103final-02.htm. “military programs and benefits,” usa.gov, last updated november 10, 2022, https://www.usa.gov/military-assistance. 73 https://www.hrw.org/reports/2003/usa0103/usa0103final-02.htm https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1037&context=fac_sw https://www.washingtonblade.com/2013/12/20/defense-bill-contains-gay-related-provisions/ https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1235&context=law_journal_law_policy https://www.hrw.org/reports/2003/usa0103/usa0103final-02.htm https://www.usa.gov/military-assistance when bill clinton became president of the united states in 1993, he attempted to lift the ban on homosexuality despite public and military opposition. he failed, but as a compromise, congress passed a law allowing homosexuals in the military to serve if their homosexuality remained a secret. this rule, often called “don’t ask, don’t tell,” remained in place until 2010, and it had a number of flaws that allowed the military to continue discriminating against its gay members. for instance, while recruiters did not ask potential soldiers about their sexual orientation, the pentagon continued to investigate serving members of the military, and members of the military with same-sex partners were forced to keep their relationships and major parts of their lives from their coworkers. the same-sex military partners were also denied the benefits and support available to heterosexual military spouses, and if someone was outed for whatever reason, they could receive an other-than-honorable discharge on the basis of their sexuality, which meant they could be denied benefits, including the education benefits of the gi bill, pension payments, and health care.31 as a result, outed servicemembers forced out of the military would not just lose their military career but access to many of the resources intended to help them build post-military careers. due to the bigotry that the law enabled and the lack of evidence that one’s sexual orientation impeded the military’s organization and discipline in any way, don’t ask, don’t tell was repealed in 2010, allowing gay and lesbian servicepeople to serve openly as of september 2011. however, even with this policy change, veterans who were less-than-honorably discharged under the law did not necessarily regain access to benefits until ten years later. on the tenth anniversary of the repeal coming into effect, the biden white house instructed the department of veterans affairs to work with veterans who were discharged on the basis of their sexuality, gender identity, or hiv status. the current guidelines regarding the sexuality and gender identity of military employees state that transgender and homosexual individuals are permitted to serve.32 still, lgbtq+ servicemembers may be afraid to live openly due to fears about discrimination and harassment or 32 “lgbtq in the military,” military one source, u.s. department of defense, accessed february 26, 2023, https://www.militaryonesource.mil/military-life-cycle/friends-extended-family/lgbtq-in-the-military/. “5 things to know about dod's new policy on military service by transgender persons and persons with gender dysphoria,” u.s. department of defense, accessed february 26, 2023, https://www.defense.gov/news/news-stories/article/article/1783822/5-things-to-know-about-dods-new-policy-onmilitary-service-by-transgender-perso/. 31 quil lawrence, “veterans discharged under ‘don’t ask don’t tell’ get a chance for va benefits,” all things considered, npr, september 20, 2021, https://www.npr.org/2021/09/20/1039071130/veterans-discharged-under-dont-ask-dont-tell-are-now-eligible-for-vabenefits. 74 https://www.militaryonesource.mil/military-life-cycle/friends-extended-family/lgbtq-in-the-military/ https://www.defense.gov/news/news-stories/article/article/1783822/5-things-to-know-about-dods-new-policy-on-military-service-by-transgender-perso/ https://www.defense.gov/news/news-stories/article/article/1783822/5-things-to-know-about-dods-new-policy-on-military-service-by-transgender-perso/ https://www.npr.org/2021/09/20/1039071130/veterans-discharged-under-dont-ask-dont-tell-are-now-eligible-for-va-benefits https://www.npr.org/2021/09/20/1039071130/veterans-discharged-under-dont-ask-dont-tell-are-now-eligible-for-va-benefits concerns that a rollback of lgbtq+ rights in the future will lead to the reimplementation of a policy like “don’t ask, don’t tell.” sexuality, gender, and the fourteenth amendment there have been many constitutional arguments against and challenges to laws limiting the membership of lgbtq+ americans in the military, but most of them cite the first, fifth, and fourteenth amendments, using free association, due process, and anti-discrimination grounds.33 however, they have not had much success in the court system, and this is not only due to the presence of homophobia and transphobia in society; there are fair legal arguments against using the fifth and fourteenth amendments to strike down these laws. both courts and academics have thoroughly examined the debates over the validity of these constitutional challenges. however, to my knowledge, there is no apparent scholarship suggesting that the second amendment might be used to overrule these laws. the fourteenth amendment is almost universally understood to forbid discrimination on the basis of sex, with supreme court cases such as reed v. reed and federal laws like the civil rights act of 1964 using this interpretation.34 the civil rights act of 1964 was a response to the promise of the fourteenth amendment and an attempt to make the principles laid out in the amendment legally practical and usable, and the law’s title vii prohibits, among other things, discrimination on the basis of sex.35 it is clear that our legal system relies on the understanding that under the fourteenth amendment, sex is a protected category. despite this, there is debate about whether the fourteenth amendment protects gender identity and sexuality. opponents of such protection argue that different lgbtq+ groups are not subject to the same level of discrimination as the traditionally acknowledged suspect classes, including racial and religious minorities, or quasi-suspect classes like sex. the main argument is that gender identity and sexuality are not “obvious, immutable, or distinguishing characteristics,” unlike, for instance, the physical markers that accompany race, ethnicity, and sex.36 under this 36 lyng v. castillo, 477 u.s. 635 (1986). 35 “legal highlight: the civil rights act of 1964,” u.s. department of labor, accessed february 26, 2023, https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964. 34 “timeline of major supreme court decisions on women’s rights,” aclu, accessed february 26, 2023, https://www.aclu.org/sites/default/files/field_document/101917a-wrptimeline_0.pdf. “legal highlight: the civil rights act of 1964,” u.s. department of labor, accessed february 26, 2023, https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964. 33 seemcveigh v. cohen,witt v. department of the air force, and log cabin republicans v. united states of america. 75 https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964 https://www.aclu.org/sites/default/files/field_document/101917a-wrptimeline_0.pdf https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964 argument, since one’s sexuality and gender identity are not necessarily obvious, it is harder to discriminate against someone on the basis of these qualities, and thus, a high standard of judicial scrutiny is unnecessary. moreover, since these identities can change over time, some people argue that there are ways, such as the controversial pseudomedical practice of conversion therapy, that someone can avoid this type of discrimination. on the other hand, proponents of these protections point out that gender identity and sexuality are understood differently depending on one’s biological sex and that any discrimination on the grounds of one’s gender or sexuality is also on the grounds of one's sex. as it turns out, however, there is legal precedent suggesting that gender or sexuality-based discrimination is legally considered sex discrimination. in bostock v. clayton county, ga, the supreme court held that firing an employee due to their sexual orientation is a violation of title vii.37 since title vii derives from the fourteenth amendment, the outcome of bostock suggests that sexual orientation’s derivation from sex means that, like sex, sexual orientation is a protected category against which people cannot (easily) legally discriminate. in this way, discrimination on the basis of one’s sexuality can be held to violate the constitution. the legal case a hypothetical legal case relying on a military reading of the second amendment is fairly simple. the framers’ intention in creating the second amendment was to protect the existence of the state militias, which includes the right of the people to join and serve in state militias. the state militias of the late eighteenth century, of course, no longer exist, but there is legal evidence that the national guard is the officially recognized successor to those militias. since the national guard now occupies a peculiar position in which it answers to both the president and state governors, it has effectively been incorporated into the standing army, and by absorbing the state militias into the standing military’s body, the military also absorbed the obligations of the militias, including the second amendment’s protection of those seeking to join the militias. due to the fourteenth amendment’s equal protection clause and the widespread understanding that it prohibits discrimination based on sex, along with the legal evidence that it prohibits discrimination on the basis of sexual orientation or gender identity, the second 37 bostock v. clayton county, ga, 590 u.s. ___ (2020). 76 amendment right to join the military and serve one’s country belongs to americans regardless of their lgbtq+ identity. even if people have the right to join the military under the second amendment, there are qualities that can act as disqualifiers. the government can prevent certain types of people from joining the military if it impedes military discipline or efficacy; after all, the second amendment refers to “a well-regulated militia.” this means that in order to create any new bans on lgbtq+ military personnel, the united states military would need to provide evidence that limitations on gay or trans servicemembers are necessary to maintain the discipline and regulation of the military. unless they can provide this evidence–and scholarly argument as well as the absence of an effect from the repeal of “don’t ask, don’t tell” suggest that no such evidence exists–then sexuality and gender identity are protected categories against which the government cannot discriminate for military purposes. conclusion despite the historical and legal evidence in favor of this argument, it is difficult to imagine any lawsuit being brought on these grounds in the near future since current military policy allows servicemembers to serve openly regardless of their sexuality. at least for this particular issue, nobody has standing to bring the case in the first place, although it is possible that there are people who could use this interpretation of the second amendment to bring related cases against the united states government. for instance, a woman in the armed forces would be able to challenge any restrictions on women in combat that still exist, and men might be able to use the principles of this case to challenge the sex-specific burden of selective service.38 more importantly, however, this is an unusual and fringe reading of the second amendment, and it’s hard to picture many, if any, judges espousing it in today’s world. although this is a valid application of the framers’ intent and the legal principles set out in the second amendment, it would take a considerable change in the legal and cultural understanding of the constitution for any argument based on this interpretation to succeed in court. at the moment, the military history of the second amendment probably does not offer a very practical way to reshape civil rights for soldiers or access to the military. 38 technically, all combat positions in the us military have been open to women since 2016. however, in practice, the implementation of the new rules is not yet complete. 77 the second amendment entails much more than we normally suspect, and we do the amendment a disservice by thinking of it in the narrow terms that the supreme court set down in 2008. the historical record very clearly establishes that the second amendment is supposed to protect the states’ right to maintain militias and the people’s right to serve in those militias. but d.c. v. heller established that the second amendment protects individual gun ownership, and this is now the law of the land. i believe that, at the very least, this interpretation of the second amendment’s potential applications in our twenty-first-century world is no less plausible than the one that the supreme court set out in heller. while this argument is legally sound, it may seem less-than-practical in the current political climate. nevertheless, legal arguments that are not currently in vogue in the legal community still have value, both academically and as a roadmap for future efforts to secure constitutional rights. the second amendment occupies a controversial and delicate position in american politics due in large part to very distinct understandings of what the amendment actually says and what the founding fathers meant to accomplish via the amendment. this reading of the second amendment will not settle the argument, but it reveals a different set of problems and controversies that the amendment might play a role in addressing. shifting the focus of the second amendment from individual gun ownership to the social role of public defense would exemplify a change that might resolve many of our country’s long-standing issues: a shift from individualism to civic society that could, in its own way, reunite us. 78 final mahoney, brendan.docx bellarmine law society review volume xiii | issue ii article iv a brief legal history of rico charges and artistic freedom & their unconstitutional applications in state of georgia v. kahlieff adams, et al. brendan mahoney boston college, mahoneez@bc.edu a brief legal history of rico charges and artistic freedom& their unconstitutional applications in state of georgia v. kahlieff adams, et al. brendan mahoney 1 abstract: this paper seeks to analyze how the history and precedent of racketeer-influenced and corrupt organizations (rico) charges and the admission of rap lyrics into a courtroom both play into the case of state of georgia v. kahlieff adams et al. this case, better known as the young slime life (ysl) case, features the likes of famous rappers young thug and gunna and initially charged twentyeight individuals. this case garnered national attention and has since made both legal and lay observers question the ways in which the strategies employed by the state of georgia have followed the precedent of other rico cases in the subversion of the constitutional rights of all defendants as citizens of the united states. beyond analysis, this paper will also argue that the melding of the unjust concepts of rico charges and restrictions on artistic freedom combine forces in the ysl case to restrict the civil liberties of all the defendants involved. basic tenets of artistic freedom: an excerpt from “rap on trial,” by charis kubrin and erik neilson: rap is a form of artistic expression entitled to first amendment protections, [therefore] it is critical for courtroom players to be cognizant of rap as a complex, highly sophisticated form of poetry with lyrics that, by convention, rely heavily upon hyperbole and metaphor. as a result, these players must likewise be careful not to assume that the lyrics are autobiographical or inculpatory, thereby conflating fact with fiction.2 beyond the practical rationale that the above excerpt provides on understanding the ways in which rap as an art form should not be admitted into court as fact, this excerpt encourages all 2 charis e. kubrin and erik nielson, “rap on trial,” race and justice 4, no. 3 (2014): 185–211, 204. 1 brendan mahoney is a junior history major at boston college. his research revolves around issues and legacies of the new left and other radical social movement groups of the “long 1960s,” specifically the students for a democratic society (sds). his work seeks to fill in gaps in scholarship that exist surrounding student radicalism at smaller colleges in new england. additionally, brendan is interested in the historical legal theories of movement lawyering, and the strategies lawyers employ to represent large groups of defendants charged with various types of conspiracy charges. 47 readers to consider the question of the boundary between fact and fiction within art. there is no clear answer to this question, and different people will have varying responses. one method of consideration is to evaluate whether there is a defined ‘genre’ that rap fits into. within literature, there are a plethora of genres that artistic works can fit into (i.e., fiction, non-fiction, historical fiction, etc). however, before pondering whether rap fits into any of these genres, one must evaluate the extent to which each genre is defined and, at times, erased in certain literary works. take, for example, the things they carried by tim o’brien. this collection of short stories allows o’brien to analyze the vietnam war reflectively through a series of personal anecdotes.3 while this book is labeled as a “work of fiction” on the title page, considering the fact that o’brien served in vietnam, as well as the accompanying vivid details provided in the collection, it is hard for one to think that this book exists in a vacuum separate from o’brien’s experiences. if we assume for theoretical purposes that this novel considers his personal experiences within history but also exaggerates certain aspects of the stories, this work fulfills all the aforementioned genres. as one analysis of the novel puts it, a work such as this illuminates “the relationship between fiction and the discourse of history,” which inevitably leads a reader to conclude that history is innately structured in a fantastical way.4 does this imply that tim o’brien’s work is genreless? or does this mean that this work is something that many genres can define? regardless of which approach the reader favors, they will agree that there is no singular genre that this novel fits into. the things they carried can be useful in an examination of law, artistic freedom, and rico charges because we can analyze such legal issues with the same multifaceted lens as we do with novels. to assume that there is even a small element of fiction within a body of work is to assume that all of it is fiction, or at the very least, exaggerated reality, which makes it nearly impossible to admit anything from a body of literary work into a court of law. the history of artistic freedom in rap began in the 1990s with the rise of tupac shakur. there were various lawsuits from victims’ families over crimes committed by tupac and associates, claiming tupac should assume some level of liability, accounting for how he talks 4 michael travel clarke, “‘i feel close to myself’: solipsism and us imperialism in tim o’brien’s ‘the things they carried,’” college literature 40, no. 2 (2013): 130–54, 132. 3 tim o’brien, the things they carried: a work of fiction, first mariner books edition (boston: mariner books/houghton mifflin harcourt, 2009), http://catdir.loc.gov/catdir/enhancements/fy1108/2009029928-b.html. 48 about “blast[ing] his punk ass,” in reference to a murdered police officer.5 however, there is a strong precedent that exists in the us legal system that allows for a “loophole” in a case such as tupac’s: the first amendment.6 the first amendment essentially acts as a documented gray area in which defendants who use artistic media as a vehicle to express acts of violence or crimes can claim “freedom of speech.”7 the most notable of these precedent cases comes from a 1991 us district court of georgia case against the metal artist ozzy osborne. the case, waller v. osborne, was brought against osborne by the parents of the deceased michael waller, alleging that the “subliminal messaging” present in osborne’s music incited their son to commit suicide.8 the court decided that there were “no issues of material fact” that would lead to any sort of causation between the music of osborne and the suicide of waller.9 this decision upholds the right of the musical artist (osborne, in this case) to express any and all thoughts through art as a medium, no matter how harmful to the public they may be. other related cases deal with other individual freedoms, such as the ability of video performers to dance nude in a “non-obscene way” or the ability of protestors to wear jackets that read “fuck the draft.”10 the first of these two, schad v. borough of mount ephraim, was a case that sought to overturn the convictions of the owners of an adult film store in new jersey who were charged for their demonstration of nude, live entertainment on coin-operated video devices.11 the court ruled to overturn the convictions due to the first and fourteenth amendment rights of the store owners as these acts are acts of expression and do not interfere with the “immediate needs” of the borough.12 the second of these cases, cohen v. california, deals with paul cohen, a young man who was charged for his wearing of a jacket that read “fuck the draft.” the case asserted that in accordance with the constitutional rights of the accused, 12 supreme court justice white. 11 supreme court justice white, schad v. borough of mount ephraim, 452 u.s. 61. 10 supreme court justice white, schad v. borough of mount ephraim, 452 u.s. 61, no. no. 79-1640 (us supreme court june 1, 1981); justice harlan, cohen v. california, 403 u.s. 15 (1971), no. no. 299 (the court of appeal of california, second appellate district june 7, 1971). 9 fitzpatrick, district judge. 8 fitzpatrick, district judge, waller v. osbourne, 763 f. supp. 1144 (m.d. ga. 1991), no. civ. no. 88-111-alb/amer(df). (united states district court m.d. georgia, albany/americus division. may 6, 1991). 7 talerman, 119. 6 talerman, pp. 119-120. 5 jason talerman, “the death of tupac: will gangsta rap kill the first amendment notes,” boston college third world law journal 14, no. 1 (1994): 117–44, pp. 117-119. 49 there can be no prohibition on the wearing of this jacket.13 the court stated that it “cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.”14 this assertion bases itself not only on the precedent of the first amendment but also on the precedent of the civil liberties that serve as foundational ground for what american law represents. overall, various courts have cited that there cannot be a limit on the freedom of expression clause of the first amendment in terms of artistic media such as video, song, and style of dress. these precedent cases are of great importance in the young slime life case, as the rap lyrics of members of the group, such as young thug (jeffery williams) and gunna (sergio kitchens), are being brought into evidence by the state of georgia under the rico statute. before the analysis of the ysl case, it is necessary to evaluate and understand rico charges, how they operate, and how they are applied to ‘gang activity.’ understanding rico rico, or racketeer influenced and corrupt organizations statute was established in 1970.15 this statute was written by cornell law professor g. robert blakey with the intention of taking down organized crime by targeting groups of people instead of individuals. within section four of this act, “enterprise” is defined as something that “includes any individual, partnership, corporation, association, or other legal entity and any union or group of individuals associated in fact although not a legal entity.”16 essentially, this definition allows the law to tie people together through criminal activities in the same way that the law defines associates in a legal business. rico’s definition also includes specific crimes that can fall under this umbrella, such as robbery, extortion, and murder.17 however, the most pertinent section of rico, in terms of the present ysl case and its being thrown out, is the commerce clause. this clause essentially states that rico organizations are tied inherently to the infiltration of legitimate businesses, 17 g. robert blakey, section 1. 16 g. robert blakey, section 4. 15 g. robert blakey, “racketeer influenced and corrupt organizations,” 18 u.s. code chapter 96 § (1970), https://www.law.cornell.edu/uscode/text/18/part-i/chapter-96. 14 justice harlan. 13 justice harlan, cohen v. california, 403 u.s. 15 (1971). 50 particularly businesses that are interstate commerce-based, which allows for a more economic angle on the prosecution of crimes under the rico statute.18 the biggest application of the rico statute came in 1985, in the famous “mafia commission trial.”19 the commission was a collection of the bosses of the five mafia families of new york in one conspiracy that met and decided the ‘jurisdiction’ of each family within the city.20 this trial led to many convictions, especially within the genovese family and its boss, anthony “fat tony” salerno, for loan sharking, murders, extortion, and even plots to kill government officials such as rudy giuliani, the lead prosecutor of the case.21 this was all possible because the rico act allowed people like salerno to be tied to crimes that they did not actually commit with their own hands but crimes that they ordered to be committed within a larger conspiracy of their organization. while taking down the mafia in nyc seems to be well-intentioned in decreasing crime in the city, it set a dangerous precedent that came to restrict the civil liberties of people everywhere. perhaps the most dangerous of examples comes, once again, within the lines of the mob. however, this time, it is the association that the mob had between its own organizations and local unions. the mob, in nyc and other places, was heavily involved in the structure of many local unions, the most famous of these cases being united states v. local 560, international brotherhood of teamsters. this lawsuit from the us government had the express purpose of purging all mob elements from this local union using rico.22 this case introduced a new style of using rico: a rico trusteeship. in a trusteeship, the government, in an attempt to deter or remove all mob activity, denotes certain employees or former prosecutors who are familiar with rico and racketeering, in general, to become associated with the union on a professional level.23 this professional relationship is defined by an “all-powerful trusteeship” in which the 23 jacobs, cunningham, and friday, 425. 22 james b. jacobs, eileen m. cunningham, and kimberly friday, “the rico trusteeships after twenty years: a progress report,” the labor lawyer 19, no. 3 (2004): 419–80, 419. 21 marriaga, hussain, and gutierrez, 13. 20 marriaga, hussain, and gutierrez, 10. 19 robert marriaga, sayd hussain, and leanet gutierrez, “rico: the anti-mafia law,” fau undergraduate law journal, april 15, 2021, 8–15, 13. 18 jordan woods, “systemic racial bias and rico’s application to criminal street and prison gangs,” michigan journal of race and law 17, no. 2 (january 1, 2012): 303–57, 305. 51 government employees have the ability to negotiate contracts, initiate strikes, and handle grievances.24 again, while this use of rico seems well intentioned, it actually restricts the free speech rights of the majority of union members and leaders. clyde summers, a leading labor law expert who testified in the local 560 trial, believes that trusteeships “allow for absolutely no possibility of exercising [first amendment] rights.”25 the harm that something like the rico trusteeship causes may outweigh the potential benefits for those within the unions who had been otherwise abused by the mob. in essence, this use of rico allows for the government to assume that illegitimate racketeering exists within the union. consequently, this line of thinking allows for a complete assumption of power and control over an organization that advocates for the rights of the average laborer. rico has also been abused when it comes to the organization of protestors, specifically those at abortion clinics. while scholars deem the majority of these protests to be “obnoxious and harassing” in nature, they are still protected under the first amendment.26 although these actions should be protected under the first amendment, prosecutors have used rico statutes to tie protestors together through their organizers in cases such as northeast women's center inc. v. mcmonagle, feminist women's health center v. roberts, and town of west hartford v. operation rescue.27 these cases all demonstrate various ways in which rico has been used to unconstitutionally associate the individual crimes by members of these groups that occurred in contexts outside of the organized whole with the group in favor of taking away the right to assembly of these protestors.28 while these examples abuse rico in their own way, the most important exploitation of rico in this case study would be the unjust application of the statute to street gangs, such as ysl. one aspect of the rico statute that can be used to understand the unconstitutionality of the charges against street gangs is the previously mentioned commerce clause that creates an association with a legitimate business. legal scholar jordan woods offers two reasons that the 28 califa, 823. 27 califa, 805. 26 antonio j. califa, “rico threatens civil liberties symposium: reforming rico: if, why, and how,” vanderbilt law review 43, no. 3 (1990): 805–50, 823. 25 kenneth r. wallentine, “a leash upon labor: rico trusteeships on labor unions,” hofstra labor law journal 7, no. 2 (1990 1989): 341–68, pp. 354-355. 24 jacobs, cunningham, and friday, 427. 52 legal interpretation of rico does not fit gangs such as ysl. the first of these reasons is that gangs such as ysl do not attempt to infiltrate existing legitimate businesses. the second is the fact that gangs do not significantly affect interstate commerce; therefore, under the precedent of united states v. lopez, the government cannot attempt to regulate businesses that do not substantially affect interstate commerce.29 beyond statutory reasons, woods cites the racial aspect of rico charges to be the most unjust of all. woods argues about the ways in which there is an overrepresentation of racial minority ‘gang’ prosecutions, while white ‘gang members’ seemingly avoid all associations with rico charges.30 the author even connects the enactment of rico to race because of the ways in which it focused on protecting white crime victims (i.e., those who were victimized through mafia threats), but did not make any attempts to enact legislation against those who were victimizing groups of black people, such as the ku klux klan.31 the final point that woods makes, through the use of his extensive criminological study, is that there is a higher frequency of rico prosecutions within local gangs when at least one minority group is associated with that gang.32 this information goes to show that although g. robert blakey in part wanted to use rico to fight against “white extremist” gangs, it seems as though the only gangs that are actually being targeted on a large scale are those that feature minority groups.33 young slime life case: origins this background information transitions into the way in which these two contested legal issues (artistic freedom and rico charges) relate to the topic at hand: state of georgia v. kahlieff adams et al. this case was brought against the organization known as “young slime life,” in may of 2022. this case featured twenty-eight accused for fifty-six different charges, which included murder, aggravated assault, and theft, but the only charge that all the accused had in common was the first charge— “conspiracy to violate the racketeer 33 cherie deogracias, “race, reconstruction, and the rico act: using the racketeer influenced and corrupt organizations (rico) act in prosecutions against white supremacist organizations in america,” university of maryland law journal of race, religion, gender and class 20, no. 2 (january 1, 2020): 306, 334. 32 woods, 332. 31 woods, 319. 30 woods, “systemic racial bias and rico’s application to criminal street and prison gangs,” pp. 307-308. 29 woods, “systemic racial bias and rico’s application to criminal street and prison gangs”; justice rehnquist, united states v lopez, no. 93-1260 (us supreme court april 26, 1995). 53 influenced and corrupt organizations act,” coded as o.c.g.a. §16-14-4, which is georgia’s rico statute.34 o.c.g.a. §16-14-4 follows many of the precedents from the original rico act of 1970 and features the keywords “employed by or associated with,” in reference to those who can be charged with the rico crime at hand.35 this phrase paints an expressly broad picture of who and what can be associated with racketeering charges. since the national statute states that there need not be any legal associations between those involved in an “enterprise,” it allows nearly anyone associated with those culpable by law to be culpable themselves. as sidney madden, a reporter on popular culture for npr, puts it: basically, it allows prosecutors to hold anyone and everyone in an entire group responsible for the worst things someone in their circle has done. so if you're a rapper and you associate with people engaging in criminal activity — maybe y'all grew up on the same block, maybe you used to run the same streets before you switched into entertainment, maybe you brought them with you out of the streets into entertainment — prosecutors can use all that and use rico laws to brand y'all as an organized crime syndicate.36 madden’s point is supported by the fact that the two famous rappers on trial, young thug and gunna, face different charges. gunna is only charged with count 1 (which is the conspiracy to violate rico), while young thug is being indicted on counts 1 and 56 (count 56 being “participation in criminal street gang activity”)..37 moreover, these rappers and their lyrics are being indicted and examined to be used as pieces for a large puzzle: the conviction of their associates at ysl. rap lyrics have faced substantial public scrutiny in recent years, in the courts and at a political level. one example is the case of lawrence montague. in early 2021, as part of an 37 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news. 36 sidney madden et al., “the charges against young thug build on a growing trend of criminalizing rap crews,” npr, may 15, 2022, sec. music news, https://www.npr.org/2022/05/15/1099004661/young-thug-is-the-latest-rapper-to-be-charged-under-historically-probl ematic-ric. 35 state of georgia, “2020 georgia code, title 16 crimes and offenses, chapter 14 racketeer influenced and corrupt organizations, § 16-14-4. prohibited activities,” §16-14-4 o.c.g.a. § (2020), https://law.justia.com/codes/georgia/2020/title-16/chapter-14/section-16-14-4/#:~:text=it%20shall%20be%20unlawf ul%20for,of%20any%20nature%2c%20including%20money. 34 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news (fulton superior court 2022). 54 ongoing murder trial of montague, a maryland court of appeals judge ruled that lyrics of a rap that montague said over the prison pay-phone counted as a confession as they were ultimately probative despite warnings from across the country about the precedent that something like this could set.38 the court argued that this did not set a precedent at all, rather it followed the precedent of new jersey v. skinner (2014), which convicted rapper vonte skinner of murder based on rap lyrics, and the case was eventually overturned by a higher court.39 montague v. maryland, although appealed by montague, set a dangerous precedent in its ruling by significantly limiting rappers’ freedom of speech. to combat dangerous precedents like this, governing bodies such as the new york state senate have introduced bills such as the “rap music on trial bill” (2021, passed 2023), which seek to decriminalize the use of rap music as a means of self-expression.40 these bills draw on cases such as waller v. osborne as a means to cite other genres of music in which the musicians do not face the same resistance from the law that rap music does. the defense team for ysl has argued that these lyrics should be left out of the charge, as it is unconstitutional for them to be admitted under the free speech aspect of the first amendment. the lyrics and their use in count 1 within the indictment, there are references to a plethora of rap lyrics from both young thug and gunna, as well as other members of ysl, and references to social media posts. some of these lyrics come from individual songs that young thug had released independent of ysl (which in this case is young stoner life, as opposed to young slime life) records, such as “bad boy” with juice wrld, and others were released on the larger collaborative album, “slime language 2.”41 these lyrics are assumed to be truthful, as almost all of them are stated to be “an 41 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news; devin lazerine, “young thug drops ‘slime language 2 (deluxe),’” rap-up (blog), 2021, https://www.rap-up.com/2021/04/23/young-thug-ysl-slime-language-2-deluxe-stream/. 40 brad hoylman-sigal, “senators brad hoylman & jamaal bailey introduce ‘rap music on trial’ legislation to prevent song lyrics from being used as evidence in criminal cases,” ny state senate, november 17, 2021, https://www.nysenate.gov/newsroom/press-releases/brad-hoylman/senators-brad-hoylman-jamaal-bailey-introduce-r ap-music-trial; shannon dawson, “what does the ‘rap music on trial’ bill mean for hip-hop?,” newsone (blog), february 28, 2023, https://newsone.com/4341704/rap-music-on-trial-bill/. 39 brad kutner. 38 brad kutner, “maryland appeals court allows rap lyrics to be used in murder trial,” january 2, 2021, https://www.courthousenews.com/maryland-appeals-court-allows-rap-lyrics-to-be-used-in-murder-trial/. 55 overt act in furtherance of the conspiracy”42 within the indictment. an example of this can be seen below in is a piece of evidence under the charge of count 1. figure 1: act 131 of the indictment, featuring the lyrics of “ski,” a song on “slime language 2” above, the prosecutors utilize language from a song that features ysl members gunna, young thug, and duke (martinez arnold), and the specific word choice of “slatts” combined with the use of the words “fn” and “glock,” which both refer to guns.43 prosecutors have associated the word “slatt” with the acronym used by ysl members that means “slime love all the time.”44 this word, as well as other symbols such as red and green emojis (the throwing-up emoji, for example), are seen as symbols of ysl and are inextricably linked to the gang and its activities.45 45 cathlene robinson, courthouse news. 44 cathlene robinson, courthouse news. 43 cathlene robinson, courthouse news. 42 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news. 56 cracks in the glass of the case three major cracks in the metaphorical glass of the case appear when examining the charges of rico for ysl. these three cracks revolve around three central legal questions that are crucial to ask oneself when analyzing the case: (i). are rap lyrics admissible? (ii). does mention of ysl symbols/crimes mean a rico connection? (iii). are rico charges applicable to street gangs? these questions are all to be answered both in a legitimate sense of answering the question asked but also in the sense of the constitutional rights of all the defendants, all citizens of the united states. i. are rap lyrics admissible? the evidence cited above indicates that this question can be easily answered in the negative. the decision in waller v. osborne establishes the fact that there exists no direct causality between the lyrics of a song and the actions of a person in the real world.46 while waller and the ysl case are different, as they represent different levels of harm and different actions that the harm could be acted upon, waller establishes the precedent that it is a “difficult task of attempting to impose liability on the defendants based on their dissemination of speech fully protected by the first amendment” within the lyrics of song.47 within the ysl case, the use of lyrics from williams, kitchens, and others as an “overt act in furtherance of the conspiracy”48 attempts to impose liability. therefore, drawing a causation between the song and the acts of conspiracy is a task that must be deemed difficult, if not impossible. beyond the argument of precedent, there exists the argument against the admissibility of rap lyrics under the first amendment. the fantastical elements of these specific lyrics further the argument against these lyrics being admitted. for example, act 78 of the indictment cites the song “bad boy,” which includes a line about “smok[ing] [an enemy] like a blunt,” which the prosecutors saw as an implication that he would kill someone for ysl.49 since the prosecutors would like to deduce the truth from the song, does that mean that they believe that juice wrld 49 cathlene robinson, courthouse news. 48 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news. 47 fitzpatrick, district judge. 46 fitzpatrick, district judge, waller v. osbourne, 763 f. supp. 1144 (m.d. ga. 1991). 57 really had “futuristic rides imported from mars?”50 no—of course, it does not; these artists are just using their first amendment rights to express themselves artistically. the artists on this song (young thug and juice wrld) utilize fantastical elements in their songs to add artistic allure the same is true with other songs that are mentioned in the indictment, such as “take it to trial” (act 130), which also mentions fantastical elements such as young thug comparing himself to “chef boyardee,” who is an advertisement character for a canned product.51 obviously, young thug employs metaphor here, which is not meant to be understood as williams being an actual chef. moreover, who is to say what is truthful and what is not, what lyrics are metaphors and what are not? it is not the prosecutors, and most likely not the audience, which leaves this truth to the artist and the artist alone. therefore, admission of lyrics like this is not only against precedent, but it is against the freedom of expression afforded to all artists ii. does mention of ysl symbols/crimes mean a rico connection? the next question that casts a shadow of doubt on this rico case is what is/can actually be defined as association with the “enterprise.” for young thug and gunna, those associated with ysl who have the biggest public influence, their associations with ysl are based on their songs and social media posts. one clear counterargument to this would be that every musical artist who has either collaborated with ysl or referenced ysl within their own work could fall under the definition of “enterprise.”52 the definition of enterprise that is laid out is vague at best and essentially allows anyone who is in a group or union of individuals to fall under the enterprise. one associated artist to look at is drake (aubrey graham). drake is featured on one of the songs from the “slime language 2” album, “solid,” therefore putting him in a group or union with ysl.53 this is the same album that is produced by young stoner life and the same album that features ysl imagery and language additionally, within this song, drake alludes to violent actions similar to ysl members, such as saying he will “hop in the tank, and move militant,” 53 devin lazerine, “young thug drops ‘slime language 2 (deluxe).’” 52 see page 5 for the definition of enterprise per the rico act of 1970. 51 young stoner life, young thug & gunna (ft. yak gotti) –, take it to trial (young stoner life, 2020), https://genius.com/young-stoner-life-young-thug-and-gunna-take-it-to-trial-lyrics. 50 juice wrld & young thug, bad boy (lyrical lemonade, 2019), https://genius.com/juice-wrld-and-young-thug-bad-boy-lyrics. 58 which is obviously taken to not be literal.54 drake, in a later song called “sticky,” uses his platform as a global artist to call for the freeing of ysl in his music video for the song, which further ties him to ysl per the definition of enterprise.55 with all of this evidence, drake should, according to the logic the state of georgia uses based on the criminal code §16-14-4, be tied to ysl.56 however, he is not. for the same reason that drake is not tied to the aforementioned mob family, the genovese, even though he mentions them in another song: “crime family like the genovese.”57 this reason is proximity: georgia is building their entire case upon the fact that ysl members all exist in the “locale” of atlanta.58 this idea ties back to the woods article that expands on the racialized aspect of rico, which attempts to group minority groups together as “gangs” regardless of their existent ties or lack thereof to crimes within that locale.59 not only is this classification unjust, but it is also unfounded in logic, as the mention of specific words or symbols cannot inherently tie people to a crime. therefore, the inherent relation of gunna and young thug to these rico crimes, based solely on the fact that they mention ysl, slatt, or use certain emojis, does not pass any sort of legal test to tie people together. the idea that these rappers are tied together based on their use of words or emojis adds an inherently racialized element to this rico charge, especially in comparison to the extensive evidence that was needed through wiretaps and other means to connect mafia members together.60 this represents the apparent bias that law enforcement and prosecutors have towards people of color as biases and correlations were drawn with very little evidence (i.e., the use of emojis) against people of color while heavy evidence was needed to tie white mobsters together. this minimal evidence needed restricts the access of artists to free speech, and more specifically, freedom of expression in an artistic sense, as now artists in the atlanta area who may or may not have collaborated with ysl members may feel a restriction to 60 marriaga, hussain, and gutierrez, “rico,” 9. 59 woods, “systemic racial bias and rico’s application to criminal street and prison gangs,” 332. 58 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news. 57 drake, sandra’s rose (ovo, 2018), https://genius.com/drake-sandras-rose-lyrics. 56 state of georgia, 2020 georgia code, title 16 crimes and offenses, chapter 14 racketeer influenced and corrupt organizations, § 16-14-4. prohibited activities. 55 ellie robinson, “drake shows support for young thug and gunna with ‘free ysl’ call in ‘sticky’ video,” nme (blog), august 3, 2022, https://www.nme.com/news/music/drake-shows-support-for-young-thug-and-gunna-with-free-ysl-call-in-sticky-vide o-3282370. 54 young stoner life, young thug & gunna (ft. drake), solid (young stoner life, 2020), https://genius.com/young-stoner-life-young-thug-and-gunna-solid-lyrics. 59 use the word “slatt” or talk about ysl. this essentially removes many free speech protections from artists that should be afforded to all citizens of the us. iii. are rico charges applicable to street gangs? in terms of ysl, many of the charges in the indictment relate to different sections of “involvement in criminal street gang activity.”61 this means that the first charge of rico conspiracy is not tied to any sort of mafia group (i.e., the commission trial) or a union (i.e., local 560), rather it is tied to ysl, which is a street gang by the indictment’s definition. as mentioned in the woods article, there needs to be an effect on interstate commerce for there to be regulation under the rico statute, due to lopez.62 this idea is expanded upon legally by matthew blumenstein in the vanderbilt law review, as he analyzes the commerce clause of the constitution (article 1, section 8, clause 3 of the us constitution), as expanded by the famous case of gibbons v. ogden.63 blumenstein builds on lopez by mentioning the original decision of the supreme court on interstate commerce, which was gibbons v. ogden (1824), which asserted that the federal government had the exclusive right over interstate commerce.64 however, when understood with the likes of lopez, it is unconstitutional for the government to legislate “noneconomic activity” on the federal level without conducting a “test” on the level of economic impact that this street gang can have.65 this information, combined with the precedent of united states v. morrison, a case that overturned parts of federal law (violence against women act of 1994), as it attempted to place federal jurisdiction over violence that occurred at an interstate level but simultaneously lacked a significant impact on interstate commerce, leads to a strong precedent against the use of rico charges on street gangs.66 in the case of ysl specifically, there is no mention of any effect of interstate commerce at any level. additionally, there is only a mention of one city in particular, atlanta.67 therefore, 67 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news. 66 clarence thomas, united states v. morrison, no. 99-5 (us supreme court 2000). 65 blumenstein, “rico overreach,” 228. 64 justice john marshall, gibbons v. ogden. 63 matthew hardwick blumenstein, “rico overreach: how the federal government’s escalating offensive against gangs has run afoul of the constitution note,” vanderbilt law review 62, no. 1 (2009): 211–38, 225; justice john marshall, gibbons v. ogden, no. 22 us 1 (1824) (us supreme court 1824). 62 justice rehnquist, united states v lopez. 61 cathlene robinson, state of georgia v. kahlieff adams, et. al., courthouse news. 60 there is no way that there was any test of effect on interstate commerce, as there is not even a mention of any other state besides georgia, making this not fall under rico due to lopez.68 similarly, there is nothing proving any trans-state economic activity, meaning that there is an attempt to govern interstate violence, which goes against morrison.69 all in all, these precedents warrant a condemnation of the use of rico in the ysl case, as it goes against the constitutional rights of what the government can/cannot regulate. conclusion “if the mafia replaced the government, we’d probably have half the corruption and twice the fun.” — anthony “fat tony” salerno.70 although this is a colloquial phrase that many people do not take seriously, as it comes from a mob boss of the genovese family, it has a certain level of merit to it. while the corruption is not the same as in the mafia, corruption is illegal and takes the form of hierarchies based on nepotism. the government, in terms of rico, takes the route of ‘legal’ corruption. this ‘legal’ corruption manifests itself through supreme court precedents, statutory laws, and prosecution based on the former. from the prosecution standpoint, there is no difference between the 1985 commission trial and the current ysl trial. however, as illustrated through this paper, from the standpoint of a defense attorney and in the grand scheme of the legal system of the united states, there are an immense number of complexities within the ysl case specifically, regarding everything from artistic freedom to the exception of gangs from rico charges. even with the complexities put aside, there is still a different aura that exists when looking at the ysl case. this aura is at least partly because this case is the first famous rico case that exists in the digital age. social media can have both a hindering effect and a furthering effect on the facts of the case.71 it has served as both a place for evidence and a place for 71 emily m. janoski-haehlen, “the courts are all a twitter: the implications of social media use in the courts,” valparaiso university law review 46, no. 1 (2012 2011): 44. 70 lisa babick, “out of the mouths of the infamous ii,” the new york mafia (blog), may 22, 2020, https://thenewyorkmafia.com/more-famous-mobster-quotes/. 69 clarence thomas, united states v. morrison. 68 justice rehnquist, united states v lopez. 61 resistance in the ysl case, further proving the previous statement. the biggest effect, however, is the fact that people are talking about the case. every few days, there are new articles on yahoo news about developments of the case, one of which read “lawyer in ysl rico case throws out slang term ‘cap’ in court.”72 cap, which is a term used to call something a lie or call out a falsehood, is a vernacular term that is used most prevalently in generation z (genz).73 one of the lawyers for ysl used this term in response to a remark that they deemed to be false but that the court saw as offensive and dishonorable in a court of law.74 as silly as a headline like this may seem, it is indicative of a greater shift in the courts of the united states. this trial has become that of a people’s trial, featuring the language of the general populace. social media allows people to see this trial and sympathize with the defendants who make some of the music that they listen to frequently. it is also a trial for the people in the way that this trial represents an opportunity to uphold the rights of individual artists’ free speech rights. in a final way, this represents a trial for the people because it is an opportunity to establish the notion of equality for rap music under the law, to be afforded the same protections that all other genres of music are given. given the wide access in the united states to social media, it is much easier for something such as the ysl trial to become a trial of the people and their values because of the way in which a wider audience can view and ‘judge’ the trial for themselves. however, all these possible changes to create a new zeitgeist of the twenty-first-century courts in the united states are impossible if the court does not uphold the civil liberties of all the defendants in state of georgia v. khaleiff adams et al. by acquitting them,75 given all the legal precedent for not only free speech law but also that of rico law and the impossibility of applying that to ysl’s case. this case is the opportunity to uphold rap as a form of art, just as metal was in the past.76 this case is the opportunity for “enterprise” within the definition of 76 fitzpatrick, district judge, waller v. osbourne, 763 f. supp. 1144 (m.d. ga. 1991). 75 as of the summer of 2023, there are only eight defendants who plan to stand trial, including young thug, while other defendants such as gunna have entered an alford plea, which allows them to maintain their innocence, whilst pleading guilty: guy, zoe. “everything we know about ysl’s rico case.” vulture, july 11, 2023. https://www.vulture.com/article/ysl-young-thug-gunna-arrest-charges-explained.html. 74 sadler. 73 sadler. 72 armon sadler, “lawyer in ysl rico case throws out slang term ‘cap’ in court,” vibe.com (blog), april 18, 2023, https://www.vibe.com/news/entertainment/lawyer-ysl-rico-case-says-cap-court-1234749641/. 62 rico to be clearly defined.77 this is the case that can set a precedent for loosely affiliated gangs like ysl to be excluded from rico statutes as they do not affect interstate commerce.78 the people of georgia have the power to make this case the beginning of the end for racial injustice within modern rico charges. and finally, this is the case that can prove “fat tony” right about the corruption of the government by acting on it through the reversal of the hypocrisy that the government has solidified through precedent. addendum as of late december of 2023, there have been the following updates on the ysl case. first, the court ruled that the use of lyrics in the trial is allowed, as the prosecution began citing their “significance to real life.”79 while more specific guidelines exist surrounding the use of these lyrics, in order to prevent the jury from taking these lyrics literally, the defense counsel has pivoted from fighting against the allowance of the lyrics to making their meaning clear. by this, i mean the defense counsel has made claims that “thug” in young thug’s name is actually an acronym that stands for “truly humble under god” and that the phrase “pushin’ p” refers to pushing positivity.80 while it is unclear that these more positively connoted meanings of commonly used ysl phrases are truly what they have always meant, these alternative meanings result in a level of reasonable doubt within lyrics, which the court has allowed. while the result of this case is still yet to be determined, it is clear to me and many legal scholars that this is a miscarriage of justice, no matter how it is spun. saying that is not to discount the alleged crimes that have been committed against many people in georgia from other people, associated or not with young thug or others. rather, it is to call for a more egalitarian carriage of justice for all citizens of america. 80 loh, matthew. “young thug’s defense lawyer said his name stands for ‘truly humble under god.’” business insider, november 29, 2023. https://www.businessinsider.com/young-thugs-name-stands-truly-humble-under-god-defense-lawyer-2023-11. 79 jessica murphy and max matsa. “young thug’s lyrics used against him as gang trial starts,” november 27, 2023. https://www.bbc.com/news/world-us-canada-67527707. 78 clarence thomas, united states v. morrison; justice rehnquist, united states v lopez. 77 state of georgia, 2020 georgia code, title 16 crimes and offenses, chapter 14 racketeer influenced and corrupt organizations, § 16-14-4. prohibited activities. 63 ines hwang bellarmine law society review volume xv | issue i article i evaluating covid-19 eviction crisis: policy responses in prolonged emergencies ines hwang boston college, hwangine@bc.edu evaluating covid-19 eviction crisis: policy responses in prolonged emergencies ines hwang 1 abstract: covid-19 was one of the most unexpected and devastating catastrophes of the 21st century. it not only forced tenants out of their homes and into hospital beds, but also onto the streets. in response, the u.s. government implemented short-term measures such as the centers for disease control and prevention (cdc)’s eviction moratorium and the coronavirus aid, relief, and economic security (cares) act, which yielded equally temporary results. while such short-sighted resolutions could be attributed to the persistent nature of the pandemic, the federal government’s failure to adapt, and the inconsistent responses from state governments, ultimately led to a vicious eviction crisis across the country. in this paper, i will evaluate the challenges and shortcomings of the response to the covid-19 eviction crisis. through an analysis of alabama association of realtors v. department of health and human services, as well as state and city policies implemented after july 2021 in minnesota, california, seattle, the district of columbia, and new york, i will show that extensive eviction moratoriums must be in place during national crises to ensure adequate and adaptable legal protections. ultimately, i will highlight the need for structured and collaborative efforts among federal, state, and local governments to effectively address eviction crises by balancing protections for tenants and landlords during prolonged emergencies. introduction eviction is a civil process that allows a landlord to legally remove a tenant from a rental property. state law, local law, leases, federal law, common law, and court rules govern this process. in particular, most states regulate residential renting under laws such as 25 u.s. code 1 ines hwang is an undergraduate student at boston college majoring in sociology and double minoring in global public health and common good and managing social impact and the public good. at boston college, she serves as an ambassador for winston center for leadership and ethics, freshman representative of bc charity: water, and part of partners in health and the ascend program. in addition, after co-authoring “the big game of fatigue and resentment” with dr. jin-a choi at montclair state university, she was invited to publish a second paper for mental health awareness month. 4 § 4137 – lease requirements and tenant selection. these laws are often based on the uniform residential landlord and tenant act (urlta) or the model residential landlord-tenant code. federal laws related to eviction address discriminatory practices, including the civil rights act of 1866 and 42 u.s. code chapter 45, the federal fair housing act. 2 when evicting a tenant in the state of massachusetts, for instance, the landlord gives a notice to quit, which provides a grace period of 14 days for non-payment of rent or 30 days to vacate the property. while the tenant may attempt to resolve the conflict with the landlord, the landlord can take the tenant to court after the grace period. once the tenant responds to the 3 summons and complaint filed by the landlord, an agreement can be reached by both the landlord and the tenant; if not, the case goes to trial. if the judge decides in favor of the landlord, an “execution” may be issued, during which there are 10 days for the tenant to appeal. after that, the landlord can hire a sheriff or constable to provide a 2-day notice before removing the tenant and the tenant’s belongings. as such, the law serves as an equalizer 4 between landlords and tenants. for landlords, eviction is a means to reclaim possession of their property when tenants fail to abide by the terms of the lease. for tenants, it provides legal protection against wrongful termination of their lease by landlords. in other words, the legal process of an eviction is meant to protect both the landlords and the tenants. in times of emergencies, however, neither the landlords nor the tenants can be protected without active efforts to maximize the function of the law, as was the case during the covid-19 era. in particular, legal efforts to address the eviction crisis were met with the utterly 4commonwealth of massachusetts, “landlord’s guide to evictions,” mass.gov, n.d., https://www.mass.gov/guides/landlords-guide-to-evictions. 3“tenants’ guide to eviction,” mass.gov, june 28, 2024, https://www.mass.gov/info-details/tenants-guide-to-eviction. 2“eviction,” lii / legal information institute, n.d., https://www.law.cornell.edu/wex/eviction. 5 unpredictable nature of the epidemic and ultimately failed, only to leave landlords and tenants helpless. many households were unable to pay rent, and mortgage lenders tightened lending standards as the mortgage credit availability index fell to 3.3% in june 2020, the lowest since april 2014. there were attempts made to protect those affected: the housing and urban 5 development (hud) rental assistance, numerous state funds, and emergency rental assistance programs that paid for rent, payments, utilities, and certain other expenses related to housing to support both the tenants and the landlords. 6 one of the federal government’s efforts included the coronavirus aid, relief, and economic security (cares) act that congress passed in march 2020, which gave 120 days eviction moratorium. yet, when this act expired in just three months, the centers for disease 7 control and prevention (cdc) extended the moratorium through july 2021 with the coronavirus response and consolidated appropriations act. in other words, the cdc had found a way to continue maximizing the function of the law to protect households indirectly affected by the epidemic. yet, when the cdc’s order expired, it failed to issue a second moratorium as in alabama association of realtors v. department of health and human services. 8 as a result, the cares act reduced economic welfare losses by 20% without affecting the number of fatalities. it significantly benefited low-income households, but provided limited 8“supreme court strikes down the cdc’s second eviction moratorium,” american bar association, september 14, 2021, https://www.americanbar.org/groups/business_law/resources/business-law-today/2021-september/supreme-court-stri kes-down-the-cdc/. 7 “h.r.748 116th congress (2019-2020): cares act | congress.gov | library of congress,” congress.gov, accessed april 29, 2025, https://news.icourban.com/crypto-https-www.congress.gov/bill/116th-congress/house-bill/748. 6“emergency rental assistance program,” u.s. department of the treasury, february 8, 2025, https://home.treasury.gov/policy-issues/coronavirus/assistance-for-state-local-and-tribal-governments/emergency-re ntal-assistance-program. 5“7 findings on covid-19’s impact on housing,” habitat for humanity, accessed december 4, 2024, https://www.habitat.org/stories/7-findings-covid-19s-impact-housing. 6 gains to middle-income households. while the cares act increased government debt, it 9 provided non-employment income to help households remain afloat, meaning it increased the median household’s ability to sustain its typical consumption expenditures. as study results illustrate, the cares act helped lower-income households’ resilience significantly more than their higher-income counterparts, which also enabled a decrease in the discrepancy in resilience across racial groups and geographic regions. 10 as the figures above reveal, the cares act made an evident contribution to mitigating poverty, economic instability, and inequality. some may argue that the cares act came at the cost of higher government debt and the failure to provide direct payments to the right individuals 10trevor and trevor, “how much did the cares act help households stay afloat? san francisco fed,” sf fed, december 18, 2024, https://www.frbsf.org/research-and-insights/publications/economic-letter/2021/07/how-much-did-cares-act-help-hou seholds-stay-afloat/. 9becker friedman institute for economics at uchicago, “the impact of the cares act on economic welfare | becker friedman institute,” becker friedman institute, december 12, 2024, https://bfi.uchicago.edu/insight/research-summary/cares-impact-on-welfare/. 7 in an effort to focus on providing aid to low-income households. such downfalls of the act, however, do not outweigh the positive effect it had on increasing household resilience, approximately from 31 to 46 weeks. 11 history of the correlation between natural disasters and evictions since 1960, the housing crisis in the united states has worsened. rents in the united states have risen by 61%, while renters’ incomes have increased by only 5%. approximately 10 million low-income households are either homeless or paying unaffordable rent, forcing them to compromise on necessities such as food, transportation, and healthcare. since 2001, worst-case housing needs—low-income households that pay more than half of their income on rent or live in severely inadequate housing without assistance—have risen by 66%. in 2016, there were 2 million eviction filings, and by 2018, nearly half of all renter households were paying more than 30% of their income on rent, with almost one in five paying over 50% (joint center for housing studies, 2020). 12 during and after the pandemic, the situation aggravated. in 2022, a record 22.4 million renter households spent more than 30% of their earnings on rent or utilities, putting them at risk and leaving limited room to save during times of crisis. among renter households earning less than $30,000 annually, the median residual income dropped to just $310 per month, a 47% decline from 2001. while the pandemic-era protections and financial support systems may have temporarily reduced eviction filings, these resources largely expired or phased out, contributing to a rise in housing instability. 13 13joint center for housing studies of harvard university, “america’s rental housing 2024,” america’s rental housing, 2024. 12mel wilson and national association of social workers, national eviction crisis in the era of the coronavirus pandemic, accessed december 4, 2024, https://www.socialworkers.org/linkclick.aspx?fileticket=gmnjzul1bpm%3d&#38;portalid=0. 11b. brandonmaya, “the u.s. cares act and household resilience,” bureau of labor statistics, january 7, 2022, https://www.bls.gov/opub/mlr/2022/beyond-bls/the-us-cares-act-and-household-resilience.htm. 8 in times of natural or man-made disasters, including public health crises, fema provides aid to renters affected by natural or man-made disasters and emergencies. fema offers seven types of housing assistance and allows up to 18 months of continued rental support, which can include government-provided homes such as trailers, temporary housing units, or fema-constructed housing sites. 1415 a specific example of a disaster that has brought about an eviction crisis is hurricane michael, a category 5 hurricane that hit bay county, florida, on october 10, 2018. the storm severely damaged local housing stock, leaving small-property landlords with few financial resources to make repairs. at the same time, some landlords of larger properties used the disaster as an opportunity to evict tenants and renovate units to raise rents. in response, displaced renters turned to fema for support through its 18-month continued rental assistance program, government housing, hud rental assistance, and other aid. fema’s long-term support, which made use of the stafford act that allows agencies to support individuals displaced by disasters for up to 18 months, contributed to a measurable decline in evictions two years after the disaster. 16 in contrast, the housing crisis of the three-year-long covid-19 era was met with just one year of federal eviction moratorium protection. even this difference in the government’s 17 responses to different crises highlights the inconsistency in the federal government’s protocol. in 17“covid-19 pandemic timeline,” northwestern medicine, march 2023, https://www.nm.org/healthbeat/medical-advances/new-therapies-and-drug-trials/covid-19-pandemic-timeline#:~:text =on%20january%2030%2c%202023%2c%20the,that%20continue%20to%20save%20lives. 16tanaya srini et al., a perfect storm? disasters and evictions, october 13, 2021, https://nlihc.org/sites/default/files/a_perfect_storm_disasters_and_evictions.pdf. 15“fema continued rental assistance,” fema.gov, january 21, 2025, https://www.fema.gov/fact-sheet/fema-continued-rental-assistance. 14“assistance for housing and other needs,” fema.gov, february 7, 2025, https://www.fema.gov/assistance/individual/housing. 9 order to better respond to the next emergency crisis, the government must have scalable, long-term housing policies that extend beyond short-lived emergencies. alabama association of realtors v. department of health and human services this case was brought to the court by the alabama association of realtors, along with other plaintiffs, in opposition to the department of health and human services, the defendant, specifically challenging the centers for disease control and prevention (cdc). the plaintiff argues that the cdc’s national eviction moratorium during the national pandemic exceeds its statutory authority. the 42 cfr § 70.2, initially passed in 1944, grants the authority to implement interstate regulations, including measures like inspection, fumigation, disinfection, sanitation, and so on. but this provision has rarely been invoked and never before to justify an eviction 18 moratorium. the initial eviction moratorium was implemented by the cares act, which expired in july 2020. it was followed by multiple extensions, including the extension challenged in this case. to the plaintiffs, this extension is a violation of the constitution because the agency lacked statutory authority and caused irreparable harm to the landlords. they claim that §361(a), the public health service act, only permits ‘direct’ public health measures to which the cdc’s eviction moratorium is deemed indirectly related to interstate infection. the defendant claims that §361(a) grants broad authority to the agency, the cdc, and is deemed a “necessary” measure to prevent the spread of disease. thus, using §70.2, the cdc argues that it is “necessary to prevent the introduction, transmission, or spread of communicable diseases” between states and foreign countries. it is a legitimate public health measure in the public interest and funded by 1817“42 cfr § 70.2 measures in the event of inadequate local control.,” lii / legal information institute, n.d., https://www.law.cornell.edu/cfr/text/42/70.2#:~:text=cfr-,%c2%a7%2070.2%20measures%20in%20the%20event %20of%20inadequate%20local%20control,to%20be%20sources%20of%20infection. 10 congress’s $50 billion in emergency rental assistance, which the government determined to be parallel to the approximate damage, mitigating financial burdens on landlords. the legal question of this case is whether the cdc had the statutory authority under 42 cfr §70.2 and §361(a) to impose a nationwide eviction moratorium. the u.s. district court for the district of columbia ruled in favor of the plaintiffs, holding that the cdc lacked the authority to impose the moratorium, yet stayed its decision pending appeal. the stay was upheld, allowing the moratorium to continue, which the supreme court ultimately vacated temporarily. this case resulted in a 5-4 decision; the court ruled that the moratorium exceeded its statutory authority. the supreme court concluded that the cdc overstepped, as § 361(a) does not explicitly grant the agency the power to impose such broad measures without fault to congress, as they are expected to speak clearly and precisely when authorizing power to agencies. the decision draws from precedents such as utility air regulatory group v. epa (2014) and fda v. brown & williamson tobacco corp. (2000), which hold that when agencies claim vast economic and political power, congress must provide clear and explicit authorization. due to the extent of the economic involvement of the moratorium, the court determined that the cdc’s interpretation was beyond its statutory authority. additionally, the court summoned the precedent, lindsey v. normet (1972) to support this decision with the interference of state-level landlord-tenant laws, traditionally regulated by states, and thereby reiterated the necessity of clear and specific language when altering the power balance between federal and state authorities. 19 the ruling of this case sheds light on the tension between individual rights and public 19the alabama association of realtors v. department of health and human service (supreme court of the united states august 26, 2021). 11 health needs that limits the government’s flexibility in responding to such emergencies. it exposes the lack of legislative preparation to grant statutory authority to protect public welfare during a national crisis. in this case, the cdc had no choice but to rely on 42 cfr §70.2 due to the absence of clearer congressional action. while it cannot be disputed that agencies must adhere to statutory limits, the supreme court’s decision reflects the need for congress to act more decisively in authorizing emergency measures. finally, the case reflects the ethical question of balancing economic interests and public health. although legally sound, the decision arguably prioritized property rights over human welfare, as the moratorium protected millions of vulnerable tenants from eviction, preventing widespread homelessness and reducing covid-19 transmission risks. thus, the ruling reaffirms the importance of statutory limits, but also highlights the challenges of relying on slow-moving legislative bodies and legal disputes during a crisis. the case underscores the need for more explicit public health statutes to empower agencies like the cdc to act decisively in future emergencies without overstepping their legal boundaries. further, the supreme court’s ruling highlights the relationship between individual property rights and the government’s responsibility to protect public health. eviction is both directly and indirectly related to health, as people facing eviction threats are more likely to suffer physical illness, high blood pressure, despair, and anxiety. eviction often results in housing instability, relocation to subpar housing, crowding, and homelessness, all of which are tied to health threats to both adults and children. further, homelessness has a direct association with 20 the spread of disease, as known from hiv, tuberculosis, hepatitis c, and covid-19, as 20abdullahi tunde aborode, “threats of evictions in the usa: a public health concern,” annals of medicine and surgery 82 (september 15, 2022), https://doi.org/10.1016/j.amsu.2022.104681. 12 homelessness contributes substantially to the population burden of disease. the agencies may 21 be discouraged from implementing necessary measures, and legal disputes like this inhibit the focus on people’s lives and prevent the ongoing spread of disease. justice breyer’s dissent has also presented how there was a downward trend in covid-19 cases, and the predictions were ‘tragically untrue,’ and so the court too failed to take into consideration the vicious and changing nature of a pandemic. this decision constrained the future government’s authority to implement vital emergency measures and undermined agency authority, leaving public health at significant risk. this sets the precedent for the united states government, which leaves concerns for future pandemic responses and creates a potential chilling effect. most importantly, however, the case carries profound implications regarding the government’s inability to respond to urgent needs swiftly, flexibly, and effectively during times of crisis. what this case ultimately reveals is not the vagueness of § 361(a), but the inflexible scope of the law that is particularly ill-suited to combat the broad and unpredictable nature of a health crisis. while the statute limits the cdc’s authority to a set of interventions, such clarity becomes an obstacle in emergencies that demand fast and unconventional actions, such as halting evictions to prevent mass transmission. hence, the case demonstrates how legal precision, when outdated, can undermine adequate governance during imminent crises. statewide moratorium case studies despite the lack of nationwide protection, some states did not remove eviction moratoriums after july 2021. minnesota, for example, fully ended the eviction moratorium on june 1, 2022, and turned to a gradual transition method. even after june 1, brooklyn center, 21emily mosites, laura hughes, and jay c butler, “homelessness and infectious diseases: understanding the gaps and defining a public health approach: introduction,” the journal of infectious diseases 226, no. supplement_3 (october 7, 2022): s301–3, https://doi.org/10.1093/infdis/jiac352. 13 minneapolis, and st. louis park legislated their own notice requirements. minnesota’s 22 statewide coalition, the homes for all coalition, was instrumental in advocating for the unique “off-ramp” moratorium: a solution that provided a more comprehensive and more precise set of rules to protect both the landlords and the tenants of minnesota. as stated on july 14, 2021, landlords could file evictions for material lease violations but not for non-payment of rent. as of august 13, 2021, landlords could terminate leases and not renew leases of tenants behind on rent, and who are ineligible for the covid-19 era. from september 12, 2021, landlords could file for evictions for tenants who are behind on rent but are ineligible for covid-19 emergency rental assistance, for which a landlord must provide a written notice to the tenant 15 days prior based on nonpayment of rent. most off-ramp protections ended on october 12, 2021, unless 23 eligible for emergency rental assistance. the off-ramp protection is unique as it avoids the binary, all-or-nothing approach, allowing tenants to stay housed with access to aid, while also allowing landlords to recover from the losses and work with the tenants to provide notice and allow time. it was a balanced policy approach that attempted to protect both tenants and the landlord, working off of each other. similarly, new jersey continued their eviction moratorium until december 31, 2021, specifically through programs that made all people eligible if they make less than 120% of the area median income in the county. new mexico continued until 24 october 3, 2021, and new york eviction protection ended on january 15, 2022. 25 there are unique cases like california and seattle that had advanced programs that 25lawdistrict team, “eviction moratoriums by state,” lawdistrict, december 12, 2024, https://www.lawdistrict.com/articles/eviction-moratoriums-by-state. 24ericka conant, “new jersey eviction moratorium to end in 2022 as covid-19 cases surge,” whyy, december 31, 2021, https://whyy.org/articles/thousands-of-households-set-to-lose-protections-as-n-j-eviction-moratorium-ends-jan-1/. 23“minnesota’s eviction moratorium off-ramp,” national low income housing coalition, august 30, 2021, https://nlihc.org/resource/minnesotas-eviction-moratorium-ramp. 2221home line, “eviction moratorium phaseout information — home line,” june 1, 2022, https://homelinemn.org/phaseout/. 14 brought about more positive results compared to other regions. california ended its eviction moratorium on march 31, 2023. california provided nearly three years of protection, which, like new jersey, included providing monetary aid to tenants who earn less than 80% of the area's median income. ab 832, the covid-19 rental housing recovery act, signed by governor newsom, enacted a statewide eviction moratorium that expired on september 30, 2021. nonetheless, it provided additional money to reimburse 100% of the unpaid rent for landlords. also, the housing is key program allowed landlords and tenants to apply for assistance. it was a unique program that “assisted over 371,000 households with more than $4.7 billion in rent and utility assistance during the covid-19 pandemic.” through the ab-2179 extension, tenants 26 who had submitted rental assistance applications, housing is key, were temporarily protected until june 30, 2022. the application closed on april 1, 2022, and the tenants were not evicted due to non-payment of rent while their application was pending. california also had clear rules and dates for rent payments to protect tenants and landlords. for rent due from march 1, 2020, to august 31, 2020, landlords could not evict tenants for non-payment with the provision of the declaration of covid-19-related financial distress. for ones that were due from september 2020 to september 2021, tenants were not evicted if they provided the declaration and paid at least 25% of their rent during that period. lastly, starting in october 2021, tenants were expected to pay full rent if they did not apply for rental assistance, although local emergency ordinances varied. as a result, california’s program has had the largest unified emergency rental assistance program in the nation, which covered about 64% of the state’s population, and the remaining residents were covered by the local emergency rental assistance programs. lourdes 27 27 covid-19 california eviction moratoriums (bans) and tenant protections,” www.nolo.com, september 6, 2022, https://www.nolo.com/legal-encyclopedia/coronavirus-covid-19-california-eviction-bans-and-tenant-protections.htm l. 26state of california, “housing is key,” housing is key, accessed december 4, 2024, https://housing.ca.gov/. 15 castro ramirez, business, consumer services, and housing agency secretary, has stated that california worked “in partnership with a local network of 144 culturally competent community-based organizations engaging landlords, legal aid groups, local cities and counties and our federal partners at us treasury, we collectively helped over one million people in california stay safely and stably housed” hence, california outperformed other states by 28 implementing a long-term, well-funded, and clearly phased eviction protection plan, especially with its “housing is key” program covering over 64% of the population, with extensive community outreach and administrative cooperation and coordination. seattle’s eviction moratorium continued until january 15, 2022, through executive order 2021-07 by mayor jenny a. durkan. this order not only extends the moratorium but also modifies additional covid-related relief measures regarding utility assistance. mayor durkan has stated that as the first major city impacted by the covid-19 outbreak, seattle was able to maintain “the lowest cases, hospitalizations, and deaths of every major city…by establishing and continuing one of the first in the nation moratoriums on evictions to keep families safe.” 29 furthermore, the unexpected rise of the delta variant of this moratorium extension ensures “every level of government can provide rental assistance and housing support to tenants and landlords, which is critical to stabilizing the community as we reopen and recover.” beyond that, seattle 29seattle human services, “mayor durkan announces january 15, 2022 extension of eviction moratorium and continuation of additional covid-related protections bottom line,” bottom line, december 8, 2022, https://bottomline.seattle.gov/2021/09/21/mayor-durkan-announces-january-15-2022-extension-of-eviction-moratori um-and-continuation-of-additional-covid-related-protections/. 28state of california, “‘this program was truly a blessing’: facts from california’s nation-leading $4 billion state rent relief program,” governor of california, june 17, 2024, https://www.gov.ca.gov/2022/07/01/this-program-was-truly-a-blessing-facts-from-californias-nation-leading-4-billio n-state-rent-relief-program/#:~:text=california’s%20program%20is%20the%20largest,assistance%20programs%20c overing%20the%20rest. 16 requires landlords to provide payment plans and restricts late charges and interest. likewise, the 30 seattle times has reported that 60,000 seattle area renters were behind rent, which the city has distributed more than $15 million of the first allocation of american rescue plan rent relief, including 100% of funds for united way king county and income-restricted affordable housing and the rest $6 million for bipoc communities. the executive order prohibited landlords from initiating evictions and encouraged them to offer flexible payment plans, but the tenants were also legally obligated to pay rent during this period. there was extensive assistance for small businesses and nonprofit organizations. as a result, ordinance 126075 took effect upon the expiration of the moratorium, which provided an additional 6-month period for tenants to claim a defense against non-payment eviction due to financial hardship caused by covid-19 through mid-june 2022. seattle’s moratorium exemplified a model for urban crisis solution that 31 strengthens tenant protections and rental assistance access. the district of columbia also implemented a permanent eviction ban, going beyond temporary relief, that bars landlords from filing evictions against tenants who owe less than $600. mel zahnd, a senior staff attorney in the housing law unit, speaks on how records of eviction cases, even if the tenants do not end up being evicted, “prevent those people from finding new housing in the future.” a 2020 report from georgetown university claimed that in 2018, 12% of 32 households called to d.c. superior court owed less than $600. this sets a higher standard for 33 33 samantha sinutko, “gu report highlights predatory dc eviction practices,” the hoya, october 29, 2020, https://thehoya.com/news/gu-report-highlights-predatory-dc-eviction-practices-2/. 32amanda michelle gomez, “dc council passes major housing bill, a win for tenants,” dcist, march 4, 2022, https://dcist.com/story/22/03/01/dc-bans-evictions-over-unpaid-rent-under-600/. 31kamaria hightower, “mayor durkan announces january 15, 2022 extension of eviction moratorium and continuation of additional covid-related protections,” office of the mayor, september 21, 2021, https://durkan.seattle.gov/2021/09/mayor-durkan-announces-january-15-2022-extension-of-eviction-moratorium-an d-continuation-of-additional-covid-related-protections/. 30“seattle’s covid eviction moratorium extended into january 2022,” the seattle times, september 21, 2021, https://www.seattletimes.com/seattle-news/politics/seattles-covid-19-eviction-moratoriums-extended-into-january-2 022/. 17 landlord accountability and addresses the lasting harm that the tenants might experience. moreover, this bill has greater impacts than simply banning evictions for modest sums of unpaid rent. it requires landlords to hold valid rental registration and licensing to file evictions, notify, at least 30 days in advance, a tenant of the plans to file evictions over nonpayment, provide photographic evidence of the court-issued proof of notice, and tell prospective tenants about the screening process prior to requesting fees or information. it also instructs the d.c. superior court to dismiss eviction filings if landlords do not follow necessary steps and seal eviction records 30 days after a case ends if the landlord loses or three years if the landlord wins. thus, 34 d.c.’s approach allows a more transparent and regulated eviction process that takes into consideration the tenants’ long-term accessibility of housing. the eviction moratorium has expired in new york, yet it took a more layered approach. any renter who has an application for rent relief pending in the state of new york cannot be evicted. on january 15th, 2022, eviction protection for new york city residents ended, including for those who filed a hardship declaration. however, protections still apply to new york city residents if their hardship declaration is still processing. housing justice for all, a statewide coalition of organizations representing low-income tenants and homeless new yorkers, announced that while the pandemic caused “over one million households to be out of work and behind on rent, [with] over 92,000 new yorkers are living in shelters or on the streets with no relief in sight” , they were able to earn a $2.4 billion rent relief program. despite these 35 efforts, eviction filings have surged since 2022, after the protection ended. there are measures 36 365“evictions filings in new york increase,” lawdistrict, july 4, 2023, https://www.lawdistrict.com/articles/new-york-eviction-notice-filings-surge-after-protections-end. 35cea weaver, “we won a strong rent relief program, but more must be done to protect tenants and homeless new yorkers: housing justice for all responds to state budget,” housing justice for all, may 6, 2021, https://housingjusticeforall.org/we-won-a-strong-rent-relief-program-but-more-must-be-done-to-protect-tenants-and homeless-new-yorkers-housing-justice-for-all-responds-to-state-budget/. 34gomez, “dc council passes major housing bill, a win for tenants.” 18 such as the tenant safe harbor act and emergency rental assistance program, which requires tenants to prove that the pandemic caused financial problems, after the moratorium within the period from march 2020 to january 2022. these specific programs were also targeted at protecting many tenants and further avoiding any malingering. hence, new york’s eviction moratorium was long-term and precise, aiding with rigid standards. between november 2021 and april 2022, there was approximately a 40% increase in filings, which is highly concerning as 17.6% of renters have rent that is due in the state of new york.” therefore, while new york 37 had a notably long-term and carefully structured support system for tenants in genuine need, the post-moratorium surge in filings underscores the limits of even well-designed protections. this applies to other states as well. even the most well-designed protections are state-wide, and with the exception of certain states, the national eviction surge reveals the limited support and non-ideal outcomes. evaluating challenges: consequences of a disjointed eviction response the most apparent challenge is the strong divide between the state and federal 37 “eviction tracking system,” eviction lab, accessed december 4, 2024, https://evictionlab.org/eviction-tracking/. 19 governments. the renter-landlord relationship is a power held by the state, although federal agencies are the operators of eviction moratorium policies. as such, the cdc’s attempt to extend the nationwide eviction moratorium failed due to the government’s decision that the cdc exceeded its authority, and there was a lack of clarity and specificity in the extended moratorium proposed. since the federal eviction moratorium ended in 2021, there has been a great rise in eviction filings relative to before the pandemic and when the federal eviction moratorium was still effective. the eviction filings have risen incomprehensibly, peaking in march of 2023, which reveals the long-term damage and continuation of evictions when protective measures are stripped away. despite the state policies, there were great discrepancies in the state and federal policy operations. a few states took extensive measures after the cdc eviction moratorium ended. california took one of the most supportive measures, as its moratorium lasted three years and cost $4 billion. minnesota also took a careful approach by using a phase-out method to prevent abrupt expiration for people who need support. seattle also supported the tenants in the city until january 2022, with extensive collaboration between countless organizations and a focus on specific groups of people and regions. the district of columbia also implemented thorough eviction bans to protect tenants, as did the state of new york, with $2.4 billion in aid. eviction has various adversities that come along with it, as it not only increases homelessness in regions, which is strongly associated with hygienic problems, but also leads to a decline in financial health and credit scores. according to yale university researchers, it even increases the number of hospital visits. the health concerns begin even before the tenants leave 20 their homes. according to the boston university school of public health, tenants facing 38 eviction are likely to report poor health: high blood pressure, depression, anxiety, and psychological distress. this eventually leads to physical weakness, as eviction causes people to move into poor-quality housing with overcrowding or simply become homeless, which harms both adults' and children's health. furthermore, a study by the national library of medicine has 39 proven that the expiration of the eviction moratorium has an association with “increased covid-19 incidence and mortality, supporting the public-health rationale for eviction prevention to limit covid-19 cases and deaths.” a brief from the robert wood johnson foundation has 40 concluded that the eviction crisis requires a multipronged policy approach in the long term, such as “financial assistance to renters; expanding legal protections for tenants; and increasing the scale of federal affordable housing and rental aid programs.” 41 at the same time, overall poverty peaked in 2022. notably, the poverty rate had reached a record low of 8.0% in 2021. after the eviction moratorium expired, it rose sharply to 12.4%, suggesting a potential correlation between the end of eviction protections and the increase in poverty. the poverty population, which had declined by 14.5 million between 2019 41desmond m himmelstein g, “eviction and health: a vicious cycle exacerbated by a pandemic,” rwjf, january 20, 2023, https://www.rwjf.org/en/insights/our-research/2021/04/eviction-and-health-a-vicious-cycle-exacerbated-by-a-pande mic.html. 40 kathryn m leifheit et al., “expiring eviction moratoriums and covid-19 incidence and mortality,” american journal of epidemiology, december 1, 2021, https://pmc.ncbi.nlm.nih.gov/articles/pmc8634574/. 39john kane and cynthia gordon, “the hidden health crisis of eviction.,” sph the hidden health crisis of eviction comments, october 5, 2018, https://www.bu.edu/sph/news/articles/2018/the-hidden-health-crisis-of-eviction/. 38winnie van dijk, “eviction and poverty in american cities,” tobin center for economic policy, february 2024, https://tobin.yale.edu/research/eviction-and-poverty-american-cities#:~:text=evictions%20increase%20homelessnes s%2c%20reduce%20tenants,employment%20outcomes%20following%20an%20eviction. 21 and 2021, surged by the same amount in 2022. the expiration of pandemic-era relief measures reversed much of the government's progress in supporting vulnerable populations during the crisis. most strikingly, child poverty saw a historic rise in 2022, with 5 million more children living in poverty compared to the previous year. these poverty measures reveal the importance 42 of an eviction moratorium as a tool to protect people susceptible to growing poverty; as such, low-income households are the most vulnerable population to poverty and homelessness, who need federal protection in times of national emergency. conclusion: proposed reforms and solutions this is not to call for a complete abolition of eviction. in fact, the legal process of eviction serves to protect both landlords and tenants. however, in times of public health crises, alternative legal mechanisms must be in place to adjust the terms of eviction, taking into account both contractual obligations and the evolving status quo. when covid-19 broke out, the u.s. government’s response fell short, primarily because it failed to anticipate the prolonged nature of the crisis. while such disasters occur unpredictably and with varying severity, this shortcoming highlights the need for proactive planning to better support the public in the face of future emergencies. first and foremost, the federal government, particularly congress, should collaborate with national agencies such as the cdc and fema to establish clearer statutory guidelines for eviction moratoriums during emergencies. rather than operating in silos, government entities must work together to develop comprehensive and adaptable solutions. while regional flexibility 42“tracking the covid-19 recession’s effects on food, housing, and employment hardships,” center on budget and policy priorities, january 8, 2021, https://web.archive.org/web/20210114162754/https:/www.cbpp.org/research/poverty-and-inequality/tracking-the-co vid-19-recessions-effects-on-food-housing-and. 22 is necessary to address local needs, drastic variations in policies can create inequities, preventing some people from accessing the most effective assistance programs. for instance, the lack of coordinated federal guidance contributed to the legal susceptibility of the cdc’s moratorium in alabama association of realtors v. department of health and human services. additionally, expanding funding for similar programs and streamlining application processes can help reduce housing instability. the expansion of funds can not only increase the financial budget but also grant more entities the authority and ability to provide funding. it empowers the right institutions—state housing agencies and government, local governments, and trusted community organizations—to administer aid efficiently and equitably, catering to specific communities. when more entities are appropriately resourced and authorized to help, they can potentially present a viable loss recovery for landlords while also tailoring assistance to reach the more vulnerable and marginalized populations that face disproportionately higher risks during such crises, as shown in the graphical data below. both figures reveal that minority groups—specifically latina and black women (left) and low-wage earners (right)—struggled to recover from job losses during the covid-19 era. data from the eviction tracking system by eviction lab indicates that the long-term effects of 23 eviction-related losses for both tenants and landlords can extend beyond three years, underscoring the need for continued support to both parties in order to prevent legal disputes. additionally, according to the center on budget and policy priorities, although the economic recovery was stronger and faster than initially projected, it only returned to pre-pandemic levels by the end of 2023. job creation exceeded expectations, and overall economic activity slightly surpassed pre-pandemic projections. 43 last but not least, reformed policies should take into consideration the unpredictable nature of emergencies and ensure flexibility. in the case of covid-19, the federal public health emergency (phe) was declared in march 2020 and officially ended on may 11, 2023. 44 however, the eviction moratorium barely extended beyond 2021. this misalignment between the timeline of the crisis and the support policies meant to mitigate its impact reflects a fundamental flaw. while eviction moratoriums should not be indefinite or lacking in clear endpoints, there must be predefined guidelines enabling both individuals and governments to respond swiftly and effectively to emergencies. one solution could be to implement a phased approach: provide eviction protection for a minimum of three years, followed by structured local and state follow-up. such an approach would help ensure compliance, protect vulnerable tenants, and prevent sudden surges in eviction filings that could destabilize communities and pose public health risks. in conclusion, natural disasters come and go, leaving scarring aftermaths, one of which is a sudden rise in eviction filings. to protect both the landlords and the tenants during such times, the government must prepare and implement reformed eviction moratorium policies 44“end of the federal covid-19 public health emergency (phe) declaration | cdc.” 2024. archive.cdc.gov. april 5, 2024. https://archive.cdc.gov/www_cdc_gov/coronavirus/2019-ncov/your-health/end-of-phe.html. 43center on budget and policy priorities. 2023. “tracking the recovery from the pandemic recession.” center on budget and policy priorities. april 13, 2023. https://www.cbpp.org/research/economy/tracking-the-recovery-from-the-pandemic-recession. 24 through collaborative efforts that address both immediate and long-term needs, ensuring an effective and equitable response to future crises. without a proper reform of the status quo, the next national emergency will bring about yet another vicious cycle of a disaster followed by an eviction crisis. 25 emily riccardi.docx bellarmine law society review volume xv | issue i article iii a legal, ethical, and public policy analysis of airbnb: how platform design and legal loopholes enable discrimination in the sharing economy emily riccardi boston college, riccarem@bc.edu a legal, ethical, and public policy analysis of airbnb: how platform design and legal loopholes enable discrimination in the sharing economy emily riccardi 1 abstract: this paper analyzes how airbnb’s platform design, legal classification, and economic incentives enable racial discrimination within the sharing economy. despite public commitments to diversity and inclusion, airbnb continues to facilitate bias due to loopholes in civil rights legislation and design features such as profile pictures and name visibility. empirical studies and high-profile incidents underscore persistent racial disparities for both guests and hosts. this paper concludes with policy recommendations, including legislative reforms, design changes, and stronger state-level protections. it advocates for a modernized legal framework that holds digital platforms accountable and ensures equity across the sharing economy. introduction airbnb’s rise as a leader in the sharing economy has not come without a social cost. racial discrimination persists across the platform due to economic incentives embedded in its design. airbnb has become a significant force, disrupting the hotel and travel industry and showing the bargaining power of being an asset-light platform in the sharing economy. the company stands out with its diverse listings, personalized experiences, and community-driven approach. however, airbnb faces ongoing tensions between maximizing economic incentives and enforcing anti-discrimination policies. despite the platform’s popularity, many users are unaware that its current design enables racial bias. gaps in current legislation enable the 1 emily riccardi is a senior in boston college’s carroll school of management, pursuing a bachelor of science in management with concentrations in finance and business analytics. outside of the classroom, emily has served as a portico teaching assistant, statistical analysis grader, and student admissions panelist and tour guide. emily’s professional experiences reflect her deep interest in finance, data, and technology risk. after graduation, emily is set to continue her professional development at ernst &amp; young as a technology risk assurance staff member. she will also pursue a master of legal studies (mls) in cybersecurity, risk, and governance at boston college law school this coming fall. 61 company to evade existing anti-discrimination laws, allowing the platform to avoid accountability for its users’ actions. airbnb’s platform design and revenue model, centered on booking volume and guest satisfaction, inadvertently leads to discriminatory behavior by hosts and guests. features such as displaying guest names and profile pictures have been known to facilitate racial bias. while hosts face tangible economic consequences when engaging in discrimination, including lost revenue, higher vacancy rates, and fewer reviews, implicit bias often outweighs these financial incentives. airbnb has found loopholes in the “mrs. murphy” exemption and section 230 of the communications decency act, while its classification outside the definition of a public accommodation allows the company to skirt the laws set by the civil rights act of 1964 and the fair housing act of 1968. these pieces of legislation have collectively shielded the company from liability for discriminatory actions by its users. although airbnb has implemented some self-regulating measures, these remain limited in scope, showing that greater action is needed to combat this issue. this paper begins by outlining airbnb’s emergence as a leader in the travel app industry, followed by the regulatory and legal context that forms the foundation of the paper. it then explores empirical research that has analyzed discrimination on airbnb’s platform. the following section dives into airbnb’s initial responses, the platform’s economic model and design, and key legal precedents that shape liability. next is a comparison to traditional hotels, a look at airbnb’s impact on the new york city housing market, and an overview of patterns of broader discrimination across other platforms in the sharing economy. the paper concludes with policy and design reforms aimed at promoting equity and accountability on the platform. 62 this paper is directed toward policymakers, legal scholars, platform developers, and members of the sharing economy who seek to address issues related to economic incentives, civil rights, and discrimination on digital platforms. history airbnb’s emergence in the travel app industry airbnb was founded in 2007 as a peer-to-peer marketplace that allows hosts to rent their properties to travelers for short-term stays. the company was created by brian chesky and joe gebbia, roommates looking for a quick way to make money. they began by renting out air mattresses and grew the company to include apartment and vacation rentals. airbnb helps budget-conscious travelers, business professionals, and avid vacationers find communities and create unique travel experiences. as of 2024, airbnb has over 5 million hosts with 8 million property listings and 1.5 billion guest check-ins.2 the company serves over 100,000 cities and 200 countries.3 in 2024, the company made $11.1 billion in revenue and $2.6 billion in net income.4 airbnb is third in market share among travel app providers behind expedia and booking.com.5 airbnb’s strong global brand, network effects, and unique position in the accommodation market make it a dominant player in the travel industry. regulatory and legal context airbnb often perplexes law and policymakers as a housing category due to confusion surrounding whether its properties should be classified as public accommodations. these legal 5 curry, "airbnb revenue," business of apps. 4 david curry, "airbnb revenue and usage statistics (2025)," business of apps, last modified february 24, 2025, accessed march 18, 2025, https://www.businessofapps.com/data/airbnb-statistics/. 3 about us," airbnb, accessed march 24, 2025, https://news.airbnb.com/about-us/. 2 statista research department, "airbnb statistics & facts," statista, last modified february 26, 2025, accessed march 18, 2025, https://www.statista.com/topics/2273/airbnb/#topicoverview. 63 gray areas frequently allow airbnb to bypass regulations surrounding racism and discrimination. key legal and regulatory frameworks relevant to this issue include the civil rights act of 1964, the fair housing act of 1968, california’s unruh civil rights act, and section 230 of the communications decency act. the civil rights act of 1964 “[prohibits] discrimination in public places, [provides] for the integration of schools and other public facilities, and [makes] employment discrimination illegal.”6 this act forbids segregation in public places and businesses, such as hotels, theaters, libraries, and public schools. however, since the act applies to places of public accommodation, airbnb can bypass these rules since most listings are privately owned, meaning they are not necessarily subject to the same anti-discrimination regulations. although some jurisdictions have extended anti-discrimination laws to cover short-term rentals like airbnb, there is still ambiguity over whether the civil rights act applies to the company, leaving room for hosts to engage in discriminatory practices. the fair housing act of 1968 “prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, such as municipalities, banks or other lending institutions and homeowners’ insurance companies, whose discriminatory practices make housing unavailable to persons because of race or color, religion, sex, national origin, familial status, or disability.”7 while the act applies to landlords, brokers, and other housing providers, there is an ongoing debate on whether the fha applies to airbnb hosts. the “mrs. murphy” exemption states, “dwellings with four or fewer units (one of which must be 7 "the fair housing act," u.s. department of justice, last modified 2023, accessed april 2, 2025, https://www.justice.gov/crt/fair-housing-act-1. 6 national archives, "civil rights act (1964)," national archives, accessed april 2, 2025, https://www.archives.gov/milestone-documents/civil-rights-act#:~:text=president%20lyndon%20johnson%20signe d%20it,theaters%2c%20restaurants%2c%20and%20hotels. 64 occupied by the owner) are exempt from fair housing law.”8 because most airbnb listings are single-family homes or private rooms in properties with four or fewer units for rent, many hosts are exempt from liability under the “mrs. murphy” exemption, legally permitting them to discriminate against potential guests. the historic purposes of the civil rights act andthe fha were to end systemic discrimination in public spaces while promoting equal rights for people of marginalized groups. however, the legal uncertainties surrounding how airbnb fits into these regulations raise significant questions about how law and policymakers should apply civil rights protections in a digital age. the tension between airbnb hosts and the public sphere of the platform has created legal uncertainty that needs to be addressed by reforming these acts. this ambiguity emphasizes the need for updated policies to govern digital platforms. california’s unruh civil rights act “provides protection from discrimination by all business establishments in california, including housing and public accommodations, because of age, ancestry, color, disability, national origin, race, religion, sex, and sexual orientation.”9 however, because the line between airbnb as a business establishment or a network of individual hosts is blurred, there are still uncertainties about whether all hosts in california are subject to this legislation. section 230 of the cda protects platforms like airbnb from being liable for a host’s discriminatory behavior. the act “provides immunity to online platforms from civil liability 9 "unruh civil rights act," department of rehabilitation, accessed april 5, 2025, https://www.dor.ca.gov/home/unruhcivilrightsact#:~:text=the%20unruh%20civil%20rights%20act,religion%2 c%20sex%20and%20sexual%20orientatio 8 "fair housing laws in massachusetts," caretaker, last modified april 28, 2020, accessed april 9, 2025, https://caretaker.com/learn/fair-housing/fair-housing-laws-in-massachusetts#:~:text=murphy%e2%80%9d%20exe mption%2c%20which%20states%20that,a%20hypothetical%20elderly%20widow%2c%20mrs. 65 based on third-party content and for the removal of content in certain circumstances.”10 if a host refuses to rent to someone because of race, airbnb legally cannot be held responsible for such discrimination. this creates legal uncertainty, as airbnb facilitates interactions on its platform but remains shielded from liability since the discriminatory actions are being carried out by individual users, not the company itself. discrimination on airbnb’s platform while airbnb has become a leader in the short-term rental market, the company has faced backlash from both hosts and guests who have experienced racial discrimination. studies conducted by the harvard business school and other researchers, as well as guest stories shared through the #airbnbwhileblack campaign, have brought to light these issues. this evidence of racial discrimination has prompted widespread criticism of the company and a push for stronger anti-discrimination measures. to test for discrimination, researchers at harvard conducted a 2015 field experiment analyzing 6,400 airbnb listings across five u.s. cities: baltimore, dallas, los angeles, st. louis, and washington, d.c.11 they created guest profiles that were identical in every way except for gender and racially distinctive names specifically representing white males, 11 benjamin edelman, michael luca, and dan svirsky, "racial discrimination in the sharing economy: evidence from a field experiment," american economic journal: applied economics 9, no. 2 (2017): 4, accessed april 5, 2025, https://doi.org/10.1257/app.20160213. 10 "department of justice's review of section 230 of the communications decency act of 1996," u.s. department of justice, accessed april 5, 2025, https://www.justice.gov/archives/ag/department-justice-s-review-section-230-communications-decency-act-1996. 66 white females, african american males, and african american females. the researchers then tracked how hosts responded to messages from these accounts, noting whether they accepted, declined, requested more information, or gave no response. a graph of these response patterns by guest race is shown above.12 white guests have significantly higher acceptance rates, with more “yes” responses than african american guests. in comparison, african american guests experience higher rejection rates. a key finding from the study revealed that “distinctively african american names are 16 percent less likely to be accepted relative to identical guests with distinctively white names.”13 instances of racial discrimination persisted regardless of the host’s gender, race, and experience level. they were also consistent across various property types, locations, price ranges, and neighborhood demographics. the study concluded that airbnb’s platform design enables racial discrimination, particularly regarding the visibility of guest names and profile pictures. airbnb is responsible for balancing information transparency with equitable treatment, ensuring that the platform does not inadvertently reinforce racial bias. an observational study of over 16,000 airbnb listings in new york city, conducted using data collected between 2009 and 2018, found that hosts of color face significant 13 edelman, luca, and svirsky, "racial discrimination," 1. 12 edelman, luca, and svirsky, "racial discrimination," 8. 67 discrimination when acquiring early reviews, an essential factor for visibility, trust, and reputation.14 the study used facial recognition software to determine the perceived race of hosts based on their profile pictures and measured how long it took hosts of different races to receive their first and third reviews. the first review provides initial feedback to hosts and is critical for establishing early trust with potential guests. the third review triggers the display of the host’s aggregate rating (star score), which is important in building credibility and future revenue. significant racial disparities remained even when controlling for price, room type, and booking type. the graph above highlights the odds ratios of airbnb hosts of different races in receiving their first and third reviews, depending on the booking type.15 request means that a host’s approval is needed before booking, while instant signifies that guests can book the property automatically without being vetted. the odds ratio measures how likely one group is to obtain a review compared to the other. values greater than one mean that the group is more likely to get a review, whereas a value equal to one indicates no significant difference. the graph shows that white hosts are more likely to receive their first and third reviews faster than black or asian hosts. the “white/asian” odds ratio being close to 2.0 means that white hosts are twice as likely to get their first review under a request booking before an asian host. the “black/asian” odds ratio for both reviews suggests no significant difference between the two races. this study highlights structural flaws in airbnb’s platform design, which will be explored further in later sections. although these studies draw on data from earlier years, their findings remain relevant as discrimination on airbnb's platform remains an issue today. these studies uncovered information 15 yu and margolin, "sharing inequalities," 1640. 14 chao yu and drew margolin, "sharing inequalities: racial discrimination in review acquisition on airbnb," sage journals 26, no. 3 (2024): 1634, accessed april 20, 2025, https://www.researchgate.net/publication/358452529_sharing_inequalities_racial_discrimination_in_review_acquis ition_on_airbnb#fulltextfilecontent. 68 about how the platform's design enables discrimination, yet airbnb has not updated these features. as airbnb continues to prosper in the travel industry, discriminatory practices have turned this issue into a pressing policy concern demanding systemic solutions. social media campaigns using the hashtag #airbnbwhileblack have brought widespread attention to the experiences of african american guests who have been rejected because of racial bias. this compilation of discrimination claims provides an accountability mechanism for airbnb, highlighting a crisis that needs to be addressed. the limitations of existing anti-discrimination laws described above further allow hosts to engage in discriminatory behavior when choosing guests. media coverage from campaigns, lawsuits, and public backlash has brought this issue to policymakers’ attention. analysis airbnb’s initial response airbnb has taken action to address ways to reduce racial discrimination on its platform. the airbnb community commitment affirms that all individuals belong in the airbnb community regardless of their background or identity.16 all users must sign it before engaging with the platform. the company also “assembled a permanent team of engineers, data scientists, researchers, and designers whose sole purpose is to advance belonging and inclusion and to root out bias.”17 this product team helps alleviate the issues discussed in the harvard field experiment. other features include instant book, which allows guests to book some properties without host approval, and open doors, which makes sure that “if a guest is not able to book a listing because they have been discriminated against, airbnb will ensure the guest finds a place 17 laura w. murphy, airbnb's work to fight discrimination and build inclusion (2016), 11, accessed april 5, 2025, https://news.airbnb.com/wp-content/uploads/sites/4/2023/06/report_airbnbs-work-to-fight-discrimination-andbuild-inclusion.pdf. 16 brenna r. mclaughlin, "#airbnbwhileblack: repealing the fair housing act's mrs. murphy exemption to combat racism on airbnb," editorial, wisconsin law review, 171, accessed april 5, 2025, https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2018/04/mclaughlin-camera-ready.pdf. 69 to stay.”18 airbnb has also implemented project lighthouse “to uncover and address disparities in how people of color experience [airbnb], and how [the company] is using these findings to guide [its] work to fight discrimination and make airbnb more open and inclusive.”19 through project lighthouse, airbnb has suspended 4,000 accounts for violating the airbnb community commitment.20 project lighthouse is an essential first step in airbnb’s commitment to monitoring and intervening. while future work is still required to combat racism on the platform, airbnb has taken steps in the right direction in adopting new rules and policy changes to fight discrimination. according to airbnb’s 2024 update, the company reports that “the largest booking success rate disparity in 2021, between guests perceived to be black and guests perceived to be white, was cut almost in half [in 2024].”21 however, a fully equal system has yet to be designed, as african american guests are still not booked at the same rate as white guests, and hosts of color continue to receive lower booking rates than white hosts. airbnb’s economic structure and incentives airbnb’s profitability depends on the volume of bookings and guest satisfaction. the company generates revenue through service fees charged to both hosts and guests. hosts typically pay a fee of 3-5% of the reservation value back to airbnb, while guests are charged a fee between 0-20%.22 positive guest experiences lead to favorable reviews, repeat bookings, and 22 daniel pereira, "airbnb business model," the business model analyst, last modified may 10, 2024, accessed april 8, 2025, https://businessmodelanalyst.com/airbnb-business-model/?srsltid=afmboorcauawawdpzlw80qeo7qothhaiilyp al71kypk84vjocsebw8s. 21 airbnb, "a six-year," airbnb. 20 sarah jackson, "airbnb suspended almost 4,000 hosts and guests this year for violating its policy against discrimination," business insider, last modified december 14, 2022, accessed april 5, 2025, https://www.businessinsider.com/airbnb-suspends-4000-hosts-guests-violating-non-discrimination-policy-2022-12. 19 airbnb, "a six-year update on airbnb's work to fight discrimination," airbnb, last modified december 13, 2022, accessed april 5, 2025, https://news.airbnb.com/sixyearadupdate/. 18 murphy, airbnb's work, 11. 70 platform growth. hosts are motivated to maintain guest satisfaction to maximize their income, receive high ratings, and improve their visibility in search results. however, this incentive structure can influence host behavior in subtle but significant ways through whom they choose to rent to or how much they charge. research shows that hosts face immediate consequences when rejecting guests of color. each rejection results in the loss of roughly $65 to $100 in net revenue for hosts.23 listings remain vacant 25.9% of the time following such rejections.24 beyond these financial impacts, turning away potential guests reduces the number of positive reviews left by guests, lowering the host’s credibility and limiting their future bookings. hosts of color similarly experience economic disadvantages due to racial bias. statistically, guests are less likely to book with hosts of color than white hosts, leading hosts of color to charge 8-10% less on their listings to increase booking rates and accumulate reviews quicker.25 hosts are willing to lose out financially to help their visibility on the platform. as past reviews help hosts gain credibility for guest decisions, hosts without them appear riskier, so they reduce their prices to establish initial trust. platform design and market incentives airbnb’s platform design creates an information asymmetry that only perpetuates discrimination. by allowing hosts to see a guest’s name and their race, ethnicity, and gender through their profile picture, airbnb enables hosts to choose their guests based on those perceived characteristics. although airbnb does not intentionally promote racism, these design flaws create ways in which racial prejudice can be expressed. 25 yu and margolin, "sharing inequalities," 1628. 24 edelman, luca, and svirsky, "racial discrimination," 16. 23 edelman, luca, and svirsky, "racial discrimination," 3. 71 in response to these concerns, airbnb launched a two-year experiment in oregon in 2022 where hosts could only view guests’ initials during the booking process. this began after three african american women filed a lawsuit alleging that airbnb’s requirement of listing full names and profile pictures allowed guests to discriminate, violating oregon’s public accommodation laws.”26 however, airbnb has not published any formal findings on the impact of this policy. airbnb’s instant book feature was developed to limit hosts’ ability to discriminate. black and asian hosts benefit when instant book is enabled, as it narrows the time gap in their review acquisition and limits the opportunity for guest bias.27 approximately 60% of users book through this feature.28 however, hosts tend to underutilize it due to the risks of being unable to vet guests. the reluctance of airbnb to anonymize all bookings reflects the company’s economic incentives for maximizing transaction volume and overall profitability. airbnb’s impact on rent and housing supply in new york city lawmakers in cities like new york have criticized airbnb for operating as “illegal hotels.”29 disputes have arisen in new york over unpaid sales taxes and the lengths of rentals without a host present. the attorney general of 29 rebecca jarvis, "hotel industry fighting back against airbnb," abc news, last modified april 22, 2014, accessed april 22, 2025, https://abcnews.go.com/blogs/business/2014/04/hotel-industry-fighting-back-against-sites-like-airbnb. 28 jeff brown, "increase your airbnb bookings by 20% – by accepting instant bookings," intellihost, last modified december 19, 2022, accessed april 22, 2025, https://intellihost.co/increase-airbnb-bookings-instant-booking-policy/. 27 yu and margolin, "sharing inequalities," 1636. 26 elliot njus, "airbnb settles oregon discrimination suit," the oregonian/oregonlive, last modified august 13, 2019, https://www.oregonlive.com/business/2019/08/airbnb-settles-oregon-discrimination-suit.html. 72 new york has engaged in legal battles over airbnb’s impact on “available housing stock, lost revenue for the city, and potential job losses for the tourism industry.”30 moreover, airbnb in large cities has led to declines in long-term rental units, which are already experiencing housing shortages. for example, “airbnb has removed between 7,000 and 13,500 units of housing from new york city’s long-term rental market,” exacerbating housing shortages, raising rents, and displacing low-income residents.31 the table above demonstrates the loss of housing to airbnb broken down by different areas of new york city. wachsmuth’s report also expands on airbnb being a “racial gentrification tool,” stating that in march of 2017, “white airbnb hosts in black neighborhoods earned an estimated $160 million, compared to only $48 million for black hosts—a 530% disparity. the loss of housing and neighborhood disruption due to airbnb is 6 times more likely to affect black residents, based on their majority presence in black neighborhoods, as residents in these neighborhoods are 14% white and 80% black.”32 these findings illustrate that airbnb’s expansion into large cities catalyzes deeper economic and racial inequities. while airbnb markets itself as a community-centered platform, the company inadvertently causes housing loss, market disruption, and racialized gentrification. past precedents legal cases and past precedents that set key context for airbnb’s discrimination issues include jones v. alfred h. mayer co., shelley v. kraemer, and fair housing council of san fernando valley v. roommate.com, llc. 32 wachsmuth, the high, 8. 31 david wachsmuth, the high cost of short-term rentals in new york city (2018), 32, accessed april 22, 2025, https://www.mcgill.ca/newsroom/channels/news/high-cost-short-term-rentals-new-york-city-284310. 30 jarvis, "hotel industry," abc news. 73 jones v. alfred h. mayer co. (1968) established critical standards for addressing racial discrimination in property transactions. joseph lee jones, a black man, was denied from purchase a home from alfred h. mayer co., a housing developer in missouri, because of his race. jones sued under 42 u.s.c. § 1982, which guarantees that all citizens have the same property rights as white citizens.33 the supreme court ruled in favor of jones, holding that congress has the authority under the thirteenth amendment to ban racial discrimination in private real estate sales. although the case predates digital platforms like airbnb, the case established that racial discrimination is unlawful in both public and private property transactions. shelley v. kraemer (1948) involved racially restrictive covenants that barred african american and asian families from buying homes in st. louis. when the shelleys, an african american family, attempted to purchase a home, a white neighbor sued to enforce the covenant. the supreme court ruled that private parties may enter into racially restrictive covenants and honor them without state involvement under the fourteenth amendment. however, “they may not seek judicial enforcement of such a covenant [as this violates] the equal protection clause of the fourteenth amendment.”34 although airbnb does not directly deal with racially restrictive covenants, shelley set the necessary groundwork for modern discrimination laws. furthermore, fair housing council of san fernando valley v. roommate.com, llc (2012) addressed how anti-discrimination laws apply to shared living spaces. roommate.com, an online platform that matched individuals seeking roommates, required users to disclose their sex, sexual orientation, and familial status to allow for filtering based on these traits. the fair housing councils of san fernando valley and san diego sued, alleging violations of the fha and california’s fair employment and housing act (feha). the ninth circuit ruled that the 34 "shelley v. kraemer," oyez, accessed april 28, 2025, http://www.oyez.org/cases/1940-1955/334us1. 33 jones v. alfred h. mayer co., 392 u.s. 409 (1968)," justia, accessed april 28, 2025, https://supreme.justia.com/cases/federal/us/392/409/. 74 fha and feha do not apply to the selection of roommates, as these acts only prohibit discrimination based on the “sale or rental of a dwelling.”35 this case creates ambiguity for airbnb, suggesting that if hosts only rent out part of their home, they may not be subject to the same anti-discrimination laws as hosts who rent out entire properties, since their guests can be considered roommates. these cases reveal the legal ambiguities surrounding their application to airbnb since its presence as a digital platform is unexplored compared to traditional real estate markets. recent legal cases recent lawsuits and incidents involving airbnb include gregory selden v. airbnb, the oregon discrimination settlement mentioned above under platform design and market incentives, and the dyne suh incident. in gregory selden v. airbnb, selden, an african american man, sued airbnb after a host denied his booking request, which he believed was racially motivated due to his profile picture displaying his race. selden later made a second account with the same background information but instead used a profile picture of a white individual, which the same host then accepted. however, when selden brought the issue to court, the court ruled that because selden agreed to airbnb’s terms of service, which included a binding arbitration clause, his discrimination claims had to be resolved through arbitration rather than a regular court. in arbitration, selden lost as the host’s property was a private, owner-occupied residence, which was exempted under the fha. the court stated that, “as a condition of simply participating in today’s digital economy, the applicable law is clear: mutual arbitration provisions in electronic contracts—so long as their existence is made reasonably known to consumers—are enforceable, in commercial disputes and 35 fair housing council of san fernando valley v. roommate.com, llc (9th cir. ). accessed april 28, 2025. https://cdn.ca9.uscourts.gov/datastore/opinions/2012/02/02/09-55272.pdf. 75 discrimination cases alike.”36 this case further highlights the complexities and limited legal protections surrounding discrimination on airbnb. airbnb has also had instances of discrimination that traditional statutes do not address. in 2017, dyne suh’s airbnb reservation was abruptly canceled after the host texted, “i wouldn’t rent to u if u were the last person on earth. one word says it all. asian.”37 suh filed complaints to airbnb and the california department of fair employment and housing. under california’s unruh civil rights act, the host was fined $5,000 in damages and required to undergo restorative measures, including civil rights training, completing a college-level course on asian american studies, and volunteering at a civil rights organization.38 this incident highlights the limitations of existing federal laws and past court cases in addressing discrimination on airbnb’s platform. economic and legal contrasts with traditional hotels unlike traditional hotels, airbnb’s platform design enables individual hosts to discriminate against potential guests, which is something hotel booking systems are structured to prevent. as public accommodations, hotels must comply with laws such as the civil rights act of 1964, which prohibits discrimination based on race and other characteristics. in contrast, airbnb hosts can circumvent this, as most properties are privately owned, allowing bias to be a factor in booking decisions. despite this, airbnb has overtaken the hospitality industry due to its ability to offer travelers a budget-friendly, personalized experience. travelers tend to favor airbnb because of its lower prices and home-like atmosphere. in 2022, “hotels reported an average daily rate 38 park, "former airbnb," cnn. 37 madison park, "former airbnb host fined $5,000 for refusing asian american guest," cnn, last modified july 14, 2017, accessed april 28, 2025, https://www.cnn.com/2017/07/14/us/airbnb-host-fine-asian-comment/index.html. 36 "selden v. airbnb, inc.," justia, accessed april 30, 2025, https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2016cv00933/179136/19/. 76 (adr) 26.6% higher than short-term rentals.”39 this has caused hotels to lose approximately $450 million annually in direct revenue.40 airbnb has also caused a “2-3% decrease in hotel revenue for every 10% increase in airbnb market share.”41 while traditional hotels are held liable for discriminatory practices under the civil rights act and the fha, airbnb’s model operates in a legal gray area where many hosts can bypass these protections from statutes like the “mrs. murphy” exemption. airbnb’s decentralized system makes it harder to regulate, thus pushing away potential customers who might find challenges when booking. broader discrimination across the sharing economy in a similar way, there have been numerous instances of discrimination across the sharing economy on platforms such as uber, lyft, taskrabbit, and fiverr. cases of racial bias have been documented on ridesharing platforms such as uber and lyft. in 2018, the national bureau of economic research found that in boston, los angeles, and seattle, “uber drivers are two times more likely to cancel a ride if the passenger’s name is one used predominantly by african americans.”42 african americans also face longer wait times and higher cancellation rates. the design of these platforms, which has visibility of the rider’s name and profile picture, enables opportunities for bias. for example, “african american riders 42 yanbo ge et al., racial and gender discrimination in transportation network companies (national bureau of economic research, 2016), 2, accessed april 26, 2025, https://doi.org/10.3386/w22776. 41 galvan, "how airbnb," globaledge. 40 andrea galvan, "how airbnb disrupts the hotel industry," globaledge, last modified march 5, 2024, accessed april 22, 2025, https://globaledge.msu.edu/blog/post/57383/how-airbnb-disrupts-the-hotel-industry#:~:text=beyond%20revenue%2 c%20hotels%20are%20also,increase%20in%20airbnb%20market%20share. 39 scott sage, "airbnb vs. hotels: how guests choose & why it matters," airdna, last modified march 3, 2024, accessed april 22, 2025, https://www.airdna.co/blog/3-things-airbnb-hosts-need-to-know-about-hotels. 77 [wait] between 29 and 35 percent longer for a [uberx].”43 specifically, male riders with african american-sounding names in areas with few taxis are the most targeted.44 discrimination within uber has been identified in two forms: “direct, like when a driver cancels on a rider because of their race, and systemic, where history has informed patterns in where people live.”45 in cities like chicago, historical practices such as redlining and other racially segregated housing patterns have shaped neighborhoods in ways that impact rideshare wait times today. in south chicago, where many black residents reside, longer wait times remain because the area is further from downtown, deterring drivers from accepting trips there. in response, uber and lyft have taken steps to combat discrimination. both companies have adopted similar anti-discrimination policies and community guidelines while investing in dei initiatives and working towards inclusive hiring practices. however, ongoing challenges remain, with continued reports of ride cancellations and service refusals based on demographic characteristics. similarly, taskrabbit and fiverr, platforms that connect freelancers to individuals and businesses for services, have faced issues of discrimination. a study examining 13,500 worker profiles found that user bias impacts task selection, hiring, and work evaluations, with workers favored based on race, gender, and ethnicity.46 platform design again plays a role, as the visibility of workers’ names and profile pictures allows users to act on personal biases. both platforms have attempted to mitigate bias. taskrabbit has implemented “a ‘quick assign’ feature where customers can simply request that a task be completed within a given 46 anikó hannák et al., "bias in online freelance marketplaces: evidence from taskrabbit and fiverr" (conference session at 2017 acm conference on computer supported cooperative work and social computing), 2, accessed april 26, 2025, https://dl.acm.org/doi/10.1145/2998181.2998327. 45 abby verret, "uber and lyft are dramatically reducing wait-time disparities for black riders, but the impact of systemic segregation persists," carnegie mellon university college of engineering, last modified september 30, 2024, accessed april 26, 2025, https://engineering.cmu.edu/news-events/news/2024/09/30-ride-sharing-equity.html. 44 ge et al., racial and gender, 4. 43 ge et al., racial and gender, 2. 78 timeframe, at a given price, by any available worker.”47 fiverr has introduced greater anonymity options that include not requiring profile pictures, helping to limit bias in hiring decisions.48 there remains uncertainty surrounding whether the civil rights act of 1964 applies to uber and lyft. drivers are technically “independent contractors who aren’t covered by the workplace protections of the civil rights act.”49 uber has faced lawsuits for alleged civil rights act violations, including claims of “firing minority drivers based on how customers rate them.”50 a former driver has stated that “uber is aware that passengers are prone to discrimination in their evaluation of drivers, but uber has continued to use this system, thus making it liable for intentional race discrimination.”51 meanwhile, taxis and buses are considered “public accommodations” and must comply with the act. however, the classification of uber and lyft remains unclear. similarly, taskrabbit and fiverr are not public accommodations, so they avoid regulation under the act. the application of california’s unruh civil rights act also remains ambiguous. although all four platforms are businesses, their workers are considered independent contractors, complicating whether the companies fall under the act’s definition of a business establishment. lastly, all four platforms are protected under section 230 of the cda. since the platforms act as neutral intermediaries to the discriminatory acts, they are shielded from liability for biased behavior carried out by users and workers 51 bloomberg, "uber's rating," los angeles times. 50 bloomberg, "uber's rating," los angeles times. 49 bloomberg, "uber's rating system violates civil rights, says class action," los angeles times, last modified october 26, 2020, accessed april 26, 2025, https://www.latimes.com/business/technology/story/2020-10-26/ubers-rating-system-violates-civil-rights-says-classaction. 48 "fiverr enterprise's privacy policy," fiverr, last modified january 2024, accessed april 26, 2025, https://www.fiverr.com/legal-portal/legal-terms/fiverr-enterprise-privacy-policy#:~:text=in%20certain%20cases%2 c%20we%20may,e.g.%20fraud%20prevention);%20or. 47 hannák et al., "bias in online," 14. 79 the four platforms, like airbnb, all demonstrate similar information asymmetries stemming from their platform design choices. by displaying guest names and profile pictures, these platforms enable users to make decisions based on visible traits, perpetuating discrimination. rather than minimizing bias and promoting broader participation, companies have actively chosen to keep these design features to enhance transparency and user trust rather than prioritize the inclusion of all users. conclusion & implications policy recommendations and proposed reforms policy recommendations to help combat issues of discrimination on airbnb include updating legislation, reforming section 230 of the cda, encouraging state-level action, and revising platform-specific mandates enforced by companies. congress must amend the fha by eliminating the “mrs. murphy” exemption for short-term rentals and temporary housing stays. this would extend anti-discrimination measures to all dwelling types, including single-family homes and private rooms on platforms like airbnb. by closing this loophole, the law will strengthen tenant protections and prevent landlords from discriminating against guests. similarly, reforming section 230 of the cda to enforce the liability of platforms for third-party content involving discrimination is critical in addressing user bias. platforms like airbnb should be held responsible for the actions of their users. through more rigorous screening of hosts and guests before granting them access to the platform and ongoing surveillance to detect and prevent discriminatory behavior, these platforms can tackle these problems before they even begin. while such actions would encourage greater auditing and 80 platform-level reform, they may also raise concerns about the overreach of executive control and potential user resistance. stronger state-level approaches, like california’s unruh civil rights act, should be implemented to offer broader protections against discrimination in business establishments. by expanding similar laws to those in other states, airbnb users can comfortably use the app without fear of discrimination. however, to ensure the application of the act, airbnb must legally be classified as a business establishment, so it is subject to all anti-discrimination standards. the unruh civil rights act played an essential role in the dyne suh incident after a host canceled on her because of her race. similar protections would help users nationwide if adopted. however, this needs to be done in a manner that is not fragmented across different states to ensure consistency and equal enforcement. lastly, platform-wide mandates, such as the implementation of anonymized booking features, will help reduce discrimination by limiting the visibility of user information that can lead to biased decision-making. potential changes include adopting oregon’s policy of displaying guests’ initials during the booking process and hiding profile pictures until after the reservation is confirmed. while these actions address the root cause of the problem, they may also decrease user trust and reduce willingness to use the platform for travel needs. another potential reform is expanding the instant book feature to cover more listings or making it the default option to reduce discriminatory practices. however, this limits host control, which may cause pushback from those who want the ability to choose who they rent to. additional mandates should include increased penalties for discriminatory behavior, such as suspending hosts and banning repeat offenders, alongside regular audits to collect data and monitor ongoing discrimination issues. 81 predictive outlook and final recommendations in the short term, tensions will likely remain as airbnb’s classification remains ambiguous, as it straddles the line between a public accommodation and a network of private properties. until this is clarified, regulatory approaches will continue to vary across cities and states, causing nonuniform action and penalties for users participating in discriminatory actions. similarly, technological advancements, such as ai and anonymized profiles, may help reduce bias, but only if platforms update their designs. additionally, public relations risks related to section 230 of the cda and the “mrs. murphy” exemption may pressure companies to self-regulate to maintain user trust and brand integrity. consistency is needed to gain loyalty from users. in the medium term, more states may adopt anti-discrimination laws similar to california’s unruh civil rights act. however, progress will depend on continued pressure from civil rights organizations, racial justice advocates, and public awareness campaigns. viral movements, such as the #airbnbwhileblack campaign, and high-profile incidents, like the dyne suh example, can potentially spur greater state reform. similarly, reframing discrimination as a barrier to economic access and fairness within the sharing economy might help attract support. highlighting how discrimination reduces transaction volume, hurts platform profitability, and inhibits growth might prompt market-driven stakeholders to advocate for change. additionally, pressure from the tech and business sectors to improve consumer trust and legal clarity may also drive legislative change. in the long term, federal updates to laws such as the fha, cda, and the civil rights act could provide legal clarity on platform liability and anti-discrimination policies. this would require congressional action, including committee hearings, expert testimony, legislative debates, 82 and reconciliation of proposals. new digital civil rights legislation will be needed to address and update platform duties in this modern marketplace. this includes mandatory reporting on bias and improved mitigation strategies to strengthen accountability. growing demand for digital equity, especially among millennials and gen z consumers, may further influence state-level and federal action. ultimately, discrimination will persist with weak enforcement of policies. platforms like airbnb must find a balance between profitability and user trust. with rising public pressure, evolving regulation, and technological innovations, the sharing economy needs to learn how to adapt to prioritize fairness for its users and close the liability gap. airbnb’s long-term success depends on its commitment to equity and transparent practices in an increasingly digital world. policymakers must take swift action to hold platforms accountable and foster greater fairness across the sharing economy. 83 3_balamurugan.docx bellarmine law society review volume xv | issue ii article iii tiktok and the first amendment: an analysis of the constitutional debate regarding a tiktok ban kiruthiga balamurugan georgetown university, kb1359@georgetown.edu tiktok and the first amendment: an analysis of the constitutional debate regarding a tiktok ban kiruthiga balamurugan1 abstract: government efforts to restrict or ban tiktok have consistently raised constitutional challenges across multiple levels of the judicial system, ultimately reaching the united states supreme court. this paper will trace the constitutional debate surrounding tiktok by examining key cases at each stage. it will begin with the executive actions initiated under the trump administration, then turn to state level cases in montana and texas, and finally analyze how these precedents ultimately led to the supreme court’s final decision at the federal level. congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. — the first amendment, united states constitution the word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the first amendment. — supreme court justice hugo black, concurrence in new york times co. v. united states i. introduction since 2020, few bills in congress have received as much bipartisan support as a proposed ban on tiktok. since its launch in 2016, tiktok—a social media app that allows users to create, share, and view short videos—has surged in popularity. in 2024, the app had over 170 million users in the united states and more than 1 billion monthly active users globally.2 tiktok has become a vibrant platform for content creation and engagement, enabling small businesses to 2 “how many users on tiktok? statistics & facts (2024),” seo, https://seo.ai/blog/how-many-users-on-tiktok#:~:text=tiktok%20key%20statistics-,tiktok%20has%20over%201 %20billion%20monthly%20active%20users%20globally%2c%20with,and%2024%20seconds%20in%202024 1 kiruthiga balamurugan is a junior at georgetown university studying government and economics. 49 promote themselves, allowing many individuals to build careers from their success and providing entertainment for millions. despite the platform’s widespread popularity, the u.s. government has repeatedly attempted to ban the app, citing concerns that, because it is owned by the chinese company, bytedance, americans’ data on the app may be at risk from the chinese communist party. government efforts to restrict or ban tiktok have consistently raised questions about the limits of executive power and the protections guaranteed by the first amendment. each attempt to justify a ban has faced legal challenges across multiple levels of the judicial system, ultimately reaching even the highest level—the united states supreme court. in the supreme court’s final decision, it unanimously upheld a law that would force tiktok to divest or be banned in the united states.3 this paper will trace the constitutional debate surrounding tiktok by examining key cases at each stage of litigation. it will begin with the executive actions initiated under the trump administration, then turn to state-level challenges in montana and texas, and finally analyze how these disputes culminated in federal appellate and supreme court decisions. ii. executive actions against tiktok towards the end of president donald trump’s first term, a series of executive actions were undertaken to ban tiktok. the administration first publicly announced its consideration of the ban in july 2020, when former secretary of state mike pompeo revealed that they were evaluating the possibility of prohibiting the app.4 later, on july 31, president trump had made 4 quint forgey, “‘it’s something we're looking at’: pompeo floats ban on tiktok,” politico, last modified july 7, 2020, https://www.politico.com/news/2020/07/07/mike-pompeo-tiktok-ban-350384. 3 antonia i. tzinova, andrew k. mcallister, and sophie jin, “u.s. supreme court upholds tiktok sale-or-ban law,” holland & knight, january 17, 2025, https://www.hklaw.com/en/insights/publications/2025/01/us-supreme-court-upholds-tiktok-sale-or-ban-law. 50 broad claims to reporters regarding his intent to ban the app stating, “as far as tiktok is concerned we’re banning them from the united states.”5 later that year, on august 6th, trump followed through with this claim by enacting executive order 13942, titled “addressing the threat posed by tiktok.” executive order 13942 essentially directed the secretary of commerce to prevent the app from being downloaded in mobile app stores and to prohibit all transactions between anyone under the jurisdiction of the united states and bytedance—the parent company of tiktok.6 in the executive order, trump cited both the international emergency economic powers act (ieepa) and the national emergencies act as justification for this action. the order reads: “the spread in the united states of mobile applications developed and owned by companies in the people’s republic of china (china) continues to threaten the national security, foreign policy, and economy of the united states. at this time, action must be taken to address the threat posed by one mobile application in particular, tiktok.”7 the order goes on to explain the exact security concerns that the app has prompted, referencing both tiktok’s data collection process and the app’s alleged censorship of political information. the order states: “tiktok automatically captures vast swaths of information from its users, including internet and other network activity information such as location data and browsing and search histories. this data collection threatens to allow the chinese communist party access to americans’ personal and proprietary 7 e.o 13942 of aug 6, 2020. 6 e.o 13942 of aug 6, 2020. 5 ellen nakashima, rachel lerman, and jeanne whalen, “trump says he plans to bar tiktok from operating in the u.s.,” the washington post, last modified july 31, 2020, https://www.washingtonpost.com/technology/2020/07/31/tiktok-trump-divestiture/. 51 information—potentially allowing china to track the locations of federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”8 the order then explains how tiktok reportedly censors political content that is deemed sensitive by the chinese communist party and references protests against china’s treatment of uyghur muslims as an example of content that has been censored on the platform. this censorship is problematic to the united states government because “[tiktok] may also be used for disinformation campaigns that benefit the chinese communist party, such as when tiktok videos spread debunked conspiracy theories about the origins of the 2019 novel coronavirus.”9 the order concludes by reinforcing that the threats that tiktok poses are indeed real, noting that the department of homeland security, transportation security administration, and the united states armed forces have banned the application from federal government phones and highlighting how the indian government has banned tiktok in their country as well. this executive action was one part of a broader effort to mitigate perceived threats from chinese technology companies. soon after the order against tiktok was enacted, president trump also issued executive order 13943 targeting another chinese-owned app, wechat, which had raised similar national security concerns.10 wechat is an instant messaging mobile application with over 19 million users in the united states, predominantly among chinese americans who use it to stay in touch with family and friends in china.11 just like the executive 11 vivian mccall, “what is wechat? everything you need to know about the popular messaging app, including how to sign up,” business insider, last modified february 22, 2021, https://www.businessinsider.com/guides/tech/what-is-wechat. 10 e.o 13943 of aug 6. 2020. 9 e.o 13942 of aug 6, 2020. 8 e.o 13942 of aug 6, 2020. 52 order targeting tiktok, the ieepa and the national emergencies act were also cited to justify the president’s ability to ban a mobile application. both executive orders were quickly challenged in court. in august 2020, tiktok filed a lawsuit, tiktok v. trump, which was heard by the united states district court for the district of columbia. likewise, another case, u.s. wechat users alliance v. trump, was brought before the united states district court for the northern district of california. in both cases, the plaintiffs won a preliminary injunction blocking the enforcement of the executive order as the courts found that the executive orders 1) showcased an overstep of authority under ieepa and 2) created significant first amendment implications on free speech. iia. international emergency economic powers act to understand why the executive order oversteps its authority, it is important to understand what powers the ieepa contains.the international emergency economic powers act is a u.s. federal law enacted in 1977 that grants the president broad authority to regulate and control economic transactions during national emergencies. this emergency statute falls under the umbrella of the national emergencies act.12 under ieepa, the president can impose sanctions, block assets, and restrict trade with foreign entities or nations when there is a perceived threat to national security, foreign policy, or the economy. the act is designed to provide a flexible tool for responding to international crises, allowing the government to take swift action to protect u.s. interests. in this case, the act was cited as justification to ban both tiktok and wechat. to trigger the usage of ieepa, there must first be a declaration of a national emergency or the situation must be linked to a previous national emergency declaration. both orders were linked to a prior 12 international emergency economic powers act, public law 223, u.s. statutes at large 91 (1977): 1625-1629. 53 executive order (eo 13873) titled “securing the information and communications technology and services supply chain.”13 in this order, trump claimed that a national emergency existed because: “foreign adversaries are increasingly creating and exploiting vulnerabilities in information and communications technology and services, which store and communicate vast amounts of sensitive information, facilitate the digital economy, and support critical infrastructure and vital emergency services, in order to commit malicious cyber-enabled actions, including economic and industrial espionage against the united states and its people.”14 therefore, while a ban of an app is an extreme route, under ieepa, it is possible to “deplatform” an application. however, the federal district court in tiktok v. trump found that the executive order was an overreach of executive power given the personal communication limitation and the informational materials amendment limitation of the act. the personal communication limitation states that the ieepa does not have the authority to “regulate or prohibit, directly or indirectly… any… personal communication, which does not involve the transfer of anything of value.”15 this provision is designed to safeguard the free flow of personal communication, which is considered crucial for maintaining personal relationships and ensuring the free exchange of ideas. in this case, because users on tiktok utilize the app as a platform to communicate with one another through its direct messaging feature, this limitation applies. however, arguments on 15 supak, “political posturing.” 14 e.o 13943 of aug 6. 2020. 13 gabrielle supak, “political posturing or a move towards ‘net nationalism?’: the legality of a tiktok ban and why foreign companies should be paying attention,” north carolina journal of law and technology, nexisuni. 54 the other side have raised the point that there is indeed a transfer of value since users exchange their data for the ability to use the application. as for the informational materials amendment limitation, this provision pertains to the restriction of informational materials such as books, newspapers, and other printed or digital content. under ieepa, the president’s powers cannot be used to restrict the dissemination of informational materials.16 this means that while economic sanctions and other measures may be imposed, they cannot target or obstruct the exchange of informational content. in this case, the us district court found that tiktok’s content met the definition of informational materials because the central feature of the app is sharing information in the form of short videos, thereby invoking this limitation. therefore, due to both the personal communication limitation and the informational materials amendment limitation, it is clear how trump’s use of the ieepa to justify an all-out ban of both platforms with an executive order would not suffice. iib. implications of first amendment rights both us district courts also recognized implications of first amendment rights given a ban of the respective platforms. in u.s. wechat users alliance v. trump, the plaintiffs relied strongly on a first amendment argument claiming that the executive order banning wechat infringed upon their free speech rights by disrupting their ability to communicate freely, particularly within communities that rely heavily on the app for both personal and professional interactions. the district court in this case determined that the first amendment challenge was indeed valid because “evidence demonstrated that ‘wechat is effectively the only means of communication for many’ in the chinese-speaking and chinese-american community, and 16 ibid. 55 ‘there are no viable substitute platforms or apps’” to communicate with other users of wechat located in china.17 tiktok also made first amendment challenges in its lawsuit as well claiming that it has first amendment protections via the rights of content creators on the platform. while the rights of content creators on social media have not explicitly been identified by the supreme court, it is likely that their content would also be given first amendment protections granted that the content is not part of an unprotected category of speech such as obscenity or “fighting words.” in litigation, however, the government expressed their belief that first amendment rights are not at all implicated by a ban of the app. nevertheless, both the us district court in this case and lower state courts in subsequent cases have recognized the first amendment arguments raised by tiktok’s lawyers. after both lawsuits were granted a preliminary injunction, the suits were withdrawn when president biden was elected into office and rescinded the executive orders targeting tiktok and wechat. however, this transfer of power did not fully resolve the issue, as the biden administration would also take further steps aimed at addressing the national security concerns that chinese ownership of tiktok raises— moves which we shall examine in the next section. iii. pafaca and lower court rulings during president biden’s term, congress passed the protecting americans from foreign adversary controlled applications act (pafaca). the bill was first passed by the house of representatives on march 13, 2024, receiving bipartisan support with a vote of 352 to 65. 17 ibid. 56 amongst those who voted against the bill, 50 were democrat and 15 were republican.18 then on april 23, 2024, the bill was passed by the senate with a vote of 79–18. the bill was then signed by president biden on april 24. this law would ban tiktok in the united states unless it fully divested from bytedance (the chinese-owned parent company) by january 19, 2025.19 although this law is aimed to target tiktok, just as trump’s executive order did, its approach differs in a significant way by calling for a divestiture rather than banning the app upfront. nonetheless, even with this new approach, tiktok’s lawyers continue to challenge the constitutionality of such a law, claiming that a divestiture still infringes upon first amendment rights and arguing that a sale would be implausible given the timeline provided in the law. their argument relies on the fact that any company or investors looking to buy tiktok would have to receive confirmation by the chinese government whose officials have made it clear that they are opposed to a forced sale.20 following the passing of the law, tiktok has filed for a petition for review of constitutionality in the united states court of appeals for the district of columbia circuit. in their petition, tiktok argued that a “qualified divestiture” from bytedance is not possible, and even if it was, a mandated divestment would not be constitutional anyway.21 the petition states: “if upheld, it would allow the government to decide that a company may no longer own and publish the innovative and unique speech platform it created. if 21 petition for review of constitutionality of the protecting americans from foreign adversary controlled applications act, 2024, https://fingfx.thomsonreuters.com/gfx/legaldocs/xmpjrzberpr/frankel-tiktokban--complaint.pdf. 20 bobby allyn, “president biden signs law to ban tiktok nationwide unless it is sold,” npr, last modified 2024, https://www.npr.org/2024/04/24/1246663779/biden-ban-tiktok-us. 19 cristiana lima-strong, “biden signs bill that could ban tiktok, a strike years in the making,” the washington post, last modified 2024, https://www.washingtonpost.com/technology/2024/04/23/tiktok-ban-senate-vote-sale-biden/. 18 “hr 7521 protecting americans from foreign adversary controlled applications act national key vote,” vote smart, https://justfacts.votesmart.org/bill/36703/98368/protecting-americans-from-foreign-adversary-controlled-application s-act. 57 congress can do this, it can circumvent the first amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down.”22 tiktok argues that pafaca is inconsistent with the first amendment because it states, “congress shall make no law… abridging the freedom of speech.”23 in this case, the argument is that because congress is attempting to dictate a private speech forum, as opposed to “broadcast television and radio stations, which require government licenses to operate because they use the public airwaves” it cannot be consistent with first amendment protections.24 moreover, tiktok claims that not only do users on the platform enjoy first amendment protections but the platform itself does as well. they note how this argument was accepted by the government in an amicus brief filed in the case moody v. netchoice llc quoting, “[w]hen [social media] platforms decide which third-party content to present and how to present it, they engage in expressive activity protected by the first amendment because they are creating expressive compilations of speech.”25 they also cite the cases hurley v. irisham. gay, lesbian & bisexual grp. of bos. and miami herald pub. co. v. tornillo, to highlight how tiktok’s editorial control (the app’s ability to decide what content to promote and the manner in which the content is promoted) makes the platform “more than a passive receptacle or conduit for news, comment, and advertising.”26 therefore, they argue that tiktok’s exercise of editorial control and judgment must be protected under the first amendment and a law such as pafaca which hinders tiktok’s ability to carry out such editorial control is incompatible with free speech protections. 26 ibid. 25 ibid. 24 ibid. 23 ibid. 22 ibid. 58 furthermore, tiktok argues that even if the platform is not entirely banned but just forced to divest from its original ownership, this would still constitute an infringement of the first amendment. they claim that under new ownership, the character of the app itself would be altered. this argument was noted by supreme court justice kagan during oral arguments in moody v. netchoice llc, where she observed that the sale of the social media platform twitter to elon musk had altered the character of the app. kagan said, “twitter users one day woke up and found themselves to be x users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning.”27 under tiktok’s argument they claim that by mandating the sale of tiktok to an entity with no connections to the chinese communist party, congress aims to alter the fundamental nature of the platform. they claim that this type of government action is exactly what the first amendment was constructed to protect against. the case tiktok inc. and bytedance ltd. v. merrick was heard by the d.c. circuit court of appeals and then by the u.s. supreme court. both courts ruled to uphold the law requiring bytedance to divest or face a ban. prior to the ruling, lower court decisions dealing with similar issues provided useful insight into how the case might be resolved. one such case took place in the united states district court for the district of montana, where governor gianforte signed legislation banning tiktok throughout the state. tiktok challenged the law and was granted a preliminary injunction by judge malloy.28 another relevant case emerged in texas, where the u.s. district court for the western district of texas dismissed a first amendment challenge against governor abbott’s order which banned tiktok from government and university of north 28 bobby allyn, “federal judge blocks montana's tiktok ban before it takes effect,” npr, last modified 2023, https://www.npr.org/2023/11/30/1205735647/montana-tiktok-ban-blocked-state. 27 will oremus, “supreme court revives debate over social media as a ‘public square,’” the washington post, last modified february 28, 2024, https://www.washingtonpost.com/politics/2024/02/28/supreme-court-revives-debate-over-social-media-public-squar e/. 59 texas (unt) devices.29 examining these earlier cases helps clarify the legal landscape that informed the d.c. circuit’s and the supreme court’s reasoning in tiktok v. merrick and contextualizes its final decision to uphold pafaca. iiia. montana’s tiktok ban in may of 2023, montana enacted senate bill 419 (sb 419) into law. this law was aimed to target the usage of tiktok within the state. this was significant as it was the first state in the us to impose this type of statewide ban on a social media platform.30 the legislation mandates that app stores, like google play and apple’s app store, must not offer tiktok for download within the state of montana. furthermore, the law also bans the app from being used by individuals within the state who have already downloaded the app. the law is enforced by punishing app stores that fail to comply with the regulation and by imposing fines and penalties on tiktok itself if they continue to operate within the state. the preamble of the law states, “the people’s republic of china is an adversary of the united states and montana and has an interest in gathering information about montanans… tiktok gathers significant information from its users, accessing their data against their will to share with the people’s republic of china.”31 this demonstrates that montana shares similar security interests with congress in banning the app, as the justification closely resembles that cited for pafaca. the bill then goes on to explain another issue that montana has with tiktok, writing that: “tiktok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities, including but not limited to throwing 31an act banning tiktok in montana, sb 419 (mont. 2023), https://leg.mt.gov/bills/2023/billpdf/sb0419.pdf. 30 allyn, “federal judge,” npr. 29 adam chan, “why tiktok's victory in montana might be bad news for the platform,” lawfare, last modified 2024, https://www.lawfaremedia.org/article/why-tiktok-s-victory-in-montana-might-be-bad-news-for-the-platform#:~:text =judge%20donald%20w.,a%20major%20win%20for%20tiktok. 60 https://leg.mt.gov/bills/2023/billpdf/sb0419.pdf objects at moving automobiles, taking excessive amounts of medication, lighting a mirror on fire and then attempting to extinguish it using only one’s body parts… licking doorknobs and toilet seats to place oneself at risk of contracting coronavirus, attempting to climb stacks of milk crates, shooting passersby with air rifles, loosening lug nuts on vehicles, and stealing utilities from public places.”32 in contrast with national security concerns, these issues raised by montana focus on a more public safety consideration. finally, sb 419 asserts that the law would become effective on january 1, 2024 unless “tiktok [is] acquired by or sold to a company that is not incorporated in any other country designated as a foreign adversary” before that date.33 therefore, in that sense, it is once again similar to pafaca as the law will lift the ban if tiktok divests from its chinese ownership. tiktok challenged the legality of the bill, and on november 30, 2023, the us district court for the district of montana preliminarily enjoined its enforcement, citing various constitutional concerns including first amendment challenges, supremacy clause and preemption issues, and the commerce clause.34 firstly, tiktok asserts that sb 419 unconstitutionally violates its first amendment rights by banning the platform on a content-based justification. tiktok contends that it has a right to exercise editorial judgment and its users have the right to convey speech on the platform as they wish. these challenges are similar to those raised against the trump administration’s executive orders against tiktok and wechat. secondly, tiktok’s preemption argument rests on the supremacy clause of the constitution which establishes that in the case where state law is in conflict with a specific federal law, federal law must preempt the conflicting law—this is known 34 chan, “why tiktok’s,” lawfare. 33 ibid. 32 ibid. 61 as conflict preemption. in some areas, federal interests may entirely dominate the field, making state legislation invalid in those areas—this is known as field preemption. tiktok argues that the matter of regulating a foreign-owned app for national security reasons by a state is federally preempted because it interferes with the reserved powers for the federal government over foreign affairs. lastly, tiktok’s final challenge includes the commerce clause. this clause of the constitution allows for congress to regulate interstate and foreign commerce—and restricts states from doing so. therefore, tiktok argues that although the ban proposed in sb 419 is state specific, it “risks disrupting the flow of travel and commerce between states.”35 on the basis of these claims, tiktok was granted a preliminary injunction against montana’s argument that sb 419 was a valid exercise of montana’s police powers. the district court found tiktok’s arguments compelling enough to determine that their case would likely succeed on its merits, which justified the granting of the injunction. with respect to the first amendment argument that was brought up, the court found that the law did indeed violate free speech protections from both a strict scrutiny and intermediate scrutiny analysis. both strict scrutiny and intermediate scrutiny are standards of judicial review used to evaluate the constitutionality of laws. strict scrutiny is the most rigorous level of judicial review and is applied when the law in question affects a fundamental constitutional right. under strict scrutiny, a law must serve a compelling government interest and be narrowly tailored to achieve that interest using the least restrictive means possible. intermediate scrutiny, on the other hand, is less rigorous. under intermediate scrutiny the law only has to serve an important government purpose and be substantially related to that interest. while both standards are designed to ensure that laws do not unjustifiably infringe on individual rights, strict scrutiny sets a higher bar than intermediate scrutiny does. in this case, there is no question that free speech is a 35 ibid. 62 fundamental right, which is why tiktok asserted that the court must review the case using strict scrutiny analysis. however, the court chose to analyze the case from an intermediate level, finding that the law was not affecting tiktok in a content-based manner but was instead content-neutral. if the law against tiktok was content-based, it means the government is targeting the message or the substance of the speech itself and discriminating based on the specific viewpoint of the speech in question. on the contrary, content-neutral restrictions do not address the substance of the message but rather target something else and happen to restrict speech as a consequence. because free speech is a fundamental right, laws that regulate speech based on their content are evaluated from a strict scrutiny perspective, while content-neutral regulations are evaluated using intermediate scrutiny. although sb 419 does specify specific content on tiktok that montana takes issue with, due to the fact that the law bans the entire app and not just that specific content, the court decided that sb 419 is more of a content-neutral restriction and therefore should be analyzed under intermediate scrutiny. the district court judge donald w. molloy explained this decision, writing that neither tiktok’s argument for strict scrutiny because the law is content-based or montana’s argument for intermediate scrutiny because the law is content-neutral “is completely accurate, but the state’s is closer to the legal mark.”36 the test that is used for evaluating speech under intermediate scrutiny is the o’brien test. united states v. o’brien was a case decided by the supreme court that established a test to evaluate the constitutionality of content-neutral restrictions on speech, such as a law banning the burning of a draft card. in o’brien, the supreme court determined that: “a government regulation is sufficiently justified if: 1) it is within the constitutional power of the government, 2) it furthers an important or substantial 36 ibid. 63 governmental interest, 3) the governmental interest is unrelated to the suppression of free expression, and 4) the incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest.”37 starting with the second criteria, montana’s lawyers argued that the government did indeed have an important interest in protecting the data of their citizens from a “foreign adversary” and that this interest is indeed unrelated to the suppression of free speech. however, this interest was deemed invalid by judge malloy as he rejected the notion that national security was a legitimate state interest, writing that, “the state posits there is nothing precluding a state from legislating in the field of national security. the founding fathers may have viewed that proposition skeptically considering the constitution’s particular provisions.”38 irrespective of whether montana’s or judge malloy’s argument is more compelling, judge malloy also asserts that sb 419 fails the fourth criteria of the o’brien test as he found that montana had failed to demonstrate that it was not burdening more speech than necessary to achieve its interest. to this point, montana’s lawyers had asserted that tiktok had not been compliant with a multistate investigation into the security of the platform but malloy claimed that it was “unclear how this single investigation into tiktok warrants a complete ban on the application.”39 judge malloy then further justified this conclusion by explaining that montana offered no evidence to show that tiktok is similar enough to other social media platforms to demonstrate that sb 419 still leaves alternative channels of communication open for the public. lastly, in regards to the first criterion of the o’brien test—that government regulation is within the constitutional power of the government—judge malloy held that sb 419 was not within the state government’s powers, upholding tiktok’s arguments that the law is 39 ibid. 38 chan, “why tiktok’s,” lawfare. 37 united states v. o’brien, 391 u.s. 367 (1968). 64 unconstitutional for violating both the supremacy clause and the commerce clause of the constitution. therefore, following this logic, judge malloy granted the preliminary injunction which enjoined the law from taking effect. iiib. texas’ tiktok ban a case against tiktok also emerged in the state of texas. just like montana, texas wanted to impose restrictions on the platform in fear of user data being accessed by the chinese government. this texas law known as senate bill 1195 (sb 1195) was aimed at limiting the use of tiktok on state government devices and networks and from the university of north texas (unt) devices as opposed to an all-out ban like sb 419 in montana. after sb 1195 was enacted on may 26, 2023, the coalition for independent technology research—a group of “academics, journalists, civil society researchers, and community scientists committed to advocating for and organizing in defense of research that is ethical, transparent, and privacy-preserving”40— challenged the legality of the ban in the u.s. district court for the western district of texas for “blocking tiktok-related teaching research and teaching in classrooms.”41 the judge overseeing this case, robert l. pitman, had been very sympathetic to first amendment challenges in previous cases he had dealt with, but that did not stop him from dismissing the first amendment challenges against texas in this case. in his analysis of the case, judge pitman recognized the importance of the first amendment’s “extra protection” for public university faculty as their unique position makes them both academics as well as public employees.42 the plaintiffs in the case requested that a first amendment test which is generally used for public employees be utilized in this case. this 42 ibid. 41 chan, “why tiktok’s,” lawfare. 40 coalition for independent technology research, https://independenttechresearch.org/about-us/. 65 test would limit speech restrictions to those “necessary for their employers to operate efficiently and effectively.”43 under this test, the plaintiffs would likely win because public university faculty would still be able to teach effectively with tiktok’s presence. however, judge pitman rejected this test and instead employed the more lenient “nonpublic forum” test.44 this test requires that the regulation needs to only be “reasonable in light of the purpose which the forum serves.”45 under this test, pitman found that a regulation of university-owned devices is reasonable because of texas’ security concerns of data privacy. moreover, pitman distinguished this case from montana’s ruling, arguing that the montana law was more sweeping as it banned tiktok entirely in the state while the texas law only regulated tiktok on its own governmental property. therefore, while the montana law needed to be inspected with intermediate scrutiny, texas’ law did not. iv. applying precedent decisions to pafaca although these lower court rulings offer crucial insights into the federal courts’ interpretations of the constitutionality of pafaca, it is important to recognize that the federal law is distinguished from the state cases in montana and texas in significant ways. in texas, the ruling was highly dependent on the fact that the tiktok ban only applied to government devices. in contrast, pafaca aims to ban tiktok on all devices in the united states (similarly to the montana statewide ban). nevertheless, the federal case is also distinguished from montana’s because many of tiktok’s strong arguments in that case no longer apply at the federal level. for example, both the supremacy clause argument and the commerce clause argument would no 45 ibid. 44 ibid. 43 ibid. 66 longer apply. furthermore, because montana’s statute highlighted the concern that tiktok “fails to remove, and may even, promote, dangerous content that directs minors to engage in dangerous activity” and went on to list specific examples of this content, tiktok was also able to make the argument that the statute was in fact content-based and therefore would require a heightened level of scrutiny.46 this argument would not apply at the federal level since the language of pafaca does not mention targeting dangerous content on the platform but is rather more focused on the national security concern that the app poses due to its chinese-based ownership. moreover, in the montana case, judge malloy was able to dismiss the argument that national security could be considered an important state interest.47 however, at the federal level, national security is without a doubt a considerable interest which explains the supreme court’s decision to ultimately uphold pafaca even if it means potentially limiting first amendment protections for the sake of national security. yet, despite this outcome tiktok maintains a compelling argument. even under the intermediate scrutiny standard (o’brien test), the government must demonstrate that any incidental restriction on first amendment freedoms is no greater than necessary to advance its interest. in this case, it could be argued that pafaca represents an overreach by mandating that tiktok completely divest from its original ownership to continue operating in the united states. instead of this drastic measure, an argument could be made that the government should focus on imposing regulations specifically targeting the data collection practices of tiktok rather than shutting down the platform entirely. furthermore, tiktok has shown that it is willing to cooperate to remedy the government’s security concerns. during tiktok ceo shou chew’s first appearance before congress, he 47 chan, “why tiktok’s,” lawfare. 46 an act banning tiktok in montana, sb 419. 67 explained project texas, the plan the company had developed through several discussions with cfius (committee on foreign investment in the united states) to address the government’s concerns. cfius is an “interagency committee with authority to review, block, and where necessary compel investment of foreign acquisitions of us business.”48 at the hearing, chew told congress members: “our approach has never been to dismiss or trivialize any of [your] concerns. we have addressed them with real action now. that’s what we’ve been doing for the past two years, building what amounts to a firewall. the seals of protected us user data from unauthorized foreign access. the bottom line is this: american data stored on american soil by an american company overseen by american personnel. we call this initiative project texas.”49 since then, tiktok has implemented many of project texas’ features to show the company’s real dedication to this issue. for example, tiktok transferred us user data to the cloud infrastructure of oracle, a us company.50 moreover, tiktok launched a campaign to educate their users about data security and project texas. on their website, tiktok writes: “project texas puts the concepts of transparency and accountability into action by addressing national security concerns head-on with concrete, measurable solutions. the framework has five key pillars: independent governance, data protection and access control, software assurance, content assurance, and monitoring and compliance. this approach is designed to address concerns that have been raised in the u.s. about tiktok, while also allowing us to continue to 50 matt perault, “what happened to tiktok’s project texas?,” lawfare, last modified 2024, https://www.lawfaremedia.org/article/what-happened-to-tiktok-s-project-texas. 49 christianna silva, “what is project texas, tiktok’s best chance to avoid a ban?,” mashable, last modified 2023, https://mashable.com/article/project-texas-tiktok#:~:text=project%20texas%20would%20restructure%20much,city %20(austin%2c%20texas). 48 ibid. 68 offer a globally interoperable service. we have already proactively implemented substantial portions of this framework, and we look forward to continuing our work to further ensure peace of mind for our community and our stakeholders.”51 given the existence of this alternative route for tiktok to address the government’s security concerns, it can be argued that the supreme court’s ruling to uphold pafaca was too deferential to the government without concrete evidence of legitimate national security concerns. ultimately, the united states supreme court upheld pafaca, confirming that a divestiture from bytedance was indeed a constitutional means of advancing national security concerns. despite this legal defeat, tiktok was never completely banned in the united states. although us users were temporarily unable to access the app for a few hours following the january 19 divestiture deadline, president trump, upon assuming office the next day issued an executive order halting enforcement for 75 days52 to allow for alternate solutions to be explored.53 overall, the outcome of this long-standing legal battle involving tiktok carries implications that are significant for far more than one single social media platform. this decision impacts not only tiktok but sets an important precedent for future disputes involving foreign-owned technology companies and the ongoing effort to balance security interests with constitutional protections for speech. furthermore, the fact that pafaca was never fully enforced also reveals important implications regarding separation of powers. despite the legislative and judicial branch demonstrating a need for regulation, the final outcome still 53 jamali, lily. 2025. “president trump signs executive order delaying tiktok ban.” bbc news, january 21, 2025. https://www.bbc.co.uk/news/articles/cd0j24rj4ryo. 52 although the initial order was for 75 days, president trump would later extend this even further. currently, it has been extended until december 16, 2025. 51 “tiktok’s commitment to u.s. national security,” tiktok u.s. data security, https://usds.tiktok.com/usds-about/. 69 depended on the political choices of the executive branch, underscoring how intertwined law and policy have become. 70 i.​introduction ii.​executive actions against tiktok iia. international emergency economic powers act iib. implications of first amendment rights iii.​pafaca and lower court rulings iiia. montana’s tiktok ban iiib. texas’ tiktok ban iv.​applying precedent decisions to pafaca law in the final frontier: ambiguities and clarity in the legal regime of outer space the bellarmine law society review volume xi issue ii article 3 law in the final frontier: ambiguities and clarity in the legal regime of outer space louis gleason boston college morrissey college of arts and sciences, gleasold@bc.edu 2 law in the final frontier: amibguities and clarity in the legal regime of outer space louis gleason * abstract: as the private space industry and a new, twenty-first century space race burgeons, governments around the world will be forced to confront the deficits in outer space’s existing legal regime that continue to produce ambiguities that threaten humanity’s ability to peacefully explore the cosmos. space is no longer strictly the domain of governments and government personnel. in the coming decades, we will bear witness to the beginnings of the civilization of space–something the existing legal regime is not prepared to govern. the foremost reason for the current regime’s inadequate is its failure to clearly expound legal jurisdiction in space, which creates room for contests of jurisdiction and renders the existence, role, and protection of private property in space uncertain. these ambiguities make justice more difficult to attain, are easily exploited by competing states by way of gray zone tactics, and threaten private investment in space. this article addresses the problems in the current legal regime of space, a common proposed solution to these problems, and the problems that exist within that solution. this article ultimately aims to raise awareness of the flaws in outer space’s legal regime and calls upon policymakers to ameliorate these deficits to ensure humanity maintains a peaceful and productive use of the invaluable cosmos so that we may continue to reap its enormous benefits. introduction interest in outer space is currently enjoying an international renaissance. reminiscent of the cold war-era space race, the united states of america and its competitors–the people’s republic of china and the russian federation–are vying for international power through space exploration and space-based scientific innovation.1 while certainly not initiating the new-age competition, the twenty-first century space race was cemented with the success of china’s chang’e * louis gleason is a b.a. candidate in political science and economics at boston college. he is interested in science and technology affairs, namely outer space exploration and environmental policy. he would like to thank dr. michael skeen for his help in preparing this article. 1 anne mcmillan, “the final frontier 21st century space race,” international bar association, july 14, 2021, https://www.ibanet.org/the-final-frontier. 3 4 mission, which, for the first time ever, landed a rover on the far side of the moon.2 while perhaps a great stride for humanity–and one that may help expand understanding of our moon–this mission has alarmed the united states governments, seeing this mission as a challenge to the united states and the american-led order that has dominated space since the twilight of the cold war. former vice president mike pence asserted that the chang’e 4 mission “revealed [china’s] ambition to seize...the strategic high ground and become the world’s pre-eminent spacefaring nation.”3 in the same speech, pence (informally) declared the beginning of a new space race and announced the ambitious acceleration of american space-exploration efforts. not to exclude the original space race adversary, pence also identified russia as another modern competitor.4 in an article for the washington post, pence, citing a 2019 defense intelligence agency report, wrote of the militarization of space, asserting that “china and russia are aggressively developing and deploying capabilities–including anti-satellite weapons, airborne lasers, menacing ‘on-orbit’ capabilities and evasive hypersonic missiles.”5 while space may–in many ways–remain full of mystery, it being a domain of international competition and the spectre of its militarization are all too familiar. while the phrase “space race” is an explicit reference to the cold war competition between the united states and the soviet union, the space race of today is notably different from that of the twentieth century. russia and the united states are now joined by not only china but another new entrant: the private space industry. perhaps the most notable space-faring private entity is elon musk’s spacex, which has embarked on a number of highly publicized initiatives since its 2 andrew jones, “china’s chang’e 4 lander and rover complete 15th lunar day on moon’s far side,” space, march 4, 2020, https://www.space.com/china-change-4-mission-completes-15th-lunar-day.html. 3 mike wall, “us is in a new space race with china and russia, vp pence says.” space, march 27, 2019,. https://www.space.com/new-space-race-moon-mike-pence-says.html. 4 wall, “new space race.” 5 wall, “new space race.” 4 2002 founding and has made a name for itself with its ambitious (if not unrealistic) goals.6 currently, spacex owns what is currently the largest constellation of satellites currently in orbit as part of its starlink initiative, which aims to provide low-cost, high-quality internet coverage to the entire world.7 private involvement in space has also led to great innovation in exploration technology, namely the spacex-pioneered reusable launch system falcon 9, which will significantly reduce launch costs in the future.8 while perhaps the most visible, spacex is far from the only private company making inroads into space. virgin galactic and blue origin are spacex’s most noteworthy competitors, both of which have their eyes set on private, commercial spaceflight.9 the heads of both companies–richard branson and jeff bezos respectively–have even traveled into space themselves aboard their companies’ spacecraft.10 perhaps most enticing is the possibility that space tourism has evolved from science fiction to an imminent reality. for the first time, humanity is looking at the credible possibility of civilians going to space for vacation.11 even further down the road is the prospect of colonizing space. while space tourism may be a luxury of the near future, many believe space colonization will eventually become necessary for humanity’s survival. princeton professor and physicist dr. gerard o’neill pioneered the idea of space colonization, viewing it as a means of escaping what he saw as unsustainable popular 6 mike wall, “spacex’s very big year: a 2020 filled with astronaut launches, starship tests and more,” space, december 28, 2020, https://www.space.com/spacex-astronaut-starship-launches-2020-milestones. 7 mike wall, “spacex’s very big year.” 8 justin bachman, “new space race shoots for moon and mars on a budget,” bloomberg, november 28, 2020, https://www.bloomberg.com/news/articles/2020-11-28/new-space-race-shoots-for-moon-and-mars-on-a-budgetquicktake. 9 bachman, “new space race.” 10 ashlee vance, “the future of space is bigger than jeff bezos, richard branson, or elon musk,” bloomberg, july 16, 2021, https://www.bloomberg.com/news/articles/2021-07-16/billionaire-space-race-between-bezos branson-and-musk-is-just-the-beginning. 11 francesca street, “first space tourist dennis tito: ‘it was the greatest moment of my life’,” cnn travel, july 20, 2021, https://www.cnn.com/travel/article/space-tourism-20-year-anniversary-scn/index.html. 5 growth.12 bezos, founder of blue origin and a former student of dr. o’neill’s, has expressed similar fears due to humanity’s unsustainable energy consumption.13 in a similar vein, spacex founder elon musk and the late astrophysicist stephen hawking have expressed support for humanity’s “planetary diversification”–spreading humans out over multiple planets to protect the species from cataclysmic natural disasters that may threaten individual planets.14 whatever the reason may be, several world governments have begun to seriously consider the prospect of space colonization, including the united states,15 the european union, and china16. the modest (but nevertheless groundbreaking) incursions of industry titans into space is only the beginning of civilian space travel–and one day there may be humans that have never been–or even heard of– our current home we know as earth. the prospect of sending humans into space is entrancing, and it’s easy to find oneself swept away by the cosmos’ endless potential. before humanity embarks on any such missions, however, spacefaring nations and the international community at large must address the deficit in outer space’s legal regime. the first allegation of criminal activity in space was levied in 2019, when summer worden, while on earth, accused her estranged (now ex) wife, astronaut anne mcclain, of illegally accessing her bank account while mcclain was in space aboard the international space station (iss). fortunately, the allegation was covered by the limited legal regulations already in 12 monte davis, “gerard k. o’neill on space colonies,” omni, october 12, 2017, https://omnimagazine.com/ interview-gerard-k-oneill-space-colonies/. 13 corey s. powell, “jeff bezos foresees a trillion people living in millions of space colonies. here’s what he’s doing to get the ball rolling,” nbc news, may 15, 2019, https://www.nbcnews.com/mach/science/jeff-bezos-foreseestrillion-people-living-millions-space-colonies-here-ncna1006036#anchor-gerardoneillsfrontiervision. 14 christianna reedy, “when will the first human space colony be established?,” futurism, august 17, 2017. https://futurism.com/when-will-the-first-human-space-colony-be-established. 15 matt williams, “the future of space colonization–terraforming or space habitats?,” phys, march 10, 2017, https://phys.org/news/2017-03-future-space-colonization-terraforming-habitats.html. 16 reedy, “first human space colony.” 6 place.17 the jurisdiction fell to the united states which, as per the intergovernmental agreement on space station cooperation (iga), holds that a crime involving citizens of a common nationality falls within the jurisdiction of said nation. lucky for all involved, the iga ensured that the procedural matters of this case were clear from the beginning.18 following the incident, however, many space legal experts felt as though they had dodged a bullet. this time jurisdiction was easy, but what about next time? human endeavors in space will only increase in the future, and a myriad of questions about legal jurisdiction in space remain.19 the most significant problem raised from the mcclain affair raises is where and when states have legal jurisdiction. do states govern the behavior of their citizens or the behavior within their own territory? what happens under circumstances where international law prohibits states from claiming territory? what happens when nationals of different states interact? is the iga a suitable model to govern all of space rather than just the iss? what are the ramifications of the lack of jurisdictional clarity in space matter? these are the questions this article aims to address. criminal jurisdiction and its malcontents: what law governs space? the outer space treaty. while the legal regime of outer space has notable and problematic deficits, this is not to say outer space is entirely devoid of a legal regime. it is not the “wild west” as some hyperbolically claim.20 the framework of modern space law was established with the treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies (known colloquially as the outer space treaty, or 17 mike baker, “nasa astronaut anne mcclain accused by spouse of crime in space,” the new york times, august 23, 2019, https://www.nytimes.com/2019/08/23/us/astronaut-space-investigation.html. 18 mathilde minet, “is 2019 the year when the first crime in space was committed?,” space legal issues, january 8, 2020, https://www.spacelegalissues.com/is-2019-the-year-when-the-first-crime-in-space-was-committed/. 19 minet, “first crime in space.” 20 sarah cruddas, “space: not the final frontier, but the new wild west,” politico, january 19, 2020, https://www. politico.eu/article/space-final-frontier-wild-west/. 7 ost) in 1967.21 a primary objective of the ost was to ensure that space would remain part of “the commons”–freely accessible to all states for scientific pursuits.22 to this end, article ii of the ost prohibits individual states from claiming any portion or any region on a celestial body as the state’s sovereign territory.23 to the same end, article iv prohibits the “establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies.”24 despite these restrictions, however, sovereignty is not prohibited in its entirety under the ost. article viii establishes that the state “on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such objects, and over any personnel thereof, while in outer space or on a celestial body.”25 in fact, the ost requires that states maintain the sovereignty of all objects it puts into space.26 the ost makes no provision for abrogating sovereignty and states are required to retain sovereignty over objects indefinitely.27 the article viii exception to the article ii prohibition on state claims to sovereignty in space allows states to exercise a degree of legal jurisdiction over the spacecraft they launch. the conditional allowance of sovereignty, as will be seen, contributes to the problem of ambiguous legal jurisdiction in space today. 21 “treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies,” opened for signature december 13, 1963, united nations publication, no. e.02.i.20, (1967), https://www.unoosa.org/pdf/ publications/stspace11e.pdf. 22 treaty, 3. 23 treaty, 4. 24 treaty, 4. 25 treaty, 5. 26 treaty, 4. 27 frans von der dunk, “transfer of ownership in orbit: from fiction to problem” in ownership of satellites: 4th luxembourg workshop on space and satellite communication law, ed. mahulena hofmann and andreas loukakis (baden-baden, baden-württemberg, germany: nomos publishing and hart publishing, 2017): 31-33. article=1102&context=spacelaw. 8 another provision of importance in the ost is article xii, which requires that “all stations, installations, equipment[,] and space vehicles on the [moon] and other celestial bodies shall be open to representatives of other states parties to the treaty on a basis of reciprocity.”28 through requiring “reasonable advance notice,” “appropriate consultations,” and “maximum precautions,”29 the ost mandates that any structure established on a celestial body30 must remain accessible to all other signatory states of the ost. this provision aims to ensure that by denying access, states do not exercise de facto control over any region of a celestial body. the intergovernmental agreement. the intergovernmental agreement, or iga (known officially as the agreement among the government of canada, governments of member states of the european space agency, the government of japan, the government of the russian federation, and the government of the united states of america concerning cooperation on the civil international space station) is the treaty that governs space law specifically aboard the iss.31 article 22 of the iga addresses legal jurisdiction, with section 1 establishing active personality32 as the default jurisdiction in criminal matters, holding that all states with nationals aboard the iss “may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.”33 the stipulation that this jurisdiction is exercised even “in or on any flight 28 treaty, 7. 29 treaty, 7. 30 for purposes of this paper, “celestial bodies” will be understood to mean “planets and their natural satellites, asteroids, meteorites, and stars. there currently does not exist any internationally recognized legal definition of celestial bodies and the definition remains a matter of debate. for more information see frans von der dunk’s defining subject matter under space law: near earth objects versus space objects and virgiliu pop’s a celestial body is a celestial body is a celestial body… 31 “agreement among the government of canada, governments of member states of the european space agency, the government of japan, the government of the russian federation, and the government of the united states of america concerning cooperation on the civil international space station,” conclusion date: january 29, 1998, treaties and other international acts series, no. 12927 (1998): 17, https://www.state.gov/wp-content/uploads/2019/ 02/12927-. multilateral-space-space-station-1.29.1998.pdf. 32 active personality refers to the type or jurisdiction in international law in which a state may assert criminal jurisdiction over conduct of its nationals abroad. 33 agreement, 17. 9 element” means that even if a national of one state privy to the iga is in a portion of the iss registered to another state, then the state of the national in question retains criminal jurisdiction.34 this rule exists despite the fact that the ost establishes a state’s right to territorial jurisdiction over spacecraft it launches.35 recall that mcclain, the astronaut aboard the iss accused of illegally accessing her wife’s bank account, was an american citizen.36 this allowed criminal jurisdiction to fall to the united states, and the accusation passed without international incident. there are, however, exceptions to the active personality principle in section 2 of article 22. in the event that the actions of an individual aboard the iss “affects the life or safety of a national or another partner state”37 or that an alleged crime “occurs in or on or causes damage to the flight element of another partner state,”38 the affected state(s) may exercise a degree of jurisdiction. this jurisdiction is exercised through the requirement that the state of the alleged offending party consult on matters “concerning their [the affected states’] prosecutorial interests.”39 if, however, “within 90 days of the date of such consultation or within such other period as may be mutually agreed,” a state with a claim to passive personality or territorial may exercise sole jurisdiction if the state with active personality jurisdiction “fails to provide assurances that it will submit the case to its competent authorities for the purpose of prosecution.”40 this means that, should a state with a claim to passive personality or territorial jurisdiction believe that an accused criminal will not prosecute the offending party, said state is free to exercise sole jurisdiction. 34 agreement, 17. 35 treaty, 5: this is known as territorial jurisdiction, where the state in which a crime was alleged to have occurred exercises criminal jurisdiction. 36 baker, “anne mcclain.” 37 agreement, 17: this is known as passive personality jurisdiction, where the state of the affected party, should it be a different state from the accused party, may exercise criminal jurisdiction. 38 agreement, 17. 39 agreement, 17. 40 agreement, 17. 10 recall that the iga governs only the affairs on the iss and is not a major component of international space law. the reason for its inclusion in this article is because some have proposed, in order to remedy the legal ambiguities that currently exist, under that article 22 be extended throughout outer space and effectively integrated into the ost.41 this article will thus explain why this proposal does little to remedy existing issues and instead lends itself to further legal ambiguity. ambiguities of the ost crimes outside of spacecraft. the first ambiguity in the legal regime of outer space that emerges from the ost is on the matter of crimes that take place outside of spacecraft or other space constructions. the ost establishes that a state retains territorial jurisdiction only over of their launched “object[s]...and over any personnel thereof”42 but is prohibited from claiming sovereignty over “the moon and other celestial bodies.”43 territorial jurisdiction is thus limited only to spacecraft launched by and registered to a state. because states cannot extend their sovereignty beyond such spacecraft, states are likewise unable to extend the territorial jurisdiction conferred to them under article viii of the ost. this leaves all areas of space outside of spacecraft ungoverned by existing legal regimes.44 this would mean that if any crime is believed or alleged to have occurred on the surface of a celestial body or otherwise outside a spacecraft registered to a state on earth, said crime would fall outside the jurisdiction of all existing legal regimes. even if the incident involved nationals of the same state, said state would be unable to investigate or 41 taylor stanton hardenstein, “in space, no one can hear you contest jurisdiction: establishing criminal jurisdiction of the outer space colonies tomorrow,” journal of air law and commerce 81, no. 2 (2016): 283-287, https://scholar.smu.edu/jalc/vol81/iss2/4.: it is beyond the scope of paper to summarize the argument presented by hardenstein for this position. for further reading on the matter, see the cited article, hardenstein’s in space, no one can hear you contest jurisdiction. 42 treaty, 5. 43 treaty, 4. 44 hardenstein, “in space,” 267; reid white, “plugging the leaks in outer space criminal jurisdiction: advocation for the creation of a universal outer space criminal statute,” emory international law review 35, no. 2 (2021): 349, https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1258&context=eilr. 11 prosecute, as this could constitute an extension of sovereignty over a celestial body or area of space outside of spacecraft, explicitly prohibited under article viii of the ost.45 registration of extraterrestrial constructions. until this point, we have discussed spacecraft as being “registered” to a state. this refers to article i of the united nations convention on registration of objects launched into outer space (known colloquially as the registration convention). this convention requires that if a state must register an object that it “launches or procures the launching of a space object” or “from whose territory or facility a space object is launched” with the united nations.46 when a space object is registered to a state, the state to which the object is registered (known as the “launching state”) exercises sovereignty and jurisdiction over the object under article viii of the ost.47 under article i the registration convention, the launching state is defined as the state “which launches or procures the launching of” the spacecraft and “from whose territory or facility” a spacecraft is launched.48 this language presupposes two important stipulations: that all spacecraft depart from earth and that all spacecraft are launched by a government. while this was the case in the past, it will not remain this way in the future. the language of the registration convention, and the way in which it interacts with the ost, has the potential to produce ambiguities in the regulations surrounding registration. one way in which the wording of the registration convention produces jurisdictional ambiguity is that it does not clearly define what law governs outposts constructed on 45 treaty, 5. 46 “convention on registration of objects launched into outer space,” opened for signature on november 12, 1974, united nations treaty series, no. 15020 (1976): 37, https://aerospace.org/sites/default/files/policy_archives/ registration%20convention% 20nov. 74.pdf. 47 treaty, 5. 48 convention, 37. 12 extraterrestrial planets using native materials. the united states,49 russia, china,50 the european union,51 and japan52–most of the major powers in space today–have all expressed interest in building a lunar base. such an outpost is likely to be constructed using 3d printing technology that excavates the lunar surface and molds the regolith into habitable modules.53 the reason for this is transporting a ready-to-use habitation module from earth to the moon would be incredibly difficult due to how massive such a module would be. additionally, given that the module would have been created on earth, performing on-site maintenance would be difficult.54 this will likely have applications beyond the moon as well, such as in the construction of a martian base.55 an outpost constructed using extraterrestrial material will not be “launched” and would thus likely fall outside of the registration convention, which defines a launching state as one that launches or procures the launching of a spacecraft.56 if states are unable to register such outposts under the registration convention, then said states could not claim them as their sovereign territory, as article viii concerns only objects registered under the registration convention. this means the behavior that occurred within these outposts, much like the surface from which they were constructed, would not be governed by any existing legal regime. this is particularly problematic 49 meghan bartels, “nasa unveils plan for artemis ‘base camp’ on the moon beyond 2024,” space, april 3, 2020, https://www.space.com/nasa-plans-artemis-moon-base-beyond-2024.html. 50 tereza pultarova, “russia, china reveal moon base roadmap but no plans for trips yet,” space, june 17, 2021, https://www.space.com/china-russia-international-lunar-research-station. 51 leonard david, “lunar leap: europe is reaching for a moon base by the 2030s,” space, december 30, 2015, https://www.space.com/31488-european-moon-base-2030s.html. 52 mark whittington, “japan is joining the push to return to the moon,” the hill, july 25, 2021, https://thehill.com/ opinion/technology/564718-japan-is-joining-the-push-to-return-to-the-moon. 53 giovanni cesaretti, et. al., “building components for an outpost on the lunar soil by means of a novel 3d printing technology,” acta astronautica 93 (august 2013): 431, https://www.sciencedirect.com/science/article/pii/s0094576 513002889. 54 cesaretti, et. al., “building components,” 431. 55 cesaretti, et. al., “building components,” 449. 56 convention, 37. 13 given that using 3d printing to create outposts out of native material is humanity’s best prospect for the construction of extraterrestrial outposts.57 private spacecraft and the registration convention. another issue with article viii of the ost lies in the ambiguity of what constitutes a launching state with respect to private spacecraft. put more simply, it is unclear whether private spacecraft are considered to be the sovereign property of–and thereby governed by–the state from which they are launched. recall that a launching state is defined in the registration convention as the state which “launches or procures the launching” of a spacecraft or “from whose territory or facility” a spacecraft is launched.58 the ambiguity lies in what the registration convention means by “procure” and “facility.” a conservative interpretation of “procure” may hold that the state must be the agent that specifically seeks the launch of a spacecraft and that a privately owned facility is not, by extension of its location, a facility owned by the state (for purposes of registration convention).59 such an interpretation would mean that private spacecraft launched from earth could not, under the registration convention, be registered to the state from which they were launched, meaning private spacecraft are excluded from article viii of the ost. as a result, private spacecraft would be left ungoverned by any legal regime, and any behavior on said spacecraft would fall outside any established jurisdiction. this problem is compounded by the ambiguity of the registration convention with respect to the ability of states to claim article viii sovereignty over extraterrestrial outposts 3d printed from native materials. if states are unable to claim sovereignty over extraterrestrial launching 57 cesaretti, et. al., “building components”, 449. 58 agreement, 17. 59 frans g. von der dunk, “space tourism, private spaceflight and the law: key aspects,” space, cyber, and telecommunications law program faculty publications 60 (2011): 150, https://digitalcommons.unl.edu/ spacelaw/ 60. . 14 facilities created with native material, then any spacecraft launched from such sites would effectively launch from territory/a facility that belongs to no state, meaning that no state could possibly fulfill the second criterion to be a “launching state” unde the registration convention.60 without a launching state, then no state under article viii could extend its sovereignty, exercise jurisdiction, and govern these spacecraft with its laws. this is of notable concern given that the moon is likely to become a pitstop for spacecraft venturing out beyond the earth-moon system in coming years.61 private property and the registration convention. espionage has been an integral characteristic of space competition since the cold war62 and remains a common practice of china’s space strategy today.63 dr. gregory miller, a professor at the air command staff college, has identified “corporate espionage, theft of intellectual property, and sabotage” undertaken by both competing companies and competing states as among the most pressing threats in space today.64 aside from states aiming to gain an advantage over their competitors, private actors (possibly under the sponsorship of another state or company) may also engage in such theft with the aim of selling the technology or information, possibly to their sponsor or other prospective buyers.65 competing states and companies may also use theft to “[sow] disorder on an adversary.”66 any extraterrestrial outpost established or spacecraft launched into space is an 60 agreement, 17. 61 david whitehouse, space 2069: after apollo: back to the moon, to mars, and beyond (berkeley, ca: publishers group west, 2020), 28. 62 alex hollings, “how the cia hijacked a soviet spacecraft in 1959,” sandboxx, april 21, 2021, https://www. sandboxx.us/blog/the-cia-hijacked-a-soviet-spacecraft-in-1959/. 63 jerry rogers, “will china steal its way to a space race victory?,” the national interest, may 6, 2021, https:// nationalinterest.org/blog/buzz/will-china-steal-its-way-space-race-victory-184574. 64 gregory d. miller, “space pirates, geosynchronous guerillas, and nonterrestrial terrorists: nonstate threats in space,” air and space power journal (2019): 42, https://www.airuniversity.af.edu/portals/10/aspj/journals/ volume-33_issue-3/f-miller.pdf. 65 miller, “space pirates,” 43. 66 miller, “space pirates,” 43. 15 attractive target for these types of attacks, as they are home to highly valuable space-related information and technology easily exploited by competing states for political advantage or competing companies for market advantage. however, as previously outlined, the language of the registration convention is not clear as to whether outposts constructed using extraterrestrial material or private spacecraft launched from both earth or from the surface of a celestial body are covered under article viii of the ost. if not, this would mean that these outposts and private spacecraft could not be legally protected by any state as private property, lacking the sovereignty necessary to extend its laws over and prosecute offenders in these outposts and spacecraft. without the ability to levy legal punishment, states’ ability to deter theft and espionage is greatly diminished. compounding this threat is the fact that the ost is not clear on to what extent states may physically defend private property in space. article xii requires that “all stations, installations, equipment and space vehicles” in space remain accessible to all other signatories of the ost.67 the language of this article, in specifying “all” of such facilities would indicate that even private companies must abide by this requirement.68 while the same article allows for states to request “reasonable advance notice” to take “maximum precautions” such that visits by other states do not “[interfere] with normal operations in the facility,”69 it still negates the ability of states to deny access to their facilities to actors who may be there with the intention to steal technology or information. even further, article i states that “there shall be free access to all areas of celestial bodies.”70 even if the operators of an extraterrestrial outpost were to have reasonable cause for denying a state or company entry to their facility, article xii only allows states to hold 67 treaty, 7. 68 treaty, 7. 69 treaty, 7. 70 treaty, 4. 16 “appropriate consultations” in order to take “maximum precautions.” there is no clear enunciation of when a state is permitted to deny a prospective entrant access to their facilities.71 if the operators, after having let an actor into their facility, believe that information or equipment has been stolen, it unclear if they even have the power to do anything in the moment, as article iv of the ost prohibits the “establishment of military bases, installations and fortifications” “the conduct of military manoeuvres on celestial bodies” and requires that all military personnel and equipment be used exclusively for “peaceful exploration.”72 this indicates that the presence of security forces may be illegal, further diminishing–if not eliminating entirely–the ability of facility operators to protect their property from theft or other attacks. entitling states to take “maximum precaution” before the “representatives” of another state would imply that the drafters of the ost recognized the sensitivity of certain information and technology that may be kept in space, but these articles are highly unclear as to the extent to which outpost and spacecraft operators may defend this technology and information. ambiguities of the iga as discussed earlier, the iga does not presently govern space law outside of the iss. however, because extending article 22 the iga and effectively integrating it into the ost has been proposed,73 this article will address the prospects of this proposal. for a review of article 22, see “the intergovernmental agreement” under the subheading “what law governs space?” competing claims of jurisdiction. the chief problem with extending article 22 of the iga to govern all of outer space, embedding it in the foundations of space law, is that it fails to effectively govern the interactions between nationals of different states. under article 22, the 71 treaty, 7. 72 treaty, 7. 73 hardenstein, “in space,” 283-287. 17 decision to claim jurisdiction lies with the state, meaning that any such claims would be issued in accordance with the interests and values of the state. if, however, such interests and values conflicted or were otherwise misaligned, states may find themselves locked in a gridlock without any clear resolution. the only guidance provided by article 22 on the matter of such gridlock is a vague directive that states with competing claims “consult” with each other.74 the foremost powers of space today can be approximately categorized into two groups: the west, consisting of the united states, the european union, japan, and canada, and the sino-russian axis. this division is highly suitable to characterize the current international dynamic in space. the western states have a long history of collaboration, of which is being continued in the lunar gateway project.75 meanwhile, russia and china, as part of a broader “strategic partnership,” have increased their civil and military space cooperation.76 the divide between these two groups runs deeper than space exploration. the two parties are similarly polarized on matters of criminal justice. many western countries currently have strained relationships with both china77 and russia78 on criminal matters due to human rights abuses and a weak rule of law. in 2020, the united states suspended its extradition agreement with hong kong after the passage of a new security law in china which the united states alleged “destroyed the legal firewall between it’s [beijing’s] legal system and that of hong kong.”79 74 agreement, 17. 75 “gateway,” gateway, nasa, last modified august 19, 2021, https://www.nasa.gov/gateway/overview. 76 jonathan t. ward, china’s vision of victory (new york: atlas publishing, 2019), 65. 77 noah e. lipkowitz, “why countries diverge over extradition treaties with china: the executive power to extradite in common and civil law countries,” virginia journal of international law 59, no. 2 (2019): 462-463, https://static1.squarespace.com/static/5f0a3654a47d231c00ccd14f/t/5f3fd127dc65a031c8980104/1598017832145/li pkowitz-final-v3-1.pdf. 78 lipkowitz, “why countries diverge,” 497. 79 robbie gramer, “u.s. preparing to suspend extradition treaty with hong kong,” foreign policy, july 13, 2020, https://foreignpolicy.com/2020/07/13/china-hong-kong-escalation-trump-national-security-law-extradition-treaty/. 18 the strained relationship between the west and the sino-russian axis would likely complicate any attempt to expand article 22 of the iga to govern all of criminal law in space. for one, a productive consultation and resolution would be unlikely given the differences between western governments and the sino-russian axis that has already complicated efforts to produce extradition treaties. additionally, it has been historically seen that if a government is entitled to claim jurisdiction over some criminal behavior, it will do so if it believes it has a vested interest in investigating or prosecuting said behavior.80 this can be seen in the death of dr. rodney marks, an american contractor in antarctica who died under mysterious circumstances while stationed at an american facility located on territory claimed by new zealand. as per the antarctic treaty, the united states had a claim to active personality jurisdiction while new zealand had a claim to territorial jurisdiction. because the united states had a vested interest in the wellbeing of its contractors and new zealand had a vested interest in the affairs of its territory, both asserted jurisdiction.81 given the explicit decision of many western states to not sign extradition treaties with russia or china, it is feasible–and likely–that a western government would, where possible, assert jurisdiction if the russian or chinese government criminally charged one of its nationals. the western state could assert that it has a vested interest in governing the affairs of and protecting its citizens–namely through protecting said citizens from possible unfair treatment at the hands of the chinese or russian government. a similar issue may emerge between states with differing approaches to capital punishment. many states have exceptions in their extradition agreements with the united states in which states are exempt them from their extradition obligations if there is reasonable belief that 80 hardenstein, “in space,” 272. 81 hardenstein, “in space,” 272. 19 capital punishment will be employed.82 in the event that a state that has abolished the death penalty (abolitionist states), it may see it as their responsibility to, where possible, assert jurisdiction to prevent a citizen that that it played a role in criminally implicating from being sentenced to death in states where capital punishment remains in use (retentionist states). such conflicts are most likely to occur between abolitionist states (canada and the european union) and retentionist states (japan and the united states) within the west.83 china is also the world’s leading state executioner.84 this, alongside fears among of the country’s weak rule of law,85 is likely to further incentivize western states to assert jurisdiction to prevent their citizens from being criminally charged by the chinese government. thus, disputes over the death penalty may also produce contests over legal jurisdiction between governments. these disputes become even more complicated when one considers the possibility of more than two states claiming jurisdiction. ambiguity of applicable laws. another deficiency of article 22 is that it fails to clearly expound what laws apply where. section 1 of article 22 states that a state exercises criminal jurisdiction over its own citizens.86 the first problem this raises is what happens if a national of one state is aboard a spacecraft registered to another state and engages in activity that is criminalized in the state of the spacecraft but not in the state of the national. in international law, the relevant principle is dual criminality, which requires that, for a citizen to be extradited, the crime they are alleged to have commited (and will thus be prosecuted for) in the foreign state must 82 jonathan masters. “what is extradition?,” council on foreign relations, january 8, 2020, https://www.cfr.org/ backgrounder/what-extradition. 83 “death penalty in 2019: facts and figures,” news, amnesty international, last modified april 21, 2020, https:// www.amnesty.org/en/latest/news/2020/04/death-penalty-in-2019-facts-and-figures/. 84 amnesty international, “death penalty.” 85 lipkowitz, “why countries diverge,” 63. 86 agreement, 17. 20 be criminalized in the citizen’s state of origin.87 while laws must not be exactly identical, substantial differences allow for a state to deny a requisition for extradition.88 an important function of the dual criminality principle is in the case of the political offense exception–crimes in which “the state” is the primary victim, such as criticism of the government.89 china, for example, reserves the right to prosecute anybody whose activity is “deemed politically sensitive by the government.”90 russia, too, frequently persecutes its political dissidents.91 thus, if a western citizen criticizes or disseminates information harmful to the russian or chinese government, the western citizen has committed a political offense against a government, but their behavior is legal within their state of origin. in this scenario, the western citizen could be accused of a crime that is not criminalized in their state of origin. this state of origin, under article 22, would have the first opportunity to prosecute their citizen, but because their behavior was not criminal, the state would have nothing to prosecute the citizen for. the russian or chinese government would have passive personality jurisdiction in this instance, as the state itself would be the victim. under article 22, because the western state with active personality jurisdiction (the citizen’s state of origin) declined to prosecute, jurisdiction would fall to russia or china.92 it then becomes unclear what the course of action becomes. if the citizen is not prosecuted, then said citizen has broken the law without consequence. if the citizen is prosecuted, they will be prosecuted for conduct that is not illegal in their state of origin–the state that is responsible for governing them under article 22 87 anna maccormack, “the united states, china, and extradition: ready for the next step?,” legislation and public policy 12, no. 445 (2009): 453. https://www.nyujlpp.org/wp-content/uploads/2012/11/anna-maccormacktheunited-states-china-and-extradition-ready-for-the-next-step-.pdf. 88 maccormack, “next step,” 453. 89 maccormack, “next step,” 454. 90 maccormack, “next step,” 475. 91 tatyana beschastna, “freedom of expression in russia as it relates to criticism of the government,” emory international law 27, no. 2 (2013): 1129-1130, https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi? article=1089&context=eilr. 92 agreement, 17. 21 of the iga. both scenarios are inherently unjust and the question ultimately becomes where one state’s laws end and the other state’s laws begin. this, too, would likely produce a contest of legal jurisdiction. failure to resolve existing issues. aside from the ambiguities it would produce itself, extending article 22 to all of outer space would fail to resolve the ambiguities that exist within the current legal regime. there is nothing within article 22–or the iga–that clarifies what laws apply on the surface of celestial bodies, clarifies the registration convention, or clarifies the ability of states to defend private property in space. furthermore, extending article 22 would effectively mean that states are not able to govern the territory in space they do have sovereignty over–their spacecraft. instead, jurisdiction would default to the state with active personality jurisdiction. problems posed by the ambiguities in the criminal jurisdiction of outer space failure to achieve justice. the question now becomes why this is important. first and foremost, the myriad of instances in which jurisdiction becomes contested and ambiguous threatens the ability of states to achieve justice. we can return again to the example of the death of dr. marks. article viii of the antarctic treaty closely resembles article 22 of the iga. it both establishes active personality jurisdiction as the default jurisdiction in antarctica and requires that in the event that another state is “concerned...with regard to the exercise of jurisdiction” the two states must “consult together with a view to reaching a mutually acceptable solution.”93 like article 22, the antarctic treaty provides no framework as to how states with competing claims to jurisdiction should “consult.” because the united states and new zealand had no direction in how they should consult, the case of dr. marks’ death remains, to this day, unresolved.94antarctic 93 hardenstein, “in space,” 272. 94 hardenstein, “in space,” 272; white, “plugging the leaks,” 362. 22 experts have voiced concerns that, without reforming antarctica’s jurisdictional system, other cases may also end in a legal stalemate.95 the case of dr. marks demonstrates that a vague directive to “consult” is insufficient for dealing with competing claims to jurisdiction, and that a more comprehensive framework is necessary to ensure cases can be adequately pursued. it is worth noting that the united states and new zealand are also close partners, both liberal democratic countries, share great cultural similarities, and have a history of political engagement and international cooperation.96 if two states on remarkably friendly terms are unable to cooperate effectively, it is highly unlikely that states on far more hostile terms–states of the west and the sino-russian axis–would be able to. it is likely that a contest of jurisdiction between the west and the sino-russian axis would escalate beyond a stalemate like in the case of dr. marks. space is central to china’s foreign policy. anthony cordesman of the center for strategic and international studies explains that “china’s growing space capabilities translate into military capabilities that affect all aspects of conventional and nuclear targeting, ground-air-sea operations, precision conventional strike capacities, and missile defense.”97 for this reason, the chinese military regards space as the “ultimate high ground.”98 dr. jonathan ward, a national security consultant and academic of chinese-american relations has identified dominance of space as a major foreign policy goal of chinese communist party general secretary xi jinping.99 given the importance of space to both china and the united states, it is possible that a contest of legal jurisdiction could become part of a broader conflict with both states attempting to assert their dominance within the domain. such a 95 hardenstein, “in space,” 273. 96 u.s. library of congress, congressional research service, new zealand: background and relations with the united states, r44552 (2021), https://fas.org/sgp/crs/row/r44552.pdf. 97 ward, china’s vision, 64. 98 new zealand, 64. 99 new zealand, 62. 23 conflict has the potential to erupt into violent, direct confrontation according to the us-china economic and security review commission.100 gray zone tactics. the next danger of these ambiguities is that they may be exploited by competing powers, through use of gray zone tactics, in space. gray zone tactics are means through which states act coercively toward other states while remaining below the threshold which would inspire a military response.101 the “gray zone” the term references is the “zone” that exists between peace and military conflict.102at the heart of gray zone tactics is the ability of parties acting aggressively to “[cloak themselves] in deniability” which they do through “[taking] advantage of...ambiguity to achieve gradual gains.”103 through exploiting ambiguities, states are able to “unambiguous or attributable violations of international law or norms,” thereby preventing the outbreak of conflict.104 the states that make more frequent use of these tactics are russia, china, iran, and north korea.105 through these tactics, states are able to coerce other states into acceding to the former’s interests.106 china, for example, in an attempt to achieve control over the south china sea, has constructed artificial islands and, where it has established uncontested control, built military infrastructure to expand and consolidate its control over the body’s maritime trade routes.107 russia, in order to undermine nato, has engaged in disinformation campaigns in order to manipulate elections and attempted to peel away prospective members of the trans-atlantic 100 new zealand, 64. 101 lyle j. morris, et. al., “gaining competitive advantage in the gray zone: response options for coercive aggression below the threshold of major war,” rand corporation (2019): 1-2. https://www.rand.org/content/ dam/rand/pubs/research_reports/rr2900/rr2942/rand_rr2942.pdf. 102 morris, et. al., “gaining competitive advantage,” 2. 103 morris, et. al., “gaining competitive advantage,” 12. 104 morris, et. al., “gaining competitive advantage,” 9. 105 morris, et. al., “gaining competitive advantage,” 6-12. 106 morris, et. al., “gaining competitive advantage,” 13. 107 adrien chorn and monica michiko, “maritime gray zone tactics: the argument for reviewing the 1951 u.s.philippines mutual defense treaty,” center for strategic and international studies, october 1, 2019, https:// www.csis.org/maritime-gray-zone-tactics-argument-reviewing-1951-us-philippines-mutual-defense-treaty. 24 alliance.108 russia has even begun to employ these tactics in space, having tested what is believed to be space-based satellite-destroying technology.109 ambiguity is at the hard of gray zone tactics, and the ambiguities in the existing space law regime lend themselves to such exploitation. one way in which states may do this is through a unique form of hostage diplomacy. the jurisdictional ambiguity in space would allow a state to bring exaggerated (or fabricated) charges against the nationals of another state in order to trap them in a legal limbo in order to extract concessions from the national’s home state–something both russia and china have done in the past.110 states could do this to extract specific concessions, or to disincentivize states from pursuing manned space missions. states could also take advantage of the ambiguity surrounding property rights in space and stalk the satellites of other states, something russia was caught doing last year.111 in exploiting the same ambiguity, states could damage outposts or statecraft that states do not, under article viii of the ost, exercise legal jurisdiction over. states may do this through funding proxy groups (such as space pirates or astroterrorists),112 a common gray zone tactic.113 states would also free to steal information and technology from these outposts and spacecraft due to the lack of private property protections, similar to gray zone tactics frequently employed on earth.114 states frequently justify the use of gray zone tactics with references to international law,115 and article i of the ost may prove to be 108 kathleen hicks, “russia in the gray zone,” aspen institute, july 18, 2019, https://www.aspeninstitute.org/blog posts/russia-in-the-gray-zone/. 109 loren grush, “russia just tested satellite-destroying tech in space, us space command claims,” the verge, july 23, 2020, https://www.theverge.com/2020/7/23/21335506/russia-anti-satellite-weapon-test-kosmos-2543. 110 steve levine, “the new age of hostage diplomacy,” axios, january 12, 2019, https://www.axios.com/ international-arrests-poland-china-hostage-diplomacy-e1f249f0-6a45-430d-88e2-aed7ce4ecfc3.html. 111 w. j. hennigan, “exclusive: strange russian spacecraft shadowing u.s. spy satellite, general says,” time, february 10, 2020, https://time.com/5779315/russian-spacecraft-spy-satellite-space-force/. 112 miller, “space pirates,” 43. 113 morris, et. al., “gaining competitive advantage,” 9. 114 morris, et. al., “gaining competitive advantage,” 48. 115 morris, et. al., “gaining competitive advantage,” 9-10. 25 particularly useful in justifying this theft, as it states that the “exploration and use of outer space...shall be the province of all mankind.”116 these gray zone tactics would turn space into an openly hostile domain, threatening humanity’s access to the cosmos and the material benefits and scientific knowledge it has for us. weak property rights. finally, the ambiguous nature of private property protections will likely have a negative impact on private investment in space. normative economic logic posits that production is disincentivized when companies fear their products are at risk of expropriation.117 as dr. mancur olson explained, “in a world of roving banditry there is little or no incentive to produce or accumulate anything that may be stolen.”118 private property rights exist to protect companies from such expropriation and thus dull these fears.119 in extending this to space, if private spaceflight and space exploration companies fear their technology and information is insecure and at risk of expropriation in space (of which is reasonable fear to have120), they are unlikely to invest in space. this would be a highly unfortunate outcome due to the vast potential private spacefaring companies hold for humanity. the motives of private space exploration are fundamentally different from state agencies. rather than pursuing state goals, companies such spacex, virgin galactic, and blue origin “supply the demand they create.”121 what this means is that certain goods are produced best in space, and commercial space companies exist for the 116 treaty, 4. 117 timothy besley and maitreesh ghatak, “property rights and economic development,” in handbook of development economics, ed. dani rodrik and mark rosenzweig (amsterdam: elsevier b. v., 2010), 4565, https://reader.elsevier.com/reader/sd/pii/b9780444529442000069?token=5ef6c988aa17d57ba2c6b870029e70 d0cec7891aad947219425b9551f43711eb32f615b11eb7215ad02755a9b2f537b3&originregion=us-east1&origincreation=20210823232331. 118 mancur olson, “dictatorship, democracy, and development,” the american political science review 87, no. 3 (september 1993): 568, https://www.jstor.org/stable/2938736. 119 besley and ghatak, “property rights,” 4588. 120 miller, “space pirates,” 43. 121 matt weinzierel and mehak sarang, “the commercial space age is here,” harvard business review, february 12, 2021, https://hbr.org/2021/02/the-commercial-space-age-is-here. 26 production and provision. these goods include high-quality fiber-optic cables,122 vaccines,123 and 3d-printed human tissue.124 if companies feel they will not reap the benefits of this innovation, they will decline to invest, and humanity will lose out on enjoying the societal benefits of commercial spaceflight and exploration. conclusion space poses a number of exciting possibilities to humanity, but with that comes a number of challenges. as it stands, the legal regime in space remains highly incomplete. space law lacks a clear enunciation of when states have legal jurisdiction and when they do not. without these regulations, ambiguities are produced within outer space’s legal regime, making it unclear when and where a state may exercise jurisdiction. these endanger the ability of states to achieve justice for nationals victimized by criminal behavior, allow competing states to engage in gray zone conflicts, and threaten the development of a private space industry. a proposed solution to this has been extending article 22 of the iga throughout all of outer space. this proposal, however, fails to remedy the problems that exist presently, and implementing it would come with great logistical difficulties. it is crucial that we address the deficits in the legal regime of space so that we may enjoy the great potential the final frontier has for humanity. 122 weinzierel and sarang, “commercial space age.” 123 denis chose, “commercial space travel may bring science benefits, advocates say,” space, june 20, 2012, https://www.space.com/16228-nasa-commercial-human-spaceflight-benefits.html. 124 elizabeth howell, “a bff in space! bioprinter will 3d-print human tissue on the space station,” space, july 1, 2019, https://www.space.com/3d-printing-human-tissue-in-space.html. 27 bibliography “agreement among the government of canada, governments of member states of the european space agency, the government of japan, the government of the russian federation, and the government of the united states of america concerning cooperation on the civil international space station.” concluded january 29, 1998. treaties and other international acts series, no. 12927. https://www.state.gov/wpcontent/uploads/2019/02/12927-. amnesty international. “death penalty in 2019: facts and figures.” news. last modified april 21, 2020. https://www.amnesty.org/en/latest/news/2020/04/death-penalty-in-2019-factsand-figures/. bachman, justin. “new space race shoots for moon and mars on a budget.” bloomberg, november 28, 2020. https://www.bloomberg.com/news/articles/2020-11-28/new-spacerace-shoots-for-moon-and-mars-on-a-budget-quicktake. baker, mike. “nasa astronaut anne mcclain accused by spouse of crime in space.” the new york times, august 23, 2019. https://www.nytimes.com/2019/08/23/us/astronautspace-investigation.html. bartels, meghan. “nasa unveils plan for artemis ‘base camp’ on the moon beyond 2024.” space, april 3, 2020. https://www.space.com/nasa-plans-artemis-moon-base-beyond 2024.html. beschastna, tatyana. “freedom of expressionin russia as it relates to criticism of the government.” emory international law 27, no. 2 (2013): 1105-1144. https:// scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1089&context=eilr. besley, timothy and maitreesh ghatak. “property rights and economic development.” in handbook of development economics, edited by dani rodrik and mark rosenzweig, 4525-4595. amsterdam: elsevier b. v., 2010. https://doi.org/10.1016/b978-0-444-529442.00006-9. cesaretti, giovanni, enrico dini, xavier de kestelier, valentina colla, and laurent pambaguian. “building components for an outpost on the lunar soil by means of a novel 3d printing technology.” acta astronautic 93 (january 2014): 430-450. https://doi.org /10.1016/j.actaastro.2013.07.034. chorn, adrien and monica michiko. “maritime gray zone tactics: the argument for reviewing the 1951 u.s.-philippines mutual defense treaty.” center for strategic and international studies. october 1, 2019. https://www.csis.org/maritime-gray-zone-tacticsargument-reviewing-1951-us-philippines-mutual-defense-treaty. chose, denis. “commercial space travel may bring science benefits, advocates say.” space, july 1, 2019. https://www.space.com/16228-nasa-commercial-human-spaceflight 28 benefits.html. “convention on registration of objects launched into outer space.” opened for signature on november 12, 1975. united nations treaty series, no. 15020. https://aerospace.org/ sites/default/files/policy_archives/registration%20convention% 20nov74.pdf. cruddas, sarah. “space: not the final frontier, but the new wild west.” politico, january 19, 2020. https://www.politico.eu/article/space-final-frontier-wild-west/. david, leonard. “lunar leap: europe is reaching for a moon base by the 2030s.” space, december 30, 2015. https://www.space.com/31488-european-moon-base-2030s.html. davis, monte. “gerard k. o’neill on space colonies.” omni, october 12, 2017. https:// omnimagazine.com/ interview-gerard-k-oneill-space-colonies/. gramer, robbie. “u.s. preparing to suspend extradition treaty with hong kong.” foreign policy, july 13, 2020. https://foreignpolicy.com/2020/07/13/china-hong-kong-escalationtrump-national-security-law-extradition-treaty/. grush, loren. “russia just tested satellite-destroying tech in space, us space command claims.” the verge, july 23, 2020. https://www.theverge.com/2020/7/23/21335506/russia-antisatellite-weapon-test-kosmos-2543. hardenstein, taylor stanton. “in space, no one can hear you contest jurisdiction: establishing criminal jurisdiction of the outer space colonies tomorrow.” journal of air law and commerce 81, no. 2 (2016): 251-288. https://scholar.smu.edu/jalc/vol81/ iss2/4. hennigan, w. j. “exclusive: strange russian spacecraft shadowing u.s. spy satellite, general says.” time, february 10, 2020. https://time.com/5779315/russian-spacecraft-spysatellite-space-force/. hicks, kathleen. “russia in the gray zone.” aspen institute. july 18, 2019. https://www.aspen institute.org/blog-posts/russia-in-the-gray-zone/. hollings, alex. “how the cia hijacked a soviet spacecraft in 1959.” sandboxx, april 21, 2021. https://www.sandboxx.us/blog/the-cia-hijacked-a-soviet-spacecraft-in-1959/. howell, elizabeth. “a bff in space! bioprinter will 3d-print human tissue on the space station.” space, july 1, 2019. https://www.space.com/3d-printing-human-tissue-in space.html. jones, andrew. “china’s chang’e 4 lander and rover complete 15th lunar day on moon’s far side.” space, march 4, 2020. https://www.space.com/china-change-4-mission-completes15th-lunar-day.html. 29 levine, steve. “the new age of hostage diplomacy.” axios, january 12, 2019. https://www. axios.com/international-arrests-poland-china-hostage-diplomacy-e1f249f0-6a45-430d88e2-aed7ce4ecfc3.html. lipkowitz, noah e. “why countries diverge over extradition with chin: the executive power to extradite in common and civil law countries.” virginia journal of international law 59, no. 2 (2019): 440-501. https://static1.squarespace.com/static/5f0a3654a47d231c00ccd 14f/t/5f3fd127dc65a031c8980104/1598017832145/lipkowitz-final-v3-1.pdf. maccormack, anna. “the united states, china, and extradition: ready for the next step?” legislation and public policy 12, no. 445 (2009): 445-497. https://www.nyujlpp.org/wpcontent/uploads/2012/11/anna-maccormack-the-united-states-china-and-extraditionready-for-the-next-step-.pdf. masters, jonathan. “what is extradition?” council on foreign relations. january 8, 2020. https://www.cfr.org/backgrounder/what-extradition. mcmillan, anne. “the final frontier – 21st century space race.” july 14, 2021. international bar association. https://www.ibanet.org/the-final-frontier. miller, gregory d. “space pirates, geosynchronous guerillas, and nonterrestrial terrorists: nonstate threats in space.” air and space power journal (2019): 33-51. https://www. airuniversity.af.edu/portals/10/aspj/journals/volume-33_issue-3/f-miller.pdf. minet, mathilde. “is 2019 the year when the first crime in space was committed?” space legal issues. january 8, 2020. https://www.spacelegalissues.com/is-2019-the-year-whenthe-first-crime-in-space-was-committed/. morris, lyle j., michael j. mazarr, jeffrey w. hornung, stephanie pezard, anika binnendijk, and marta kepe. “gaining competitive advantage in the gray zone: response options for coercive aggression below the threshold of major war.” rand corporation, 2019. https://www.rand.org/content/dam/rand/pubs/research_reports/rr2900/rr2942/rand_ rr2942.pdf. national aeronautics and space association. “gateway.” last modified august 19, 2021. https: //www.nasa.gov/gateway/overview. olson, mancur. “dictatorship, democracy, and development.” the american political science review 87, no. 3 (september 1993): 567-576. https://www.jstor.org/stable/2938736. powell, corey s. “jeff bezos foresees a trillion people living in millions of space colonies. here’s what he’s doing to get the ball rolling.” nbc news, may 15, 2019. https://www. nbcnews.com/mach/science/jeff-bezos-foresees-trillion-people-living-millions-spacecolonies-here-ncna1006036#anchor-gerardoneillsfrontiervision. pultarova, tereza. “russia, china reveal moon base roadmap but no plans for trips yet.” space, 30 june 17, 2021. https://www.space.com/china-russia-international-lunar-research-station. reedy, christianna. “when will the first human space colony be established?” futurism, august 17, 2017. https://futurism.com/when-will-the-first-human-space-colony-be established. rogers, jerry. “will china steal its way to a space race victory?” the national interest, may 6, 2021. https://nationalinterest.org/blog/buzz/will-china-steal-its-way-space-race victory-184574. street, francesca. “first space tourist dennis tito: ‘it was the greatest moment of my life’.” cnn travel, july 20, 2021. https://ww.cnn.com/travel/article/space-tourism-20-year anniversary-scn/index.html. “treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies.” opened for signature december 13, 1963. united nations publications no. e.02.i.20. https://www.unoosa.org/pdf/ publications/stspace11e.pdf. u.s. library of congress. congressional research service. new zealand: background and relations with the united states, by bruce vaughn. r44552. 2021. https://fas.org/sgp/ crs/row/r44552.pdf. vance, ashlee. “the future of space is bigger than jeff bezos, richard branson, or elon musk.” bloomberg, july 16, 2021. https://www.bloomberg.com/news/articles/2021-0716/billionaire-space-race-between-bezos-branson-and-musk-is-just-the-beginning. von der dunk, frans. “space tourism, private spaceflight and the law: key aspects.” space, cyber, and telecommunications law program faculty publications 60 (2011): 146-152. https://digitalcommons.unl.edu/spacelaw/60. von der dunk, frans. “transfer of ownership in orbit: from fiction to problem.” in ownership of satellites: 4th luxembourg workshop on space and satellite communication law, ed. mahulena hofmann and andreas loukakis. baden-baden, baden-württemberg, germany: nomos publishing and hart publishing, 2017. wall, mike. “spacex’s very big year: a 2020 filled with astronaut launches, starship tests and more.” space, december 28, 2020. https://www.space.com/spacex-astronaut-starshiplaunches-2020-milestones. wall, mike. “us is in a new space race with china and russia, vp pence says.” space, march 27, 2019. https://www.space.com/new-space-race-moon-mike-pence-says.html. ward, jonathan t. china’s vision of victory. new york: atlas publishing, 2019. weinzierel, matt and mehak sarang. “the commercial space age is here.” harvard business 31 review, february 12, 2021. https://hbr.org/2021/02/the-commercial-space-age-is-here. white, reid. “plugging the leaks in outer space criminal jurisdiction: advocation for the creation of a universal outer space criminal statue.” emory international law review 35, no. 2 (2021): 333-376. https://scholarlycommons.law.emory.edu/eilr/vol35/iss2/5. whitehouse, david. space 2069: after apollo: back to the moon, to mars, and beyond. berkeley, ca: publishers group west, 2020. whittington, mark. “japan is joining the push to return to push to return to the moon.” the hill, july 25, 2021. https://thehill.com/opinion/technology/564718-japan-is-joining-the-pushto-return-to-the-moon. williams, matt. “the future of space colonization–terraforming or space habitats?” phys, march 10, 2017. https://phys.org/news/2017-03-future-space-colonization-terraforming habitats.html. john villa bellarmine law society review volume xv | issue i article iv an analysis of the legal history and economic impact of federal minimum wage policy in the united states john villa boston college, villaj@bc.edu an analysis of the legal history and economic impact of federal minimum wage policy in the united states john villa 1 abstract: this paper examines the evolution of the political and economic dynamics behind federal minimum wage policy by describing its history in detail. from judicial decisions about the role of the federal government in wage regulation, to the expansive policies of the new deal era, to the reagan era's rejection of such a vast role of the federal government, the history of federal minimum wage policy is far from linear. evolving political dynamics, jurisprudence, and economic theories have prevented a clear opinion on the legitimacy of a federal minimum wage from emerging. today, advocates for free market purity dominate the federal government's approach to wage regulation, with meager increases or no increases at all becoming commonplace for congress. as the paper demonstrates, the wage of $7.25 an hour is no longer able to ensure a decent quality of life for americans. its proposal to slowly raise the wage to $17 is complemented by two tax credits aimed at minimizing the increased labor costs that small businesses will face, while also recognizing the need for increased buying and saving power for low-wage americans. problem federal minimum wage policy impacts a more significant portion of the economy than is commonly understood. today, most americans support a strong minimum wage and increasing wages for the poorest americans, but assume that the minimum wage concerns only the lowest earners in select industries. this reduces the conversation to a matter of principle rather than of practical urgency. and when facing the legitimate possibility of an increase to the minimum wage, both policymakers and the average american are either apathetic or outright antagonistic. when translated to policy, concerns about potential negative impacts on the wealthy often 1 jack villa is a graduating senior studying political science with minors in philosophy & religion in american public life. he is interested in american public policy with a particular focus on clean energy investment, labor regulation, and health care reform. he will spend his next year in detroit, serving as a jesuit volunteer at united community housing coalition and representing tenants in eviction cases. after his time in detroit, he intends to return to his hometown in northern virginia to work in dc while preparing for law school. 85 outweigh the benefits of increased economic mobility for low-wage service workers. business owners feel threatened by the possibility of losing bargaining power and having to dedicate more of their budget to their workers. consumers feel uneasy at the prospect of increased wages translating into increased prices for essential items. this spirit of distaste has largely dominated the discussion of minimum wage policy in the united states in the 21st century. the impacts of minimum wage policy and potential increases of the minimum wage affect the entire economy, not just the lowest earners. workers making just above federal or state minimum wage would likely see their wages increase with minimum wage increases due to a “ripple effect.”2 and despite the common belief that minimum wage workers are mostly teenagers from financially secure families, an analysis by arin dube, economist at the university of massachusetts at amherst, revealed that only about 25% of those earning the federal minimum wage — and just 12% of those earning $10 an hour or less — are actually teenagers.3 that means that tens of millions of working adults will have more money to spend, returning it back into the economy, and to save, allowing them to eventually afford to buy a house and retire. evidence suggests that an increase in purchasing and saving power for america’s poorest workers is overdue. the minimum wage has not kept pace with the rising cost of living caused by inflation. the federal minimum wage of $7.25 an hour has not changed since 2009 despite higher costs of living. according to ben zipperer at the economic policy institute, the 2021 minimum wage was worth 21% less than it was in 2009.4 an individual who worked 40 hours a week, every week, and earned the federal minimum wage made $20 more than the federal 4 ben zipperer, “the minimum wage has lost 21% of its value since congress last raised the wage.” july 22, 2021. economic policy institute. 2021. link. 3 harris & kearney, “the ‘ripple effect’ of a minimum wage increase on american workers.” 2 ben harris and melissa s. kearney. “the ‘ripple effect’ of a minimum wage increase on american workers.” brookings. january 10, 2014. https://www.brookings.edu/articles/the-ripple-effect-of-a-minimum-wage-increase-on-american-workers/. 86 https://www.epi.org/blog/the-minimum-wage-has-lost-21-of-its-value-since-congress-last-raised-the-wage/ https://www.brookings.edu/articles/the-ripple-effect-of-a-minimum-wage-increase-on-american-workers/ government’s annual poverty line.5 when factoring in the increasing cost of living, the unsustainable expectation of working 40 hours a week every week, and unexpected expenses like medical emergencies, minimum and low-wage workers are struggling to keep themselves out of poverty. as a result, intergenerational economic mobility has fallen (as shown in figure 1), meaning american workers are becoming less likely to make more money than their parents. figure one: rates of mobility by birth year (1940-1985)6 though the benefits to workers are both valid and impactful, so is the rise in production costs that deeply concerns business owners. when analyzing a potential increase from $8 to $15, professor thomas winberry of the wharton school of business at the university of pennsylvania found that while short-term effects on workers are positive, eventually firms either reduce their number of workers or suffer from increased production costs.7 this puts the employer in a difficult position and, according to winberry, will likely harm the worker whom the increase was hoped to benefit. he believes that “the minimum wage is too blunt a redistributive instrument to support the labor income of workers earning the lowest wages” and 7 shankar parameshwaran. “why raising the minimum wage has short-term benefits but long-term costs.” knowledge at wharton. june 20, 2023. link. 6 raj chetty. “measuring intergenerational mobility” opportunity insights. 2018. https://opportunityinsights.org/ 5 bonitatibus, steve. “the minimum wage is a poverty wage.” center for american progress. july 24, 2024. https://www.americanprogress.org/article/the-minimum-wage-is-a-poverty-wage/. 87 https://knowledge.wharton.upenn.edu/article/why-raising-the-minimum-wage-has-short-term-benefits-but-long-term-costs/ https://opportunityinsights.org/ https://www.americanprogress.org/article/the-minimum-wage-is-a-poverty-wage/ that tax reform and direct-transfer programs are much more effective at benefiting these workers.8 the price increases that follow from the rise in production costs, referred to as the “pass-through effect” of wage increases, are another concern for both producers and consumers. in the month following an increase to the minimum wage, prices often increase and then stabilize as the market re-adjusts. this increase in elasticity of prices relative to small minimum wage changes is 0.036, which is almost half of the 0.07 increase in elasticity that has been commonly accepted in earlier literature.9 this change, though unlikely to significantly disrupt consumer spending and contribute to inflation in the long term, remains a factor in the discussion of minimum wage increases due to the increased economic costs perceived by consumers. both zipperer and winberry conclude that while a small increase to the minimum wage has a negligible impact on production costs and employment, a large increase is likely to result in either increases in production costs or a shrinking of the workforce.10 while opinions vary on how to address minimum wage policy, it is clear that such increases have economic impacts that reach far beyond just those who receive such wage increases. minimum wage policy establishes the framework within which employers and workers structure modes of production, define work conditions, and strive to remain competitive. its complex legal history, effects on the overall economy, and ideology informing the role of government in regulating the free market must be acknowledged by any attempt at reform to the federal minimum wage. 10 macdonald & nilsson, “the effects of increasing the minimum wage on prices: analyzing the incidence of policy design and context.” 9 daniel macdonald, erik nilsson. “the effects of increasing the minimum wage on prices: analyzing the incidence of policy design and context.” the political economy research institute at the university of massachusetts amherst. 2016. https://doi.org/10.7275/28277246. 8 parameshwaran. “why raising the minimum wage has short-term benefits but long-term costs.” 88 https://doi.org/10.7275/28277246 legal history the legal history of the american minimum wage begins at the state level, with massachusetts passing the first such law in 1912. the law did not impose an actual minimum wage, but instead established regulatory boards which set a minimum wage for female workers based on the cost of living.11 women were the initial focus due to their limited bargaining power, frequent underpayment, and employment in exploitative industries like textile manufacturing. within a year, eight additional states adopted similar legislation, empowering regulatory boards and protecting female laborers. in 1914, oregon became the first state to implement an actual minimum wage, setting it at $8.25 per week for women. this law was challenged in 1917 in stettler v. o’hara, where opponents argued it constituted an overreach of the state’s “police power,” its authority to regulate for public welfare. the district court upheld the law, and in a 4–4 decision, the supreme court stayed the ruling of the district court, affirming the constitutionality of minimum wage legislation and recognizing it as a legitimate exercise of state police power. however, in 1923, the government’s newfound authority to impose a minimum wage came under threat. adkins v. children’s hospital of d.c. was filed in response to a 1918 law passed by congress (which then governed d.c.) that guaranteed a minimum wage to women and children working in d.c.12 the children’s hospital of d.c., which employed many women, sought an injunction against this law, which was denied by the trial court then granted by the appellate court. the case reached the u.s. supreme court, which ruled for the hospital on the basis that the due process clause of the fifth amendment guaranteed the right to “freedom of contract.” the holding was inspired by the 1905 ruling of lochner v. new york, in which the 12 "adkins v. children's hospital of d. c." oyez. link. 11 clifford f. thies. “the first minimum wage laws.” cato journal vol. 10, no. 3 (winter 1991). cato institute. https://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1991/1/cj10n3-7.pdf 89 https://www.oyez.org/cases/1900-1940/261us525 https://www.cato.org/sites/cato.org/files/serials/files/cato-journal/1991/1/cj10n3-7.pdf ability of the state to limit a baker’s working hours was deemed unconstitutional under the same statute. according to the majority, the government-mandated minimum wage impaired the ability of employer and employee to freely agree to a contract.13 though the court recognized the legitimacy of congress to impose regulations “suitable to protect health and safety and designed to insure wholesome conditions of work and freedom from oppression,” a minimum wage did not fall within this authority.14 this ruling contradicted the precedent established by stettler and enshrined the “freedom of contract” from lochner as the rationale by which minimum wage mandates were deemed to be beyond the government’s policing power. a decade later, the franklin d. roosevelt administration ushered in an unprecedented series of legislation and judicial decisions that transformed the federal government’s role in regulating labor and wages. in response to the great depression, president franklin d. roosevelt’s new deal coalition passed major pieces of legislation to revitalize the economy through worker-focused reform. laws like the national industrial recovery act of 1933 and the national labor relations act of 1935 established laws and regulations to protect workers from industrial collusion and malpractice and give workers the right to unionize and collectively bargain. roosevelt strongly believed that the well-being of the worker was within the federal government’s policing power and necessary to reconstruct the failing american economy. the 1937 case of west coast hotel co. v. parrish was the key in affirming the federal government’s role in wage regulation. the case concerned elsie parrish, who worked for the west coast hotel company and, according to washington state law, was entitled to $14.50 for each work week of 48 hours. parrish was receiving less than this amount and sued in order to be paid her lost earnings.15 the lower court ruled against her, using adkins as justification, and upon 15 "west coast hotel company v. parrish." oyez. link. 14 “liberty of contract and lochner v. new york.” constitution annotated library of congress. link. 13 "adkins v. children's hospital of d. c." oyez. 90 https://www.oyez.org/cases/1900-1940/300us379 https://constitution.congress.gov/browse/essay/amdt14-s1-6-2-2/alde_00013704/ appeal, the case made its way to the supreme court. justice owen josephus roberts, recognizing the achievements and moral conviction of roosevelt and his new deal coalition, felt compelled to shift his stance on the lochner precedent. going against his history of conservative decisions, roberts changed sides and voted for parrish.16 in a 5-4 ruling, the majority ruled that the “freedom of contract” within the due process clause only called for the state of washington to comply with due process in the process and enforcement of the contract and did not rule out reasonable regulation of business.17 due process was followed in their enforcement of $14.50 a week, and thus, washington’s minimum wage mandate was deemed reasonable, and west coast hotel co. was mandated to pay parrish her lost wages. government at all levels was finally able to use its policing power to regulate business and enact protections for workers. finally free from the restraints of the lochner era, the new deal coalition passed the fair labor standards act (flsa) in 1938. the flsa established standards for overtime pay, limited child labor, instituted a standard work week of 44 hours, and established a federal minimum wage of $0.25 an hour.18 states were free to establish their own minimum wages, provided that they were above this value. the vast majority of the country’s workers were covered by the flsa, but white-collar workers and workers covered by collective bargaining protections (at the request of union leaders) were exempt from the initial flsa. justified by the commerce clause in article one of the constitution, the flsa prohibits the “shipping goods in interstate commerce that were manufactured by workmen whose employment did not comply with prescribed wages and hours.”19 this language and the flsa are still the foundation of federal wage regulation. its importance in the evolution of minimum wage policy cannot be 19 the fair labor standards act of 1938, ch. 676, 52 stat. 1060 et seq. 18 “the fair labor standards act (flsa): an overview.” congress.gov. link. 17 "west coast hotel company v. parrish." oyez. link. 16 "west coast hotel company v. parrish." oyez. link. 91 https://www.congress.gov/crs-product/r42713 https://www.oyez.org/cases/1900-1940/300us379 https://www.oyez.org/cases/1900-1940/300us379 understated; it gives nearly all workers the right to make claims on their employers for fair wages and has been the basis upon which fights for expanded rights have been grounded. major updates to federal minimum wage policy since the passage of the flsa have largely come through amendments to the original law and appeals against them. throughout world war ii and the post-war economic boom that followed, few political or judicial fights disrupted the continued and substantive increase in the minimum wage. in addition to these increases, amendments to the flsa have expanded its reach to include workers in previously neglected sectors, such as the retail and service industries, and the previously exempt union jobs. maryland v. wirtz was the first notable resistance to such expansions. maryland, along with 27 other states, sued secretary of labor w. willard wirtz over a 1961 amendment that removed state governments, their political subdivisions, and schools and hospitals run by state and local governments from the list of exempt enterprises.20 the states argued that this expansion violated the commerce clause and interfered with the states’ sovereign immunity, as established by the eleventh amendment. a district court upheld the expansion of the flsa, finding that the newly included commercial enterprises and state institutions fell within congress’s authority under the commerce clause, but declined to address the claim of interference with states’ sovereign immunity. maryland appealed directly to the supreme court, which sided with the district court’s finding regarding the commerce clause.21 the court reasoned that the exempted status for these commercial enterprises was necessary to prevent the abuse of substandard wages and working conditions for the sake of a competitive advantage. the court also rejected the states’ argument that their sovereign immunity was violated by arguing that the states maintained their sovereignty insofar as they were allowed to perform medical and educational functions as 21 raasch. “constitutional law review: fair labor standards act: maryland v. wirtz.” 20 e. john raasch. “constitutional law review: fair labor standards act: maryland v. wirtz.” marquette law review vol. 52, issue 4 (winter 1969). link. 92 https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=2449&context=mulr they pleased. the federal government was simply requiring the states to treat the workers executing these functions the same as other employers whose activities similarly affect commerce.22 a similar case emerged in response to the 1974 flsa expansions aimed at regulating minimum wage and overtime pay for state and local government workers, this time claiming a violation of the states’ tenth amendment rights. in national league of cities v. usery, the supreme court actually ruled on behalf of the national league of cities, holding that congress’ expansion of the flsa did violate the states' “freedom to structure integral operations in areas of traditional government functions.”23 but in the 1985 case of garcia v. san antonio metro. transit authority, the court overturned this limitation to the flsa, arguing that the language used to justify the ruling was too vague in its protection of state sovereignty and thus unworkable.24 following the challenges in the maryland and usery cases, no major obstacles have impeded the implementation of the federal minimum wage policy. nonetheless, congress has failed to continue making material increases in the federal minimum wage. though raises continued, they were fewer and less substantial than in previous decades. without a mechanism to automatically adjust the federal minimum wage to inflation, the lack of attention to this issue in congress has led to stagnated wages despite rising costs.25 the last increase to $7.25 an hour was finalized in 2009, and in the 16 years since, many people have strongly advocated for an increase. thirty-four states, territories, and districts have implemented minimum wages above $7.25 in response to federal inaction. though the raise the wage act, which envisions an 25 payne-patterson, maye, & zipperer. “a history of the federal minimum wage.” 24 "garcia v. san antonio metro. transit authority." oyez. accessed may 2, 2025. link. 23 "national league of cities v. usery." oyez. https://www.oyez.org/cases/1974/74-878. 22 raasch. “constitutional law review: fair labor standards act: maryland v. wirtz.” 93 https://www.oyez.org/cases/1983/82-1913 https://www.oyez.org/cases/1974/74-878 increase to $15 an hour, has been proposed in the house in 2019, 2021, 2023, and 2025 and even passed the house in 2019, it has failed to pass both chambers of congress.26 analysis at its core, the initial debate over government-mandated minimum wages concerned the scope of government and its role in economic affairs. the “freedom of contract” principle that defined the lochner era was consistent with the libertarian, laissez-faire style of governance toward economic activity. the lochner case established the precedent that any regulation of the affairs between employers and workers was a violation of “economic substantive due process” and therefore unconstitutional.27 the “substantive due process” jurisprudence has aged poorly and is seen as having allowed the supreme court to use the due process clause to protect unenumerated rights and effectively legislate from the bench.28 the “freedom of contract” was never explicitly guaranteed in the constitution, yet the small-government approach to economic regulation that controlled the supreme court effectively guaranteed it as such.29 without a firm constitutional basis, the court kept the scope of government policing power in regards to labor regulation narrow at all levels, invalidating any legislation that went beyond guaranteeing the health and safety of workers.30 case law in the following decades would continually affirm this narrow scope and the validity of “substantive due process” jurisprudence.31 the progressive era and the women’s suffrage movement played the biggest role in advocating for government involvement in determining minimum wages for workers prior to the new deal era. in many cases, the fight for state and federal minimum wage laws came as a 31 margaret murphy. “the constitutionality of minimum wage: the legal battles of elsie parrish and frances perkins for a fair day’s pay.” princeton historical review. 2023. link. 30 “liberty of contract and lochner v. new york.” constitution annotated library of congress. link. 29 chapman & yoshino. “interpretation: the fourteenth amendment due process clause.” 28 chapman & yoshino. “interpretation: the fourteenth amendment due process clause.” 27 nathan s. chapman & kenji yoshino. “interpretation: the fourteenth amendment due process clause.” 2015. national constitution center. 2015. link. 26 payne-patterson, maye, & zipperer. “a history of the federal minimum wage.” 94 https://history.princeton.edu/undergraduate/princeton-historical-review/2021%e2%80%9322-issue/constitutionality-minimum-wage#f23 https://constitution.congress.gov/browse/essay/amdt14-s1-6-2-2/alde_00013704/ https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/701 result of persistent suffragette advocacy and progressive politicians.32 the early minimum wage laws of the 1910s-1920s that survived in spite of lochner did so because the women they applied to were seen as weak and in need of protection. while the laws were helpful, the paternalistic intent behind them not only validated the socially-constructed dependency of women on men but characterized all minimum wage policy as for those deserving of assistance rather than for those deserving of fair compensation. recognizing the fragility of the lochner precedent, the need for sufficient worker protections, and the paternalistic intent behind existing minimum wage laws, progressives and suffragettes sought to correct the perceived imbalance between the defense of the rights of businesses and the defense of the rights of workers. in their view, the “freedom of contract” was inherently unequal, favoring business owners and leaving workers with little bargaining power. taking from then-justice louis brandeis, who had argued in favor of the minimum wage law in the 1917 stettler case, the progressives and suffragettes adopted the rationale that minimum wage laws were in the legitimate interest of the state because “socially, economically, and physically, the limitation of working hours was a good thing.”33 their momentum continued with the ratification of the nineteenth amendment in 1920, but was stalled by the adkins ruling in 1923. despite this, suffragettes and progressives managed to reframe the conversation surrounding the minimum wage from a wage of condescension to a wage of merit. the great depression required a radical change in governance. the laissez-faire economic system that caused mass unemployment, inflation, and distrust of economic institutions was under increased scrutiny. many sought to change this by revitalizing the regulatory attitude advocated for by progressives and suffragettes. chief among these advocates 33 murphy. “the constitutionality of minimum wage: the legal battles of elsie parrish and frances perkins for a fair day’s pay.” 32 murphy. “the constitutionality of minimum wage: the legal battles of elsie parrish and frances perkins for a fair day’s pay.” 95 was president roosevelt’s secretary of labor, frances perkins. perkins, a suffrage advocate, longtime close advisor to roosevelt, and the first female cabinet member, was key in convincing roosevelt that a federal minimum wage was needed to revitalize the american economy.34 however, the roosevelt administration needed to overcome the legal precedent that prohibited such expansions. their wish was granted with the parrish ruling, which was largely due to the success of the economic reforms he had passed during his first term and rumors of his future attempt to pack the court with progressive justices.35 with the lochner precedent overturned, the roosevelt administration was able to permanently enshrine a minimum wage within the federal government's policing power and embolden states to pass similar legislation. within a year of lochner’s reversal, the fair labor standards act was signed into law and marked the beginning of a new era for wage regulation. though business leaders, such as the national association for manufacturers, decried a minimum wage as “a step in the direction of communism, bolshevism, fascism, and nazism” and a direct attack on the economic flexibility of business owners, the economic boom that followed the flsa’s passage silenced their criticisms for decades.36 led by roosevelt and secretary perkins, the debate over the scope of government had been settled: it was now officially within the federal government’s policing power to impose a minimum wage for nearly all american workers. this expansion of federal authority was a rejection of the free market philosophy that had undergirded the federal government’s approach to labor regulation since the country’s inception.37 this rejection was an acknowledgement of the unfavorable conditions in which workers had to sell their labor and the necessity of a corrective force to rectify this imbalance. the devastation of the great depression had proved that the 37 otto nathan. “favorable economic implications of the fair labor standards act.” law and contemporary problems 6 (3): 416-421. 1939. https://doi.org/10.2307/1189602. 36 peter cole.“the law that changed the american workplace.” time. june 24, 2016. link. 35 "west coast hotel company v. parrish." oyez. link. 34 murphy. “the constitutionality of minimum wage: the legal battles of elsie parrish and frances perkins for a fair day’s pay.” 96 https://doi.org/10.2307/1189602 https://time.com/4376857/flsa-history/ https://www.oyez.org/cases/1900-1940/300us379 system of free competition for labor was unable to salvage itself in times of economic crisis. the free market philosophy had been amended to a philosophy inspired by economist john maynard keynes, which gave the federal government the responsibility of regulating and rectifying the market at the margins in order to ensure consistent growth and a reliable workforce.38 with a keynesian philosophy now guiding the federal government’s involvement in the labor market, the core legal issue shifted from one of the scope of government authority to one of delineation between federal and state authority. states viewed amendments that removed state and locally-run and funded institutions from the list of exempt employers as an attack on their ability to regulate their own economic affairs. in rejecting the states’ arguments that their tenth amendment, eleventh amendment, and commerce clause rights were violated, the supreme court kept with the trend of centralizing power that had captured nearly every aspect of governance. like the economy as a whole, the impact of the commerce of state-funded hospitals, schools, and other facilities was rarely contained within state lines or negatively affected other commercial entities bound by the federal minimum wage.39 thus, the competition between these state-funded commercial entities was no different than that of other commercial entities, and their activities were subject to federal law. with the major issues concerning the scope and delineation of governmental policing power settled, the debate surrounding the minimum wage has shifted to a discussion of its limitations on economic freedom. in response to the stagflation of the 1970s and the recessions of 1961, 1970, and 1974 (as shown in figure two), many were growing skeptical of the ability of the federal minimum wage to coexist with consistently high economic growth and employment. president ronald reagan’s new-era conservative movement had the opportunity to 39 raasch. “constitutional law review: fair labor standards act: maryland v. wirtz.” 38 nathan. “favorable economic implications of the fair labor standards act.” 97 revitalize the movement against the minimum wage. it did so by focusing on the harm done to workers, not businesses, by the minimum wage and increases to it. figure two: unemployment rate from september 1959 to august 197540 using the insights of economists milton friedman, his wife rose friedman, and their 1980 book free to choose, conservatives argued that fewer low-skill workers are hired when employers are forced to pay them above the market rate.41 this creates significant barriers to entry for the poorest and least skilled workers and prevents them from gaining the initial experience needed to start on the path of upward mobility.42 at a time when low-skill workers were being put out of work in favor of cheaper production costs overseas, this new argument against the minimum wage became incredibly popular.43 it made sense that the rapid increase in unemployment during the recessions of 1961, 1970, and 1974 and the stagflation of the 1970s was caused by artificially high production costs caused by an unfairly high minimum wage.44 republicans capitalized on this popularity, and the friedmans’ views on the minimum wage became the dogma of reagan’s revamped republican party. 44 graham.“from reagan to romney, a brief history of republican thinking on the minimum wage.” 43 cole.“the law that changed the american workplace.” 42 graham.“from reagan to romney, a brief history of republican thinking on the minimum wage.” 41 jennifer graham.“from reagan to romney, a brief history of republican thinking on the minimum wage.” deseret news. february 26, 2021. link. 40 u.s. bureau of labor statistics, unemployment rate [unrate], retrieved from fred, federal reserve bank of st. louis; https://fred.stlouisfed.org/series/unrate 98 https://www.deseret.com/indepth/2021/2/25/22297995/reagan-to-mitt-romney-a-brief-history-of-republican-thinking-on-the-minimum-wage-milton-friedman/ https://fred.stlouisfed.org/series/unrate under reagan, the federal government returned to viewing the minimum wage not as a tool for promoting economic mobility, but instead as an obstacle. the economic crises of the 1960s and 1970s convinced the public and policymakers that the minimum wage and the increase in production costs it caused were to blame for the loss of domestic manufacturing jobs and increased unemployment. as a result, the free market approach that roosevelt had stifled was reintroduced as the dominant approach to the labor market. though unable to repeal the flsa, reagan’s republican party had effectively demonstrated the negative effects of increasing the minimum wage on the employment of low-skill americans. consequently, a minimum wage increase was not approved during the eight years of his administration. under both republican and democratic presidents since reagan, the pace and value at which the federal minimum wage has been raised have decreased dramatically. as table one shows, minimum wage increases have become less frequent since the reagan era, and the size of those increases has also diminished.45 despite the enduring legacy of the reagan administration’s sluggish approach to federal minimum wage policy, momentum for increasing the minimum wage has resurged in the 21st century. the failure of the current federal rate to keep pace with inflation and the rising cost of living has sparked concerns about economic mobility, wage stagnation, and justice for low-income workers. compounding these pressures are the ongoing effects of globalization, which have continued to displace low-wage 45 payne-patterson, maye, & zipperer. “a history of the federal minimum wage.” 2025. economic policy institute. 2025. link. 99 https://www.epi.org/blog/a-history-of-the-federal-minimum-wage-85-years-later-the-minimum-wage-is-far-from-equitable/ jobs and erode domestic labor standards. as a result, advocates now face a renewed, though still contested, opportunity to reassert the government’s role in ensuring fair wage standards through actively and substantially increasing the federal minimum wage. analysis of the central legal and economic issues in the discussion of the federal minimum wage illustrates the federal government’s conflict over the level of involvement that it ought to have in the labor market. the shifts from a laissez-faire market philosophy to keynesian interventionism and back again occurred because of shifts in political leadership but, more importantly, in response to changing economic conditions. the great depression, postwar growth, stagflation, and neoliberal globalization have continually reshaped the perceived costs and benefits of wage regulation and the federal government’s response to them. ultimately, the story of the minimum wage is a legal and political poll of how the federal government conceives of its responsibility to balance market freedom with economic stability. policy recommendations figure three: real value of the federal minimum wage and real hourly wage of the typical worker compared with the value of the minimum wage had it grown at the rate of productivity, 1968–2014.46 the minimum wage must be raised if policymakers hope to combat increasing economic inequality and decreasing social mobility. a wage of $7.25 an hour is outdated and fails to 46 lawrence mishel, elise gould, & josh bivens.“wage stagnation in nine charts.” january 6, 2015. economic policy institute. https://www.epi.org/publication/charting-wage-stagnation/. 100 https://www.epi.org/publication/charting-wage-stagnation/ accurately present the minimum income needed to avoid poverty. figure three shows how the real value of the minimum wage has failed to keep pace with productivity and how workers are not only undervalued, but also unable to climb the socioeconomic ladder at increasingly higher rates.47 to enhance the economic mobility of the american working class, congress must end the longest period without a federal minimum wage increase in american history. to address the growing concerns of low-wage american workers, policymakers must introduce an amended version of the raise the wage act that was proposed to the 119th congress in april 2025. the raise the wage act has changed throughout its several iterations; the most recent proposal of the raise the wage act, h.r. 2743 in the house and s. 1332 in the senate, is not only most reflective of the wage generated by the median levels of production shown in figure three, but also provides the most detailed description of how wages will change. the act will raise the minimum wage in the flsa to $17 an hour for non-tipped and tipped workers over the course of six and seven years, respectively.48 the act also raises the minimum wage for underage workers and 14(c) workers – those with disabilities – to $16.50 and $15.50, respectively.49 eventually, these subminimum wages will be phased out, and all workers covered by the flsa will be paid $17 an hour.50 once raised to the levels set forth in the act, wages will be indexed to median wages annually to ensure that the wage of low-income americans increases with rising costs, regardless of the salience of the matter in congress. table two shows the rates at which these sets of wages will increase annually. 50 congress.gov. "text h.r.2743 119th congress (2025-2026): raise the wage act of 2025." sec. 6 (a). april 8, 2025. https://www.congress.gov/bill/119th-congress/house-bill/2743/text. 49 congress.gov. "text h.r.2743 119th congress (2025-2026): raise the wage act of 2025." sec. 4 (a). april 8, 2025. https://www.congress.gov/bill/119th-congress/house-bill/2743/text. 48 congress.gov. "text h.r.2743 119th congress (2025-2026): raise the wage act of 2025." sec. 2 (a) & sec 3 (a). april 8, 2025. https://www.congress.gov/bill/119th-congress/house-bill/2743/text. 47 jimmy narang, et al. “the fading american dream: trends in absolute income mobility since 1940.” 2017. cepr. may 5, 2017. https://cepr.org/voxeu/columns/fading-american-dream-trends-absolute-income-mobility-1940. 101 https://www.congress.gov/bill/119th-congress/house-bill/2743/text https://www.congress.gov/bill/119th-congress/house-bill/2743/text https://www.congress.gov/bill/119th-congress/house-bill/2743/text https://cepr.org/voxeu/columns/fading-american-dream-trends-absolute-income-mobility-1940 table two: scheduled minimum wage increases under the raise the wage act of 202551 according to analysis from the economic policy institute, this act would increase the wages of over 22 million workers (15% of the american workforce), add $70 billion in wages annually, and increase the average worker’s income by $3,200.52 10.3 million minimum workers would be directly affected by this increase while nearly 12 million low but not minimum wage workers would see their wages rise as a result of the “ripple effect” of the wage floor being elevated.53 among those most benefiting from this increase would be workers earning less than $25,000 (20.5% of total group positively affected), those earning between $25,000 and $50,000 (21.6%), and those with a high school degree or less than a high school education (35.2% and 17.2% respectively).54 the sectors with the most positively affected workforce are the retail trade sector (17.2%), the restaurant sector (19.5%), and the healthcare and social assistance sector (12.2%)55 55 zipperer, “the impact of the raise the wage act of 2025.” 54 zipperer, “the impact of the raise the wage act of 2025.” 53ben harris and melissa s. kearney. “the ‘ripple effect’ of a minimum wage increase on american workers.” 52 zipperer, “the impact of the raise the wage act of 2025.” economic policy institute. april 8, 2025. link. 51 “raise the wage act fact sheet.” democrats of the committee on education & the workforce. link. 102 https://www.epi.org/publication/rtwa-2025-impact-fact-sheet/#:~:text=what%20does%20the%20raise%20the,%2417%20an%20hour%20by%202030 https://democrats-edworkforce.house.gov/imo/media/doc/raise_the_wage_act_of_2025_fact_sheet.pdf table three: family income-to-poverty ratio of united states workers who would benefit if the federal minimum wage was raised to $17 by 203056 most importantly, however, is the act’s impact on economic mobility for low-income workers. as table three shows, the act most benefits workers earning just above the poverty line, but it least benefits workers currently below the poverty line. such a substantial change to federal minimum wage policy must not result in the lowest-earning workers seeing the least direct benefits. to help generate a direct benefit for the lowest earners, the work opportunity tax credit (wotc) will be expanded to cover more workers. the wotc, available to employers of all sizes, credits employers who employ individuals from certain “targeted groups” that face significant barriers to employment.57 the process of the wotc itself will not change, but a new targeted group – citizens earning under the poverty line as of their last tax filing – will be created to direct the positive benefits of the increased federal minimum wage towards americans working to lift themselves out of poverty. a major issue with the current iteration of the raise the wage act is its minimal impact on sectors that employ huge numbers of poor and working-class americans. construction, manufacturing, and educational services employ a combined 39.8 million americans yet an average of 6.6% of the workers across these three sectors will see a positive impact from this new federal minimum wage. to increase the number of workers in these industries benefiting from the increased federal minimum wage, employers within these industries will be allowed to file for the wotc under an expanded definition of the new targeted group. instead of only 57 “work opportunity tax credit” the internal revenue service. last reviewed november 11, 2024. link. 56 zipperer, “the impact of the raise the wage act of 2025.” 103 https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit#targeted including workers living under the poverty line, employers with north american industry classification system (naics) numbers beginning with 23 (construction), 31-33 (manufacturing), and 61 (educational services) will be able to include workers making up to 300% of the minimum wage. this will drastically expand their ability to pay low-wage workers by allowing them to receive a greater tax credit in exchange for increased wages.58 finally, a new wage assistance tax credit (watc) should be created to assist small businesses most negatively impacted by the increase in labor costs. small businesses – as defined by the small business administration in title 13, part 121 of the code of federal regulations – will be given the opportunity to apply for the watc in order to refrain from firing workers because of an increasing federal minimum wage.59 this tax credit will reimburse small businesses with half of the additional labor costs that arise as a result of the increased minimum wage. the watc will last through 2031 and will not apply for the minimum wage increases due to annual indexing relative to median wages. preference will be given to employers in states whose minimum wage as of 2025 is at the federal rate or up to two dollars above it. only employers who employ workers full-time can qualify for the new watc. protecting the small businesses that drive the american economy is just as essential as protecting american workers. by utilizing these two tax credits, the federal government can work to reduce inequalities in the distribution of wages for both employers and workers without having to appropriate funds from the federal budget. it is hard to ignore the increasingly visible reality that those at or near a minimum wage income are struggling to sustain a decent quality of life. in recent decades, wealth inequality has increased and economic mobility has decreased at alarming rates, giving rise to a growing 59 13 cfr part 121. https://www.ecfr.gov/current/title-13/chapter-i/part-121 58 “industries at a glance: naics code index.” bureau of labor statistics. october 5, 2022. link. 104 https://www.ecfr.gov/current/title-13/chapter-i/part-121 https://www.bls.gov/iag/tgs/iag_index_naics.htm movement dedicated to economic justice for low and working-class americans.60 at the same time, policymakers cannot force businesses to adopt a policy that will impede growth, especially if small businesses are those most obstructed by the increase in labor costs. this combination of the raise the wage act, an expanded wotc, and the new watc will “nudge” businesses to accept these changes in wage regulation so that market freedom, as much as is currently allowed, is maintained while enhancements to workers’ wages are enacted.61 by softening the impact of the increase for america’s most vulnerable businesses, these policies will feel like a smaller shift in behavior rather than a forceful suppression of economic freedom. if a substantive increase in the federal minimum wage is not agreed to in the coming years, policymakers can expect trends of inequality to continue, for workers to be left behind, and economic justice advocates to become increasingly disillusioned with the federal government’s ability to aid its citizens. 61 richard h. thaler, cass r. sunstein. “the cafeteria.” nudge, improving decisions about health, wealth, and happiness. revised & expanded edition. penguin random house publishing. 2009. 60 mishel, gould, & bivens.“wage stagnation in nine charts.” 105 4_toh bellarmine law society review volume xv | issue ii article iv new textualism in constitutional interpretation: dobbs v. jackson (2022) and its creation of a new rule of law cindy toh stanford university, cindytoh10@gmail.com new textualism in constitutional interpretation: dobbs v. jackson (2022) and its creation of a new rule of law cindy toh 1 abstract: on june 24, 2022, the u.s. supreme court decided dobbs v. jackson (2022). dobbs overturned roe v. wade (1973) and planned parenthood v. casey (1992), precedents legalizing the constitutional right to an abortion. its overturning of these precedents marks a seismic shift in the u.s. supreme court’s abortion jurisprudence from a pro-precedent stare decisis doctrine to a precedent-skeptical new textualist doctrine. by undercutting the stare decisis principle that past abortion cases had used to fulfill the rule-of-law criteria of legal rule stability, predictable rule application, and neutral and objective adjudication, dobbs subverts precedent notions of the rule of law but does not dismantle the principle. instead, it creates a new rule of law that meets its constitutive criteria by de-emphasizing stare decisis and placing greater emphasis on historical stability, adherence to the constitutional text, and consideration of the context surrounding constitutional drafting. dobbs underscores that a new rule of law seeks to turn back in time by achieving the rule of law’s constitutive criteria in a manner that revises the past. it premises future abortion jurisprudence on a 248-year-old text written at a time when the law failed to recognize the rights of all people. in doing so, dobbs puts the rights of women and marginalized communities at stake, illuminating the need for lawyers, judges, and advocates to uphold a rule of law that looks to the present and lives up to the ideals of equality and justice for all. i. introduction i was halfway across the world in singapore the day the united states supreme court 1 cindy toh is an undergraduate at stanford studying economics, with interests at the intersection of law, finance, and global affairs. she serves as a founding board member of the cardinal aligned investing initiative, financial officer at stanford women in law, analyst at the charles r. blyth fund, community events and engagement officer at the stanford myanmar student association, and director of co-sponsorships at the stanford speakers bureau. a tedx speaker, cindy’s work on new textualism in dobbs and its rule-of-law impacts was nominated for the boothe prize in first-year writing, stanford’s award for excellence in first-year writing. professionally, cindy has interned at the us-asean business council and the international law firm baker mckenzie. 72 decided dobbs v. jackson (2022). dobbs ruled that abortion would no longer be a constitutional right and overturned planned parenthood v. casey (1992) and roe v. wade (1973), precedents legalizing the constitutional right to an abortion. 2 as a buddhist, i morally oppose abortion and would seldom, if ever, seek one for myself. but as a survivor of abuse who experienced the pain of being stripped of her bodily autonomy, i fervently hold that one has the right to make fundamental personal decisions, such as the decision to terminate a pregnancy. having also lived under an autocracy that does not premise its governance on the rule of law, i worried that dobbs’s negation of long-standing laws that legalized abortion would inadvertently erode the rule of law. yet simultaneously, it seemed inconceivable that a single judicial decision could thwart a principle on which the american legal system has been grounded for centuries and whose promulgation shapes how we are held accountable to the law. 3 the rule of law is defined by its constitutive criteria of “(1) stability of legal rules, (2) transparency and predictability of rule application, and (3) neutrality and objectivity for judges predictably applying the stable rules.” as this definition is deployed within the context of 4 constitutional interpretation, its use is warranted when discussing the rule of law in cases such as dobbs that concern constitutional matters. 5 leading jurisprudential scholars such as william eskridge, jr. have also considered this 5 ibid., 1611, 1614-16. 4 william n. eskridge, jr., brian g. slocum, and kevin tobia, “textualism’s defining moment,” columbia law review 123, no. 6 (2023): 1624. 3 national archives, “declaration of independence,” national archives (the u.s. national archives and records administration), accessed november 30, 2024, https://www.archives.gov/founding-docs/declaration-transcript. 2 oyez, “dobbs v. jackson women’s health organization,” oyez. accessed november 25, 2024. https://www.oyez.org/cases/2021/19-1392. 73 definition to serve as the “normative foundation” for textualism, a doctrine rooted in adherence to the constitution’s plain text. new textualism, a branch of this doctrine, has become 6 increasingly prevalent among supreme court justices and state and federal judges and is evident in landmark cases such as dobbs that affect future privacy jurisprudence. an analysis of new 7 textualist interpretations in dobbs will thus guide my exploration of the rule of law. espoused by the justices who wrote dobbs’s majority and concurring opinions, new textualism calls for interpretations to be based on “the text, the whole text, and nothing but the text.” its proponents, 8 while not entirely ignoring precedents, believe in narrowly construing them and are more willing to overturn them when they are inconsistent with constitutional text. they are less likely to 9 derive statutory meaning from precedents when the constitutional text does not answer legal questions. this mode of interpretation marks a seismic shift from how prior abortion cases followed stare decisis, a constitutional principle under which judges heed precedents in answering such questions. casey followed this precedent method by upholding the right to an 10 abortion as per the precedent set by roe, and judges have grounded their decisions in subsequent abortion cases on these two precedents. 11 although the existing literature pinpoints the transition from a pro-precedent past to a new textualist present, it has not fully uncovered how specific parts of the dobbs decision have 11 planned parenthood of southeastern pa. v. casey, 505 u.s. 833, 846 (1992); roe v. wade, 410 u.s. 113, 129 (1973). 10 bolick, “case for legal textualism”; murrill, 10; timothy oyen, “stare decisis,” legal information institute, june 5, 2017, https://www.law.cornell.edu/wex/stare_decisis. 9 eskridge, et al., “textualism’s defining moment,” 1678-79. 8 ibid., 1613; clint bolick, “the case for legal textualism,” hoover institution, february 27, 2018, https://www.hoover.org/research/case-legal-textualism. 7 eskridge, et al., “textualism’s defining moment,” 1611, 1614-16. 6 brandon j. murrill, “modes of constitutional interpretation,” congressional research service, march 15, 2018, https://crsreports.congress.gov/product/pdf/r/r45129. 74 contributed to these changes and to the overall landscape of constitutional interpretation and the rule of law. how dobbs influences the rule of law’s constitutive conditions remains to be discovered. the majority of justices in dobbs and pro-life organizations such as christ for all have contended that dobbs’s overruling of roe and casey is compatible with the rule of law. 12 meanwhile, the dissenting justices and pro-choice organizations such as the center for reproductive rights, condemned the dobbs decision for being an affront to the rule of law. 13 current scholarship highlights contrasting perspectives on whether dobbs promotes or subverts the rule of law but does not provide a definitive indication of its effects on this principle. to identify how elements of the dobbs decision shape the landscape for constitutional interpretation and the rule of law in abortion cases, i will analyze the case’s majority and concurring opinions, the joint dissent, and the existing literature on new textualism and constitutional interpretation. these sources illuminate how dobbs has redefined what it means to interpret the constitution and reshaped how constitutional interpretation will occur in future abortion jurisprudence. synthesizing these sources, i will examine how the dobbs majority’s new textualist approach constitutes a substantial shift from the previous deployment of stare decisis and how this shift impacts dobbs’s promulgation of the rule of law. based on this exploration, i posit that dobbs thwarts prior notions of the rule of law; it undermines the stare decisis principle that earlier abortion cases had used to fulfill the rule-of-law criteria of legal rule stability, predictable rule application, and neutral and objective adjudication. i will then argue that, by 13 center for reproductive rights, “precedent and the rule of law: spotlight on dobbs v. jackson women’s health,” center for reproductive rights, november 17, 2021, https://reproductiverights.org/supreme-court-case-mississippi-abortion-ban-rule-of-law/. 12 john avery, “dobbs v. jackson: a victory for life and liberty christ over all,” christ over all, 2023, https://christoverall.com/article/concise/dobbs-v-jackson-a-victory-for-life-and-liberty/.; dobbs v. jackson women's health organization, 597 u.s. 215 (2022). 75 undercutting these past conceptions, dobbs creates a new rule of law that meets the above criteria by de-emphasizing stare decisis and placing greater emphasis on historical stability, adherence to the constitutional text, and consideration of the context surrounding constitutional drafting. ii. dobbs’s subversion of the rule of law in its precedent notions i will delve into casey’s stare decisis grounds and then examine the majority, concurring, and dissenting opinions in dobbs through a stare decisis lens. casey’s grounds model an interpretive approach that promulgates the rule of law as it was once conceived, so an investigation of dobbs through the lens of these grounds would best inform its implications on earlier conceptions of the rule of law. these analyses will reveal that dobbs thwarts previous 14 notions of the rule of law by compromising precedent’s ability to bring about legal rule stability, predictable rule application, and fair judicial decision-making. 15 iia. dobbs’s erosion of precedential legal stability judges who followed the interpretive approach used in earlier abortion cases believe that legal rule stability turns on precedential stability. they therefore hold that an increased willingness to overrule precedents hinders legal rule stability, contrary to the rule of law as it was once understood. casey and the joint dissent in dobbs exemplify the above interpretive approach in which 15 eskridge, et al., “textualism’s defining moment,” 1624. 14 dobbs, 597 u.s., 2321, 2348. 76 precedents were retained to keep legal rules on abortion stable. the justices primarily rooted casey’s verdict in roe’s central holding that states cannot abridge a woman’s constitutional right to an abortion before viability. by maintaining roe, casey deemed it to be a “settled” law and 16 ensured that future abortion jurisprudence would retain its holdings, keeping the legal rules prescribed by roe stable. later, in dobbs’s joint dissent, the dissenting justices claimed that 20 17 post-roe abortion cases reaffirmed roe and casey; thus, these precedents were again stabilized as legal rules. on account of how preceding cases have turned roe and casey’s precedents into 18 legal rules on abortion, dobbs’s overruling of these precedents not only struck down these two rules but also destabilized the 20 precedents that further established legal rules for abortion. henceforth, dobbs undermines traditional notions of the rule of law by not heeding precedents to keep legal rules on abortion stable. dobbs’s reversal of roe and casey has also invalidated precedents that established legal rules in privacy jurisprudence. because roe and casey themselves relied on the constitutional right to privacy under the fourteenth amendment’s due process clause, they were crucial to upholding privacy cases that have come before the supreme court, in addition to those on abortion. as noted in acting u.s. solicitor general brian fletcher’s amici curiae supporting 19 the respondents, dobbs’s invalidation of roe and casey not only rejected the legal rules steadily retained throughout abortion cases but also those serving as the “constitutional foundation for 19 u.s. constitution, amend. xiv, sec. 1.; william n. eskridge, jr., “reliance interests in statutory and constitutional interpretation,” vanderbilt law review 76, no. 3 (april 2023): 688-89. 18 dobbs, 597 u.s., 2320. 17 dobbs, 597 u.s., 2320. 16 casey, 505 u.s., 846; roe, 410 u.s., 129; dobbs, 597 u.s., 2238. 77 most of the leading privacy cases in the last half-century.” ultimately, dobbs destabilized 20 subsequent rulings concerning privacy, eroding a traditional notion of the rule of law that uses precedents to promote legal rule stability. arizona supreme court justice clint bolick and the u.s. supreme court’s new textualist justices may posit that although precedents can promote legal rule stability, judges should fulfill this criterion by prioritizing obedience to rules in constitutional texts over those prescribed by precedents; doing so ensures that judges “take an oath” to the constitution, not to stare decisis. 21 based on this perspective, justice bolick and the new textualist justices would postulate that roe and casey hinder legal rule stability because they confer rights nonexistent in the constitution. 22 dobbs’s reversal of such decisions would accordingly uphold former conceptions of the rule of law, in which following the constitutional text, not just precedents, achieves legal rule stability. legal rule stability is premised on abiding by provisions in constitutional texts when they directly answer legal questions. in abortion cases, however, the constitution provides no direct answers to whether abortion is a right by not discussing the issue, a reality to which dobbs’s new textualist justices admit. while judges follow the constitution in such a scenario, they would 23 also turn to stare decisis in unpacking legal questions on abortion. precedent notions of the rule of law would hence hold that adherence to precedent is a prerequisite for promoting legal rule stability. by invalidating precedents, dobbs deviates from how judges used to maintain legal 24 24 ibid., 2235, 2236, 2240, 2242; sam capparelli, “in search of ordinary meaning: what can be learned from the textualist opinions of bostock v. clayton county?,” the university of chicago law review 88, no. 6 (2021): 1456. 23 ibid., 2240, 2305. 22 dobbs, 597 u.s., 2234, 2236-37, 2258, 2279. 21 bolick, “case for legal textualism.” 20 eskridge, jr., “reliance interests in statutory and constitutional interpretation,” 688-89; brief for the united states as amici curiae supporting respondents at 4, dobbs v. jackson women’s health org., 597 u.s. 215 (2022). 78 rule stability in abortion cases, ultimately thwarting former conceptions of the rule of law that root themselves in precedential stability. 25 iib. dobbs and predictable rule application with dobbs overturning some precedents and maintaining others, lawyers and judges seeking to understand its rationale could face challenges in determining when to employ them. such barriers render the implementation of abortion precedents less foreseeable and thus undercut a critical standard for promulgating the rule of law as it used to be conceived. to facilitate the predictable application of rules, judges had previously ensured that every decision could be traced back to precedents that preceded a case. this precedential conformity is conspicuous when they maintained roe’s central holding that abortion qualifies as a constitutional right in casey and the 20 subsequent post-roe abortion cases. because roe and 26 casey were the foundation for most abortion cases that succeeded them, a lawyer or judge could once anticipate that these precedents would be implemented whenever an abortion case came before the court. dobbs does not predictably deploy precedents. even while striking down abortion precedents such as roe and casey, it heeds precedents rooted in historical legal sources, such as washington v. glucksberg (1997), to apply the ordered liberty rationale used to determine the constitutionality of rights unmentioned in the constitution. abortion cases had not ubiquitously 27 employed glucksberg as the main basis of their decision, yet the majority incorporated it over 27 dobbs, 597 u.s., 2242, 2300; washington v. glucksberg, 521 u.s. 702 (1997). 26 casey, 505 u.s., 846; roe, 410 u.s., 129; dobbs, 597 u.s., 2241, 2333 25 eskridge, et al., “textualism’s defining moment,” 1611, 1614-16, 1624. 79 reliably embedded abortion precedents. these precedential applications in dobbs denote a 28 substantial pivot from a reliable implementation of abortion precedents to one that draws upon a more fundamentalist constitutional interpretation. lawyers who had anticipated roe and casey’s application in preceding abortion cases and judges who had routinely deployed them could thus have been unlikely to foretell dobbs. in this regard, dobbs compromised the inferable application of rules surrounding abortion and thus the rule of law in its traditional notion. iic. dobbs and impartial adjudication the neutrality and objectivity of abortion decisions previously hinged on judges’ use of stare decisis, a doctrine that discerns ordinary meaning based on a term’s application in earlier cases. justice sandra day o’connor, for instance, employed the precedent set by roe in casey 29 despite her personal opposition to abortion. thus, her precedential conformity removed judicial 30 discretion from her decision-making in accordance with the rule of law as it used to be perceived. unlike casey, dobbs declares that stare decisis “cannot be absolute.” it diverges from 31 this previous practice of deploying precedents to execute impersonal adjudication. judges, such 32 as the dissenting justices who espouse the stare decisis doctrine, would find that the ability to strike down unfavorable precedents “spell[s] the end of any precedent with which a bare majority 32 grove, “is textualism at war with statutory precedent?,” 652, 658. 31 dobbs, 597 u.s., 2307. 30 evan thomas, “how supreme court justice sandra day o’connor helped preserve abortion rights,” the new yorker (2025 condé nast, march 27, 2019), https://www.newyorker.com/news/news-desk/how-the-supreme-court-justice-sandra-day-oconno r-helped-preserve-abortion-rights.; casey, 505 u.s., 865, 870, 912. 29 david a. strauss, “new textualism in constitutional law,” george washington law review 66 (1997): 1157.; tara leigh grove, “is textualism at war with statutory precedent?,” texas law review 102, no. 4 (april 10, 2024): 652, 658.; capparelli, “in search of ordinary meaning,” 1457-58; dobbs, 597 u.s., 2319-20, 2333. 28 casey, 505 u.s., 846; roe, 410 u.s., 129. 80 of the present court disagrees.” they would consequently hold that future abortion decisions 33 could become less fair in that they are more likely to align with judges’ personal opinions over precedents. this assertion has already been apparent in how the majority’s ruling in dobbs is consistent with its members’ long-established opposition to abortion. public statements from 34 justice samuel alito have revealed how he is “particularly proud” of his work to oppose roe.35 justice amy coney barrett has long believed that abortion is “always immoral,” as per a 1998 law review article. these statements insinuate that the justices in the majority adjudicated 36 dobbs in a manner that aligns with their charged personal viewpoints over precedents that do not. this departure from precedents signifies that dobbs did not achieve impartiality as understood by former conceptions of the rule of law. iii. dobbs’s creation of a new rule of law although the new textualists’ interpretation of dobbs is inconsistent with the rule of law as it was conceived, it does not entirely undermine this principle. textualism, at its core, was founded on the rule of law, and the six new textualists who produced dobbs’s majority opinion inherently support this principle. dobbs therefore continues to uphold the rule of law, 37 notwithstanding that its majority defines this principle differently from how judges did in the 37 eskridge, et al., “textualism’s defining moment,” 1624, 1694. 36 ibid. 35 chris michael, “us supreme court justices on abortion—what they’ve said and how they’ve voted,” the guardian, may 4, 2022. 34 ibid., 2335. 33 dobbs, 597 u.s., 2279-80, 2307, 2334, 2336. 81 past. this contrast suggests that dobbs creates a new rule of law. the justices who decided dobbs consulted extratextual historical sources to achieve legal rule stability through historical rather than precedential stability. they ensure that one can infer the application of rules by devising a system grounded in constitutional texts and more stringent guidelines for precedential analysis. they ensure fair adjudication in accordance with the rule of law by contextualizing constitutional texts with broader constitutional history to discern the ordinary meaning of terms. iiia. dobbs’s promotion of legal rule stability through historical stability the new textualist interpretations in dobbs have established that maintaining historical stability ensures the stability of legal rules on abortion. by continuing to fulfill a condition necessary to uphold the rule of law, yet doing so in a way that revises the past, they demonstrate how dobbs creates a new rule of law. dobbs reiterates that rights not mentioned in the constitution should be guaranteed only if they are “deeply rooted in this nation's history and tradition” and “implicit in the concept of ordered liberty,” a stark juxtaposition with previous uses of precedent to confer constitutional rights in abortion cases. to make such a determination, new textualists turn to extratextual, 38 historical sources directly tied to the constitution’s creation, such as founding documents and the federalist papers. from these consultations, they concluded that abortion is neither an “ordered 39 liberty” nor part of “the nation’s history or tradition,” given its lack of mention in the 39 ryan fortson, “principle originalism—the third way: a jurisprudential response to dobbs v. jackson women’s health organization,” american university journal of gender, social policy & the law 32, no. 1 (2023): 115, 118–19. 38 dobbs, 597 u.s., 2235, 2242-44, 2246-48, 2253, 2257, 2259-60, 2282-83, 2300, 2304, 2319. 82 aforementioned sources, lack of discussion as a constitutional matter until a few years before roe, and lack of legalization by historical common law sources that informed constitutional drafting. the majority consequently found roe and casey to depart from legal rules on abortion 40 established in the broader historical context of when the constitution was written. their reversal of these precedents in dobbs accordingly substantiates presently promulgated legal rules with those that existed when the constitution was first drafted. ultimately, dobbs establishes a new rule of law in which historical rather than precedential stability governs legal rules, hinting at a revisionist worldview through which the constitution is interpreted in abortion jurisprudence. to skeptics of new textualism, such as the dissenting justices in dobbs, the doctrine’s approach of bringing about legal rule stability through historical stability is not without its pitfalls. they assert: “[t]he constitutional ‘tradition’ of this country is not captured whole at a single moment. rather, its meaning gains content from the long sweep of our history and from successive judicial precedents.” that is, they believe that upholding historical stability requires 41 precedential stability because precedents have been embedded throughout american legal history and have subsequently served as a fixture in constitutional interpretation. undermining this fixture would accordingly erode the legal rule stability constitutive of the rule of law. the justices rightfully underscore the importance of precedents in maintaining historical stability. however, their assertion overlooks the new textualist majority’s acute awareness of this significance and its unwillingness to wholly object to following precedents. the majority embedded glucksberg in dobbs, provided that its legal rules aligned with those in sources that 41 dobbs, 597 u.s., 2326, 2329-32; fortson, “principle originalism—the third way,” 144. 40 ibid., 118; dobbs, 597 u.s., 2235, 2248-49, 2252-54. 83 informed the united states’ “history and tradition.” conversely, they invalidated roe and 42 casey, the abortion precedents in question, due to their inconsistency with such history and tradition. the justices’ deliberation of these precedents demonstrates how they indeed weigh a 43 precedent’s role in defending historical stability but only implement them if they are consistent with legal sources that have played a role in shaping the country’s “history and tradition” and “scheme of ordered liberty.” in this sense, dobbs still upholds the historical stability essential to 44 legal rule stability and forms a new rule of law instead of chipping away at it. similar to dobbs’s dissenting justices, constitutional scholar ryan fortson would contend that the new textualist approach, which seeks to achieve legal rule stability through historical stability, does not yield a new rule of law but instead compromises the principle as a whole. fortson substantiates such a claim with how the dobbs’s majority “could not agree on which history to rely upon, with [justice] alito looking to legal interpretations of abortion during and around the time of the ratification of the fourteenth amendment and [justice clarence] thomas harkening back to understandings of the concept of liberty at the time of the founding four score prior.” 45 though not without its merits, fortson’s argument ignores that historical stability does not mandate judges to use the same sources in interpreting the constitution. rather, it requires them to consistently corroborate their interpretations with laws that have been vital to the united 45 ibid., 2249-54, 2300-01; fortson, 139. 44 ibid., 2235, 2242-43, 2246-48, 2253, 2259-60, 2282-83, 2300, 2304. 43 dobbs, 597 u.s., 2234, 2237, 2242, 2246. 42 randy e. barnett and lawrence b. solum, “originalism after dobbs, bruen, and kennedy: the role of history and tradition,” northwestern university law review 118, no. 2 (january 27, 2023): 449-50, 460-61.; dobbs, 597 u.s., 2261-62, 2279-80. 84 states’ “history and tradition” and “scheme of ordered liberty.” the new textualist justices 46 followed this approach in unpacking the constitution in dobbs. the sources they turned to, though divergent, were produced during the drafting of the constitution. the justices’ reversion to this era indicates that they endeavored to align their constitutional interpretations in abortion cases with broader constitutional history. on account of this compatibility, they enabled dobbs to stabilize legal rules through historical stability. satisfying a rule-of-law criterion differently from prior cases, dobbs ultimately produces a new rule of law that looks to history rather than the present in deliberating abortion cases. iiib. dobbs’s new system of precedential construal despite new textualist judges’ increased willingness to overturn precedents, dobbs does not entirely ignore them and still provides an alternative approach to predicting their application in abortion cases. bearing this premise in mind, this sub-section will unravel how it promotes this rule-of-law criterion through a two-fold process. part i will delve into how dobbs emphasizes increased obedience to constitutional texts under the principle of constitutional supremacy and sets a standard in which this adherence foretells precedential implementation in abortion cases. part ii will look into how dobbs critically evaluates the strength of a precedent’s grounds and its concrete reliance interests to create a predictable, systematic approach to precedential construal. both parts reveal that dobbs has set a formulaic structure for inferring the implementation of abortion-related precedents and, in doing so, generates a new rule of law. 1. constitutional supremacy 46 dobbs, 597 u.s., 2235, 2242-43, 2246-48, 2253, 2259-60, 2282-83, 2300, 2304. 85 to the new textualist justices in dobbs, cases should focus on “settling right” and upholding the constitution over precedents as per the principle of constitutional supremacy because stare decisis is not an “inexorable command.” in line with this view, they overruled roe 47 and casey in dobbs, given their violation of the constitution’s lack of a stance on abortion. they justified doing so by citing brown v. board of education (1954), which similarly overruled plessy v. ferguson (1896), a precedent that contravened the constitution. dobbs’s incorporation of 48 legal rules from the constitution and rejection of precedents set a standard in which predictable rule implementation in abortion cases hinges on constitutional supremacy. since dobbs meets 49 this criterion differently from earlier abortion cases, it creates a new rule of law that bases itself on fundamental legal texts over precedents. 2. systematic precedent construal approach dobbs’s majority opinion criticizes roe and casey for being grounded on precedents that established the rights to interracial marriage, contraception, same-sex marriage, parochial education, and german language education, none of which are abortion-related. given these 50 precedents’ irrelevance to roe and casey, the majority concluded that abortion is not a constitutional right and therefore roe and casey warranted reversal. dobbs consequently implies that future abortion cases will only embed precedents if they are corroborated by pertinent precedents. 50 loving v. virginia, 388 u.s. 1 (1967); griswold v. connecticut, 381 u.s. 479 (1965); obergefell v. hodges, 576 u.s. 644 (2015); pierce v. society of sisters, 268 u.s. 510 (1925); meyer v. nebraska, 262 u.s. 390 (1923); dobbs, 597 u.s., 2234, 2257, 2267-68 49 ibid., 2252-53; robin charlow, “american constitutional analysis and a substantive understanding of the rule of law,” in the legal doctrines of the rule of law and the legal state (rechtsstaat) (springer, 2014), 251-66. 48 ibid., 2237, 2239, 2262, 2278-79, 2307, 2309, 2341. 47 ibid., 2237, 2239, 2261-62, 2278, 2334. 86 in addition to relevant precedential support, dobbs has established that judges are to demonstrate a precedent’s implication of concrete reliance interests before implementing it in an abortion case. the majority found insufficient proof of individuals being worse off due to roe 51 and casey’s reversal than with these precedents not existing in the first place because abortion is generally an “unplanned activity” and reproductive planning allows individuals to prevent themselves from being worse off, regardless of whether roe and casey exist. on account of this 52 finding, the majority indicates that roe and casey do not carry concrete reliance interests, and future abortion cases will only employ precedents when they hold such interests. by instituting the conditions that warrant precedential deployment in future abortion cases, dobbs has provided a formula for foretelling such application. it ultimately creates a new rule of law that drives the predictable employment of precedents on abortion more stringently than in prior cases such as casey. iiic. dobbs’s implications on impartial adjudication the new textualist justices in dobbs determined the fourteenth amendment’s ordinary meaning by referring to the context within which the constitution was written. they explained 53 doing so by pointing to how judges are more prone to “cherry-pick” precedents when “interpreting other statutes than the one in question.” because their approach denotes a shift 54 from earlier uses of precedent in rendering unbiased adjudication, dobbs yields a new rule of 54 capparelli, “in search of ordinary meaning,” 1464. 53 dobbs, 597 u.s., 2257-58, 2261; u.s. constitution, amend. xiv, sec. 1. 52 ibid., 2238-39, 2265, 2276-77; casey, 856; rachel bayefsky, “tangibility and tainted reliance in dobbs,” harvard law review forum 136 (may 25, 2023): 387–88.; nina varsava, “precedent, reliance, and dobbs,” harvard law review 136, no. 7 (may 10, 2023): 1847, 1863–64. 51 dobbs, 597 u.s., 2238-39, 2265, 2276-77. 87 law. these justices harnessed the “objective evidence of law[s]” from when the constitution was drafted to adjudicate the constitutionality of abortion in dobbs without favor, especially given the constitution’s lack of a stance. a consultation of common law sources from 1864, the 55 year of the fourteenth amendment’s drafting, led them to discover that 28 out of 37 states had then criminalized pre-quickening abortions and that most states had criminalized abortion at all stages of pregnancy. based on this objective evidence, the justices concluded that the drafters 56 did not intend abortion to be a constitutional right and that the ordinary meaning of “rights” and “liberty” in the fourteenth amendment does not encompass abortion. their means of judicial 57 decision-making suggest that they turned to historical sources on the constitution’s authorial intent over traditionally consulted precedents in pursuit of unprejudiced adjudication. their doing so enabled dobbs to produce a new rule of law that reverted to history rather than focusing on more recent precedents. the dissenting justices and other critics of dobbs’s majority opinion would postulate that the majority’s new textualist doctrine enables judges to use the guise of constitutional text to insert the judicial discretion and “unguided speculation” constrained by a prior interpretive approach rooted in stare decisis. to them, interpretations laden with judicial discretion are 58 biased, compromising the rule of law instead of producing a new one. this contention accurately characterizes that text’s guise and indeed presents an 58 dobbs, 597 u.s., 2326; capparelli, “in search of ordinary meaning,” 1458. 57 dobbs, 597 u.s., 2242-43; u.s. constitution, amend. xiv, sec. 1. 56 barnett and solum, “originalism after dobbs, bruen, kennedy,” 460-61; dobbs, 597 u.s., 2252-53. 55 eskridge, “reliance interests,” 737. 88 opportunity for judges to bring about judicial discretion. the view that abortion is not a constitutional right is admittedly congruous with justices alito and barrett’s standpoints. yet, 59 justice brett kavanaugh’s concurring opinion and the majority opinion’s conclusion signal how dobbs is neither pro-choice nor pro-life, akin to the constitution, and gives voters the ultimate discretion on abortion. this position is incompatible with justices alito and barrett’s personal 60 opposition to abortion. furthermore, the justices looked to objective evidence, such as 61 documents contextualizing the constitution’s drafting, to support their decision, and hence their decision-making was grounded in evidence beyond the text. in this respect, they adjudicated dobbs without favor, in accordance with the rule of law. their use of the context surrounding the drafters’ intent, rather than judges’ use of stare decisis in earlier cases, implies that dobbs has led to a new rule of law—one that seeks to revisit the past rather than remain in the present when mulling abortion cases. iv. conclusion dobbs v. jackson (2022) has illustrated the constancy of the rule of law’s underlying standards: legal rule stability, predictable rule application, and impartial adjudication. however, how it satisfies each standard differs from that of previous abortion cases. dobbs has shown that such a sizable shift stems from fundamental differences in how constitutional interpretation in preand post-dobbs abortion cases views stare decisis and constitutional supremacy: both follow the constitutional text and do not oppose heeding precedent, yet the latter champions greater 61 michaels, “us supreme court justices on abortion.” 60 dobbs, 597 u.s., 2279, 2305. 59 michaels, “us supreme court justices on abortion.” 89 obedience to the text and diminished reluctance to overrule precedent. with these changes apparent in the new textualist doctrine that justices used to decide dobbs, dobbs has chipped away at what the rule of law once meant. it has impeded the notion that abiding by precedents keeps legal rules stable, yields the predictable incorporation of rules, and achieves unprejudiced adjudication. yet, at the same time, the rule of law serves as the basis of textualism, and the six new-textualist supreme court justices do not interpret texts and statutes with the intent to subvert them. a new rule of law ultimately emerges from dobbs. this new rule of law now harnesses historical stability to maintain the stability of legal rules on abortion. it infers a rule’s implementation in abortion jurisprudence by using constitutional supremacy alongside a formula that weighs a rule’s supporting precedents and concrete reliance interests. it discerns ordinary meaning from the context of constitutional drafting to accomplish unbiased adjudication in abortion cases. dobbs has signified that the rule of law persists, given its fixture as a principle defining the american legal system. yet, it has simultaneously underscored that a new rule of law seeks to turn back in time by premising future abortion decisions on a 248-year-old text—a text drafted at a time when the law failed to fully recognize the rights of all people and whose reliance interests and ordinary meaning diverge from those of today. if a new rule of law swings the pendulum of progress back by 248 years, it will lead abortion decisions to no longer reflect present-day american society, putting the rights of women and marginalized communities at stake. the question now becomes: how can we maintain a new rule of law while ensuring that judicial decisions reflect the present context? how can we reshape this new rule of law to live up to the ideals of equality and justice for all? 90 the broader landscape finds these questions to be nebulous. yet, it has revealed that as long as the rule of law grounds the american legal system, it can persist, with the potential to reinvent itself into new rules of law. just as a new rule of law can set a country back by 248 years, it has the power to propel it forward. now is the time for lawyers, judges, and advocates to uphold a rule of law that looks to the present and lives up to the ideals of equality and justice for all. 91 julia kuhn.docx bellarmine law society review volume xv | issue i article ii the impact of climate shocks on homeowners' insurance: a legal, economic, and public policy analysis julia kuhn boston college, julia.kuhn@bc.edu the impact of climate shocks on homeowners' insurance: a legal, economic, and public policy analysis julia kuhn 1 abstract: in the past decade, climate shocks have ravaged the united states at unprecedented levels. this paper addresses one of the first victims: homeowners. given the increasing frequency and severity of these shocks, insurance companies have begun charging sky-high premiums, or in a rising number of cases, completely dropping policies in high-risk states. consequently, public policy has shifted, leaving homeowners in certain areas to choose between two options: insurers of last resort, such as california’s fair plan, or non-admitted insurance. adding to this problem are the economic implications, with several experts citing concerns that the cascading effects could prove to be worse than the 2007/2008 financial crisis. further, there is the legal aspect, with legislation, regulation, and litigation all playing a role. finally, while a variety of solutions have been proposed to address this crisis, none have proven completely effective. thus, to prevent additional devastation, the paper offers two recommendations on how society should proceed. introduction today, severe climate shocks, including wildfires, hurricanes, and tornadoes, are ravaging the united states in unprecedented numbers, with states like california, florida, and louisiana bearing the brunt of the effects. according to the national oceanic & atmospheric administration, the united states now averages twenty-three weather and climate disasters that each exceed $1 billion in damages per year.58 in 2024 alone, there were twenty-seven such events, just one shy of the record-setting twenty-eight events that took place in 2023 (exhibit 1).58 examples from 2024 include hurricane helene, which struck florida, georgia, south 1 julia kuhn is a senior with dual concentrations in finance and accounting for finance & consulting. she will be graduating magna cum laude in may and starting her career at goldman sachs as an asset management equity analyst. the highlights of her extracurricular experiences at bc included project sunshine, where she volunteered at local hospitals to serve pediatric patients, as well as the american red cross, where she held two e-board positions and organized a trip to the boston food pantry. outside of academics and volunteering, her interests include cooking, cycling, and reading. 27 carolina, north carolina, and tennessee, and caused approximately $79.6 billion in damages, as well as hurricane milton, which made landfall on florida and resulted in an estimated $34.3 billion in damages.52,58 earlier this year, the los angeles wildfires, which include the palisades fire and the eaton fire, devastated california.32 damages are expected to cost between $28 billion and $53.8 billion.32 this can all be compared to the 1980s, where the united states only averaged three climate disasters that exceeded $1 billion throughout the entire decade.58 the problem indeed, one of the most notable effects of these climate shocks can be seen in the market for homeowners' insurance. as of the end of 2024, insured losses from climate-related disasters in the united states hit $112.7 billion, representing an increase of 36% from the year prior.21 consequently, in disaster-prone areas of the country, specifically coastal states and/or states at high risk of wildfires, traditional insurers have significantly raised premiums or dropped (i.e., not renewed) policies.63 in florida, between 2020 and 2023, average premiums in the state increased by 40% (adjusted for inflation) to $3,300.12. during a similar time frame (2018 to 2023), florida’s non-renewal rate increased by 280%.63 this is not coincidental; according to a report published by the senate budget committee in december 2024, there is a positive correlation between premiums and non-renewal rates (exhibit 2).63 in other words, areas with higher premiums are more likely to experience higher non-renewal rates.63 it’s important to note, however, that such non-renewal rate increases are not limited to florida. as highlighted in exhibits 3 and 4, between 2018 and 2023, non-renewal rates skyrocketed in states such as louisiana, hawaii, south carolina, and oklahoma.63 these states, perhaps not surprisingly, have higher climate risk, another factor that correlates with higher non-renewal rates.62 zooming in on the county level, over 200 saw their non-renewal rate triple 28 or more between 2018 and 2023, with some experiencing increases larger than 500% (exhibit 5).25,63 to highlight specific examples of non-renewals, one can examine the insurance market in california and louisiana. in 2024, less than one year after state farm, california’s largest property insurer, stopped accepting new applications for homeowners insurance in the state, the company ceased to renew 30,000 policies.8,53 nationwide, trans pacific, and the hartford, among others, followed suit. 17 regarding louisiana, between 2021 and 2023, at least twenty insurance companies exited the state’s market.63 all of this taken together highlights a harsh reality: as a result of climate shocks, the market for homeowners' insurance in high-risk areas is breaking down, leaving many in the dust. unfortunately, however, the effects do not stop here. instead, they extend more broadly to public policy, the economy, and the legal industry. history of homeowners insurance before diving into the effects of premium increases and higher non-renewal rates on public policy, the economy, and the legal industry, it is important to understand the background behind homeowners insurance, including when and why it was created, how it is regulated, and how it has evolved. creation the first homeowners insurance policy was introduced in september of 1950 by the insurance company of north america in response to the post-wwii housing boom.16,31 this policy, unlike previous ones, offered a package that covered homes against losses caused by fire, smoke, lightning, wind, hail, explosions, theft, and vandalism.31 such a policy was widely celebrated among homeowners, as it provided comprehensive coverage and “cost 20% less than the combined premiums on separate policies that [they] had to buy for similar coverage.”16,31 29 regulation notably, homeowners' insurance is regulated by the states, not the federal government.24 in fact, even small actions by the treasury department, such as attempts to gather data on the market, have received pushback from state regulators.24 given this structure, the responsibility of approving or rejecting rate increases ultimately lies with the states.24 present day today, homeowners' insurance policies provide much of the same coverage as the first one did back in 1950. one main difference, however, is the types of policies offered. currently, there are five to choose from (excluding renters insurance, condo insurance, and mobile home insurance), all with differing amounts of coverage (exhibit 6).42 the ho-1 policy offers the least amount of coverage and has limited availability in most states, as mortgages often require higher levels of protection.42 next is the ho-2 policy, which builds on ho-1.42 nevertheless, it is the ho-3 policy that is most common.42 this policy provides coverage for a house and personal belongings, in addition to liability, medical payments to others, and supplemental living expenses.42 additionally, there is the ho-5 policy, which offers the highest level of protection.42 in contrast to the ho-3 policy, ho-5 pays out replacement cost value (as opposed to actual cash value).42 replacement cost value involves replacing damaged items with new and similar versions, while actual cash value involves receiving the depreciated cash value of damaged items.42 also, unlike the ho-3 policy, ho-5 covers personal belongings if they are damaged, stolen, lost, or misplaced (as opposed to just damaged or stolen).42 finally, the ho-8 policy applies to historic homes and registered landmarks.42 while it offers less protection than the ho-3 and ho-5 policies, coverage for personal belongings, liability, medical payments to others, and supplemental living expenses is still included.42 30 public policy analysis given the rapid rise of both premiums and non-renewal rates, homeowners in disaster-prone areas have flocked, in record numbers, to insurers of last resort and lightly regulated (i.e., non-admitted) home insurance. both options present their own issues. insurers of last resort insurers of last resort, such as california’s fair plan and florida’s citizens property insurance corporation, have become an increasingly popular option among homeowners because of their ability to provide coverage in high-risk areas when traditional insurance companies will not.7,46 unlike private insurance, they are backed by their respective states and meant to function as a temporary safety net until private insurance coverage becomes available.1 despite their temporary nature, homeowners have not been deterred from both enrolling and remaining enrolled in these policies, as such plans are often the only option. in fact, between 2018 and 2023, insurers of last resort plans more than doubled their market share, with florida’s citizen plan making its way onto the top ten list of largest homeowner insurers in 2023.27,35 to further analyze the market for insurers of last resort, one can turn to california’s fair plan. established by statute in 1968, the fair plan provides “basic fire insurance coverage to high-risk properties that traditional insurance carriers refuse to cover.”1,39 the fair plan is structured as a “pool” of all licensed property insurers in california, each of which contributes to its profits, losses, and expenses in a manner proportional to their market share in the state.1 the plan is not a state agency or a public entity, meaning it does not receive public or taxpayer funding.1 in regard to its current exposure, the statistics are eye-opening. as of march 2025, “the fair plan’s total exposure is $599 billion, reflecting a 31% increase since september 2024 and a 259% increase since september 2021” (exhibit 7).36 the fair plan’s high monetary 31 exposure highlights the first problem associated with insurers of last resort: they are incredibly risky. in fact, according to a bloomberg report, “out of 36 [insurers of last resort] that offer coverage for natural catastrophes, 21 don’t explicitly detail how they’d pay deficits.”35 this lack of transparency calls into question whether insurers of last resort can remain solvent in the face of additional climate shocks. it would be remiss not to consider two additional problems with insurers of last resort, that is, their high premiums and basic coverage.47 to illustrate this issue, one can look no further than colorado’s fair plan, which officially launched in april of 2025 and provides basic property insurance.18,50 the plan pays out actual cash value and does not cover liability, content replacement, or additional living expenses in the event a resident is displaced.18,50 its website reads, “fair plan policies come with substantially higher premiums and offer more limited coverage…the colorado fair plan is the most expensive way to insure a property…standard insurance remains the most cost-effective option for property insurance in nearly all cases.”14 as discussed above, however, the “most cost-effective option” remains unavailable for many homeowners. as a result, they are left with higher premiums and insufficient coverage. non-admitted homeowners insurance after accounting for insurers of last resort, there remains one other option for residents in high-risk areas: non-admitted homeowners insurance, also known as lightly regulated insurance.3 while originally designed to provide coverage for “properties that face unique and relatively rare risks” in the commercial real estate industry, such as a fireworks factory or a nuclear waste project, lightly regulated home insurance has expanded its reach.3 for instance, the “number of non-admitted homeowners policies in florida grew 73%, to more than 92,000, in the 14-year period that ended in 2023.”3 in some counties, however, the number of policies grew upwards of 32 250%, with okeechobee county experiencing the highest increase at 1,009% (exhibit 8).3 over the same period, california saw transactions in its non-admitted market increase by nearly 200%.3 by and large, this indicates that “regular homes in some parts of the country are now viewed by the insurance industry as the equivalent of a fireworks factory.”3 as with insurers of last resort, lightly regulated home insurance has a host of issues, the main one being its extremely high risk. first, non-admitted insurance is not regulated by the states and, thus, not subject to the same quality monitoring and contract review as traditional insurance or insurers of last resort.3 this gives them “more flexibility to raise prices and tailor coverage.”3 indeed, this flexibility, if it hasn’t already, will lead them to take advantage of policyholders. if such flexibility is left unchecked, it will only grow larger, causing these companies to inflict even greater harm on those that they were meant to help. next, perhaps the largest weakness for the non-admitted insurance market, and what distinguishes it from all other options, is its lack of a guaranty fund.3 this means that if a non-admitted insurance company were to go bankrupt, policyholders would never have their claims paid, ultimately leaving them “on their own to replace everything.”3 such a possibility becomes even more scary when considering the financial vulnerability of non-admitted insurance companies, which can be analyzed using a metric known as the risk-based capital ratio.3 this ratio, which is used by regulators to evaluate an insurer’s financial health, “demonstrates whether a company has enough money to meet potential financial obligations, like claims after a big storm.”3 a low ratio, which is common among non-admitted insurers, indicates that “the company might not have enough capital on hand considering the risk they’ve absorbed.”3 kin, topa, and orion180, three non-admitted insurers that were part of an analysis conducted by 33 bloomberg in 2023, had risk-based capital ratios of 3.3, 3.1, and 1.5, respectively.3 for reference, the median risk-based capital ratio of insurance companies in 2023 was 10.97.3 moreover, a handful of companies that issue non-admitted policies have not obtained ratings from the insurance industry’s largest and most respected rating agency, am best.3 instead, these companies rely on ratings from demotech, an agency whose ratings “are viewed much more skeptically by brokers and insurance experts because they rarely hand out anything other than an a.”3 an a, according to demotech’s website, indicates that the insurer has “exceptional financial stability.”22 as explained above, however, this is not often the case. for example, kin and orion180, two non-admitted insurers discussed previously, received an a from demotech.3 this came despite their low risk-based capital ratio of 3.3 and 1.5, respectively. last but not least is a statistic that pertains to florida. in 2021 and 2022, “seven companies that had a ratings from demotech went insolvent,” a fact which further decreases the rating agency’s credibility.3 economic analysis further complicating this matter are its economic implications. according to the senate budget committee report from december 2024, many experts are comparing the “climate-driven insurance crisis” to the 2007/2008 financial crisis, even citing concerns that it may be worse.63 this is primarily due to its potential effects on the real estate market, household wealth, tax revenues, and ultimately, communities. add this to its current effects on insurance companies. as previously discussed, the upsurge in climate shocks has led many insurers to drop homeowner policies. without homeowners insurance, however, one cannot obtain a mortgage, ordinarily a prerequisite for purchasing and retaining a home.46 as a result, there will likely be fewer home buyers in the market, causing property values to fall.46 in fact, one estimate puts the 34 “potential reduction in unadjusted real estate values over the next 30 years due to climate-related risks” at $1.47 trillion.19 the resulting ripple effects could be catastrophic. according to sean becketti, the former chief economist of freddie mac, “a large share of homeowners’ wealth is locked up in the equity in their homes.”5 thus, “if homes become uninsurable and unmarketable, [their values] will plummet,” as will household wealth.5 becketti previously warned that, “the economic losses and social disruption may happen gradually, but they are likely to be greater in total than those experienced in the [2007/2008 financial crisis].”63 this is because the current outlook makes an asset value recovery similar to that experienced post-2008 quite unlikely, as a “home too endangered to insure will only become more endangered,” causing its value to fall even further.63 indeed, falling property values can also result in smaller property tax revenues.25 this leaves towns with less money to fund critical resources such as schools, libraries, police and fire departments, and road construction and repairs.34 thus, it is only a matter of time before communities begin to feel strained. lastly comes the effects on insurance companies. while dropping homeowners insurance coverage in areas susceptible to climate shocks may seem grossly unfair and wrong to some, others argue it is necessary if private insurers want to remain solvent. the impending solvency crisis can be illustrated using state farm as an example. in february 2025 alone, state farm had to pay out approximately $1.75 billion to claims related to the los angeles wildfires.47 this came after the company’s 2023 warning to california officials that they were struggling financially, evidenced by their rating downgrade the same year.47 as a result of the wildfires, state farm estimates its direct losses to be $7.6 billion, $612 million of which will be retained (after accounting for reinsurance and fair plan contribution).62 the company’s surplus, “which 35 stood at $1.04 billion at the end of 2024,” is forecasted to decrease by $400 million.62 looking back on the past decade, its surplus has declined by roughly $5 billion.47 needless to say, this surplus, given the current outlook, will not last much longer. consequently, state farm, in addition to many other insurance companies, is going to be scrambling for funds, with some likely falling into bankruptcy. legal analysis adding even more complexity to this issue is the legal perspective, including legislation, regulation, and litigation. legislation the effects of legislation on the insurance industry are significant. continuing with california as a case for analysis highlights this point. in 1988, california voters passed proposition 103, also known as the insurance rate reduction and reform act.41 its purpose was to “protect consumers from arbitrary insurance rates and practices, to encourage a competitive marketplace, and to ensure that insurance is fair, available, and affordable for all californians.”51 although supporters of proposition 103 call attention to the estimated $150 billion in premiums it has saved californians over the last 25 years, opponents emphasize the myriad of problems it has created, the first one being the mass exodus of insurers from california’s market.35 opponents argue that this exodus is due to the limitations that proposition 103 places on insurers’ ability to price their homeowners insurance policies in a way that “appropriately [accounts] for the risks [they] are protecting against.”35 the data speaks for itself: an analysis conducted by the california governor’s office in 2024 found that “the average policy for a $300,000 home in california cost $1,405 a year, compared with $3,851 in texas and $4,419 in florida” (two states that also face high climate-related risks).57 it also sits below the national 36 average of $2,601.29 further, when considering the massive losses experienced by insurers, due in large part to the restrictions imposed by proposition 103, the reason for their exodus becomes even more clear: “in 2017 and 2018 alone, california homeowners insurers posted a combined underwriting loss of $20 billion, more than double the total combined underwriting profit of $10 billion that the state’s homeowners insurers had generated from 1991 to 2016.”41 undoubtedly, the limits imposed by proposition 103 also send the wrong signal to both homebuyers and contractors. as a spokesperson for the american property casualty insurance corporation put it, “years of restrictions on rate-making created an artificially suppressed market that incentivized continued population growth in areas at high risk for wildfire and then reduced consumer options for insurance.”57 certainly, without a mechanism to change its course of direction, the market will maintain its troublesome path and continue to mislead its constituents along the way. finally, opponents of proposition 103 cite the problems associated with its “rate-intervenor system.”41 put simply, this system kicks in for public hearings, which proposition 103 makes mandatory when insurance companies propose a rate hike of more than 6.9%.41 ultimately, it allows public intervenors to “file objections on behalf of consumers, with fees to be paid by the applicant insurance company.”41 as evidenced by the data, the results of this system are far from efficient.41 aside from the fact that insurance companies pass on public intervenor fees to policyholders, the intervenor process has a “five-year average filing delay of 236 days for homeowners insurance.”41 thus, insurers must endure inadequate pricing structures for at least six months, causing losses to grow and making an exit from the state’s market all the more favorable. regulation 37 as previously mentioned, traditional homeowners insurance is regulated by a state’s insurance commissioner, a figure whose decisions carry lots of weight for policyholders and insurance companies alike. given the ongoing media coverage of california’s insurance market, this state will remain the subject of analysis. starting with last year (2024), the california department of insurance approved allstate’s request to raise its average home insurance premiums by 34%, a change that affected approximately 350,000 policyholders.38,48 currently, state farm is awaiting approval on its emergency request to raise premiums by 17%, a move they argue is required for them to stay afloat in the wake of the los angeles wildfires.53 indeed, state officials seem supportive of this move, as remarks from nikki kennedy, an attorney for the california department of insurance, highlight.53 in a recent hearing, kennedy ardently advocated for state farm, warning the judge presiding over the case that “[california is] on the titanic, and [sees] the iceberg. now is not the time to argue about where to put the deck chairs. there is still time, your honor, to turn this ship around. if we don't, over three million californians are going in the water. and there are not enough lifeboats."53 while rate hikes do not bode well for the finances of policyholders, they are necessary to keep insurers solvent, as state farm’s case demonstrates. it must be noted, however, that state regulators must consider the interests of policyholders as well. raising rates to exorbitant levels, while beneficial for insurance companies, has an adverse impact on policyholders. with this in mind, it is important to gather context on state farm’s current proposed rate increase of 17%. in june 2023, state farm requested a premium rate hike of 30% for its home insurance policies in california.53 nonetheless, after the los angeles wildfires, an event that certainly made the company’s financial situation worse, state farm lowered its request to a 22% increase.53 then, after state 38 regulators required the company to justify why such a rate increase was necessary, state farm lowered its request to 17%.28,53 surely, after taking context into account, it appears that state regulators are handling the opposing interests of insurance companies and policyholders in a responsible and equitable manner. litigation many california policyholders, however, do not support this view. instead, a vast majority see state regulators in a negative light, an issue that has led to a host of lawsuits. for example, in february, california’s insurance commissioner, ricardo lara, “approved the fair plan’s request to levy an assessment of $1 billion on all its member insurers” so they could continue paying insurance claims related to the los angeles wildfires.55 yet, two months later, consumer watchdog (a nonprofit serving on behalf of the public’s interest) sued ricardo lara and the california department of insurance, alleging their approval of such a request violated the administrative procedure act (apa) and the state’s insurance code.44 the suit alleges that the violation of the apa stems from the absence of public input on lara’s decision.37 the violation of the state’s insurance code, consumer watchdog argues, stems from the decision by insurance companies to pass assessment costs onto policyholders.37 to support their argument, consumer watchdog points to the section of the california fair plan that reads, “…all member insurers must participate in the [plan’s] expenses, profits, and losses…” in a manner proportional to their market share in the state.37,40 by all means, policyholders have not limited their target to state regulators. rather, they have also begun to go after insurers themselves. for instance, last month (april 2025), california homeowners affected by the los angeles wildfires accused over 300 insurance companies, including state farm, travelers, and liberty mutual, of violating the antitrust 39 provisions of california’s cartwright act and unfair competition law.49 regarding evidence, property owners point to how insurers “[conspired] to eliminate competition in the marketplace” by “restricting business in certain areas of the state.”49 this conspiracy, the plaintiffs argue, allowed insurers to reduce their risk of losses and “forced [homeowners] to obtain more expensive policies with less coverage through the california [fair] plan.”49 as a remedy, homeowners are seeking “compensatory and treble damages, as well as an injunction preventing the insurers from engaging in anticompetitive behavior.”49 all in all, while the above examples are constrained to california, they beg the question of how this type of litigation will extend to other states. after all, it is not just california experiencing a homeowners insurance crisis from climate shocks (as previously noted). thus, it is not a matter of if, but when, litigation in other parts of the country will start to pop up. potential solutions & their shortfalls to address the homeowners' insurance crisis as it relates to climate shocks, several states have tried their hand at different solutions. first, one of the solutions, which has since been adopted by louisiana, is to subsidize private insurance companies.26 although this keeps insurers from ceasing their operations in high-risk areas, it has a perverse effect on the real estate market. this is because such subsidies “dampen the price signal that potential homebuyers should receive about the true costs of living in harm’s way.”27 thus, without knowing the real price of their investment, people will continue to settle in the most susceptible parts of the country, an aspect that constitutes one of this issue’s most pressing problems. another potential solution concerns insurance companies offering premium discounts or states offering tax breaks to homeowners who implement protection measures.15 these measures 40 could include, but are not limited to, fire-resistant siding, sprinkler systems, wind-resistant roofing, and hail-resistant shingles.15,27 one example of this solution in action can be seen in florida. here, some private insurance companies “are offering discounts to policyholders that fortify their homes against hurricane-force winds by strengthening and securing roofs and shutters and reinforcing garage doors.”15 in terms of tax breaks, the state offers “sales tax exemptions for impact-resistant windows, doors, and garage doors.”15 as for california, the state provides tax credits to “homeowners who make their homes more resistant to fires, wind, rain, and hail.”15 undoubtedly, this solution appears to be a win-win: policyholders get discounts and tax breaks for making their homes more resilient, and insurers reduce their risk of losses. this, however, does not capture the full picture. importantly, one must consider the expenses associated with such measures. these expenses “may place additional financial burdens on policyholders over and above increasing insurance costs.”55 therefore, this solution could turn out to be a net negative for homeowners. adding to this downside is the possibility that a policyholder could receive no benefits in return for protecting their home. for example, take richard zimmel, a homeowner in silver city, new mexico (an area at risk of wildfires).25 despite taking measures to curb his home’s forest fire risk, including trimming trees away from his house, covering his yard in gravel to stop flames from rushing onto his property, sheathing his house in fire-resistant stucco, and renovating his roof with noncombustible steel, zimmel’s insurance company, homesite, dropped coverage of his property in december of 2024.25 as a result, zimmel was forced to join the many others across the country searching for homeowners insurance. 41 a third solution might entail federal government intervention akin to that which took place in the 1960s. in 1968, congress created the national flood insurance program (nfip) with the goal of addressing the lack of flood insurance availability in vulnerable areas.46 this issue arose following the 1927 mississippi flood, an event that resulted in major insurance companies withdrawing coverage from areas “exposed to frequent and correlated flood risk.”46 not long after its creation, the nfip became “the nation’s primary, and effectively only, provider of residential flood insurance.”46 although the nfip fills the coverage void for homeowners in flood-prone areas, it has various flaws. first, critics cite the nfip’s role in creating moral hazard.46 in this case, moral hazard “refers to the risks that someone becomes more inclined to take because they have reason to believe that an insurer will cover the costs of any damages.”46 put differently, the nfip improperly incentivizes “development and growth in flood-exposed areas” by protecting in the event of serious water damage.46 further, critics highlight the nfip’s financial instability, which can be attributed to its pricing structure.46 in particular, nfip’s policies charge substantially lower rates than they should, given their risk exposure.46 its pricing model even depends on periodic infusions of congressional funding to remain operational.46 surely, when these flaws are taken into account, proposals by lawmakers to create an analogous program for homeowners' insurance appear unsuitable.35 an additional solution, one which is controlled by the states, involves updating building codes.27 for example, california has adopted wildfire codes while florida has implemented hurricane wind codes.27 specifically, california’s wildfire codes require new homes constructed within a “state responsibility area” to be built with fire-resistant materials, such as specific roofing, windows, and eaves.23 as for florida, its building codes specify four wind zones 42 (categorized by speed).10 the wind zone surrounding a new home determines how it must be designed.10 while updated building codes reduce the risk of damage, it is important to note that they are only effective when it comes to new construction. indeed, if society would like to put an end to the homeowners' insurance crisis, new construction in high-risk areas is not the answer. the final solution to address is catastrophe bonds, a market that has grown to a record $50 billion (as of december 2024).45 a catastrophe bond, or cat bond, is defined as a “high-yield debt instrument designed to raise money for insurance companies in the event of a natural disaster.”30 ultimately, cat bonds allow insurers to share the risk of catastrophic weather events, such as earthquakes, hurricanes, and floods, with investors.30 if a disaster occurs, insurance companies tap into the collateral to help pay out their claims.30 on the flip side, investors suffer heavy losses.45 if a disaster does not occur, however, investors can earn double-digit returns.45 it is this possibility, combined with the portfolio diversification benefits, that attracts investors to catastrophe bonds.30 it should be noted that these bonds do not come without risks, most of which fall upon investors. for example, if a predefined disaster occurs before a catastrophe bond matures, investors can lose their principal, and coupon payments could be reduced or ceased.30,59 given the increasing frequency of climate shocks (as discussed previously), as well as the growing market for catastrophe bonds, this result is likely to become increasingly common, causing investor losses to multiply. conclusion & recommendations in light of this information, it is imperative to propose recommendations on how society should move forward. education 43 one of the first steps in addressing this issue is to educate homeowners on climate-related risks associated with their dwellings.15 this education can be provided by insurance companies and/or state regulators, and may include scientific data that outlines the growing dangers posed by past and future disasters. it may also include ways to mitigate or eliminate a home’s vulnerabilities.15 in terms of gathering education material, state regulators and insurance companies can leverage artificial intelligence. for example, chubb climate+, a business unit within chubb insurance that supports companies contributing to the transition to a low-carbon economy, “uses artificial intelligence and advanced data analytics to identify vulnerable households and the likely damage.”13,15 certainly, conveying this information to both current and prospective homeowners can encourage them to act – or, in some cases, consider relocating. an additional benefit of education is the demand for it. according to a 2024 deloitte survey of homeowners in u.s. states at high risk of climate-related disasters, 84% of respondents said they want insurance companies to educate them on weather-related risks.15 indeed, this shows that homeowners are receptive to education and unlikely to ignore warnings. alternatively, there are downsides to education. for instance, education does not address the root cause of this issue, that is, the frequency and intensity of billion-dollar weather and climate disasters. it has the potential, however, to better prepare homeowners for such disasters and influence their settlement decisions (as noted above). renewable energy the second, more long-term oriented recommendation is to encourage investments in renewable energy, such as solar, wind, geothermal, and hydropower, and ‘nudge’ society toward reducing its use of fossil fuels.60,64 this is because fossil fuels, such as coal, oil, and natural gas, 44 contribute to greenhouse gas emissions.9 research has shown that these emissions have “increased the frequency and intensity of extreme weather events.”20 the strengths of this recommendation are threefold. first, according to a recent report from the international renewable energy agency, 81% of renewables offer cheaper energy than fossil fuels, meaning companies have the potential to experience significant cost savings 43 regarding homeowners, they too can save money. for example, the residential clean energy credit offers to reimburse 30% of the costs associated with clean energy improvements to new or existing homes, such as solar panels and solar water heaters.56 second, investments in renewable energy are coming off a blockbuster year. for example, “wind and solar generation [reached] a record 17% of u.s. electricity generation” in 2024 and surpassed coal generation for the first time in history.2 more recently, march 2025 marked an unprecedented month, as “fossil fuels supplied less than half the united states’ electricity generation.”54 without a doubt, this suggests that there are numerous investment opportunities involving renewable energy. as a result, companies and individuals do not have to spend time searching for options and risk investing money in an industry that is not yet established. third, and possibly the most important, is that investing in renewable energy targets the root cause of this issue (the frequency and intensity of weather and climate disasters) and looks to prevent it from growing even further. this recommendation, as with most, also has some weaknesses. first, the current administration has endorsed the use of fossil fuels and indicated a desire to step back from renewable energy.6 for example, in january of 2025, an executive order was issued calling for a temporary withdrawal of new wind projects in federal territory.61 also in january of 2025, funding for the 2022 inflation reduction act (the ira) was frozen.2 one of the ira’s goals is to “accelerate the deployment of clean energy” using tax incentives, among other things.33 these 45 tax incentives, which have since been paused, apply to the production and purchase of domestic clean energy technology.2 in addition, the newly proposed – but recently delayed – tariffs could pose a headwind for the industry.2 this is because “the united states has become increasingly reliant on imported components for key clean energy technologies like solar panels, wind turbines, and batteries.”2 as a result, the deployment of renewable energy could become significantly more expensive.2 all that said, there are still signs that this recommendation has merit. these orders are temporary. this means that as time passes, the administration’s investigation into such matters, which is likely to include discussions with industry experts, may cause them to recognize the effects of certain actions. consequently, they may alter their course. finally, the current political environment can overshadow the optimism that remains for the future. as hortense bioy, global head of sustainability research at morningstar, put it, “despite the short-term uncertainty in the us, the long-term drivers for clean energy remain intact and the outlook for the sector remains positive. history has shown that the energy transition will continue regardless of [the administration].”4 to conclude, climate shocks have made a lasting mark on the homeowners' insurance industry. from increasing premiums and non-renewal rates to the rising number of non-admitted and insurer of last resort policies, the consequences have been serious. expanding on these consequences reveals their economic and legal implications, both of which suggest a grim outlook for the future of the united states. this outlook, however, can be improved by educating the public on climate-related risks and committing to renewable energy. otherwise, it is only a matter of time before the entirety of america begins to feel the effects. 46 appendix exhibit 1 source: noaa exhibit 2 source: senate budget committee 47 exhibit 3 source: senate budget committee exhibit 4 source: senate budget committee 48 exhibit 5 source: senate budget committee exhibit 6 types of homeowners insurance *acv: actual cash value source: forbes 49 exhibit 7 source: california fair plan exhibit 8 source: bloomberg 50 bibliography 1 “about.” the california fair plan, n.d. http://www.cfpnet.com/about-fair-plan/. 2 abrahams, leslie. “the impacts of tariffs on clean energy technologies.” center for strategic and international studies, april 10, 2025. http://www.csis.org/analysis/impacts-tariffs-clean-energy-technologies. 3 alexander, sophie, and leslie kaufman. “the quiet rise of lightly regulated home insurance.” bloomberg, december 3, 2024. https://www.bloomberg.com/graphics/2024-home-insurance-risky-policy/?srnd=homepag e-europe. 4 baselli, valerio. “can renewable energy stocks prosper during trump’s second term?” morningstar, april 15, 2025. https://www.morningstar.com/sustainable-investing/can-renewable-energy-stocks-prosper -during-trumps-second-term. 5 becketti, sean. rising seas, rising costs: climate change and the economic risks to coastal communities, 118th cong. (2023). https://www.budget.senate.gov/imo/media/doc/dr.%20sean%20becketti%20-%20testim ony%20-%20senate%20budget%20committee.pdf. 6 brady, jeff. “as trump vows to embrace fossil fuels, u.s. climate policy won’t change quickly.” npr, february 1, 2025. http://www.npr.org/2025/02/01/nx-s1-5273496/trump-biden-climate-change-energy-fossil -fuels-paris-agreement. 7 “bridging insurance gaps to prepare homeowners for emerging climate change risks.” deloitte, may 2, 2024. 51 https://www2.deloitte.com/us/en/insights/industry/financial-services/bridging-the-gap-bet ween-homeowners-insurance-companies-climate-change.html. 8 the california fair plan, n.d. http://www.cfpnet.com/. 9 “california new business update.” state farm general insurance company, may 26, 2023. https://newsroom.statefarm.com/state-farm-general-insurance-company-california-new-b usiness-update/. 10 “causes and effects of climate change.” united nations, n.d. http://www.un.org/en/climatechange/science/causes-effects-climate-change. 11 “chapter 16: structural design.” in florida building code, building, 7th ed., 2020. https://codes.iccsafe.org/content/flbc2020p1/chapter-16-structural-design. 12 citizens property insurance corporation, n.d. http://www.citizensfla.com/. 13 “climate change, disaster risk, and homeowners’ insurance.” congressional budget office, n.d. http://www.cbo.gov/publication/60674. 14 “climate progress needs protecting.” chubb, n.d. https://about.chubb.com/citizenship/climate.html. 15 “colorado’s last resort coverage plan.” colorado fair plan, n.d. http://www.coloradofairplan.com/. 16 delaney, bill. “first home owner’s insurance policies are offered.” ebsco, 2023. http://www.ebsco.com/research-starters/history/first-home-owners-insurance-policies-are -offered#:~:text=first%20home%20owner’s%20insurance%20policies%20emerged%2 0as%20a%20significant%20innovation,growth%20during%20the%20postwar%20era. 17 dumas, breck. “california insurance crisis: list of carriers that have fled or reduced coverage in the state.” fox 26 houston, january 13, 2025. 52 http://www.fox26houston.com/news/california-insurance-crisis-list-carriers-have-fled-red uced-coverage-state. 18 “eligibility.” colorado fair plan, n.d. http://www.coloradofairplan.com/eligibility#:~:text=the%20fair%20plan%20provides %20only,(acv)%20of%20the%20property. 19 “executive summary: property prices in peril.” first street, february 3, 2025. https://firststreet.org/research-library/property-prices-in-peril. 20 “extreme weather and climate change.” nasa, n.d. https://science.nasa.gov/climate-change/extreme-weather/. 21 fellowes-granda, lilith. “managing the climate change-fueled property insurance crisis.” center for american progress, april 2, 2025. http://www.americanprogress.org/article/managing-the-climate-change-fueled-property-i nsurance-crisis/#:~:text=climate%20change%20is%20upending%20historical,increase% 20over%20the%20prior%20year. 22 “financial stability ratings definitions.” demotech, n.d. http://www.demotech.com/financial-stability-ratings/definitions/. 23 “fire safety laws.” california department of forestry & fire protection, n.d. https://readyforwildfire.org/fire-safety-laws/. 24 flavelle, christopher, and mira rojanasakul. “as insurers around the u.s. bleed cash from climate shocks, homeowners lose.” the new york times, may 13, 2024. http://www.nytimes.com/interactive/2024/05/13/climate/insurance-homes-climate-change -weather.html. 53 25 flavelle, christopher, and mira rojanasakul. “insurers are deserting homeowners as climate shocks worsen.” the new york times, december 18, 2024. www.nytimes.com/interactive/2024/12/18/climate/insurance-non-renewal-climate-crisis.h tml. 26 flavelle, christopher, et al. “climate shocks are making parts of america uninsurable. it just got worse.” the new york times, may 31, 2023. www.nytimes.com/2023/05/31/climate/climate-change-insurance-wildfires-california.htm l. 27 fowlie, meredith, et al. “how is climate change impacting home insurance markets?” brookings, january 14, 2025. www.brookings.edu/articles/how-is-climate-change-impacting-home-insurance-markets/. 28 goard, alyssa. “state farm’s ca rate increase gets provisional approval, pending public hearing.” nbc bay area, march 14, 2025. www.nbcbayarea.com/news/california/state-farms-rate-increase-gets-provisional-approva l/3819660/. 29 “governor newsom supports insurance reform proposal.” governor of california, june 12, 2024. www.gov.ca.gov/2024/06/12/governor-newsom-supports-insurance-reform-proposal/. 30 hayes, adam. “catastrophe bond (cat) meaning, benefits, risk, example.” investopedia, n.d. www.investopedia.com/terms/c/catastrophebond.asp. 31 “homeowners insurance.” library of congress, n.d. guides.loc.gov/this-month-in-business-history/september/homeowners-insurance#note3. 54 32 horton, matt, et al. “impact of 2025 los angeles wildfires and comparative study.” los angeles county economic development corporation, february 2025. laedc.org/wpcms/wp-content/uploads/2025/02/laedc-2025-la-wildfires-study.pdf. 33 “inflation reduction act of 2022 .” international energy agency, n.d. www.iea.org/policies/16156-inflation-reduction-act-of-2022. 34 kagan, julia. “property tax: definition, what it’s used for, and how it’s calculated.” investopedia, n.d. www.investopedia.com/terms/p/propertytax.asp. 35 kaufman, leslie, et al. “a hidden crisis in us housing.” bloomberg, march 5, 2024. www.bloomberg.com/features/2024-home-insurance-real-estate-crisis/?sref=frzxrt1o. 36 “key statistics & data.” the california fair plan, n.d. www.cfpnet.com/key-statistics-data/. 37 kim, gina. “massive calif. fire assessment pass-through sparks suit.” law360, april 15, 2025. www.law360.com/articles/2325774/massive-calif-fire-assessment-pass-through-sparks-su it. 38 koller, steve. “the insurance crisis continues to weigh on homeowners.” joint center for housing studies of harvard university, december 9, 2024. www.jchs.harvard.edu/blog/insurance-crisis-continues-weigh-homeowners. 39 konnath, hailey. “calif.’s insurance safety net gets $1b infusion for fire claims.” law360, february 11, 2025. www.law360.com/articles/2296858/calif-s-insurance-safety-net-gets-1b-infusion-for-fireclaims. 40 lara, ricardo. “order no. 2025-1: approving the california fair plan association’s request to issue assessment.” california department of insurance, february 11, 2025. 55 www.insurance.ca.gov/0250-insurers/0500-legal-info/0700-commissioners-orders/upload /order-no-2025-1-approving-the-california-fair-plan-association-s-request-to-issueassessment.pdf. 41 lehmann, r.j., and ian adams. “the questionable value of california’s rate intervenors.” international center for law & economics, july 19, 2024. laweconcenter.org/resources/the-questionable-value-of-californias-rate-intervenors/. 42 masterson, les. “8 types of homeowners insurance policies.” forbes, october 9, 2023. www.forbes.com/advisor/homeowners-insurance/policy-types/. 43 mcmahon, jeff. “81% of renewables offer cheaper energy than fossil fuels, report says.” forbes, september 26, 2024. www.forbes.com/sites/jeffmcmahon/2024/09/26/81-of-new-renewables-produce-cheaperenergy-than-fossil-fuels/. 44 mellino, ryan. “consumer watchdog sues to stop hundreds of millions of dollars in unjustified surcharges from being imposed on california homeowners.” consumer watchdog, april 15, 2025. consumerwatchdog.org/in-the-courtroom/consumer-watchdog-sues-to-stop-hundreds-ofmillions-of-dollars-in-unjustified-surcharges-from-being-imposed-on-california-homeow ners/. 45 naik, guatam. “cat-bond issuance pushes overall market to almost $50 billion.” bloomberg, december 23, 2024. www.bloomberg.com/news/articles/2024-12-23/cat-bond-issuance-pushes-overall-market -to-almost-50-billion. 56 46 nevitt, mark, and michael pappas. “climate risk, insurance retreat, and state response.” georgia law review 58, no. 4 (2024): 1603-1661. https://digitalcommons.law.uga.edu/glr/vol58/iss4/4. 47 nguyen, tran. “california’s insurer for people without private coverage needs $1 billion more for la fires claims.” associated press, february 11, 2025. apnews.com/article/california-wildfires-insurance-fair-plan-dfb7cda506560ec50edee8ad7 2cbcda8. 48 palm, iman. “allstate approved for 34.1% rate hike in california, affecting over 350,000 policyholders.” ktla news, august 29, 2024. ktla.com/news/california/allstate-approved-for-34-1-rate-hike-in-california-affecting-over -350000-policyholders/. 49 patti, hope. “calif. homeowners say insurers colluded to limit coverage.” law360, april 21, 2025. www.law360.com/insurance/articles/2328104?nl_pk=5ee8aa6d-148a-4672-b4d2-03006a 9cb840&utm_source=newsletter&utm_medium=email&utm_campaign=insurance&utm_ content=2025-04-22&read_main=1&nlsidx=0&nlaidx=2. 50 phillips, noelle. “colorado launches new ‘last resort’ homeowners insurance policy.” the denver post, april 10, 2025. www.denverpost.com/2025/04/10/colorado-fair-plan-homeowners-insurance/. 51 “prop 103 consumer intervenor process.” california department of insurance, n.d. www.insurance.ca.gov/01-consumers/150-other-prog/01-intervenor/. 52 rafferty, john p. “hurricane helene.” encyclopedia britannica, march 19, 2025. www.britannica.com/event/hurricane-helene. 57 53 ramos, john. “california officials seem receptive to state farm insurance’s emergency rate hike request at oakland hearing.” cbs news, april 8, 2025. www.cbsnews.com/sanfrancisco/news/california-insurance-officials-receptive-state-farmemergency-rate-hike/. 54 rapier, robert. “u.s. power sector milestone: fossil fuels drop below 50%.” forbes, april 29, 2025. www.forbes.com/sites/rrapier/2025/04/29/us-power-sector-milestone-fossil-fuels-drop-be low-50/. 55 ratley, justin, and jon burnovski. “how calif.’s wildfire insurance crisis might affect texas.” law360, march 20, 2025. www.law360.com/california/articles/2313111/how-calif-s-wildfire-insurance-crisis-might -affect-texas. 56 “residential clean energy credit.” internal revenue service, n.d. www.irs.gov/credits-deductions/residential-clean-energy-credit. 57 riquier, andrea. “climate change is worsening the insurance crisis. some states have solutions.” usa today, january 27, 2025. www.usatoday.com/story/money/personalfinance/real-estate/2025/01/27/homeowners-ins urance-crisis-states/77775382007/. 58 smith, adam b. “2024: an active year of u.s. billion-dollar weather and climate disasters.” noaa, january 10, 2025. www.climate.gov/news-features/blogs/beyond-data/2024-active-year-us-billion-dollar-we ather-and-climate-disasters. 58 59 swedroe, larry. “catastrophe bonds as portfolio diversifiers: pros and cons.” morningstar, june 12, 2024. www.morningstar.com/bonds/catastrophe-bonds-strategic-diversifier. 60 thaler, richard, and cass sunstein. introduction to nudge: improving decisions about health, wealth, and happiness, 1-13. connecticut: yale university press, 2008. 61 trump, donald j. temporary withdrawal of all areas on the outer continental shelf from offshore wind leasing and review of the federal government’s leasing and permitting practices for wind projects. washington, d.c.: the white house, january 20, 2025. www.whitehouse.gov/presidential-actions/2025/01/temporary-withdrawal-of-all-areas-on -the-outer-continental-shelf-from-offshore-wind-leasing-and-review-of-the-federal-gover nments-leasing-and-permitting-practices-for-wind-projects/. 62 “update on california.” state farm general insurance company, march 14, 2025. newsroom.statefarm.com/state-farm-general-insurance-company-update-on-california-22025/. 63 u.s. senate committee on the budget. next to fall: the climate-driven insurance crisis is here – and getting worse. washington, d.c.: u.s. government publishing office, december 18, 2024. https://www.budget.senate.gov/hearings/next-to-fall-the-climate-driven-insurance-crisis-i s-here_and-getting-worse. 64 “what is renewable energy?” united nations, n.d. www.un.org/en/climatechange/what-is-renewable-energy. 59 1_kandel.docx bellarmine law society review volume xv | issue ii article i equal access or algorithmic barriers?: ai and the fight for disability-inclusive hiring valerie kandel cornell university, vmk29@cornell.edu equal access or algorithmic barriers?: ai and the fight for disability-inclusive hiring valerie kandel1 abstract: this paper examines how artificial intelligence (ai) hiring tools, while marketed as objective and free of bias, perpetuate structural discrimination against individuals with disabilities. by tracing the historical legacy of ableism in employment, from early personality testing to modern algorithmic screening, the paper situates ai-driven recruitment and selection within a broader pattern of exclusion. it argues that biases embedded in ai design, misrepresentative training data, and inaccessible application processes reproduce barriers that the rehabilitation act and americans with disabilities act sought to eliminate. through the case of mobley v. workday, the paper highlights the legal and ethical challenges of algorithmic discrimination, including diminished transparency, accountability, and informed consent. ultimately, it proposes a four-part framework for disability-inclusive ai governance: increasing diversity in ai development and training, mandating auditing and impact assessments, enforcing privacy and consent protections, and requiring human oversight in employment decisions. the paper concludes that equitable ai hiring demands proactive policy intervention and renewed enforcement of disability rights principles to ensure true inclusion in the digital labor market. i. introduction when applying for a job, most individuals are already nervous about being judged by a hiring manager. but for an individual with a disability, this feeling may be heightened by fears of discrimination in the hiring process. biases, stereotypes, and accessibility challenges that exist in traditional hiring processes can cause many barriers for otherwise qualified individuals. when one introduces artificial intelligence (ai) hiring technology into the mix, another layer of 1 valerie kandel is a junior at cornell university’s school of industrial and labor relations, pursuing a bachelor of science with intended minors in business, law and society, and information ethics, law, and policy. she serves as an undergraduate research fellow under professor virginia doellgast, studying the impacts of artificial intelligence on labor in the telecommunications and video game sectors. valerie’s academic and professional interests focus on employment and disability law, as well as the governance of emerging technologies in the workplace. she plans to attend law school to further explore the intersection of law and policy with labor, technology, and workers’ rights. 6 uncertainty and the possibility of exclusion are added. ai software vendors market these tools as a solution to eliminate human biases and move towards equal treatment, but this may not be the case in practice. take the example of a model individual, who has been diagnosed with an anxiety disorder, depression, or any other mental-health related disability. just like anyone else looking for a job, they check popular listing websites such as linkedin, indeed, or ziprecruiter until they finally find a position that seems interesting, pays well, and matches their qualifications. the individual applies, submitting all the necessary materials, and then has to go through a sequence of hiring processes, such as a video interview, where they are scored on their answers. the “key attributes for the role, such as collaborative teamwork skills, patience in customer service, and past managerial experience” are all evaluated, not by a hiring manager, but instead by an ai algorithm.2 these tools are supposed to analyze data from application materials, including any videos or other personality assessments that candidates are invited or sometimes required to take. based on their use of key words, phrases, or microexpressions in the written or video materials, candidates are given a score that is then used by the hiring manager or even another ai tool to select who will ultimately get the job.3 for a person with a disability, however, the experience and outcomes during the hiring process may be different. for instance, in a video interview, they might struggle to make eye contact or answer all the questions within a time limit because this creates a stressful situation or they could not focus due to an attention deficit disorder.4 or, some video interviews or personality tests may ask about how optimistic the candidate is, which candidates with 4 ibid.,144. 3 ibid., 144. 2 moss, haley. “screened out onscreen: disability discrimination, hiring bias, and artificial intelligence.” disability law journal 4, no. 1 (january 1, 2023). https://research.ebsco.com/linkprocessor/plink?id=306c7863-ba12-35f2-8d89-4d221120d4bd. 7 depression may struggle with. the ai may then pick up on any microexpressions that display fear or a lack of confidence or comfort. then, when it comes to deciding which candidates should be invited back for the next round of interviews, or ultimately be selected for the position, this individual may not be chosen. disparate outcomes like this are unfortunately becoming all too common for individuals with disabilities, especially as ai becomes more ingrained within every step of the recruitment and selection processes. this was the case for derek mobley, an african american male over the age of forty with diagnosed anxiety and depression. mobley had been looking for a job and continuously faced rejections, despite being qualified for the jobs he applied for. mobley began to realize that he and likely many other candidates had been discriminated against based on factors such as race, age, and having a disability by workday’s ai-powered applicant screening tools that many firms use for recruitment. mobley’s legal team argued that an ai hiring tool must have been used in his application process because he received rejections outside of business hours and decisions were made a very short time after he applied. for instance, “the opinion notes one allegation that ‘mobley received a rejection at 1:50 a.m., less than one hour after he had submitted his application.’”5 mobley’s legal case focused on the level of human involvement compared to ai algorithms throughout these processes. his situation raised awareness about the very real and undiscussed issues with implementing ai systems in the hiring process without understanding the breadth of problems it may introduce, including the consequences of limited human oversight. mobley’s case, which became a large-scale class action lawsuit, has the potential to 5 see, rachel v., and annette tyman. “mobley v. workday: court holds artificial intelligence service providers could be directly liable for employment discrimination under ‘agent’ theory.” employee relations law journal 50, no. 3 (december 1, 2024): 41–43. https://research.ebsco.com/linkprocessor/plink?id=6563a2aa-dcea-3ef6-8a0a-5d7c4e01570e. 8 disrupt a rapidly growing industry that has been creating disparate outcomes for minority candidates, while asserting that this is a fair and unbiased method. as of now, existing employment laws and other regulations fall short of effectively protecting marginalized groups, especially the disabled community, from the effects of discriminatory hiring practices when ai technologies are used in the hiring process.6 this has continued due to a lack of research, political discourse, and legal cases being filed against companies using ai. since many individuals face negative outcomes related to ai, often unknowingly, there needs to be a deeper analysis and understanding of this topic. while many ai vendors and employers claim that these technologies allow for unbiased and objective sourcing, assessment, and selection of candidates, i will argue that the current uses of these tools disparately impact candidates with disabilities in hiring practices and employment outcomes. in my paper, i consider the current landscape of hiring discrimination, beginning with barriers that the disability community has faced historically, which led to the initial creation of laws aimed to protect their employment rights. afterwards, i will critically evaluate the state of these existing laws through their gaps or failures to adequately address the needs of this community. from there, i transition to a discussion about how these existing conditions and laws fit into the new context created by ai-based hiring tools. i will examine the emergence of ai use in hiring, starting with factors that contributed to the popularity of ai for hiring purposes, and then provide a broad overview of how these technologies work, focusing on their learning or training processes. before transitioning to how discrimination can occur through these tools, i will briefly address how companies have been implementing these ai technologies into their 6 marshall, romaine c., et al., “artificial intelligence and employment law.” employee relations law journal 50, no. 1 (june 1, 2024): 27–33. https://research.ebsco.com/linkprocessor/plink?id=37dcfcf4-a3e5-38ca-a0b5-63f14a317c7e. 9 hiring practices. in addressing the potential for disability discrimination, i focus on algorithmic biases that emerge from the embedded values within ai development, the effects of misrepresentative or biased data introduced during the learning process, and specific accessibility issues that may arise when these tools are used. at the end of this section, i will introduce the argument of how companies’ choices made when implementing ai hiring tools also have an impact on hiring outcomes. subsequently, i will discuss the relevant ethical considerations behind these disparate outcomes, including a loss of privacy and a lack of informed consent leading to a power imbalance, a lack of transparency and accountability, a lack of sufficient human oversight, and a general lack of inclusivity and diversity in employment outcomes. by analyzing legal, technical, social and policy-related factors, this paper will ultimately advocate for a set of potential solutions that can be a part of a disability inclusivity framework in ai-powered hiring practices. to move toward equality in hiring practices outcomes, i will first review the recent policy initiatives to fill legal gaps, as well as guidelines by the equal employment opportunity commission (eeoc), to see how these materials set the stage for my proposed guidance or framework to address any more specific gaps. afterwards, i intend to outline my proposed solution framework, which has been created with the previously evaluated ethical considerations in mind. this framework will focus on inclusivity and ethical application of ai technologies in hiring processes, but specifically emphasize participation and more accountability by the government, companies and ai vendors. my guidelines will prioritize and reflect the values of accessibility, transparency, and accountability for companies utilizing these technologies. furthermore, through my chosen approach, i will promote more expansive and enforceable reforms, including mandated auditing and ai impact assessments and the requirement of human 10 involvement in hiring practices, to reinforce equity and inclusion. by addressing these critical gaps and proposing more actionable reforms, my framework aims to create a more equitable hiring landscape that upholds the rights of all members of the disability community. ii. historical barriers to hiring for individuals with disabilities this section will involve a review of the barriers that individuals with disabilities have faced in the hiring process. first, i will provide a brief overview of the legacy of selection assessments such as personality tests that have historically discriminated against members of the disability community. though i will specify that ableist notions have existed for centuries, the majority of this analysis will focus on key legislation that aimed to prevent hiring discrimination for individuals with disabilities. sections of the rehabilitation act, americans with disabilities act, and its added amendments will be situated into the proper historical context. then, i will briefly review the strengths and limitations of this existing legislation in how they protect the rights of disabled individuals. after considering all of these relevant barriers and legislative attempts to rectify them, i will transition to a discussion about how these historical issues associated with traditional hiring methods have persistent legacies in modern ai-powered hiring methods. historically, individuals with disabilities have faced a legacy of negative stigma from “biased assumptions, harmful stereotypes and irrational fears,” causing the disability community to experience pervasive “social and economic marginalization.”7 these perceptions, which have unfortunately existed for centuries, not only questioned disabled individuals’ ability to care for 7 anti-defamation league. “a brief history of the disability rights movement.” adl, november 22, 2024. https://www.adl.org/resources/backgrounder/brief-history-disability-rights-movement#:~:text=in%20the%201800s %2c%20people%20with,entertainment%20in%20circuses%20and%20exhibitions. 11 themselves, but on a larger scale, to contribute to society.8 employment discrimination can be traced back to the industrial turn of the 19th century, when individuals with disabilities were either not permitted to work due to biases, fears, and stereotypes, instead being institutionalized for most of their lives, or being forced to “serve as ridiculed objects of entertainment in circuses and exhibitions.”9 while this overview of the profound struggles and exclusion faced by generations of people with disabilities is brief, it allows us to consider how individuals with disabilities, who are otherwise perfectly qualified to work, were historically marginalized in employment sectors and how the legacies of this have persisted within the 21st century. for the most part, disparate treatment persisted unaddressed until the 1960s when the civil rights movement began. this movement brought more awareness to the fact that minority groups, including people with disabilities, faced unfair challenges and treatment in employment due their membership in a protected class. a major contributing factor for unequal outcomes for minority job candidates was due to the fact that “in the 1960s, virtually all hiring procedures were designed with white middle-class men in mind and policymakers and testing experts recognized that new instruments needed to be created to facilitate equal access.”10 these new hiring methods emerged in the form of personality assessments, which were part of a lucrative industry that benefited employers. these tests were portrayed as a scientific hiring method, despite lacking empirical support, and instead were accompanied by a number of ethical concerns that eventually caught the attention of lawmakers.11 the first employment protections for marginalized groups were in the civil rights act (cra) of 1964, specifically title vii, which prohibited employers “from engaging in two forms 11 ibid., 847. 10 kassir, sara, lewis baker, jackson dolphin, and frida polli. “ai for hiring in context: a perspective on overcoming the unique challenges of employment research to mitigate disparate impact.” ai and ethics 3 (2023): 845–68. https://doi.org/10.1007/s43681-022-00208-x. 9 ibid. 8 ibid. 12 of discrimination: disparate treatment (e.g., intentional exclusion of a person because of their identity) and disparate impact (e.g., unintentional disadvantage of a protected class via a facially neutral procedure).”12 this act was the first of its kind to address discriminatory personality tests and disparate hiring outcomes in general, but unfortunately, its protections did not expand to cover individuals with disabilities. continued anger with disparities in hiring was a major motivating factor for disability rights activists, who fought in the years following the cra’s passage to create legislation that would protect the disability community. the rehabilitation act of 1973 was the first legislation of its kind specifically aimed at protecting the rights of individuals with disabilities to help better integrate them into the workforce. section 504 of the act “prohibits discrimination against individuals with disabilities in any program or activity receiving federal financial assistance.”13 while this legislation was revolutionary for its time and did have some positive effects, for the most part it fell short in regards to compliance and positively integrating individuals with disabilities. this legacy of hiring discrimination did not lessen into the 1990s, as many companies still made decisions based on the negative perceptions of hiring managers.14 employers exhibited much “discomfort” towards job candidates with disabilities, expressing concern that hiring these individuals would lead to increased costs in accommodations.15 despite disability rights activism and section 504, persistent ableism within society continued to create barriers to employment for individuals with disabilities, highlighting the need for further legislation to protect the rights of the disability community. this more comprehensive law came in the form of the americans with disabilities act 15 ibid., 110. 14 mcfarlin, dean, james song, and michelle sonntag. “integrating the disabled into the work force: a survey of fortune 500 company attitudes and practices.” employee responsibilities & rights journal 4 (june 1991): 107–23. https://doi.org/10.1007/bf01390353. 13 moss, “screened out onscreen,” 167. 12 ibid., 845. 13 (ada) of 1990, which “made discrimination in hiring, terminations, promotions, and wages based on disability illegal [and] also required employers to provide reasonable accommodations.”16 the ada prohibits an employer from using any selection criteria that unfairly discriminates against or screens out disabled candidates, “unless the criteria is ‘job-related’ and ‘consistent with business necessity.’”17 additionally, sections of the ada have made illegal standardized tests or personality assessments that discriminate against individuals with disabilities.18 after the ada was passed, courts narrowed the intention of the act by focusing more on individuals who could be covered by the law’s language, rather than more important protections from discrimination. the ada amendments act of 2008 (adaaa) overruled these cases and instead “expanded the definition of disability under the ada.”19 the adaaa made the disability definition requirement less strict and offered coverage to other impairments as they were experienced without “mitigating measures.”20 yet, despite all this progress, research still shows that gaps persist in protections for individuals with disabilities in the workplace and in hiring. while all of these laws had positive intentions to bolster hiring and employment outcomes for individuals with disabilities, unfortunately enforcement and implementation is still inconsistent due to the presence of stigma. employers still express concern over “the added cost of reasonable accommodations which imposes additional hiring costs,” which is not a challenge faced by any other minority group in this sector.21 despite the many years these laws have existed, hiring discrimination has persisted, as evidenced by the u.s. unemployment rate, which 21 ibid., 263. 20 ibid., 262. 19 armour et al., “disability saliency,” 262. 18 ibid., 190. 17 moss, “screened out onscreen,” 189. 16 armour, philip, patrick button, and simon hollands. “disability saliency and discrimination in hiring.” aea papers and proceedings 108 (2018): 262–66. 14 remains at 7.2% for individuals with disabilities, and is double the 3.5% rate for those without a disability.22 statistics like this show evidence of a discrepancy in employment outcomes persisting even in the modern era. a major contributing factor in this inequality can be found due to gaps in the protections of disability discrimination legislation, which largely involve self-evaluation and voluntary compliance and therefore are difficult to critically evaluate.23 this also has repercussions for the modern employment landscape with its own unique challenges. as ai-powered recruitment and selection tools become more prevalent in hiring practices, the existing perspectives and tools remaining from the past hiring landscape must be considered and questioned in how they apply to modern practices. traditional hiring methods were largely based on problematic hiring practices and personality tests that originally created unfair circumstances for minority candidates. now, these traditional tools have been built into modern ai hiring systems, which use subjective measures while referring to them as objective. as these tools become increasingly popular, however, research shows they tend “to have an outsized discriminatory effect on job seekers with all types of physical and mental disabilities.”24 such evidence demonstrates that while the technology may seem facially neutral, it encompasses the historically problematic validity and disparate impact concerns that the aforementioned laws were intended to protect against.25 there are currently few mechanisms for applying existing laws, which already have their own set of gaps and issues, to the emerging problems within ai-powered technologies. once again, voluntary compliance seems to be the only enforcement measure in place. this is 25 kassir et al., “ai for hiring in context,” 848. 24 brown, lydia x. z. “hiring discrimination by algorithm: a new frontier for civil rights and labor law.” human rights 49, no. 1/2 (october 1, 2023): 16–18. https://research.ebsco.com/linkprocessor/plink?id=9f496cb2-c514-3553-9499-8faf2d73e14c. 23 kassir et al., “ai for hiring in context.” 22 bureau of labor statistics, u.s. department of labor. “persons with a disability: labor force characteristics 2023,” news release, (2024). 15 especially concerning when we consider that most employers “had never tried to articulate their job performance goals in a systematic fashion, to develop selection devices carefully targeted to serve those goals, or to measure the success of such devices by validity studies.”26 therefore, not only is an analysis of the existing legal protections for job candidates with disabilities necessary, but so is a critical review of these new ai hiring tools to see how policymakers can tackle new barriers that current laws fall short of addressing. iii. emergence of ai use in hiring this section will offer some background information into the ai-related nature of this topic, beginning with a discussion of the contributing factors that have led to ai adoption in recruitment and selection practices by top firms. additionally, i will also briefly introduce the ai neutrality argument, before explaining, in broad terms, how ai hiring tools function, including their learning and training processes. this background emphasizes how even data-driven ai systems are rooted in human decision-making processes, spelling issues with presumed neutrality from these tools. lastly, i will explore the different ways that ai is utilized by hiring managers, before addressing how disparate outcomes can occur along each step of the hiring process. iiia. contributing factors of ai adoption for hiring research from industry research leaders, such as the society for human resource management, shows that “about 79 percent of employers were using some kind of automated tool in their hiring process as of february 2022—and that was before generative artificial intelligence (ai) tools like chatgpt were in the headlines.”27 there are many reasons why ai use has skyrocketed in recent years, but especially for recruitment purposes. ai tools have 27 brown, “hiring discrimination by algorithm.” 26 ibid., 848. 16 benefits for improving efficiency in time-to-hire and filling empty positions rapidly, which reduces costs.28 these tools have also allowed recruiters to act more strategically and focus on “big picture items,” such as “building valuable relationships,” while ai systems focus on more menial, time-consuming tasks.29 furthermore, ai can be implemented in all stages of the hiring process, which allows for more flexibility, personalization, and overall coordination. there are also many competitive advantages of ai, which allows hiring managers to have a larger applicant pool and use autonomous systems that can identify the most qualified candidates most efficiently.30 for top firms that want to stand out by bringing in top talent, this is a major motivating factor. employers and ai vendors also cite another argument in favor of using ai hiring systems. they claim that “automated hiring tools increase equity by neutralizing the human factor in biased, discriminatory treatment.”31 essentially, they argue that decreasing human involvement in decision-making also limits human biases. however, it is important to consider that “many vendors rely on poorly defined concepts of bias that obscure how ai can reflect and even exacerbate bias.”32 while many employers and “vendors contend that their tests are predictively valid and in line with business necessity, little independent evidence supports these claims,” causing ai and employment researchers to call these systems into question.33 reviewing the ai creation and learning processes is instrumental in understanding the concerns with this neutrality theory and seeing if they actually have merit. if so, firms may be implementing a 33 ibid., 20. 32 tilmes, nicholas. “disability, fairness, and algorithmic bias in ai recruitment.” ethics and information technology 24, no. 2 (n.d.). https://doi.org/10.1007/s10676-022-09633. 31brown, “hiring discrimination by algorithm.” 30 cruz, ignacio fernandez. “how process experts enable and constrain fairness in ai-driven hiring.” international journal of communication (online) 18 (january 1, 2024): 656. https://research.ebsco.com/linkprocessor/plink?id=e514767f-4700-3f15-9a31-7d7a9f9fbb61. 29 ibid. 28 beaumont-oates, william. “ai recruitment and how it works.” thomas.co, 2024. https://www.thomas.co/resources/type/hr-blog/ai-recruitment-and-how-it-works. 17 biased technology that discriminates against marginalized individuals, like those with disabilities, in violation of existing laws. iiib. how ai hiring tools work early ai development began in the 1950s with “problem solving and symbolic” intentions and in the 1960s, expanded to creating autonomous systems that could “mimic basic human reasoning.”34 these early models developed into the advanced algorithms we see in ai today, which work by “[automating] repetitive learning and discovery through data.”35 modern ai tools have been created to perform “frequent, high-volume, computerized tasks,” without human oversight.36 as many different types of ai systems have evolved over recent years, their capabilities in data processing and pattern recognition have proven themselves limitless in their application to almost any task. this functionality is made possible by its learning and training process. developers teach these ai technologies by introducing essentially infinite amounts of data to their early systems. the ai gains knowledge “by combining large amounts of data with fast, iterative processing and intelligent algorithms,” and “learn[s] automatically from patterns or features in the data.”37 this is a simplified explanation of how ai tools function, but it is necessary to understand that ai systems are never truly able to create or process information or make judgments on their own. even newer generative ai tools simply transform existing data created by humans into new forms by using existing components. other functionalities of ai systems that may seem self-sustaining are still built on existing data and human decision-making processes that have been codified. for instance, 37 ibid. 36 ibid. 35 ibid. 34 sas institute. “artificial intelligence: what it is and why it matters.” sas institute. accessed november 16, 2024. https://www.sas.com/en_us/insights/analytics/what-is-artificial-intelligence.html. 18 “natural language processing (nlp) is the ability of computers to analyze, understand and generate human language, including speech.”38 while developers may be building human qualities into the code of ai systems, their ability to make decisions or analyze data is still based on how data shows a human would act. furthermore, all current ai abilities, such as computer vision, still rely on “pattern recognition and deep learning to recognize what’s in a picture or video.”39 due to its ability to rapidly mirror human behavior in various tasks, implementation of these technologies has been increasingly widespread. not only can their impacts be found within many different industries and companies, but also in various parts of their employment practices. iiic. use of ai in recruitment and selection processes with the endless possibilities for ai, companies have found many ways to integrate ai technology into their hiring practices to cut costs and increase productivity. these technologies range from those developed in-house by companies for their own personal use to those by third party companies or vendors that create hiring platforms for employers. hiring managers have been incorporating various ai systems into every stage of recruitment and selection, using these tools to assist them with initial candidate identification, as well as “outreach, screening, assessment, and [even] facilitation” throughout the hiring process.40 first, companies may utilize ai to create job descriptions to help them locate the best candidates that could potentially match a role they are looking to fill. ai tools are often used to “identify the pool of active and passive candidates (e.g., via linkedin) or to (re-)discover top talents in the pool of former candidates via their internal automated tracking system.”41 this may also include the “targeted advertisement of open positions” based on patterns they recognize in 41 ibid., 992. 40 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 991. 39 ibid. 38 ibid. 19 individuals on popular job platforms or from past applicants.42 once top candidates are identified, resume reviews are used to thin out the number of potential interviews. ai implementation in this stage may involve scanning documents for key terms and recognizing important qualities which can be used “to score or rank candidates” and “[match] candidates [to] job openings to identify best fit.”43 however, newer ai technologies may “go even further and use ml to make predictions about a candidate’s future job performance based on signals related to tenure or productivity, or the absence of signals related to tardiness or disciplinary action.” 44 next, companies will likely perform screening, for which ai is the perfect tool, since it can “complete laborious and repetitive tasks which also means it is perfect to do things such as background checks which lowers both errors and bias,” at least according to ai vendors.45 ai tools can also be used for social media screenings, which involve “scraping [and] analytics of social media postings for psychological profiles” or anything else that the employer may find problematic.46 once the system identifies and screens the best potential candidates, companies will likely employ a variety of practices to further evaluate them before making final decisions. candidates may be assessed in many ways, such as directly being asked to take personality tests, the results of which the employer will assess.47 there may also be “simulations, games, [or] tests” used to “assess certain skills, capabilities and traits.”48 hiring managers may also perform a “linguistic analysis of writing samples [and] web activity.”49 ai tools may even adapt traditional interviews with more modern methods. not only does ai increase efficiency for communication and facilitation purposes such as “setting up interview times and using chatbots,” 49 ibid., 992. 48 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 992. 47 beaumont-oates, “ai recruitment and how it works.” 46 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 992. 45 beaumont-oates, “ai recruitment and how it works.” 44 ibid.,992. 43 ibid., 992. 42 ibid. 20 it can even help automate interviews.50 hiring managers can use “structured video interviews, [where] ai technology replaces a human interviewer and asks the candidate a short set of predetermined questions.”51 the ai is then used not only to “evaluate the actual responses, but also make use of audio and facial recognition software to analyze additional factors such as the tone of voice, microfacial movements, and emotions to provide insights on certain personality traits and competencies.”52 these and other methods allow employers to build an entire profile of a candidate and see how they would fit as a potential employee within their organization. by using information obtained throughout all of the prior steps of the recruitment process, employers may even use ai tools to help them ultimately select candidates. all of the aforementioned data can “feed into algorithms, and are weighed and statistically [analyzed] to make predictions about job performance.”53 this may involve candidates being scored to see how they compare to “past employees [and] testing for personality traits associated with strong performance” in that specific company.54 companies often use this information to make final decisions about which candidates to hire. even after firms utilize ai to help select their candidates, the involvement of ai technologies does not end there. the tools may be further used to communicate “where applicants stand in the [hiring] process” and explain their next steps as well as in “scheduling of interviews [and] sending of job offers.”55 once candidates are selected, some firms even implement these technologies in employee onboarding, further reinforcing how prevalent ai-powered practices are within every part of the hiring process. 55 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 992. 54 tilmes, “disability, fairness, and algorithmic bias”, 20. 53 kelan, elisabeth. “algorithmic inclusion: shaping the predictive algorithms of artificial intelligence in hiring.” human resources management journal 34, no. 3 (2023): 694–707. https://doi.org/10.1111/1748-8583.12511. 52 ibid., 992. 51 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 992. 50 beaumont-oates, “ai recruitment and how it works.” 21 iv. potential for disability discrimination in ai-driven hiring in this section, i intend to lay out how the algorithms, ai systems, and practices introduced in the prior sections may directly contribute to disparate outcomes for members of the disability community. first, i will begin with algorithmic biases that may inadvertently screen out disabled candidates due to designer biases that are then built or embedded into the programs, either intentionally or unintentionally. next, i will focus on how problematic data may lead to discrimination in the hiring process as well. additionally, i will introduce an under-researched argument against ai hiring practices, which is that these tools create accessibility issues that are not being sufficiently accommodated. i will then address how companies’ choices in how to implement ai may also contribute to disparate effects. lastly, i will transition to a review of the ethical repercussions of this technology and how they situate the necessity for policy initiatives. iva. algorithmic biases against disabled candidates while ai has been intentionally designed to become largely self-sustainable, humans remain a necessary part of their functions and learning processes. therefore, they are still responsible for values that become inherently built into the technologies, as per the embedded values theory. this theory asserts that all technology is “not morally neutral and that it is possible to identify tendencies in them to promote or demote particular moral values and norms.”56 this viewpoint considers that all technological systems contain “built-in consequence[s]” created by human decision-making and thought processes.57 if we connect this viewpoint to ai tools, because they are modeled after and taught from human data, they should be subject to critical ethical analysis. this is even more urgent if we consider that these ai tools, specifically for 57 ibid., 42. 56 brey, philip. “values in technology and disclosive computer ethics.” in the cambridge handbook of information and computer ethics. cambridge: cambridge univ pr, 2010. https://research.ebsco.com/linkprocessor/plink?id=1dfb4e1c-59f9-31aa-8953-ac4f34ca4887. 22 hiring and decision-making, are being labelled as objective and free from “human biases” when this is very far from the truth. in practice, research shows that “ai may equally replicate and amplify such bias and embed it in technology.”58 so, while the neutrality argument examined earlier in this paper sounds ideal in theory, we cannot ignore that “technology—even and especially algorithmic technology—does not exist apart from the social, cultural, and political context in which it is created.”59 moreover, we must realize the very real possibility that “algorithmic technologies are built on and reflect the pre-existing biases and prejudices of the people and companies that create and purchase them.”60 these biases do not just manifest themselves as ai systems automatically discriminating against candidates with certain protected characteristics. instead, this may involve “a disproportionate distribution of prediction errors, a faulty design of the ai architecture,” or other problematic search terms or processes.61 essentially, algorithmic biases exist when developers’ personal stereotypes or biases may have been unintentionally built into the code of ai systems. this result leads to facially neutral decision-making processes having adverse effects on a certain group. there are many striking examples of these types of algorithmic biases within ai used for hiring purposes. for instance, in one automated resume screening tool, “the two characteristics the algorithm most strongly associated with successful job performance were having the first name jared (a name coded as white and male) and having played high school lacrosse (a sport that often connotes access to wealth privilege).”62 this shows how the biased judgements of ai developers rooted in traditional perceptions of a successful candidate may unintentionally screen 62 brown, “hiring discrimination by algorithm.” 61 buyl, maarten, et al. “tackling algorithmic disability discrimination in the hiring process: an ethical, legal and technical analysis.” proceedings of the 2022 acm conference on fairness, accountability, and transparency, june 20, 2022, 1071–82. https://doi.org/10.1145/3531146.3533169. 60 ibid. 59 brown, “hiring discrimination by algorithm.” 58 kelan, “algorithmic inclusion,” 694. 23 out marginalized candidates who do not share these experiences or qualities that are completely irrelevant to the job at hand. furthermore, for individuals with disabilities in particular, these resume review systems may “penalize candidates for long gaps between jobs” or “for lacking leadership experience, even though people from marginalized communities might be less likely to obtain that very experience due to discrimination and exclusionary workplace cultures.”63 these few examples already show how these algorithms constantly perpetuate existing biases unintentionally held by developers within their workplaces. this also applies specifically to the topic of intersectionality, as “discriminatory patterns evidenced in automated hiring tools can impact people in every marginalized community, with an exponentially negative impact on those who belong to more than one marginalized group.”64 currently, there are many unseen issues with current algorithms because most operate behind the scenes and candidates are not usually aware that they are being penalized by these supposedly “unbiased” ai systems for experiences that are simply a part of having a disability. as we continually realize the problems present within these systems, we should consider other ways that ai hiring methods are perpetuating problematic practices of the past. ivb. effects of misrepresentative or inaccurate data aside from personal biases that developers may unknowingly code into ai systems, the data these tools learn from might also lead to discriminatory outcomes for the disability community. as previously explained, ai tools are designed to make decisions and recognize patterns based on data introduced during their learning processes. however, this could be problematic if we consider that the “datasets used for machine learning may contain historical biases, unrepresentative data and collection bias” and may also result in candidates with 64 ibid. 63 ibid. 24 disabilities being unfairly screened out.65 issues occur when algorithms are created or trained using historical data from past or current employees from that company that does not positively or accurately reflect their experiences. for instance, if a company does not have any workers with disabilities or other protected characteristics, the system may not match these types of candidates with this position, and may rank them lower or even screen them out. another related issue is when “underlying data may be unrepresentative of the wider population,” which means that the ai tools may be unsure how to score candidates and may just screen them out instead.66 since white individuals’ faces are predominantly used to train ai for video interviews, research shows that these tools did not easily recognize the faces of black women and often scored them lower.67 this could also be the case for those with impairments affecting their facial appearance or expressions. or, if interview tools do not contain data from individuals with speech or communication disorders, ai may interpret them incorrectly, which could lead to negative employment outcomes. this could also connect to collection bias issues, especially if individuals with disabilities are not being included or positively represented in these datasets because data collection methods are inaccessible. data-related issues are a pretty large area of concern as “ai-supported hiring may thus give rise to biases owing to the domination of underlying datasets by specific groups,” once again perpetuating existing disparities.68 ivc. review of specific accessibility issues another problem with ai-powered hiring methods are accessibility issues that could pose barriers to individuals with disabilities using such systems. it is becoming apparent that “some automated hiring tools—like gamified tests that assume a neurotypical, sighted candidate with an 68 kelan, “algorithmic inclusion,” 697. 67 ibid., 699. 66 ibid., 699. 65kelan, “algorithmic inclusion,” 697. 25 ordinary range of motion—are outright inaccessible for users with disabilities.”69 despite little research being put into investigating this issue further, it seems rather obvious that some “disabilities may render the standard hiring process simply inaccessible, e.g., mutism if verbal communication is part of the assessment.”70 likely due to the fast-paced and often impersonal nature of ai hiring methods, employers are clearly not putting time into finding alternative means of assessing these candidates. since “employers may not provide adequate alternative assessments, modifications, or accommodations,” oftentimes these applicants slip through the cracks.71 this is frankly unacceptable, especially when employers are legally obligated to provide job candidates with accommodations, “even if the tools are procured through outside vendors.”72 however, once again, there is a clear lack of research investigating accessibility challenges that may result from ai hiring methods, which also presents a challenge for employers being aware of further potential of disparate impact. ivd. implementation by companies and its impacts even though algorithms are a concern, regardless of whether or not they are mitigated, “the promise of equity-driven, nondiscriminatory hiring algorithms is still a promise rather than a reality because bias can creep in consciously and unconsciously from employer practices rather than the technology itself.”73 therefore, it is important to remember that “ai-based hiring decisions in organizations are context dependent and blend the capabilities of algorithmic powered tools with choices and judgments made by process experts.”74 how employers and 74 ibid., 656. 73 cruz, “how process experts enable and constrain fairness,” 656. 72 engler, alex. “the eeoc wants to make ai hiring fairer for people with disabilities.” brookings, 2022. https://www.brookings.edu/articles/the-eeoc-wants-to-make-ai-hiring-fairer-for-people-with-disabilities/. 71 brown, “hiring discrimination by algorithm.” 70 buyl et al., “tackling algorithmic disability discrimination,” 13. 69 brown, “hiring discrimination by algorithm.” 26 hiring managers decide to utilize ai, such as by setting specific search or evaluation criteria, influences how their candidate pool is created. additionally, we can also consider that the “the applied pressure for efficient, fast, and quality candidate sourcing, recruiters often trade off systematic and fair sourcing practices for inconsistent […] and implicit personal judgments or stereotypes about candidates.”75 when employers trust ai recruitment methods wholly without checking their validity, many additional ethical risks can arise. this is especially true if we consider that most existing legal protections involve some level of voluntary compliance, which is certainly not being fulfilled within the current ai-powered hiring landscape. ive. ethical considerations and necessity for policy change considering all of the potential for discrimination present within these ai-powered hiring methods, a comprehensive ethical review is necessary before we can begin to address how to fill in the relevant gaps in law and policy. now that we have reviewed the direct effects of how these tools can screen out candidates with disabilities, it is important to focus on other ethical considerations that emerge from these practices. first, many researchers discuss the loss of privacy or “lack of informed consent” that may exist surrounding ai tools.76 for ai regulation on its own, but especially in hiring, “the informed consent requirement is not yet well implemented [...] rendering the protection of personal privacy an ethical challenge.”77 one dimension of this is the “active debate about the extent to which it is ethically appropriate to use social media information for personnel selection purposes.”78 of course, “legally, social media content is public data, but it is questionable whether it is ethical to mine social media data for hiring purposes” when consent has not been given for analysis in an 78 ibid., 995. 77 ibid., 995. 76 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 995. 75 ibid., 657. 27 employment context.79 additionally, there could be an issue with private medical information that is submitted to these companies for accommodation purposes being utilized for ai training purposes without providers’ permission or knowledge and causing a confidentiality concern. the overall ethical issue that is created here is that “applicants in the job market generally hold less power than employers.”80 it is becoming increasingly obvious that “even if applicants are informed enough to consent to the process, they may not be able to opt out without being disadvantaged in the process.”81 another large part of this issue is whether employees are being made aware of the fact that ai is being utilized by employers. another ethical consideration that has been raised surrounds firms’ “ability to establish transparency by providing applicants with updates and feedback throughout the process and in a timely fashion” when they use ai hiring technologies.82 despite the fact that creating feedback opportunities for candidates to see why they were rejected should be much easier when utilizing ai, a lack of transparency still prevails. a clear challenge presented is that “the predictive and decision-making processes of algorithms are often opaque, even for the programmers themselves.83 it has been uncommon for ai vendors or firms to provide qualitative or quantitative reports to show how these decisions are made. researchers have expressed how this transparency is “ethically critical in the personnel selection context, due to its high relevance for people’s lives, and because this kind of black-box system may remain unchallenged, thereby obscuring discrimination.”84 the secondary part of this ethical concern is that employers feel a lack of responsibility and accountability when they use these tools, especially when they were created by vendors. then the larger issue is that nobody is ensuring that these tools are being 84 ibid., 997. 83 ibid., 997. 82 ibid., 997. 81 ibid., 995. 80 ibid., 995. 79 ibid., 995. 28 fairly used for decision-making or questioning who would be liable for disparate outcomes.85 since ai tools themselves obviously cannot be held accountable, many ethicists assert that “it should be a human agent who is ultimately responsible for the decision made when selecting an employee.”86 this shows another underlying issue, which is the lack of human oversight in these procedures. though it is difficult to identify whether a human or a computer is making the final decision in most of these companies’ practices, many claim “that ai has already taken over the automated decision-making process, forwarding or rejecting candidates.”87 if human intervention in these procedures continues to decline, this could mean other issues for individuals facing disparate outcomes, as there would be even less oversight for equality in hiring practices. the overarching concern accompanying all of these considerations is how these tools can result in a decreased level of diversity and representation within companies. ai ethicists are concerned that “a systematic bias through ai could result in more homogeneity in organizations.”88 this is especially true if we consider that “a single decision-making algorithm” is making decisions based on code created by developers or data that is not necessarily inclusive or representative of diverse populations.89 also, these tools may be replacing a team of “several human decision makers with potentially differing views” which may also lead to less workplace diversity.90 the prevailing worry from “disability advocates is that people with disabilities will be discouraged by digital assessments and drop out of the application process” completely.91 since firms may also be losing out on top talent if qualified applicants are being unfairly 91 engler, “the eeoc wants to make ai hiring fairer.” 90 ibid., 994. 89 ibid., 994. 88 ibid., 994. 87 ibid., 997. 86 ibid., 997. 85 ibid., 997. 29 screened out for having disabilities, this creates a situation in which everyone faces a loss that should certainly be rectified by policy initiatives. v. potential solutions and framework for improvement in this final section of the paper, i will consider how all the arising issues evaluated previously and their accompanying ethical considerations spell out the need for policy initiatives that protect job candidates with disabilities during the hiring process. from there, i will briefly review recent policy and guidance frameworks which will assist me as i begin to create my own framework that would promote equitable hiring practices by adapting existing research into a set of recommended policy initiatives. va. review of recent policy and eeoc guidance there have been attempts to fill the existing gap in legal protections surrounding ai-powered hiring methods; however, these have largely fallen short of addressing the needs of individuals with disabilities. for instance, in 2021 “the new york city council passed the automated employment decision tool law (aedt),” which was credited as “a first-of-its-kind law on ai hiring discrimination.”92 while this law “stipulates that employers must conduct third-party bias audits for discrimination,” which is a great start, the language only includes “race, ethnicity, or sex,” which evidently fails to protect individuals with disabilities.93 based on the existing laws, “employers have no obligation to provide any meaningful notice, explanation, or opt-out process to job seekers and no obligation to regularly audit their software for discriminatory impact using external experts or to report the results of these audits and remediate 93 ibid. 92 brown, “hiring discrimination by algorithm.” 30 accordingly.”94 further, a concern of disability activists is that when laws fall short of protecting marginalized groups, companies are “proliferating the market with tools that comply with the letter of the law but nonetheless discriminate.”95 so, it is important to consider the strengths of newer laws that, in theory, could fill in gaps left by existing legislation, and to examine how they can be improved to protect individuals with disabilities during all stages of the hiring process impacted by ai tools. in addition to frameworks within these insufficient but well-intentioned recent laws, we can also consider guidance present within the eeoc’s most recent set of ai-related employment guidance, which reviews how these systems may violate the ada’s accommodation and equal treatment requirements and how they plan on addressing them. within this framework, “the eeoc recommends that employers train staff to quickly recognize and respond to accommodation requests with alternative methods of candidate evaluation, and notes that outsourcing parts of the hiring process to vendors does not automatically relieve the employer of its responsibilities.”96 while most of the eeoc recommendations address employer-related practices, as they are “ultimately responsible for ada compliance,” there is some guidance or discussion surrounding the practices of ai vendors.97 this involves their assertion that even “when an algorithmic tool is ‘validated’ according to a vendor, it does not provide inculpability from discrimination” and employers should be sure to still question vendors to ensure they are also being accountable.98 furthermore, a review of this guidance shows that these recommendations alone may “help employers make fairer choices, but the eeoc does not seem to be purely counting on the 98 ibid. 97 ibid. 96 engler, “the eeoc wants to make ai hiring fairer.” 95 ibid. 94 ibid. 31 good graces of employers to execute the changes it thinks are necessary.99 instead, they “[provide] recommendations for job applicants who are being assessed by algorithmic tools,” which involves encouragement to “file formal charges of discrimination with the eeoc if a candidate feels they were discriminated against by an algorithmic hiring process.”100 from there, they can conduct an investigation, then “[try] to negotiate an agreement, and failing that, may file a lawsuit against the employer” on the grounds that their tools were discriminatory and candidates may be entitled to damages.101 this guidance is certainly a good start for policy, but more strict regulations expanding upon them are necessary. vb. proposed solution framework it is clear that organizations’ and vendors’ accountability is important and growing in discussion due to a sense of urgency in creating equality in an ai-powered hiring environment that is growing more popular by the day. therefore, to address the root issues present in widespread use of ai-powered technologies in hiring, there needs to be a set of policies or initiatives implemented by the government, companies, and ai vendors. first, i recommend that ai vendors increase diversity and inclusivity in the development of ai tools and through the resources used during learning processes. initially, it would involve creating teams of more diverse individuals to make sure different backgrounds are represented in systems created.102 this would directly target algorithmic biases, especially if these individuals are educated about the risks of implicit and explicit biases that may be built into their programs so they can prevent these issues ahead of time or raise questions when they arise through internal auditing procedures.103 one successful approach has been seen in “ai software vendors 103 moss, “screened out onscreen,” 195. 102 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 999. 101 ibid. 100 ibid. 99 ibid. 32 [removing] any wording or phrases that can unconsciously predict the gender of a candidate from cvs to circumvent unconscious bias and improve equity.”104 if developers are able to be self-aware about potential problematic areas within their tools to protect individuals with disabilities in particular, this could have many positive outcomes. additionally, there should be a stronger effort to use more relevant and accurate data sources. however, this may connect to another issue of limited existing data surrounding the disability community, but it is also possible for them to weigh the data differently so it does not unintentionally discriminate against marginalized groups. for instance, there has been success in using “inverse weight propensity scores to re-balance groups for instance by taking into account how many black women older than 30 are in the dataset and then balance results internally.”105 overall, more awareness of disability justice and intersectionality considerations during the early stages of ai development, even before the issues with implementation begin, would be an asset to preempt discriminatory outcomes.106 for the second prong of my recommended framework, external laws and internal policies must be created requiring accountability and transparency from companies. many of the current issues surrounding ai in hiring could only be “addressed through rigorous coding protocols, job analysis and regular auditing of algorithms.”107 therefore, stricter legislation and company policies should be created and enforced, requiring ai impact assessments and regular auditing to prevent disparate outcomes for the disability community. research has suggested that risks can never be completely eliminated from ai tools, even with additional accountability from vendors. therefore, as an additional check to ensure equality with these tools, ai ethicists assert that 107 kelan, “algorithmic inclusion,” 701. 106 moss, “screened out onscreen,” 194. 105 kelan, “algorithmic inclusion,” 701. 104 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 999. 33 “technical due diligence regarding algorithmic design and implementation is crucial to keep this risk low.”108 even when companies buy ai tools from vendors, “practitioners are strongly encouraged to refer to professional test standards and obtain critical information about the tools: for example, evidence that informs psychometric reliability, criterion-related validity and bias implications.”109 in simple terms, companies need to provide reports that explain what search terms they use, “why a candidate has been selected and the causality regarding which specific attributes can be associated with their success in a role.”110 a consistent theme among these recommendations involves ensuring explainability, transparency, and overall accountability from companies along every step of the process, as well as enforcing the legal requirement to provide accommodation, which should be more strictly regulated even within ai contexts. for the third recommendation, there should be stricter laws and policies surrounding privacy and informed consent created and implemented by companies and vendors, just as they have to comply with traditional hiring practices.111 part of this involves private data being kept private by companies and not being included in ai hiring practices to evaluate or analyze candidates. this includes social media information and medical data alike, which should not be used for hiring purposes unless candidates are made aware and give their explicit consent. lastly, “it should be always transparent to applicants whether they are communicating with another human or with ai” or if ai is being used to evaluate them, to increase the overall level of informed consent within these processes.112 this would also help candidates remain vigilant so they can take appropriate action, such as reporting to the eeoc, if they feel that they have been unfairly discriminated against. 112 ibid., 999. 111 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 999. 110 ibid., 1000. 109 ibid., 999. 108 hunkenschroer and luetge, “ethics of ai-enabled recruiting and selection,” 994. 34 lastly, for the fourth prong, laws should reinforce human involvement in hiring processes. cases such as mobley v. workday reinforce that allowing an ai tool to make final employment decisions is unacceptable and should be illegal. therefore, a human review of all decisions made using ai would be necessary to ensure that ultimate candidate selection is not being unfairly determined by problematic ai tools. the most useful method would likely be the requirement of “ai ethics board with an oversight function[s], consisting of representatives of relevant stakeholders who debate the data and ethical dimensions of ai algorithms and agree on boundaries for ai technology in the company.”113 these boards, consisting of a diverse group of individuals, would perform “ethical audits” to ensure that ethical standards are being met and that no one faces disparate outcomes. another element involves the requirement that ai vendors build into their tools the “ability to judge whether it can grant adequate accommodation.”114 if not, vendors should be required to inform companies using their tools to stay vigilant and make sure all users are accommodated.115 this would limit adverse effects arising out of the impersonal and fast-paced nature of ai and confirm that these methods align with existing legal protections. vi. conclusion as i have argued in this paper, the topic of ai and its rapidly growing negative impact on the disability community must be addressed. it is evident that the current state of legislation, from more outdated legislation to recent attempts to fill gaps, still falls short of making any real, lasting, and positive change. based on the prevalence of ai in many companies, along every step of the hiring process, and on the legacies of human biases and personality tests that have been 115 ibid., 14. 114 buyl et al., “tackling algorithmic disability discrimination,” 14. 113 ibid., 999. 35 built into these tools, there is a clear potential for discriminatory outcomes. due to the clear barriers of perpetuated bias, improper data being used, and accessibility concerns, there needs to be a reaffirmed emphasis on inclusive hiring practices when ai is utilized during hiring. with this in mind, it is important that nobody slips through the cracks and is unfairly screened out by ai systems or practices. to review the example of derek mobley’s case, the plaintiff succeeded in showing that workday was still liable for the disparate outcomes, despite not being an employer but instead a vendor for businesses, which “opens the door for a significant expansion of liability” for ai vendors in the hiring process.116 still, this decision reinforced how candidates may not even realize anything is amiss when instances of disparate impact are occurring behind the scenes. drawing from mobley’s example, individuals with disabilities should also be aware of how ai tools can potentially discriminate against them based on their protected characteristics. this case also opens the doors for a very important discussion about how existing laws and regulations protect individuals from discrimination that may occur due to ai technology. furthermore, it is imperative for lawmakers to review the functions of ai, including how they work, and how implicit biases may be built into their algorithms, or how disparities may occur when they are implemented by companies. the potential for inclusive and fair hiring practices using ai-powered tools exists but requires more transparency, accountability, and use of positive data. further, it necessitates more mindfulness by every involved party in considering how it could have disparate outcomes on the disability community. additionally, it is important that we remember that concerns about biases within ai “[ignore] the fact that the original source of algorithmic bias is the human behavior it is simulating.”117 if we are concerned about the decisions being made by ai, we should first 117 ibid., 994. 116 see and tyman, “mobley v. workday,” 43. 36 address the errors in human behavior within society that it unintentionally mirrors.118 while my framework of suggestions would mitigate discriminatory effects from these tools, only once individuals with disabilities experience equal outcomes in hiring and employment can these biases be fully eliminated from ai-powered methods. 118 ibid., 994. 37