final spring law journal copy brandeis university law journal spring 2022, volume 9, issue 2 dedicated to judah marans ’11 we are incredibly grateful to the brandeis law journal’s founder, judah, for creating this forum for discussion and learning in and around the legal field. his creation of the journal enables and empowers us to do our work and learn today. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. judah’s contribution to the brandeis community will forever be remembered and greatly appreciated. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. we extend our deepest sympathies to his family and friends throughout the brandeis community. may his memory be a blessing. mission statement the brandeis university law journal aims to provide brandeis university with the opportunity to contribute to discussions of law and law-related topics with the publication of undergraduate scholarship. we hope to aid in the furtherance of brandeis university’s motto of “truth even unto its innermost parts” through publishing rigorously researched articles and engaging in respectful, thoughtful, and insightful debates. this journal is both a publication and a constant work in progress as we are grounded in an undergraduate academic environment and constantly trying to learn, grow and improve. our journal provides a platform for intellectual growth and debate where academic scholarship can flourish. we focus on academic excellence, encouraging expressions of scholarship, and encouragement of educational purposes. 1 brandeis university law journal spring 2022, volume 9, issue 2 submissions our journal requires all submissions of articles and abstracts to be: 1) original and of concern to the brandeis community. 2) related to law and/or using legal reasoning. we welcome submissions for publication at any time. we highly encourage undergraduate scholarship. we will work with undergraduates interested in learning about legal writing, research, and scholarship to develop these skills. all those interested in involvement through writing, editing, or administrative roles are welcome. please send any questions, submissions, or inquires to deislawjournal@gmail.com and visit our website at https://brandeislawjournal.wordpress.com 2 mailto:deislawjournal@gmail.com https://brandeislawjournal.wordpress.com brandeis university law journal spring 2022, volume 9, issue 2 editor-in-chief’s letter dear reader, the brandeis university law journal is proud to present our most recent issue delving into legal developments. these four rigorously-edited articles showed innovation, passion, and energy from our incredible writers. through their powerful insight and perspectives, the articles showcase possibilities for the future development of the legal arena. the issue is written, edited, and collected by brandeis university undergraduates. the articles cover topics from an examination from intellectual property rights for artificial intelligence to an investigation of the supreme court justices. an extra special addition this semester is a book review on disability treatment and the morality of law by our insightful faculty advisor professor daniel breen. as previously, the brandeis university law journal is accessible both in print and on our website at https://brandeislawjournal.wordpress.com through an e-publication. i would like to thank our incredible leadership team, writers, and editors. their dedication, passion, and creativity are evident throughout this issue and provide the foundation for publication. we would like to give great appreciation to the allocations board on student union for providing us the necessary funding to print this issue. inspired as ever by judah marans’ foundational example, we continue to grow the journal’s success. we look forward to our continued work supported by two phenomenal advisors, professors kabrhel and breen. we really appreciate all of their insight, advice, and support. sincerely, sophia reiss editor-in-chief 3 https://brandeislawjournal.wordpress.com/ brandeis university law journal spring 2022, volume 9, issue 2 brandeis university law journal volume 9 spring 2022 issue/no. 2 copyright 2022 brandeis university law journal editor-in-chief sophia reiss copy chief communications lauren davis gianna bruno publisher and treasurer josh rotenberg faculty advisor faculty advisor professor rosalind kabrhel professor daniel breen senior editors: grace ahlin, gianna bruno, lauren davis, emanuel “manny” glinsky, lilah goldberg, gabby grunfeld, noah risley, josh rotenberg, sofia siegel, rebecka sokoloff, claire sterin, oona wood junior editors: daniel block, julia fair, peyton gillespie, josh hopen, lauren lederer, samara miller, gonny nir, veronica rojas 4 brandeis university law journal spring 2022, volume 9, issue 2 table of contents book review: jan nisbet’s pain and shock in america: politics, advocacy, and the controversial treatment of people with disabilities, daniel breen…...………………….………………….…………………. 6 abortion in the united states: the road to vague legislation, gianna bruno…………………….…………………………………....…9 ensuring the power of the beth din: creation of the halakhic prenuptial agreement, anna fernands……………………………………….…....28 what makes a sound supreme court justice?, gonny nir………………………...………………………………..……39 positronic individuals: an intellectual property framework for artificial general intelligence, emanuel “manny” glinsky…….……………………….……...…….....63 5 microsoft word law journal issue 7_final.docx journal board 2015-2016 editorial board zixuan xiao james r. hayward co-editor-in-chief co-editor-in-chief eric paik david ritzwoller senior editor senior editor xinyu li noah lourie associate editor associate editor holly rutledge g. amogha rao associate editor associate editor jesse chen susie zhao associate editor associate editor administrative board david ritzwoller g. amogha rao director of finance director of public relations table of contents articles preface…………………………………………………………………………………………1 analyzing the birth of “the right to privacy” and the process behind its legal justification……………g. amogha rao…………...………2 hog pollution in north carolina: policy and legal analysis ………………………...emma wheeler.............................................................9 the brandeis deja vu: looking at the then and now of media privacy…………………………………………erik paik……………………………….22 features election 2016: is ted cruz eligible to run for president of the united states? ……………………………………......noah lourie…………..........32 international law: the legacy of the international criminal tribunals and the role of communication…...holly rutledge…....45 comparative law: in search of a muslim identity between the two extremes of secularism and religious law…. g. amogha rao……….54 supreme court roundup…………………jesse chen…………………………...60 the brandeis university law journal is now accepting submissions for its next issue. the journal welcomes pieces, preferably formatted according to the bluebook: a uniform system of citation, that are written by the undergraduates, graduates, faculty, staff, and alumni of brandeis university; contact brandeisuniversitylawjournal@gmail.com for submissions, subscription information, and to notify the editor-in-chief of any typographical or other oversights in this print. copyright © 2016 by the brandeis university law journal association all rights reserved no part of this publication may be reproduced in any form except for brief extracts for scholarly or critical purposes or for the purpose of review, without the prior written permission of the authorized individual or individuals of the brandeis university law journal association. contact brandeisuniversitylawjournal@gmail.com printed in the united states of america facebook.com/brandeislawjournal the contents of this publication do not necessarily reflect the views of stances of the brandeis university law journal, nor of brandeis university, nor of any individuals or groups that may be associated with either institution. preface dear readers, we are proudly to present to you the seventh volume of the brandeis university law journal. this edition covers, by far, the most diversified content in the history of this publication. besides articles discussing the current legal affairs in the united states such as environment and privacy laws, you will also find pieces about the legal issues concerning muslims in postcolonial india, discussion on the international criminal tribunals and the 2016 u.s. presidential election. continuing the efforts of our predecessors, we are committed to making the content of our journal more accessible for our readers, while keeping its longstanding academic rigor. we hope reading this volume is not only an experience that is academically informative and rewarding, but also enjoyable and fun. this year is particularly important to the brandeis community, it is the centennial anniversary of the university's namesake, louis d. brandeis, on his appointment to the supreme court of the united states. the journal is honored to participate in this very special occasion by contributing a special edition to the "louis d. brandeis: an inspiring life” digital exhibition, an effort of the brandeis archives & special collections for the celebration of the anniversary. we especially would like to thank zoe waldman, who kindly invited us to contribute, for her trust and extremely hard work that made the special edition happen. we would also like to thank everyone who served on the editorial as well as administrative board this year. their diligence and passion for the law are the foundation of this publication. we would also like to congratulate our new co-editors-in-chief, dustin fire and noah lourie. we wish them best luck in their effort to provide the brandeis community with a forum for rigorous academic discourse, facilitating the appreciation of intellectual clarity, and the pursuit of truth. finally, we want to dedicate this journal to the memory of its founder, judah marans. judah was a scholar, leader, and friend. his pioneering work to create the brandeis university law journal touched the lives of many students, and still continues to impact campus life today. his efforts to provide a forum for legal discussion have grown for seven years since the journal’s inception and is more vibrant than ever. we extend our deepest sympathies to his family and friends throughout the brandeis community. may his memory be a blessing. sincerely, james r. hayward and zixuan xiao co-editors-in-chief dedicated to judah marans ’11 we are incredibly grateful to the brandeis law journal’s founder, judah, for creating this forum for discussion and learning in and around the legal field. his creation of the journal enables and empowers us to do our work and learn today. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. judah’s contribution to the brandeis community will forever be remembered and greatly appreciated. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. we extend our deepest sympathies to his family and friends throughout the brandeis community. may his memory be a blessing. mission statement the brandeis university law journal aims to provide brandeis university with the opportunity to contribute to discussions of law and law-related topics with the publication of undergraduate scholarship. we hope to aid in the furtherance of brandeis university’s motto of “truth even unto its innermost parts” through publishing rigorously researched articles and engaging in respectful, thoughtful, and insightful debates. this journal is both a publication and a constant work in progress as we are grounded in an undergraduate academic environment and constantly trying to learn, grow and improve. our journal provides a platform for intellectual growth and debate where academic scholarship can flourish. we focus on academic excellence, encouraging expressions of scholarship, and encouragement of educational purposes. submissions our journal requires all submissions of articles and abstracts to be: 1) original and concerning the brandeis community 2) related to law and/or using legal reasoning. we accept all submissions for publication at any time. we highly encourage undergraduate scholarship. we will work with undergraduates interested in learning about legal writing, research, and scholarship to develop these skills. all those interested in involvement through writing, editing, or administrative roles are welcome. please send any questions, submissions, or inquiries to deislawjournal@gmail.com and visit our website at https://brandeislawjournal.wordpress.com mailto:deislawjournal@gmail.com https://brandeislawjournal.wordpress.com/ brandeis university law journal fall 2021, volume 9, issue 1 editor-in-chief’s letter dear reader, the brandeis university law journal is proud to present our most recent issue delving into current events and legal developments. these seven rigorously-edited articles showed innovation, passion, and energy from our incredible writers. through their powerful insight and perspectives, the articles showcase possibilities for the future development of the legal arena. the issue is written, edited, and collected by brandeis university undergraduates. the articles cover topics from an examination of the right to dignity and a review of our university’s namesake justice louis d. brandeis’s own relationship to privacy rights, to research on hate crimes and discrimination within the criminal justice system. like our spring 2021 issue, the brandeis university law journal is accessible both in print and e-publication on https://brandeislawjournal.wordpress.com. our journal expanded operations this year as well through an outreach and events partnership with the newly revived brandeis pre-law society. we are grateful for their help and look forward to working together moving forward. i would like to thank our incredible leadership team, writers, and editors. without all of their work, this revived publication would not have been possible. their dedication, passion, and creativity are evident throughout this issue and provide the foundation for publication. i would like to give great appreciation to emma fiesinger and the allocations board on student union for providing us the funding necessary to print this edition. inspired as ever by judah marans’ foundational example, we continue to grow the journal’s success. we look forward to our continued work supported by two phenomenal advisors, professors kabrhel and breen. we really appreciate all of their insight, advice, and support. sincerely, sophia reiss editor-in-chief 2 https://brandeislawjournal.wordpress.com/ brandeis university law journal fall 2021, volume 9, issue 1 brandeis university law journal volume 9 fall 202 issue/no. 1 copyright 2021 brandeis university law journal editor-in-chief sophia reiss copy chief communications lauren davis gianna bruno publisher and treasurer josh rotenberg faculty advisor professor rosalind kabrel faculty advisor professor daniel breen senior editors: sarah baum, gianna bruno, lauren davis, josh hopen, sophia reiss, josh rotenberg, sofia siegel, claire sterin, oona wood junior editors: grace ahlin, james barno, daniel block, maggie dipierdomenico, manny glinksy, lilah goldberg, gabby grunfeld, elijah herenstein, alex li, carol lu, kevin mani, samara miller, noah risley, anthony ruiz, olivia sinkoff, rebecka sokoloff, allison weiner, karina wolinetz, jeff yu 3 brandeis university law journal fall 2021, volume 9, issue 1 table of contents application of european model to curtail hate speech in the u.s., sophia reiss…………………………...….…………………………………….… 5 on america’s inexplicit dignity, josh rotenberg …………………….………………………………………………….……...... 16 the right to privacy: the need for an ever-evolving legal movement, gianna bruno…………………………………………………………....….… 25 the discreet uniter, gonny nir ……………………………………..…....….. 33 7,341 incidents and counting: analyzing the evolution of american hate crime legislation and how it varies by state, jessica daniel……………........………..........................…………………...… 45 gender, crime, and the disparities in the criminal justice system, alyssa fu………………………………………………….………..……...….. 67 an exploration of justice in the context of ethical guidelines, emily bar-mashiah………………………......…..……………...….…....…… 80 4 untitled document does innocence matter in criminal appeals? cat gibson58 abstract: this article examines the importance of innocence in criminal appeals through the lens of benjamine spencer’s murder case history and its development through the appeals process. spencer’s case shows how innocent people can easily be convicted with false evidence and a flawed criminal justice system. criminal appeals should provide a true path to resolve faulty convictions and fixed flawed aspects of the criminal justice process. benjamine spencer was tried for the murder of jeffery young in october of 1987 despite claims of innocence. he was convicted and sentenced to 35 years in prison. he maintained his innocence and filed for a new trial, which he was then granted. in his second trial, he was convicted of aggravated robbery, and was now sentenced to life in prison. spencer continued to assert his innocence and appealed his case. in 1989, this conviction was upheld.59 in 2008, judge rick magnis, after spending eight months reviewing information presented in an evidentiary hearing, declared that spencer should be granted a new trial “on the grounds of actual innocence.”60 however, in 2011, the texas court of criminal appeals ruled that the new evidence did not unquestionably establish the applicant's innocence, and since the threshold for proving actual innocence was not met, habeas relief was denied.61 if spencer was serving the original sentence he’d been granted in 1987 for murder, he would be released in 2022. however, after his second trial and conviction for aggravated robbery, he is still expected to serve life in prison, and has been denied parole at every opportunity.62 according to colin miller, a professor and associate dean at the south carolina school of law, there have historically only been two routes of obtaining post-conviction relief: presenting newly discovered evidence of innocence and/or evidence of a constitutional violation. every state has enacted a statute establishing post-conviction relief based on dna testing, though not every state allows defendants to bring “freestanding claims of actual innocence.”63 texas is actually one of those states that allows actual innocence claims outside of those with dna evidence, and yet, spencer remains imprisoned. this is due to the fact that, when seeking post-conviction relief based on a freestanding claim of actual innocence, the standard for a new trial is incredibly high and almost unattainable. 63 miller, “why states must consider innocence claims after guilty pleas.” 62 colin miller, “why states must consider innocence claims after guilty pleas,” ssrn scholarly paper (rochester, ny: social science research network, august 6, 2018), https://doi.org/10.2139/ssrn.3226915. 61 “ex parte spencer, 337 s.w.3d 869 – courtlistener.com.” 60 story by barbara bradley hagerty, “can you prove your innocence without dna?,” the atlantic, accessed april 17, 2021, https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/. 59 “ex parte spencer, 337 s.w.3d 869 – courtlistener.com,” courtlistener, accessed april 17, 2021, https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/. 58 undergraduate student at brandeis university, class of 2021. 29 https://doi.org/10.2139/ssrn.3226915 https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/ https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/ https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/ according to court documents, jeffrey young was found by police unconscious and bleeding in the street on march 22, 1987. he died after being transported to the hospital, and it was later determined that his death occurred as a result of severe skull fractures. there was no physical evidence linking spencer to the crime and the police were unable to link him to any of the items stolen from young, but several neighbors then testified that they had either seen spencer getting out of young’s car or standing by the car, and one witness even testified that he saw young getting pushed out of the car before it pulled into an alley and he was allegedly able to see spencer exiting the car before jumping over a fence to go through a neighbor’s backyard.64 in the second trial, a woman named gladys oliver whose house overlooked the alley where the car pulled into was the star witness for the prosecution. she claimed to have seen spencer get out of young’s car and saw spencer’s car parked in the street before it disappeared. she said the street was well lit and she could identify spencer as one of the men getting out of the car.65 according to former prosecutor andy beach: “[t]here's no question that gladys oliver's testimony convicted ben spencer.”66 he continues: "[i]n the 25 years i tried criminal cases, she was one of the top three or four eyewitnesses of all time. just her physical presence and her ability to clearly answer questions, and to stand up to cross-examination, it carried the day for us, there's no question."67 when the evidentiary hearing was opened by judge magnis in 2007, oliver held firm, though other witnesses backtracked. spencer’s team called a “forensic visual scientist,” who testified that no witness would be able to identify a face from over twenty-five feet away under conditions similar to as they were on the night of march 22, 1987. the closest eyewitness was ninety-two feet away. even the state’s expert agreed that at best, the witness would have been able to see a silhouette, not an identifiable face and whether the witness seemed sure or unsure of the fact.68 in texas, the standard used when looking at appeals based on dna evidence is often cited as whether “any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt,” as is displayed in skinner v. state.69 the new evidence brought forth by spencer’s team was enough to convince judge magnis: "[w]hen you have two [experts] that 69 “skinner v. state.” 68 “why a man declared innocent can’t get out of prison.”; hal arkowitz lilienfeld scott o., “why science tells us not to rely on eyewitness accounts,” scientific american, accessed april 18, 2021, https://doi.org/10.1038/scientificamericanmind0110-68. 67 “why a man declared innocent can’t get out of prison.” 66 “why a man declared innocent can’t get out of prison.” 65 “ex parte spencer, 337 s.w.3d 869 – courtlistener.com.” 64johnathan silver, “inmate declared innocent is still in texas prison,” the texas tribune, march 17, 2016, https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/.; “why a man declared innocent can’t get out of prison,” npr.org, accessed april 18, 2021, https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison.: “ex parte spencer, 337 s.w.3d 869 – courtlistener.com.” 30 https://doi.org/10.1038/scientificamericanmind0110-68 https://doi.org/10.1038/scientificamericanmind0110-68 https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/ https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/ https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison say none of these three witnesses could have seen what they said they saw," magnis said, "i felt that was very, very compelling."70 it was even enough to convince the foreman of the second jury, the one which sentenced him to life in prison: "[w]e worked with what we had, but we were very wrong.”71 so why was spencer’s request for habeas relief denied? surely both a criminal court judge and the foreman of the jury who convicted spencer to life in prison would fall under the standard of “any reasonable trier or fact.” however, when evaluating freestanding actual innocence claims, the state doesn’t use the same test it used in skinner v. state. instead, the appellate judge cites a threshold established in ex parte franklin and cites a that “[e]ven if we determined that the evidence here was new, it does not unquestionably establish applicant's innocence.”72 it’s easy to make a claim of actual innocence, but incredibly difficult for that claim to be recognized in court. the fact that it is broad and largely unspecified means that anyone who is looking to be released could hypothetically raise a claim of actual innocence and, in a system already straining under the number of cases it has to hear, arguing that each case of actual innocence should be given large deference would injure the integrity of the legal system. however, reading about cases like spencer’s demands that some room be made for appeals that may not comfortably fit under the usual grounds for appeal, but are nonetheless important and need to be heard. the fact that standard is so incredibly high means that, for people like spencer, it’s unlikely that he will ever be able to find relief save for some miracle. the integrity of the legal process should be protected, but not at the expense of keeping an innocent man imprisoned. such action not only ruins the life of the person improperly convicted of the crime due to procedural reverence, but allows the actual perpetrator to remain free, turning out a result that cannot claim to hold justice for any of those involved. benjamin spencer was 22 when he was arrested, recently married and expecting a child.73 the texas department of criminal justice lists his age now as 55.74 spencer has spent over half his life behind bars in a maximum security prison with no release date in sight despite a trial judge determining his sentence should be overturned due to actual innocence over twelve years ago. our post-conviction system is meant to give relief to those who did not receive justice in their initial trial, but has little room for granting relief based on actual innocence, resulting in innocent people spending time behind bars while guilty perpetrators are not held accountable for their crimes. obviously, someone who is convicted of a crime can’t simply be released due to a 74 “texas department of criminal justice offender search,” accessed october 23, 2020, https://offender.tdcj.texas.gov/offendersearch/start.action. 73 “why a man declared innocent can’t get out of prison.” 72 “ex parte franklin, 72 s.w.3d 671 – courtlistener.com.”;“ex parte spencer, 337 s.w.3d 869 – courtlistener.com.” 71 “why a man declared innocent can’t get out of prison.” 70 “why a man declared innocent can’t get out of prison.” 31 https://offender.tdcj.texas.gov/offendersearch/start.action https://offender.tdcj.texas.gov/offendersearch/start.action claim of innocence, but surely we have to have a better system for being able to evaluate claims of actual innocence following conviction so that the momentum of the system doesn’t overtake the importance of obtaining justice not just for those who have been convicted, but also for those who may be the victims of a crime which doesn’t see the guilty party or party be held accountable. striking the proper balance between protecting the legal system and its results and reevaluating those results based on evidence is incredibly difficult, but also incredibly necessary. for a case to be reexamined due to new evidence, our system has to allow for reexamination of evidence that has been cast in a new light in order to maximize the chance of producing a just outcome for all those who are involved. 32 works cited hagerty, story by barbara bradley. “can you prove your innocence without dna?” the atlantic. accessed october 23, 2020. https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/. lilienfeld, hal arkowitz, scott o. “why science tells us not to rely on eyewitness accounts.” scientific american. accessed april 18, 2021. https://doi.org/10.1038/scientificamericanmind0110-68. miller, colin. “why states must consider innocence claims after guilty pleas.” ssrn scholarly paper. rochester, ny: social science research network, august 6, 2018. https://doi.org/10.2139/ssrn.3226915. silver, johnathan. “inmate declared innocent is still in texas prison.” the texas tribune, march 17, 2016. https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exo neration/. “texas department of criminal justice offender search.” accessed october 23, 2020. https://offender.tdcj.texas.gov/offendersearch/start.action. npr.org. “why a man declared innocent can’t get out of prison.” accessed october 23, 2020. https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-ou t-of-prison. cases cited courtlistener. “ex parte franklin, 72 s.w.3d 671 – courtlistener.com.” accessed october 23, 2020. https://www.courtlistener.com/opinion/2184585/ex-parte-franklin/. courtlistener. “ex parte spencer, 337 s.w.3d 869 – courtlistener.com.” accessed october 23, 2020. https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/. justia law. “skinner v. state.” accessed october 23, 2020. https://law.justia.com/cases/texas/court-of-criminal-appeals/2003/74400-5.html. 33 https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/ https://www.theatlantic.com/magazine/archive/2018/01/no-way-out/546575/ https://doi.org/10.1038/scientificamericanmind0110-68 https://doi.org/10.1038/scientificamericanmind0110-68 https://doi.org/10.2139/ssrn.3226915 https://doi.org/10.2139/ssrn.3226915 https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/ https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/ https://www.texastribune.org/2016/03/17/inmate-convicted-murder-pursues-parole-exoneration/ https://offender.tdcj.texas.gov/offendersearch/start.action https://offender.tdcj.texas.gov/offendersearch/start.action https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison https://www.npr.org/2017/12/06/568314351/why-a-man-declared-innocent-can-t-get-out-of-prison https://www.courtlistener.com/opinion/2184585/ex-parte-franklin/ https://www.courtlistener.com/opinion/2279756/ex-parte-spencer/ https://law.justia.com/cases/texas/court-of-criminal-appeals/2003/74400-5.html https://law.justia.com/cases/texas/court-of-criminal-appeals/2003/74400-5.html untitled document brandeis university law journal _____________________________________________________________________________ issue 8, volume 8, spring 2021 _____________________________________________________________________________ dear reader, after a yearlong revival process, we at the brandeis law journal are proud to present our first issue in nearly 5 years. in this new world of virtual classes, the brandeis law journal was uniquely positioned to continue work towards our publication. these seven rigorously-edited articles showed unique creativity, dedication, and insight from our incredible writers. they offer perspectives and analyses of legal issues which are important to our students. the issue is written and edited by undergraduates. they cover topics ranging from prisoners’ voting rights to the right to privacy in the 21st century including a discussion of a potential right to internet access. in addition to our print publication, the brandeis university law journal is also presenting our publication through an online format: issuu. the e-publication is linked through our new website at https://brandeislawjournal.wordpress.com. our online presence is especially important going forward as the world is becoming increasingly digitally connected. i would like to thank our incredible leadership team, writers, and editors. without all of their work, this revived publication would not have been possible. their dedication, passion, and creativity are evident throughout this issue and provide the foundation for publication. i would like to give great appreciation to emma fiesinger and the allocations board on student union for providing us the funding necessary to print this edition. i would like to extend a special thanks to cat gibson and lucy pugh-sellers, my former fellow co-editors-in-chief. congratulations on your graduations and we wish you all the best in your post-graduate careers. they inspired our current revival and conducted the crucial outreach to start the publication process. we owe our success and ability to publish this issue and build our club to them. through their inspiration, we have gathered a new team of editors and administrators to maintain our club and continue to build on our success. i hope to create partnerships with other law journals and to create a mentorship program within the brandeis community in the coming year and beyond to continue to build on the wonderful club. we look forward to our continued work supported by two phenomenal advisors, professors kabrhel and breen. we really appreciate all of their insight, advice, and support. this revived publication is dedicated to the memory of judah marans ‘11, our inspirational founder who created an incredible foundation on which the brandeis law journal is able to thrive even during the current pandemic environment. his creation of journal enables and empowers us to do our work and learning today. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. we extend our deepest sympathies to his family and friends throughout the brandeis community. may his memory be a blessing. sincerely, sophia reiss editor-in-chief 2 https://brandeislawjournal.wordpress.com/ dedicated to judah marans’11 we are incredibly grateful to the brandeis law journal’s founder, judah, for creating this forum for discussion and learning in and around the legal field. judah’s contribution to the brandeis community will forever be remembered and greatly appreciated. the notorious rbg: may her memory be for a blessing march 15, 1933september 18, 2020 cat gibson1 the first time i most likely heard ruth bader ginsburg’s name was probably in the wake of the obergefell v. hodges decision. decided in the summer of 2015, obergefell v. hodges2 recognized the right for same-sex couples to marry, and amongst the pictures of happy couples kissing, getting married, carrying rainbow flags, and celebrating the hard-won recognition of a human right, i was most struck by the images of an elderly jewish woman i saw in my social media and news feeds amongst the celebrations of love. often adorned with a crown, and sometimes captioned with the title “the notorious rbg,” it was clear that somehow, this woman had done something to influence all those celebrations. my high-school self couldn’t help but wonder how this woman had been elevated to the level of popular culture icon, clearly beloved by young and old alike? i can’t remember the google searches i’m sure i made as i tried to unravel the mystery of who this woman was and how she’d amassed such a devoted fanbase, but i can remember feeling an instant connection. on the surface, we had nothing in common: she was a northern, jewish, supreme court justice while i was a southern, catholic, high school student who was thinking about a career in writing. i was determined not to go into law, because that’s what my father did, and i didn’t want to just follow in his footsteps. but i somehow related to this woman’s spirit even if i couldn’t relate to her background. she was only the second female united states supreme court justice, and the first jewish woman to be appointed. i read about how she had fought for the rights of women and those societies commonly rejected and thought that maybe law wasn’t completely off the table as i tried to prepare myself for a career which would allow me to make a difference. i was in awe of her achievements and all that she’d managed to accomplish in the legal landscape. it wasn’t until i was buying my sister’s christmas present about three years later that i really began to appreciate her for not just the effect she had on the law, but more fully for who she was as a person and the strength of her spirit. my sister and i had shared a love for the justice and would send each other clips of her working out on television shows or text each other quotes 2 obergefell v. hodges, 576 u.s. 644, accessed january 24, 2021. 1 undergraduate at brandeis university, class of 2021. 3 that had been attributed to her. my sister was a social worker who at the time was working with young kids, so when i saw a picture book about ruth bader ginsburg3, i knew it would be the perfect gift for her. after unwrapping the gift, my sister excitedly began to read it aloud. it’s through this child’s book that i learned about how her mother had died the day before she’s graduated from high school, how she’d gone to cornell and then to harvard, gotten married and had a baby all before completing law school, and how she took notes for her husband, who’d been diagnosed with cancer. my admiration for her grew immensely not only knowing the struggles she faced as a woman in a male-dominated field, but that she’d managed to emerge stronger from so many personal tragedies. i have been fortunate in that i set my eyes on the legal field at a time when there were three women serving on the highest court in the united states at once, and justice ruth bader ginsburg served not just to inspire me to pursue a career in the law, but many other women. even for those who are not seeking a career in law, her determination and brilliance serve as a reminder that a determined woman can do whatever she sets her mind to. furthermore, her example serves as a testament to human’s capability for strength amongst adversity, regardless of the gender one identifies as. she will not be forgotten by the many young people she inspired to follow their selected career path regardless of the challenges or by the people whose rights she managed to protect and recognize. she will be remembered for her strong dissents and her championing of gender equality. in her own words, ruth bader ginsburg expressed that "i would like to be remembered as someone who used whatever talent she had to do her work to the very best of her ability."4 i think it’s safe to say that she achieved her goal. 4 “in honor of her honor | cambridge college,” accessed february 8, 2021, https://www.cambridgecollege.edu/honor-her-honor. 3 debbie levy, i dissent: ruth bader ginsburg makes her mark (simon and schuster, 2016). 4 brandeis university law journal volume 8 spring 2021 issue/no. 8 copyright 2021 brandeis university law journal editor-in-chief sophia reiss copy chief publisher renée nakkab parker tocci treasurer communications josh rotenberg peri ayzidor faculty advisor faculty advisor professor daniel breen professor rosalind kabrhel editors grace ahlin, peri ayzidor, gabi burkholz, lauren davis, cat gibson, renée nakkab, sophia reiss, josh rotenberg, sofia siegel, claire sterin, parker tocci, and oona wood table of contents the fourth amendment judicial understanding: third parties, sophia reiss…………………….…... 7 lights, camera, action!: how hollywood avoided eternal federal censorship, renée nakkab……. 13 updating our rights with the internet: arguing the necessity of a fundamental right to internet access, josh rotenberg, ………………………………………………………………………………. 21 does innocence matter in criminal appeals, cat gibson…………………………….……………… 29 voting while in mass incarceration, rebecka sokoloff. …..…………………………………..…….... 34 opinions……………………………………………………...………………………………………...42 options for the biden administration to prevent iran from developing a nuclear weapon, kevin a. mani ………………………………………………………………………………… 43 reining in the imperial presidency: the case for a weak executive, julian flesch……...…..56 5 mission statement the brandeis university law journal aims to provide brandeis university with the opportunity to contribute to discussions of law and law-related topics with the publication of undergraduate scholarship. we hope to aid in the furtherance of brandeis university’s motto of “truth even unto its innermost parts” through publishing rigorously researched articles and engaging in respectful, thoughtful, and insightful debates. this journal is both a publication and a constant work in progress as we are grounded in an undergraduate academic environment and constantly trying to learn, grow and improve. our journal provides a platform for intellectual growth and debate where academic scholarship can flourish. we focus on academic excellence encouraging expressions of scholarship and encouragement of educational purposes. submissions our journal requires all submissions of articles and abstracts to be: 1) original and concerning the brandeis community 2) related to law and/or using legal reasoning. please include a title, author, and author’s biographical information (relation to brandeis, etc). we accept all submissions for publication at any time. we highly encourage undergraduate scholarship. we will work with undergraduates interested in learning about legal writing, research, and scholarship to develop these skills. all those interested in involvement through writing, editing, or administrative roles are welcome. please send any questions, submissions, or inquires to brandeisulawjournal@gmail.com and visit our website at https://brandeislawjournal.wordpress.com 6 mailto:brandeisulawjournal@gmail.com https://brandeislawjournal.wordpress.com brandeis university law journal fall 2021, volume 9, issue 1 the right to privacy: the need for an ever-evolving legal movement gianna bruno29 louis brandeis and samuel warren wrote “the right to privacy” in response to the rise of the newspaper and its threat to the public’s privacy during the late 19th century. they critiqued the laws of the time because they saw a change in the world that was not being accounted for in existing legislation. today, new technology is changing the world at an exponential rate and the public’s privacy is once again at risk. the laws have fallen behind the technology and there needs to be a call to update the current privacy laws. introduction diaries can be locked away and letters can be hidden. however, there is a lack of control over our digital footprint in which our thoughts can easily be viewed and shared in a matter of seconds without our consent. in the late 19th and early 20th centuries, the only lines of long-distance communication included phone calls and written letters. for disseminating information to significantly larger groups, there were newspapers. that said, it could take weeks to spread information nationally or even internationally, whereas today, cellphones, computers, and social media have added hundreds of new platforms and applications that distribute information to millions of people in a matter of seconds. it has never been easier to disseminate both accurate and inaccurate information to large audiences, resulting in the rise in exposés and the growth of ‘cancel culture.’ louis brandeis and his law partner, samuel warren, set the groundwork for improving privacy laws, especially concerning privacy from the media, but nearly a century later and in the new age of (social) media, those ideas are not being applied in the same way as they were during brandeis’ lifetime.30 the right to privacy legal movement should be re-evaluated in light of social media and the use of exposés which cultivate cancel culture. background 29 brandeis university undergraduate, class of 2023. 30 erwin chemerinsky, "rediscovering brandeis's right to privacy," 644. 25 brandeis university law journal fall 2021, volume 9, issue 1 the right to privacy brandeis and warren’s “the right to privacy” was published in the harvard law review in 1890. they were inspired to write the article because of the new technology of the time, such as cameras, and the intense pressure of the press. concerned by these developments, they wanted to take a deeper look into how those factors affected the commonwealth.31 brandeis began the article by stating, “that the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define the exact nature and extent of such protection,” which immediately acknowledges the necessity for redefining laws as technology progresses.32 brandeis explained that during the early development of common law, most rules centered around the notion of the “right to life,” which then only referred to the preservation and protection of physical life. over time, the term “right to life” has been extended to include the protection of one's physical, spiritual, and intellectual property. brandeis published the article as a way to influence the continuation of this trend through the creation of new protections for privacy, stating,33 the principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.34 brandeis acknowledged the need to “update” laws to encompass the new threats to one's privacy. he articulated the importance of not only bodily and material protection, but also protection over one's identity and personal work. examples brandeis sought to protect one's personal life and work from the public view. the rise of photography and printed media posed a major threat 31 cayce myers. “warren, samuel & louis brandeis. the right to privacy, 4 harv. l. rev. 193 (1890).” 520. 32 louis d. brandeis, and samuel d.warren. "the right to privacy." 193. 33 myers, 519. 34 brandeis, 213. 26 brandeis university law journal fall 2021, volume 9, issue 1 to the general public's privacy. since there were no formal doctrines protecting personal privacy, it was technically not against the law to take photos of someone and their property or personal documents and share them without permission. brandeis even went so far as to assert under his proposed privacy rules that even if photos or documents rightfully came into the possession of someone else other than the original owner, the secondary individual still could not and should not share them. this would be especially true if there was an intent to devastate one’s reputation. for example, brandeis explained that if “a man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day,” then neither the son who received the letter, nor a person who may receive his diary, should share anything about those documents without penalty.35 modern day application “the right to privacy” greatly influenced understandings of privacy as a barrier between the government and its citizens through a new interpretation of the 4th amendment, as well as between citizens themselves as through the privacy act of 1974 and its subsequent overviews.36 brandeis called for a constant update to privacy rules due to an ever modernizing press and its new capabilities. since privacy rules are updated largely following the development of new technology, the approaches will always be a step behind any potential new dangers to privacy. brandeis used the example of the man writing a letter to his son and how his son should not be able to share that letter to the public; the modern day equivalent to letters are emails and, by extension, text messages. following the example, it should then not be legal to share responses to personal emails and text messages publicly without prior permission from the respondent. however, there is very public proof of messages being shared in this way, specifically through exposé videos on youtube. cancel culture the origin of cancelling the concept of cancel culture has played a variety of roles in modern society. the term “cancelled” or “to be cancelled” has recently appeared in 35 brandeis, 201. 36 pam dixon and robert gellman. “online privacy : a reference handbook.” 128.;“overview of the privacy act: 2020 edition.” the united states department of justice. https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosuresthird-parties. 27 brandeis university law journal fall 2021, volume 9, issue 1 right-wing political rhetoric, as early as 2016, as a way to claim that conservatives’ competitors silenced counter-perspectives in important debates. the term was used to denote the danger of moving away from true academic debate and towards an emotion-based discussion of particular topics. over time, the term morphed from opinion-oriented cancelling into cancelling people, and now in 2021, this has come to mean more specifically cancelling celebrities.37 cancelling celebrities certain celebrities live very public lives and, in order to maintain their image, share their lives and their thoughts with their millions of followers across all social media outlets. images, captions, newsletters, or anything else those celebrities have shared is “liked,” retweeted, and reposted by various other accounts in a matter of a few seconds. even if later in the day the celebrity decides to delete what they had posted, the digital print will still exist because followers had the chance to save the post to their own devices to keep their own copy. celebrities who are “cancelled'' end up chastised on social media, losing potentially thousands of followers, and possibly even brand deals because followers do not want to be associated with the celebrity or their remarks. cancelling a celebrity is essentially attempting to revoke their celebrity status and influence. cancelling does not happen randomly, as it is a reaction to something the celebrity has done, such as “morally offensive words and deeds, racism and ethnocentrism, anti-semitism and islamophobia, sexual harassment and abuse, misogyny and agism, and homophobia and transphobia.”38 in 2020, harry potter author, j. k. rowling came under fire after publicly making transphobic comments. patrons on social media, specifically on twitter, berated rowling and called for her to issue an immediate apology. social media “allow[s] marginalized groups to engage in networked framing, a process by which collective experiences of an offending party’s (or their proxies) unjust behavior is discussed, morally evaluated, and prescribed a remedy (...) through the collective reasoning of culturally aligned online crowds.”39 celebrities like rowling who have large followings tend to lose a large amount of popularity but usually do not suffer large scale 37 pippa norris. “cancel culture: myth or reality?” 38 norris, “cancel culture: myth or reality?” 39 meredith d. clark. “drag them: a brief etymology of so-called ‘cancel culture.’” 90. 28 brandeis university law journal fall 2021, volume 9, issue 1 consequences because of the strength of their already well established social base.40 #jamescharlesisoverparty while a-list celebrities do not typically lose their careers over potentially morally compromising behaviour, micro-celebrities, such as youtubers, who may have a large but niche following, could lose everything overnight. micro-celebrities do not have the luxury of a stable following as social trends, and hence their own relevance, are always fluctuating. in order to stay in the public sphere, micro-celebrities constantly need to ride the current trends, but also need to get involved in drama and cancel culture in order to keep people talking about them.41 in 2019, youtubers tati westbrook, james charles, and jeffree star were all involved in a scandal that was later titled dramageddon 2.0. in short, during coachella, james charles brokered a deal with a brand that was in direct competition with his friend, westbrook. distraught, westbrook released a series of instagram videos and a youtube video, which have all since been deleted. the first one regarded charles’ disloyalty, but later posts built on her momentum to claim that he had been exhibiting sexual predatory behavior. star, who had no connection to either at the time, tweeted his support in westbrook’s favor while further disparaging charles’ name. between westbrook’s videos and star’s support, charles was officially “cancelled” on social media and lost nearly 3 million followers because of the scandal, which greatly affected the possible revenue he could receive from his content.42 critique charles’ response less than a month after charles’ acceptance of the brand deal, he released a video entitled no more lies, in which he apologized to westbrook for taking the controversial brand deal, but he also asserted his 40 norris, “cancel culture: myth or reality?” 41 tenbarge, kat. “one year after the beauty youtuber war burned their community to the ground, new battle lines have been drawn between the growing stars that started it all.” https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-theteenager-was-a-danger-to-society-4. 42 tenbarge, “one year after the beauty youtuber war burned their community to the ground, new battle lines have been drawn between the growing stars that started it all.” 29 brandeis university law journal fall 2021, volume 9, issue 1 innocence against the allegations of westbrook and star. up until that point, the allegations made against charles were either verbal or written digitally, and were in the nature of a “he said, she said” situation, with no physical proof either way. in charles’ video, he went line by line through each allegation and tried to clear his name by showing timestamps of messages as well as messages he sent and received. some messages he showed were just his messages along with the recipient’s messages, but he also showed screenshots of just the recipient’s messages, which is essentially the exact scenario brandeis warned against with his example of the man and the letter to his son.43 brandeis’ response the events of dramageddon 2.0 were not an isolated situation. the act of sharing personal messages on social media has been normalized, not just in regard to proving ones' innocence or guilt, but increasingly also for amusement.44 regardless of their use, brandeis’ arguments assert that the sharing of the recipients’ messages is a violation of their privacy. he wrote, “the right to property in its widest sense, includ[es] all possessions.”45 just as the son could not share what his father wrote in a letter addressed to him, people should not be able to share messages that are not their own with others regardless of intention. unfortunately, they continue to do so. conclusion the possibilities for interpersonal communication have grown exponentially since brandeis’ time. new technology and social media has made sending, sharing, and receiving information easier and faster than ever. since privacy laws continue to fall behind the new technology, private messages are being shared without permission which is harmful because, as seen on youtube, it is being used for the exploitation of people for exposés. brandeis called for a constant update to privacy laws to bridge the gap between the laws and the technology of the time so as to preserve the privacy of personal messages and conversations. 43 james charles, no more lies. https://youtu.be/ufvtcuzfyl4. 44 michelle rennex, joseph earp, merryana salem, and edwina storie. “teens are sharing their most hilariously awkward texts in this new tiktok trend.” https://junkee.com/awkward-texts-tiktok/232099. 45 brandeis, 211. 30 brandeis university law journal fall 2021, volume 9, issue 1 works cited brandeis, louis d., and samuel d. warren. "the right to privacy." harvard law review 4. no. 5. (1890): 193;201;213. charles, james. no more lies. (youtube, 2019). https://youtu.be/ufvtcuzfyl4. chemerinsky, erwin. "rediscovering brandeis's right to privacy." brandeis law journal 45. no. 4. (2007): 644. clark, meredith. “drag them: a brief etymology of so-called ‘cancel culture.’” communication and the public 5. no. 3–4. (september 2020): 90. dixon, pam, and robert gellman. online privacy : a reference handbook. (santa barbara: abc-clio, llc, 2011). 128. myers, cayce. “warren, samuel & louis brandeis. the right to privacy, 4  harv. l. rev. 193 (1890).” communication law and policy 25. no. 4. (2020): 519-520. norris, pippa. “cancel culture: myth or reality?” political studies. (august 2021). “overview of the privacy act: 2020 edition.” the united states department of justice. february 16, 2021. https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/ disclosures-third-parties. rennex, michelle, joseph earp, merryana salem, and edwina storie. “teens are sharing their most hilariously awkward texts in this new tiktok trend.” (junkee, november 26, 2019). https://junkee.com/awkwardtexts-tiktok/232099. tenbarge, kat. “one year after the beauty youtuber war burned their community to the ground, new battle lines have been drawn between the growing stars that started it all.” insider. (insider, may 20, 2020). https:// www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook31 https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties https://youtu.be/ufvtcuzfyl4 https://junkee.com/awkward-texts-tiktok/232099 https://junkee.com/awkward-texts-tiktok/232099 https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4 https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4 brandeis university law journal fall 2021, volume 9, issue 1 2020-5# thats -when-star-leveled-his-own-accusations-against-charles including-that-the-teenager-was-a-danger-to-society-4. 32 https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4 https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4 https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4 https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4 untitled document voting while in mass incarceration rebecka sokoloff75 abstract: this article explores a recent report of scholars and voting-rights activists urging congress to make voting mandatory. in this article, i examine the rights of felons, specifically their rights to vote while in mass incarceration. since prisoners are not allowed to vote in most states, i argue why they should gain suffrage. from this article, i hope to provide and enlighten the reader on possible alternative solutions to prisoner voting. introduction in a recent report, many scholars and voting-rights activists urge congress to make voting mandatory for all u.s. citizens.76 participating in voting is incredibly important because it ensures your voice is heard, which is one of the primary foundational elements of democracy. by forcing americans to vote, scholars and voting-rights activists are encouraging and influencing individuals to educate themselves and others about the important issues and policies of each presidential candidate. this is crucial in our democracy because it allows us to be involved in the national decision-making process and having knowledge in what our nation is achieving. if every individual were to cast a vote, the outcome would be huge; there would be reduced partisanship, more knowledge about current issues, and more youth advocates and activist groups.77 scholars and voting-rights activists argue that if people do not vote or have an acceptable excuse for not voting, they should be penalized. this stemmed from the 2012 and 2016 presidential election reports that revealed an average of 61.6% of eligible citizens participating in the registration and voting process.78 since many individuals have not voted in recent years, scholars and voting-rights activists argue that if people do not vote or have an acceptable excuse for not voting, they should be penalized. by making voting a civic responsibility, america would be a more democratic and advanced society.79 voting is an important right in america, and it should be upheld for all citizens, no matter if one has been convicted of a felony or incarcerated. currently, in the united states, felons are ineligible to vote. in some circumstances, felons lose their right to vote while they are in incarceration but receive restoration upon their release. unfortunately, states continue to indefinitely remove voting rights from felons.80 several important questions have been raised regarding voting rights in relation to prisoners, such as, how do prisoner voting rights factor into this new plan? why are prisoners not allowed to vote? should they be allowed? are there alternative ways to ensure that prisoners can vote? it is unjustifiable and unconstitutional to deny prisoners the right to vote, and it is incredibly 80 “felon voting rights.” national conference of state legislatures (2019). 79 moyo, (2019). 78 “voting in america: a look at the 2016 presidential election.” the united states census bureau (2017). 77 moyo, 2019. 76 dambisa moyo. “make voting mandatory in the u.s..” the new york times (2019). 75 undergraduate at brandeis university, class of 2022. 34 important that america changes its established laws to accommodate prisoner voting because we cannot take away an american’s inherent right to participate in democracy. background the history of felony disenfranchisement dates back to the english colonists. when british colonists came to north america, they brought with them the common law practice of “civil death.”81 these were a set of criminal penalties that punished those who rejected common law. if one violated the moral code, the penalty was the revocation of their right to vote. it was not until after the american revolution that the states began expanding the annulment of voting rights to all felony offenses.82 during the post-reconstruction period, also known as the jim crow laws era, many of the southern states tailored disenfranchisement laws to target and ban black males from voting. for example, kentucky and virginia created laws that prevented convicted felons from voting at any point in their life after conviction. the laws for disenfranchisement broadened throughout the states, causing more individuals to lose their right to vote.83 this disenfranchisement continued in the united states until 1965 when the voting rights act was introduced nationwide, in order to protect voting rights. this landmark legislation prohibited every state and government from discrimination of racial or cultural minorities through voting rights.84 the voting rights act was the start to providing equality in voting rights for all americans. however, the 1974 court case richardson v. ramirez challenged this progress. ramirez and several felons brought a class action suit against california’s secretary of state because they were denied their right to vote. they challenged the laws that permanently disenfranchised any individual that was convicted of a crime and argued that the state did not have justification or evidence to deny them the right to vote. on appeal, the supreme court ruled in favor of california. it was stated that it was constitutionally acceptable to deny the felons the right to vote because a state could lawfully consider the qualifications of a voter based on their criminal record. yet, the constitution confirms that states cannot deny the individual the right to vote based on their racial presentation. since it was viewed as historically acceptable to disenfranchise prisoners, ramirez and the other felons did not regain their right to vote.85 85 richardson v. ramirez, 418 u.s. 24 (1974). 84 “history of federal voting rights laws.” the united states department of justice (2020). 83 chung, 2019. 82 chung, 2019. 81 jean chung. “policy brief: felony disenfranchisement.” the sentencing project (2019). 35 as seen above, the barring of felons from voting stems from the hostility and the perception society has about individuals who commit crimes. when an individual is incarcerated, they are forever tainted with a negative image based on their crimes, regardless of serving their time and amending their sins. some might argue that the government and authorities need to control and govern felons’ voting rights because they have and (possibly) will continue to violate the rules and regulations put in place by the state and federal government. additionally, many individuals may ask why prisoners should be allowed to vote when they neglected to adhere to the law? while some crimes may not be as bad as others (i.e., the possession of marijuana compared to first degree murder), anyone who goes against set rules is deemed inexcusable in the eyes of the law. prisoners who disrupt the peace and commit crimes need to have the intrusion in order to get the help they need to live a crime-free life, and to ensure the safety of the public. if they were left to do this on their own, they may fall into bad habits or cause more destruction. importance of prisoner voting while these are true remarks, how can we justify taking away someone’s right to talk for themselves? even if an individual committed a crime, they are a self-governing individual protected under the fundamental rights of the constitution. they have the ability to speak and act for themselves, without the forced governance of authority. people voice their opinion in politics through voting. if the government or authorities were to implement harsher restrictions onto the individual, it may depreciate them more. the individual may be more isolated from society and not given the resources they need in order to improve. the isolation from society would enable the incarcerated to continue to feel useless and unwanted. this would not only affect their mental and physical health, but also not allow them to be educated, express themselves, or reintegrate back into society properly. implementing these restrictions could be detrimental and cause more separation and judgement within society. our national political conversation and change depends on the voting. in the past 20 years, neglect and the misuse of authoritative power has plagued prisoners throughout the nation. in addition to being locked away, the prisons are failing health inspections and lack proper immersion programs for the prisoners. if prisoners had the ability to vote, they would vote for representatives that cared about the prison system and would fight to ensure that health inspections are taken care of. furthermore, the representatives could enact programs that allow prisoners to access proper education and therapeutic resources.86 by giving them the right to vote, prisoners can represent themselves and the larger portion of the population. moreover, they 86 “prison abuse: a curated collection of links.” the marshall project (2020). 36 can voice their concerns about maltreatment and the ways to help improve life in and after prison. as a result of prisoners being prohibited from voting, a caste system has formed. america has had a dark past where it was believed that people were not and should not be equals. this can be seen in the “three-fifths clause” of the u.s. constitution. this clause stated that african americans were only three-fifths of a full citizen of the united states. enslaved african americans were not allowed to vote, allowing white individuals and the government to talk, act, and decide for them.87 like slavery, mass incarceration is a designed system to racialize, discriminate, and create stigma between individuals in prison and individuals in the ‘free world.’ prisoners are legally the property of the government. the government has the right to speak on their behalf and to go above their heads to use the law, even if that makes them inferior and dehumanized.88 a caste system in the united states is the artificial grouping and labeling of individuals.89 prisoners could be considered in a caste system because they are systematically grouped to be labeled as bad individuals. caste systems go against everything this country is supposed to stand for, and limit individuals’ ability to partake in their fundamental rights. furthermore, prisoners perform mandatory labor for private companies. mass incarceration may refer to this as a rehabilitation approach to get prisoners back into normal life, but there are ulterior motives other than rehabilitation. often there is a profit extraction for this labor where prisoners are paid little to nothing for their labor.90 most importantly, the inhumane conditions of the prisons cause medical and mental health problems. by not facilitating the prisoners with proper sanitation and cleanliness, it is in contradiction to the idea that prisons are a rehabilitation center. many of the prisoners are left in the same dirty, moldy prison cells with little cleaning. in addition, they wear the same clothing every day. the lack of sanitary conditions can contribute to the spread of infections, diseases, and viruses. mentally, prisoners are not given proper support or resources to find comfort in their surroundings or with themselves. this can make prisoners act out violently towards each other or the guards. going a step further, this could lead to suicide or self-harm. surely, prisoners who committed horrible acts deserve to feel guilty, but why should the government and prison system allow for cruel and unusual conditions? voting would enable the prisoners to elect representatives that cared enough to implement policies and conditions that would improve their 90 florio, 2016. 89 isabel wilkerson. “america’s enduring caste system.” the new york times magazine (2021). 88 gina m. florio. “5 ways america’s prison system mimics slavery.” bustle (2016). 87 malik simba. “the three-fifths clause of the united states constitution (1787).” black past (2014). 37 living conditions. prisoners should be given the tools, such as voting, to improve themselves and right their wrongs right. this cannot be done when they are treated like animals.91 alternative solutions since 2019, a few states have found alternative solutions to prisoner voting. however, not all of the alternative solutions have an easy and positive outcome. for instance, the harris county jail in houston, texas has partnered with outside organizations – such as the texas organizing project and the houston justice – to help jumpstart voting initiatives within the prisons. one of the alternative solutions to prisoner voting was to place a polling location within the jail. this way, both the prisoners and the surrounding community have the opportunity to vote. though, this solution was not plausible. first, the incarcerated felons lacked the proper and necessary identification to cast a ballot. the jail lacked internet access or resources to obtain the proper identification of the prisoners. second, any polling place must be open to the general public because any individual is entitled to use one. this meant that community members would have to enter the jail in order to vote. there was controversy with this solution because jails limit the number of individuals who enter the building, meaning that the community members would not have access to the polling station.92 besides the harris county jail, there have been many attempts in finding resolutions to prisoner voting and the voting process throughout the country. in several states, such as the district of columbia, maine, and vermont, felons never lose their right to vote, even while they are incarcerated. in the past years, legislatures within the states of virginia, maine, and vermont have rejected laws that excluded convicted individuals from voting because they felt as though it was wrong to retrieve an individual’s american rights. in these states, prisoners can vote by absentee ballot. since there are many people of color within the prisons, these states allow the minority to participate in their right to vote. however, while these states allow prisoners to vote, there is a lack of resources and discussions on the voting process and political options.93 i suggest several alternative solutions that would allow prisoners to vote and to be educated about the voting process and political options. first, all prisoners should have a mandatory seminar every four years about the different presidential candidates and their policies in order to inform the prisoners about the voting choice. thus, criminals can be well educated and learn about new policies. this is especially important for criminals who are serving short prison sentences or individuals who have children of their own. the seminars could be taught by outside officials or educators in a protected and safe 93 nicole lewis. “in just two states, all prisoners can vote. here’s why few do.” the marshall project (2019). 92 nicole d. porter. “voting in jails.” the sentencing project (2020). 91 amy miller. “overcrowding in nebraska’s prisons is causing a medical and mental health care crisis.” aclu of nebraska (2017). 38 classroom (to ensure that all officials or educators feel comfortable). this solution would work because it allows convicted felons not only the opportunity to be informed, but also to understand the candidates and their policies. before voting, the felons are exposed to the outside world and would be given a second wave of hope. during the voting process, there should be several polls placed within the prison that enable incarcerated individuals to vote. the security guards could monitor the number of prisoners entering and exiting the polling area. the polls would ensure security and protection of the vote, while also allowing prisoners to participate in the inherit american right to democracy. if the polling stations were to malfunction, the prisons should have absentee ballots ready for the detainees. when they are released, the inmates would be able to experience a society, no matter if it had changed the outcome based on their vote. even if the votes show that the other party wins, incarcerated individuals will still have the opportunity to be seen as individuals and re-integrate back into society. a second option could be that prisoners who will be released during the next presidency period should vote. since the prisoner would no longer be incarcerated, their presidency choice would matter. they have the right to vote for someone that they believe will represent and govern them. while this could create a separation between the prisoners (who can vote and who cannot vote), it may also provide a sense of encouragement, hope, and ‘revolutionary’ spirit. a plausible concern with this alternative is that the inmates that would not be released by the next presidency would feel as though there was special treatment. this may ensue distrust amongst the guards and prisoners, and more violence between inmates. nevertheless, it would allow the prisoner to vote and make change within the nation. these two options are of many possibilities to help restore the knowledge and humanization of the mass incarceration system and society. conclusion it is deeply problematic to deny the right to vote for an entire class of american citizens. the democratic society and system depend on all of the individuals within the nation. fortunately, many states are reconsidering their disenfranchisement policies, but this does not excuse the effects that it has caused in the past. prisoners are individuals who have a voice and a right to be heard. if people of the nation do not vote, they are letting the nation’s leaders speak for them, and important issues will be disregarded. prisoners are used as correctional facilities. to deny a product of that facility the right to vote and the right to be a proper citizen is to say that the prison system in the united states is untrustworthy and deeply flawed. the united states has two options: continue down the path of a flawed system or do what the nation is designed to do; change. 39 works cited moyo, dambisa. “make voting mandatory in the u.s..” the new york times (2019). web: https://www.nytimes.com/2019/10/15/opinion/united-states-voting-mandatory.html. chung, jean. “policy brief: felony disenfranchisement.” the sentencing project (2019): 1-6. web: https://www.sentencingproject.org/wp-content/uploads/2015/08/felony-disenfranch isement-primer.pdf. “felon voting rights.” national conference of state legislatures (2021). web: https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx. file, thom. “voting in america: a look at the 2016 presidential election.” the united states census bureau (2017). web: https://www.census.gov/newsroom/blogs/random-samplings/2017/05/voting_in_america. html. florio, gina m. “5 ways america’s prison system mimics slavery.” bustle (2016). web: https://www.bustle.com/articles/142340-5-ways-the-us-prison-industrial-complex-mimics -slavery. “history of federal voting rights laws.” the united states department of justice (2020). web: https://www.justice.gov/crt/history-federal-voting-rights-laws. joyce, michael s. “on self-government.” policy review of the hoover institution. stanford university, no. 90 (1998): 41-48. web: https://www.hoover.org/research/self-government. lewis, nicole. “in just two states, all prisoners can vote. here’s why few do.” the marshall project (2019). web: https://www.themarshallproject.org/2019/06/11/in-just-two-states-all-prisoners-can-votehere-s-why-few-do. miller, amy. “overcrowding in nebraska’s prisons is causing a medical and mental health care crisis.” aclu of nebraska (2017). web: https://www.aclu.org/blog/prisoners-rights/cruel-inhuman-and-degrading-conditions/over crowding-nebraskas-prisons-causing. porter, nicole d. “voting in jails.” the sentencing project (2020). web: https://www.sentencingproject.org/publications/voting-in-jails/. “prison abuse: a curated collection of links.” the marshall project (2020). web: https://www.themarshallproject.org/records/50-prison-abuse. simba, malik. “the three-fifths clause of the united states constitution (1787).” black past (2014). web: https://www.blackpast.org/african-american-history/events-african-american-history/three -fifths-clause-united-states-constitution-1787/. wilkerson, isabel. “america’s enduring caste system.” the new york times magazine (2021). web: https://www.nytimes.com/2020/07/01/magazine/isabel-wilkerson-caste.html. 40 https://www.nytimes.com/2019/10/15/opinion/united-states-voting-mandatory.html https://www.sentencingproject.org/wp-content/uploads/2015/08/felony-disenfranchisement-primer.pdf https://www.sentencingproject.org/wp-content/uploads/2015/08/felony-disenfranchisement-primer.pdf https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx https://www.census.gov/newsroom/blogs/random-samplings/2017/05/voting_in_america.html https://www.census.gov/newsroom/blogs/random-samplings/2017/05/voting_in_america.html https://www.bustle.com/articles/142340-5-ways-the-us-prison-industrial-complex-mimics-slavery https://www.bustle.com/articles/142340-5-ways-the-us-prison-industrial-complex-mimics-slavery https://www.justice.gov/crt/history-federal-voting-rights-laws https://www.hoover.org/research/self-government https://www.themarshallproject.org/2019/06/11/in-just-two-states-all-prisoners-can-vote-here-s-why-few-do https://www.themarshallproject.org/2019/06/11/in-just-two-states-all-prisoners-can-vote-here-s-why-few-do https://www.aclu.org/blog/prisoners-rights/cruel-inhuman-and-degrading-conditions/overcrowding-nebraskas-prisons-causing https://www.aclu.org/blog/prisoners-rights/cruel-inhuman-and-degrading-conditions/overcrowding-nebraskas-prisons-causing https://www.sentencingproject.org/publications/voting-in-jails/./ https://www.themarshallproject.org/records/50-prison-abuse https://www.blackpast.org/african-american-history/events-african-american-history/three-fifths-clause-united-states-constitution-1787/ https://www.blackpast.org/african-american-history/events-african-american-history/three-fifths-clause-united-states-constitution-1787/ https://www.nytimes.com/2020/07/01/magazine/isabel-wilkerson-caste.html cases cited richardson v. ramirez, 418 u.s. 24 (1974). 41 untitled document lights, camera, action! how hollywood avoided eternal federal censorship renée nakkab26 abstract: this article captures the legal history of censorship in film. in an effort to prevent an american governmental body from regulating the movie industry, hollywood created their own agencies to police film production companies. while this moral and ethical policing may be considered censorship, this article will explain why the industry’s approach made perfect sense. although production companies had to abide by a code, it was only for america’s three most modest decades in the 1900s. if the government created legislation about film content requirements, it would be an incredibly difficult process to modernize the requirements with the times. this article will explain how the movie industry’s censorship evolved from the production code to the rating system, ultimately proving that america is better off for hollywood’s creation of malleable content expectations. introduction censorship is the antithesis of liberty and freedom. the first amendment of the united states constitution protects americans’ right to freedom of speech.27 as an iconic aspect of american culture, freedom of speech aims to increase democractic ideals by allowing everyone to speak without fear of retribution from the government. in an environment where open discussion is encouraged, individuals feel safer, and thus more inclined to voice their opinions. the first amendment helps america evolve into a country in which more voices than those at the top of the social and financial ladder are heard. the platform in which voices travel has a large effect on perception and impact of what is being discussed. film is a powerful vehicle of thought and has the capacity to captivate audiences within the first minute of rolling. because film has the potential to mesmerize people, the messages and motifs portrayed onscreen were glaring concerns to those in power immediately after the birth of the motion picture in the early 20th century. this article will address the genius of the american film industry’s avoidance of federal censorship through the development of a self-regulating agency. this system was highly censorial and adapted to modernizing legal views of free speech to keep film relevant to the american public. nevertheless, the adaptation of the state censorship board’s regulations to the motion picture association (mpa) rating system was the best method of removing this censorship from the film industry. historical context 27 u.s. constitution, amend. 1. 26 undergraduate at brandeis university class of 2022. 13 in the early 1900s, there were a plethora of different legal codes and standards for the development of film. state, city and town authorities maintained their own moral and ethical guidelines for which films were allowed to be featured in their region.28 this obvious inconsistency created confusion and frustration among the film production industry. if there is no standard to abide by, how will producers know whether or not their film would be allowed to be shown throughout the united states? in 1907, theater operators sued chicago for their institutional censorship of film. chicago police chiefs would watch and review the movie before the general public, making the ultimate decision as to whether or not the movie was morally acceptable for release. in this case, theater owners believed the ordinance improperly delegated discretionary and judicial powers, deprived film owners of property without due process, and made the judgement void due to the lack of standards that led the chief to his decision.29 the court sided with chicago’s censorship system, and held that “an average person of healthy and wholesome mind knows well enough what the words ‘immoral’ and ‘obscene’ mean and can intelligently apply the test to any picture presented.”30 the court, not accounting for the possibility of human error or a difference in understanding, ushered in a wave of state censorship of the film industry. in 1911, the pennsylvania state board of censors was created. in 1913, the ohio censorship law passed, creating another board of film censors, and kansas and maryland followed a couple years later with the development of their own film censorship boards.31 within the next ten years, new york, virginia, atlanta, memphis, and other states and cities developed censorship bodies to regulate the moral righteousness of the film industry.32 the lack of uniformity and clear guidelines diminished profits in the movie industry. film producers make money by selling their film to cinemas, so if a large number of theaters are banned from buying a film because it fails to meet their region’s censorship expectations, then a film will not make a significant profit. although film makers did not necessarily want to adhere to the strict moral standards being imposed on them, they were forced to for the sake of market access. hence, the film industry realized that they needed to create their own set of guidelines to protect their business. the national association for the motion picture industry created the first loose set of expectations for the industry's producers; film was not allowed to arouse “bawdy emotions”or pander to a “salacious curiosity.” sex appeal, white slavery and improper attitudes were widely condemned, yet “artistic expression” was still encouraged.33 with 33 donald young, motion pictures: a study in social legislation 13 (1922). 32 ibid., 132. 31 wittern-keller, 131. 30 ibid., 1015. 29 block v. city of chicago, 87 n.e. 1011, 1013, 1015 (ill. 1909). 28laura wittern-keller, governmental censorship, the production code and the ratings system, in hollywood and the law 130, (paul mcdonald et al. eds., 2015), 130. 14 industry-controlled restrictions, film production companies were able to self-regulate hollywood instead of the state governments and prevent it from ever becoming a federal government issue. if film content control ventured into the hands of the government, the industry risked the creation of legislation that would have the potential to last centuries, while this code ended after a few decades. hay’s code will h. hays was the first president of the motion picture producers and distributors of america incorporated (mppda), now known as the motion picture association of america incorporated (mpaa). this organization was established to counter the increased censorship efforts by states and other agencies.34 the mppda reviewed scripts in hopes of guiding against possible immorality charges brought on by state censorship boards. hays manifested a list of “don’ts” and “be carefuls” to give movie creators a clear set of guidelines to follow. figure 1: the “don’ts and be carefuls”35 subjects not to appear in pictures produced by member firms of the mppda: subjects to be treated with special care to eliminate vulgarity and emphasize good taste by the mppda: pointed profanity, including the words “god,” “lord,” “jesus,” “christ,” (unless used with proper religious reverence), and all other profanities use of the flag illegal traffic of drugs international relations nudity, licentious or suggestive; and any lecherous notice of nudity by characters theft, robbery, safe-cracking, and dynamiting of trains, mines, buildings (due to the effect which a too-detailed description may have upon the moron) white slavery; miscegenation brutality, possible gruesomeness any inference of sexual perversion the technique of committing murder scenes of actual childbirth, in fact or in silhouette actual hangings or electrocutions as legal punishment for a crime sex hygiene and venereal diseases sympathy for criminals 35 for the full list of the “don’ts and the be-carefuls” please refer to mppda’s digital archive https://mppda.flinders.edu.au/records/341. 34 michael conant, antitrust in the motion picture industry. new york: arno press, 1978, 240. 15 willful offense to any nation, race or creed attitude to public characters and institutions; sedition children’s sex organs apparent cruelty to children and animals; branding of people or animals ridicule of the clergy the sale of women or a woman selling her virtue rape or attempted rape man and woman in bed together the institution of marriage the use of drugs surgical operations excessive or lustful kissing, particularly when one character or the other is a "heavy" scenes involving law enforcement or law-enforcing officers although the creation of this list was meant to eliminate the encroaching censorial threat of state agencies, it failed to stop the state powers because the movie industry largely ignored the mppda’s guidelines. in 1929, producers submitted only 21 percent of scripts for review by the mppda.36 by ignoring the moral standards for film, movie companies became the target for censorship beyond state power. president hoover debated antitrust action against the industry, civic organizations fought for federal control, and censorship legislation was introduced in both congress and state legislatures.37 it was not until the start of the catholic national legion of decency’s campaign against immoral films that a formalized code was accepted by the industry. father daniel a. lord, a catholic priest and st. louis university professor, along with hays, developed the motion picture production code in 1930.38 this final version of the motion picture production code became better known as hay’s code. breen administration 38 ibid., 9-10. 37 ibid., 8-9. 36 leonard j. jeff & jerold l. simmons, the dame in the kimono: hollywood, censorship, and the production code 8 (univ. press of ky. 2d ed. 2001). 16 the mppda dedicated a branch of their services, the production code administration (pca), to the upkeep of the moral and ethical standards of hay’s code. joseph i. breen, a staunch catholic, was placed as the head of this administration. under the breen administration, the code followed three primary principles: “no picture shall be produced which will lower standards of those who see it. hence the sympathy of the audience shall never be thrown to the side of crime, wrongdoing, evil or sin. correct standards of life, subject only to the requirements of drama and entertainment, shall be presented. law, natural or human, shall not be ridiculed, nor shall sympathy be created for its violation.”39 the larger principles were divided into twelve broader subject headings of prohibition: crimes against the law, sex, vulgarity, obscenity, profanity, costume, dances, religion, locations (bedrooms), national feelings, titles, and repellent subjects.40 increased limits on film content consequently decreased film producers’ freedom to produce free-speech film material. while film producers could ignore the standards, as they did in years prior, those who did would be forgotten by the industry. the incentive to comply with the movie standards exponentially grew because the banking industry put value in the moral policing of the pca. if a film’s script, advertising, wardrobe, or acting did not have breen’s seal of approval, the producer’s were unable to receive loans from banks.41 without money, films could not be produced. from 1934-1948, 95 percent of all american-made films —and a large number of foreign films—were made with the clearance of the pca.42 twentieth century fox, rko pictures, paramount pictures, warner brothers, and metro-goldwyn-mayer were known as the “big five” production and distribution firms in the 1950s. the pca and the big five had an agreement to only show films that received pca approval within their theaters. the big five owned and operated 70 percent of first-run theaters in the nation’s major cities.43 for a film to make money, it had to be seen. if films did not have pca approval there was limited opportunity for profit due to the theaters’ agreement to only purchase pca approved films. there are two clear impacts of the tightly held restriction on the movie industry. first, the code minimized the artistic liberties of film creators. creativity is the exploration of thought and the willingness to be different and make something new. regimented rules limit creativity, but if the rules were not followed producers would not have been able to create their art. second, the 43 ibid. 42 conant, 41. 41 gregory d. black, "hollywood censored: the production code administration and the hollywood film industry, 1930-1940." film history 3, no. 3 (1989), 173. 40 ibid. 39 motion picture producers and distributors of america, inc., record #2254, mppda digital archive 1, 1 (1931) https://mppda.flinders.edu.au/records/2254 17 pca became the governing body of the movie industry. through their close connections with the big five, the pca attempted to establish a moral america through film. although the pca liked to consider themselves “regulators,” they were undeniably censorship enforcers. nevertheless, the creation of the pca was imperative for the longevity of american film. when an organization creates regulations, it has the ability to evolve and adapt with the changing needs of the time. in surveying the general public, the organization’s leaders can easily alter their thinking to continue to be well regarded by society. since the pca is merely a service of the mppda, it can be changed or even destroyed without much commotion. if the pca did not exist, the federal government would have passed legislation to censor film. this would have been catastrophic for the development of the industry. the law is notoriously set in stone and does not modernize well, so changing censorship laws from the 1930s would have taken decades of litigation and debate. additionally, the change would involve far more entities, press, and possible disagreement. if censorship of film existed on the federal level, it could easily divide the country; just as any other bipartisan issue fought on the federal level has done before. when america becomes divided over an issue, it rarely resolves quickly. admittedly, the pca censored the artistic freedom of movie producers for decades. however, without this self-regulating body within the film industry, the movies we have come to love today might not have been produced. the lack of federal involvement allowed for the industry to advance with the changing progressive thought of society. however, it was not until the late 1950s that obscenity laws were called into question.44 with wobbling conceptions of what is considered obscene, it was only a matter of time before film’s moral standards were readjusted. it was in 1965 when freedman v. maryland held that government-operated rating boards were to be terminated after a majority decision that a government rating board could only approve films and no longer ban them.45 due to this, the mpaa revised their role as an enforcer of a strict moral code to that of mere advisor. after freedman v. maryland, the only power states had to regulate film production was regarding the dissemination of objectionable material to children.46 unwilling to relinquish power to state authorities, the mpaa created the code and rating administration (cara) who generated the current rating system. mpaa rating system the mpaa rating system maintains a multitude of categories aimed to advise the viewer of the level of explicit material within the film. the original ratings categories consisted of g 46 interstate circuit, inc. v. dall., 390 u.s. 676, 680 (1968) (defining “young persons” as those under the age of sixteen). 45 freedman v maryland, 380 u.s. 51 (1965). 44 roth v. united states, 354 u.s. 476, 479 (1957). 18 (general audiences), m (mature audiences), r (restricted, no one under the age of sixteen admitted without parent or guardian), and x (not suitable for anyone under sixteen due to sex, violence, or language).47 eventually, the m rating split into pg (parental guidance suggested) and pg-13 (parents strongly cautioned); and the previous age minimums shifted from sixteen to seventeen.48 the x rating is the only non trademarked category. it is available for independent filmmakers to self-designate, over time, it became synonymous with pornographic material. in light of this, the mpaa created the nc-17 rating (no one seventeen and under admitted) in 1996 to signal that although not illicitly pornigrafic, the film contains explicit material.49 notice that this system does prohibit the creation of film through monetary restraints. rather it encourages audiences to watch the film believed to be most appropriate for them. nevertheless, viewer discretion is what dictates what films an individual can see. the greatest difference between the code and the rating system is just that: one would not be able to see a film that did not abide by the code, because it would not exist. conclusion although it took decades for the power of choice to be restored to film audiences, the mpaa rating system successfully eliminated the lasting remnants of self-regulated censorship of the film industry. in avoiding possible abuses of federal censorship, the mppda developed a tightly managed moral code in hopes of preserving hollywood’s independence. by restricting the liberties of the film-makers then, the filmmakers now can enjoy the freedom and creativity those in the past may not have known came with the job. 49 ibid. 48 ibid. 47 wittern-keller, 144. 19 works cited black, gregory d. "hollywood censored: the production code administration and the hollywood film industry, 1930-1940." film history 3, no. 3 (1989): 167-89. conant, michael. antitrust in the motion picture industry. new york: arno press, 1978: 240. jeff, leonard j. and simmons, jerold l. the dame in the kimono: hollywood, censorship, and the production code 8 (univ. press of ky. 2d ed. 2001). motion picture producers and distributors of america, inc., record #2254, mppda digital archive 1, 1 (1931). wittern-keller, laura. governmental censorship, the production code and the ratings system, in hollywood and the law 130, 144 (paul mcdonald et al. eds., 2015). young, donald. motion pictures: a study in social legislation 13 (1922). u.s. constitution, amend. 1. cases cited block v. city of chicago, 87 n.e. 1011, 1013, 1015 (ill. 1909). interstate circuit, inc. v. dall., 390 u.s. 676, 680 (1968). freedman v maryland, 380 u.s. 51 (1965). roth v. united states, 354 u.s. 476, 479 (1957). 20 microsoft word law journal issue 7_final.docx supreme court roundup jesse chen* glossip v. gross docket number 14-7955 date argued april 29, 2015 date decided june 29, 2015 vote 5-4, for gross issues eighth amendment; cruel and unusual punishment in this case, the court ruled upon whether or not oklahoma's three-drug protocol for lethal injection violated the eighth amendment. this protocol involved the use of sodium thiopental to induce unconsciousness, a paralytic agent to inhibit involuntary movements, and potassium chloride to induce cardiac arrest1. due to circumstances resulting in an inability to obtain sodium thiopental, oklahoma decided to substitute 500 milligrams of the sedative midazolam as the first drug in their three-drug protocol. charles warner and 20 other death row inmates in filed a 42 u. s. c. §1983 action against the state on grounds of cruel and unusual punishment, stating that the dosage of midazolam would be insufficient in preventing the pain experienced after the administration of the second and third drugs2. furthermore, four inmates also filed for a preliminary injunction to prevent oklahoma from carrying out any executions. a federal district court denied the motion, citing that the prisoners were unable to establish a likelihood that the use of midazolam would result in unusual pain, as well as not being able to offer an alternative drug that would substantially cause less pain3. this decision was affirmed by the tenth circuit u.s. court of appeals. the court ruled 5-4 in favor of gross. the opinion was delivered by justice samuel a. alito, jr., in which the court held that there was insufficient evidence that the use of midazolam in oklahoma's three-drug protocol presented a great enough risk of severe pain to violate the eighth amendment. the court concurred with the district court that the prisoners failed to identify an acceptable alternative method of execution which would yield less pain than the use of midazolam. furthermore, executions have always been viewed as a constitutional punishment in the united states, and the risk of pain is inherent in the nature of an execution. thus, the eighth amendment's protection against cruel and unusual punishment does not extend to protect against any and all pain that may occur during capital punishment. because of the plaintiff's failure to provide factual evidence that midazolam has a higher than acceptable risk of pain, nor identified other available alternative execution methods, the court chose to affirm the decision made by the tenth circuit court of appeals4 this is in line with the standards established by the court in baze v. rees, 553 u.s. 25 (2008). justice scalia, joined by justice clarence thomas, wrote a concurring opinion, in which *undergraduate, brandeis university, class of 2017 1glossip v. gross, 576 u.s. ___ (2015) 1 2id. at 1 3id. at 1 4id. at 14 he stated that the death penalty cannot be held as unconstitutional by its very nature, as it is a punishment that the constitution itself contemplates. he states that the argument presented against the death penalty, that it is arbitrary and open to mistake, is more so a criticism of the jury system. scalia states that “[but] when a punishment is authorized by law—if you kill you are subject to death— the fact that some defendants receive mercy from their jury no more renders the underlying punishment “cruel” than does the fact that some guilty individuals are never apprehended, are never tried, are acquitted, or are pardoned5”. here he argues that the moral question of whether or not the death penalty is cruel and unusual rests in the hands of the jury's conviction, and that the state carrying out its function of administering justice has no need of moral consideration6. a dissenting opinion was written by justice stephen g. breyer and joined by justice ruth bader ginsburg, who argued that the death penalty should be ruled unconstitutional. he states that the social and legal standards have changed since the implementation of the death penalty, and that its constitutionality has long since been brought into question7. breyer writes that “today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. perhaps as a result, (4) most places within the united states have abandoned its use8.” a second dissenting opinion was written by justice sonia sotomayor, who wrote that scientific evidence has shown that midazolam does not adequately sedate prior the reaching its drug ceiling, and often fails to keep the subject fully unconscious the “face of [more] noxious stimuli9”. she also argued that the court's interpretation of baze v. rees as a precedent was incorrect, and that there is no requirement for petitioners for relief under the eighth amendment to provide an acceptable and available alternative. sotomayor also points out that just because an alternative cannot be found does not automatically result in an execution method becoming constitutional10. she was joined by justice stephen g. breyer, justice ruth bader ginsburg, and justice elena kagan. obergefell v. hodges docket number 14-556 date argued april 28, 2015 date decided june 26, 2015 vote 5-4, for obergefell issues fourteenth amendment; equal protection clause the supreme court ruled in this case whether or not the fourteenth amendment of the u.s. constitution guaranteed the right for same sex couples to obtain a marriage license and have 5id. at 4 (scalia, j., concurring) 6id. at 3-4 7id. at 2 (breyer, j., dissenting) 8id. at 2 9id. at 6 (sotomayor, j., dissenting) 10id. at 24-25 their marriage recognized by the state. the petitioners of the original case were 14 same-sex couples and two other homosexual men who filed suits in the federal district courts in michigan, kentucky, ohio, and tennessee. 11 these suits attacked the definition of marriage used by said states, a union between a man and a woman, as well as their subsequent failure to recognize or perform marriages for same-sex couples as a violation of the fourteenth amendment's equal protection clause. the trial courts ruled in favor of the plaintiffs. the decision was appealed and later reached the u.s. sixth circuit court of appeals, who reversed the decision and held that the states refusal to recognize same-sex marriages did not violate the fourteenth amendment. the supreme court ruled in favor of obergefell in a 5-4 decision, with the opinion delivered by justice kennedy, who was joined by justice ginsberg, justice sotomayor, and justice kagan. the court's opinion stated that “no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family...it would misunderstand these men and women to say that they disrespect the idea of marriage. their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.12” the court also went on to list four reasons for their decision: (1) “the right to personal choice regarding marriage is inherent in the concept of individual autonomy” 13 and that such autonomy is a liberty guaranteed by the due process clause of the fourteenth amendment. (2) “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” 14 (3) the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education15.” and (4) “marriage is the keystone of the nation's social order16”. the consequence of denying same-sex couples from marriage would thus deny them these benefits, reduce social order, and unfairly diminish the legitimacy of their relationships. the court also cited precedent rulings, such as turner v. safley, in which they held that prisoners could not be denied the right to marriage because it was a fundamental right17. thus, the court overturned the sixth circuit court's decision and held that the four state's ban on same-sex marriages violated the equal protection clause of the fourteenth amendment. dissenting opinions were written by all four of the dissenting justices. justice roberts argued that using due process to cover the legalization of same-sex marriage is not inherent in the interpretation of the fourteenth amendment, but rather an expansion of its coverage. to bolster this argument, roberts cited that no court decision had ever before challenged the definition of marriage as “between a man and a woman”. justice roberts states that the court's decision is based upon using a moral argument to override the spirit of the law in his statement: “[but]this court is not a legislature. whether same-sex marriage is a good idea should be of no concern to us. under the constitution, judges have power to say what the law is, not what it should be.18” justice scalia viewed the decision as a “threat to american democracy”, in that it was 11obergefell et al. v. hodges, director, ohio department of health, et al., 576 u.s. ___ (2015) 1 12id. at 28 13id. at 3 14id. at 13 15id. at 14 16id. at 4 17id. at 14, citing turner v. safley, 482 u.s. 78 (1987) 18id. at 2 (roberts, j., dissenting) used to “create 'liberties' that the constitution and its amendments neglect to mention19”. in his opinion, the court mandating that all states must accept same-sex marriages was an unfair imposition of will upon the american populous that removed democratic debate from the table. scalia also addressed the claim that the fourteenth amendment had been violated by the four states in question with his standard originalist interpretation, stating that a ban on same-sex marriage was not considered unconstitutional when the amendment was ratified in 1868, and thus there is “no basis for striking down a practice that is not expressly prohibited by the fourteenth amendment's text20”. justice thomas rejected the idea that same-sex marriage could be guaranteed by the constitution, stating that “liberty has been understood as freedom from government action, not entitlement to government benefits21”. nowhere in the constitution does it declare that individuals have an expectation to receive a government service, such as a marriage license. furthermore, thomas also criticized the court for interpreting the constitution “guided only by their personal views as to the 'fundamental rights' protected by that document”. 22 justice alito took a similar stance as the former two justices on this issue, stating that “'liberty' under the due process clause should be understood to protect only those rights that are 'deeply rooted' in this nation's history and tradition'”. 23 same-sex marriage cannot be considered “deeply rooted” in history or tradition, and thus should not be protected under due process. alito also feared the decision would contribute to a “tyranny of the majority”, and that those who hold views against it would risk being labeled as bigots and be discriminated against by society. 24 walker v. texas division, sons of confederate veterans docket number 14-144 date argued march 23, 2015 date decided june 18, 2015 vote 5-4, for walker issues first amendment, freedom of speech this case covered the supreme court's ruling on a controversial use of the confederate flag on government-issued property. the texas division of the sons of confederate veterans and its officers (the scv) applied for the issuing of a specialty license place to be issued by the texas department of motor vehicles (the tdmv). this specialty plate would feature a confederate flag both in the organization's logo and one faintly printed on the background25. the tdmv refused to create the license plate after multiple complaints from the public, which prompted the scv to sue on the grounds of a violation of their first amendment rights. the district court ruled in favor of walker, stating that license plates were government property and 19id. at 1 (scalia, j., dissenting) 20id. at 4 (scalia, j., dissenting) 21id. at 1 (thomas, j., dissenting) 22id. at 2 (thomas j., dissenting) 23id. at 2 (alito j., dissenting) 24id. at 7 (alito j., dissenting) 25walker v. texas division, sons of confederate veterans, 576 us ___ (2015) 3-4 could be reasonably regulated as they were not considered a public forum. the united states court of appeals for the fifth circuit reversed this decision, arguing that the denial was a form of discrimination against the symbology of the confederate flag. the court ruled 5-4 in favor of walker, with the opinion written by justice breyer stating that “government statements (and government actions and programs that take the form of speech) do not normally trigger the first amendment rules designed to protect the marketplace of ideas.26” the court based their decision upon the precedents set in pleasant grove city v. summum, in which the court upheld the city's refusal to allow the summum church to erect a monument of the seven aphorisms on grounds that it would be a government establishment of religion. in that case, the court found that the “display of a permanent monument in a public park” would be perceived by an ordinary and reasonable observer to reflect the values of the government27. this was in direct contrast to protests and demonstrations, which were finite in time. like a monument, the court considered a license plate to be similar as a permanent fixture. the court also found that license plates are reasonably associated with the government, stating that “drivers displaying license plates 'use their private property as a ‘mobile billboard’ for the state’s ideological message.'28” thus, the tdmv did not violate the first amendment in refusing to produce the scv's license plates, as government property is held to a lower standard of free speech, as they are required to uphold viewpoint neutrality. a dissenting opinion was written by justice alito, with chief justice roberts, justice scalia, and justice kennedy joining. alito argued against the court's decision to find license plates government property. alito cited that over 350 varieties of specialty texas license plates were available, and that many plates honor private institutions and corporations as well29 (some examples given were high schools, the masons, soft drinks, and nascar drivers). many plates also feature tongue-in-cheek slogans such as “rather be golfing”. alito states that, by the logic used behind the court's decision, all of the previous license plates can be seen as examples of government speech (which he considers ludicrous). instead, alito asserts that “while all license plates unquestionably contain some government speech (e.g., the name of the state and the numbers and/or letters identifying the vehicle), the state of texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages.30” thus these plates should be considered an expression of personal speech, and its limitation would indeed be a violation of the first amendment. elonis v. united states docket number 13-983 date argued december 1, 2014 date decided june 1, 2015 vote 8-1, for elonis issues first amendment, 18 u. s. c. §875(c) 26id. at 5 27pleasant grove city v. summum, 555 u.s. 460 (2009) 28walker v. texas division, sons of confederate veterans, 576 us ___ (2015) 17 29id. at 2 (alito, j. dissenting) 30id. at 3 with the increasing assimilation of social media in society, the definitions of “protected speech” must also be examined. in this case, the supreme court ruled on whether or not anthony douglas elonis' posting of violent rap lyrics to facebook constituted as “threatening language”. elonis posted his rap lyrics to facebook after a recent divorce under the pseudonym “tone dougie”. the lyrics contained several instances of graphically violent language and imagery pertaining to his former wife, select co-workers, a kindergarten class, and state and federal law enforcement. they were interspersed with disclaimers that stated the lyrics to be “fictitious” and not depicting real persons31. despite this, he was indicted by a grand jury on five counts of threats relayed through interstate communication, a violation of federal law 18 u. s. c. §875(c). he appealed to a district court stating that the government must prove that he intended to communicate a “true threat”, but was dismissed on the grounds that a “reasonable person would foresee that his statements would be interpreted as a threat32. elonis was convicted on four of the five counts and served 44 months in prison. he appealed to the united states court of appeals for the third circuit, who affirmed the district court's decision. with no luck on those fronts, elonis appealed to the supreme court, who ruled 8-1 that elonis' actions did not meet the requirements of a “reasonable person's” expectation of threatening speech. the court's opinion was written by chief justice roberts, and joined by seven other justices. roberts offered in his opinion that the “reasonable person” standard that elonis was convicted on is acceptable for tort law, it is inconsistent with conventional requirements for establishing criminal conduct: mens rea, or an awareness that one's actions are wrong33. while ignorance of the law is not usually considered a defense for breaking it, sufficient mens rea is required to prove the comission of a crime under federal law §875(c)34. roberts argued that, at best, elonis was negligent and reckless in his posting of speech that could potentially be seen as threatening. however, because elonis obviously did not post the lyrics with the intent to threaten, as evidenced by his disclaimers and taking up of a persona, the court found insufficient reason for elonis' indictment. justice alito wrote a concurring opinion in which he agreed that mens rea was required to convict under §875(c), but also argued that the court's ruling left the definition of the terms necessary to prove a crime needlessly vague (how do you know if someone is purposeful or simply negligent or reckless?). alito stated that “this will have regrettable consequences. while the court has the luxury of choosing its docket, lower courts and juries are not so fortunate. they must actually decide cases, and this means applying a standard35.” alito also addressed the first amendment issue brought up by elonis, stating that song lyrics are generally performed in public or sold in recorded form, whereas statements made on social media “pointedly directed at their victims” and thus are much easier to be taken seriously36. to allow this would be to allow anyone to post threats on social media under the guise of “lyrics” or other similar artistic expressions. justice thomas, as the sole dissenter, argued that the court's ruling “casts aside the approach used in nine circuits and leaves nothing in its place37”, in essence removing a general standard used by the justice system without replacing it. thomas also cites precedent, such as 31elonis v. united states, 575 us ___ (2015) 1 32id. at 1 33id. at 13 34id. at 2-3 35id. at 1-2 (alito, j. concurring) 36id. at 6 37id. at 1 (thomas, j. dissenting) rosen v. united states, in which the court ruled against the petitioner even though he did not show purposeful intent38. dedication to justice scalia: we at the brandeis law journal would like to dedicate this year's supreme court roundup in memoriam of justice antonin gregory scalia, who passed away on february 13, 2016, after nearly thirty years of service on the supreme court. a strong supporter of the originalist and textualist constitutional interpretations, scalia proved himself numerous times to hold strong conviction in his beliefs, even when they proved controversial with the american populous. regardless of our personal views on his political beliefs, we greatly respect him for his service to this country. 38id. at 4 microsoft word law journal issue 7_final.docx analysing the birth of "the right to privacy" and the process behind its legal justification1 g. amogha rao* in the year 1890, samuel d. warren and louis d. brandeis, both boston-based lawyers, co-authored an article titled "the right to privacy."2 this was, perhaps, the first time in the history of the common law that such a right was being formalised with an accompanied legal rationalisation. while notable legal scholars of the 20th century, the likes of roscoe pound, have credited the authors for "adding a chapter to [the] law"3, the greater contribution is not, perhaps, "addition" but the successful derivation of a 'modern' right from existing principles of the archaic common law. the purpose of this analysis is not to discuss the impact of the conceptualisation of the right but to decipher and trace the thought-process associated with the derivation of the said right, an explication of the said legal thought-process. the objective is to follow as to how the authors firstly, justify the inherent association of the said right with the common law and secondly, as to why the right to privacy, if it is in fact intrinsically and inherently associated with the common law, requires an explicit description and the special title of a 'right'. these questions acquire a higher degree of importance in a 21st century setting because of the hypersocial nature of contemporary society, which values both privacy as well as the lack of it in certain domains, many of which are intangible realms like cyberspace. in such an environment, it is most relevant to recall how brandeis and his co-author derived a modern right for a changing society from the elasticity of the common law − the repetition of which might just be the need of the hour. the authors begin by emphasising the elastic nature of the common law, being flexible enough to meet the demands of a changing society. the evidence for this flexibility begins with how, from its very inception, the common law has protected the individual and his claim to property. however, the origin of this protection was in the form of providing a remedy for any physical harm to one's body or any physical violation to the dominion of one's land. these remedies were formalised to give birth to the ideas of "right to life" and "trespass" that on extrapolation, gives way to the "right to property." likewise, the guarantee of "liberty" was the direct product of legal protection against physical restraint. the authors argue that these 'physical' forms of protection against bodily and tangible harm were expanded to accommodate less visible and more intellectual conceptions of the law such as the "right to enjoy life" beyond the archaic logic of a simple physical existence. the reasoning is furthered by the inclusion of intangibles within the sense of the term 'property'. through the allusive discussion of patent rights that provide protection for the "products and processes of the mind"4, the authors note that the term 'property' finds a more relevant meaning beyond physicality. the authors provide this background to exemplify how the law has transitioned from assuring physical wellbeing to also *undergraduate at brandeis university, class of 2018 1 this article is part of the brandeis university law journal 2016 special volume, which is included in the "louis d. brandeis: an inspiring life” digital exhibition, an effort of the brandeis archives & special collections for the 100th anniversary celebration of justice brandeis's appointment to the supreme court. 2 warren, samuel d., and louis d. brandeis. “the right to privacy”. harvard law review 4.5 (1890): 193–220. web. 3 letter from roscoe pound to william chilton (1916), quoted in a. mason, brandeis: a free man's life, p.70 (1956) 4 “the right to privacy”. harvard law review 4.5 (1890): 194 protecting, the less tangible, emotional wellbeing of an individual by merely recognising that "pain, pleasure and profit" are neither ruled by nor constrained to the physical realm.5 the authors further extend their reasoning by stating that the law grants recognition to other forms of human emotion and sensation by prohibiting even "attempts to do [...] injury."6 meaning to say, the law made it illegal to even subject an individual to the sensation of 'fear' associated with injuries such as battery or trespass. a threat unto itself is a deplorable action and sometimes, as deplorable as the injury that gives the threat credibility. the legal recognition of human sensation is further qualified by the conceptualisation of the laws of nuisance and other laws such as the ones against offensive noise and odour. brandeis and his co-author use this transition as evidence to portray how the law is trending towards securing the emotional wellbeing of the individual above and beyond the physical protection it already guarantees. the authors mention the development of the laws on defamation, libel and slander as illustrations for how the law recognises the importance of an individual's dignity and standing in society. brandeis and warren further mention the "right to be let alone"7, as defined by judge thomas cooley, in reference to capturing pictures of private individuals without their express permission. the 'right to be let alone' is morphed into what the authors define as the 'right to privacy', which at the time, according to them, desperately required the shelter of the common law. the authors trace the origins of the abovementioned rights and laws as a form of evidence to demonstrate that the right to privacy is, in fact, the logical extension of an already established and accepted trend that is unique to the common law, growing to meet the needs of an ever-changing society. the question still arises, what was so distinct about the period that it prompted brandeis and warren to formulate an explicit 'right to privacy', as an extrapolation from the 'right to be let alone'? prima facie, the justification that the authors provide alludes to the development of novel "inventions and [modern] business methods."8 the authors mention the use of unauthorised "instantaneous photographs" by newspaper houses as a potent threat, posing to destroy the sanctity of private life by stealing the veil of the domestic setting. attributable to the press, the authors mention the prevailing fear as, "what is whispered in the closet shall be proclaimed from the house-tops."9 there were other empirical concerns that were emerging from the judicial system. in a case that the authors mention but do not reference in detail, a broadway actor complains against a photographer for taking a picture of her wearing tights during a theatre performance. she petitioned the supreme court of new york to grant her relief by way of an ex parte injunction, disallowing the photographer(s) from making use of the photograph. the court granted the relief requested.10 the judiciary did show willingness to accord the enshrinement of such a right as the right to privacy but the requisite academic effort to actually synthesise the idea came from brandeis and warren who saw the right as a necessity for civilised existence. in their article, the authors frequently identify the menacing nature of the press and the damage it can cause to private citizens in the continuance of their domesticity. brandeis and warren observe the print media's tendency to profit off gossip, compromising − what they believe everyone has a claim to − the right to privacy. the authors note that, "[t]o occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion 5 ibid. 195 6 ibid. 193 7 cooley, thomas mcintyre. a treatise on the law of torts or the wrongs which arise independent of contract. 2nd ed. littleton, co: f.b. rothman p.29, 1993. print. 8 “the right to privacy”. harvard law review 4.5 (1890): 195 9 ibid. 10 ibid., times, n.y. "manola gets an injunction." n.y. times [new york] 18 june 1890: 2. web... upon the domestic circle."11 a brief analysis of the extract reveals the origins of, perhaps, the first rudimentary definition of privacy and a basic description of its subsequent violation. the authors define privacy as, that which is meant for the domestic circle; any published information that could only be acquired by having unauthorised access to the domestic circle is seen to be a violation of that right to privacy. brandeis and warren condemn the press' scornful lust for gossip concerning sexual relations and other private information that, according to them, should never have reached the public's gaze in the very first place. the authors thoroughly criticise the press for its admonishable behaviour that seems to have overstepped the boundaries of decency and propriety.12 however, the press is in itself an element and product of society, providing a service that has popular demand. their scornful lust for the acquisition and delivery of gossip is balanced by the reader's thirst for consumption. although brief, brandeis and warren do account for the consumption of gossip on part of the private citizen. as a sad reflection on human nature, the reason why the press indulges in the distribution and sale of gossip is the same reason why the arabs distribute and sell oil. there is a large societal demand for seemingly scandalous and private information. "each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality."13 the bitter truth is that a large portion of society, at brandeis' time, and presumably, even now, would prefer to derive entertainment at the cost of another's privacy while cherishing and guarding one's own right to it. recognising this "weak side of human nature,"14 brandeis and warren promulgate the right to privacy as not only a means to protect the individual's domestic sanctity but to also further the law's role as a civilising force. the right to privacy and its enshrinement into the common law must not just be observed as a micro phenomenon benefiting the individual and his/her domesticity but should also be seen as a corrective macro phenomenon improving the general standards of morality of a given society. the authors' primary source of stimulus for the derivation of such a right appears to be the loss of face and dishonour that the publicity of private information causes. however, they realise that the laws of libel and slander do cover such injuries and provide appropriate and approximate remedies in the forms of civil and criminal penalties. as a means of distinguishing these existing laws from the right to privacy, the authors indulge in an examination of the laws associated with defamation and the rationale behind their enshrinement. brandeis and warren find that the laws concerning libel and slander, defamation in general, protect the individual's standing in relations and dealings with the exterior world. the honour and respect commanded by the individual aid him/her in the accumulation of wealth and prosperity. any unjust and unwarranted harm done to an individual's societal standing that allows for prosperity and success is seen to be unlawful because it unfairly inhibits a person from a chance at a quality life. therefore, brandeis and warren essentially reason that the existent laws of the time protected the material aspect of human life, paying little to no attention to the emotional and spiritual suffering that the loss of dignity entails. the authors first establish the legal trend of extending material protection to cover spiritual elements of life and then argue that the spiritual equivalent of the material law of defamation is, in fact, the right to privacy. therefore, logically, it is within the ambit of the common law to grant legitimacy to the natural outcome of an established trend − the recognition of the right to privacy. 11 “the right to privacy”. harvard law review 4.5 (1890): 196 12 ibid. 13 ibid. 14 ibid. the authors reason by yet another common law analogy that involves the common-law right over intellectual and artistic property and how that right, in essence, confirms the legitimacy of the right to privacy, if analysed in the spirit of the common law. brandeis and warren observe that the common law provides proprietary protection to artistic and intellectual creation. this protection is independent of the quality or nature of the protected material. it is immaterial if the work is a word or an essay, if it is mere ink on paper or a painting, all that matters is the right of the creator over the status of that which has been created. the common law gives to the creator the right to decide the extent to which he/she would like to expose his/her work to the outside world. as a form of corroborative evidence, the authors quote the dissenting opinion of sir joseph yates from an english judgement, millar vs. taylor (1769). the relevance of the dissent is that sir yates declared that the common law gives to each individual the right to decide the forum for the expression of his/her thoughts, words and actions.15 therefore by extension, it is the right of the creator to decide the level of privacy and publicity associated with the exposure of his/her creation. this proprietary protection is further qualified by the authors through another common-law practice wherein a person is protected from expressing his feelings under duress, by way of force or through compulsion, with the exception of being on the stand in a court of law.16 in other words, the individual has the power to decide where, when and before who he/she wants to express his/her thoughts and sentiments, providing evidence of a rudimentary application of the right to privacy. the authors also analyse the rationale behind as to why this apparent spirit of the right to privacy (without using those words) is granted in cases of artistic and intellectual work, even when the judges of the time considered the nature of the work to be irrelevant in the determination of those rights. brandeis and warren realise that proprietary over such works is akin to the ownership of property. the common-law provides such protection because creation has value and not because the creator has a sentimental attachment to his/her work. there is yet again the fundamental question of having a corporeal rationale behind a law and the lack of prescribing a remedy for a sentimental injury. the authors note that the law of property protects against unjust enrichment by prohibiting unauthorised use of artistic and intellectual work. however, if the individual places worth over a creation, the worth of the creation is only as strong as its legal recognition. in other words, the material evaluation of privacy is indefinable and by extension, the value of the peace of mind derived from the maintenance of one's privacy is imperceptible. consequently, privacy and private information might not find protection from public gaze under the narrow definition of the term 'property.' meaning to say, there is no method of transferring a sentimental injury to the objectivity of a material remedy and therefore, there is no means of measuring the injury itself, at least through the narrow definition of the term 'property.' however, in another english case, prince albert vs. strange (1849), the authors cite a distinction that the high court of chancery draws between property and "that which is exclusiv[e]."17 as the judge in prince albert, lord cottenham observed that a man "is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his."18 although similar to the understanding of the term 'property', "that which is exclusive" is broader and contains even those elements that are seemingly ordinary, elements that have limited material value in the eyes of the law but sentimental value in the eyes of the proprietor. the authors also 15 yates, sir joseph. (dissenting opinion) millar vs. taylor. court of the king's bench, england. 1769. web. 16 “the right to privacy”. harvard law review 4.5 (1890): 201 17 lord cottenham. prince albert vs. strange. high court of the chancery, england. 1849. web. 18 ibid. quote lord cottenham as having said, "privacy is the right invaded"19 in relation to the actions of the defendants. however, lord cottenham's views were limited to the context in which he spoke and the case in question involved royalty, the consort of queen victoria herself. in matters involving the crown and royalty, discretion is assumed to be a duty more than an attribute associated to the crown's claim to privacy. nevertheless, lord cottenham accorded privacy the status of a right and that unto itself is a significant contribution to the authors' cause. the authors do, however, highlight an inconsistency between the law's treatment of artistic-intellectual material and its treatment of private-domestic material. the claim that ordinary domestic information and material do not have value in comparison to artisticintellectual works, and therefore, not akin to the status of property, is, perhaps, true at a superficial qualitative level. however, at the level of reality, even that which is ordinary and domestic acquires a value when it is published by profiteers of gossip. in one sense, if exclusivity is a protected attribute for seemingly ordinary information and if that information is accessed without consent for the purpose of enrichment, then is it not true that the act of enrichment without consent is unjust and that which has been used to derive such enrichment, akin to property? the question is, what will fill the legal void between seemingly unjust enrichment and the desire for its prohibition by those who are sentimentally injured (as opposed to a material injury)? the unequivocal answer that the authors provide is the right to privacy. the authors recognise that both the profiteers of gossip as well as the ones being injured by its publicity give value to private-domestic information but the law fails to recognise that worth, blinded by the ordinary face value. it is also important to recognise that the injury is sentimental and spiritual but not indefinable. however, the material measurement of the injury is only realisable after it has been committed. while private information is definitely distinct from intellectual property, there is enough practical similarity to accord privacy the same-level of protection as that accorded to property. therefore, the authors note, "[t]he principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality."20 the authors promulgate the right to privacy as an existent notion within the common law and prove its existence through analogy. the first pillar that the authors establish is the accommodating elastic nature of the common law, which appears to show a trend in the direction of preserving the spirituality of its subjects. that trend is extended to include privacy, the deprivation of which causes spiritual-sentimental distress and therefore, requiring the shelter and recognition of the common law. the authors further show that the laws of libel, slander and defamation in general, provide remedies for the injuries associated with the invasion of privacy. they draw parallels between the ownership of property and the exclusivity of private information, while testing their practical similarities and proving their legal disparities. the law's role as a civilising force, assuring the social advancement of mankind is also underscored. while the authors do successfully piece together the various elements of the common law that give the right to privacy the legitimacy and force of the law, they also realise that all these elements would have to operate in unison for a just outcome. this realisation provided the authors the impetus to distinguish the right to privacy from those principles that share its spirit, at least in part. it is in the privacy of our homes and walls that we find the courage to express and be our true selves, the comfort to nurse our sorrows and the freedom to explore and exercise our unique 19 “the right to privacy”. harvard law review 4.5 (1890): 205 20 ibid. spirituality. the deprivation of those joys may occur but it will be because of brandeis and warren that such injustices will not stand the scrutiny of the law. bibliography warren, samuel d., and louis d. brandeis. “the right to privacy”. harvard law review 4.5 (1890): 193–220. web... cooley, thomas mcintyre. a treatise on the law of torts or the wrongs which arise independent of contract. 2nd ed. littleton, co: f.b. rothman, 1993. print. times, n.y. "manola gets an injunction." n.y. times [new york] 18 june 1890: 2. web... yates, sir joseph. (dissenting opinion) millar vs. taylor. court of the king's bench, england. 1769. web. lord cottenham. prince albert vs. strange. high court of the chancery, england. 1849. web. microsoft word law journal issue 7_final.docx comparative law: in search of a muslim identity between the two extremes of secularism and religious law gali amogha rao* abstract: this paper analyses the development of the indian muslim identity with respect to the coexistence of shariat and sovereign laws. the period of analysis is postcolonial india. the paper analyses the different conflicts of legal philosophy and practice that exist between the judiciary of india and that of the parallel islamic system. the conflict is such that private citizens suffer from wrongful interpretation of religious law and there is an infringement of the fundamental right to justice as guaranteed by the sovereign laws to every indian citizen. the analysis begins with a brief discussion of a case that involved a conflict of laws and, vicariously, a conflict of legal ideology between the two systems. the paper mentions other similar cases in corroboration of the primary claim—conflict of legal philosophy. the views of the indian state are considered with special reference to the idea of secularism in the indian context. the constitution of india is analysed to establish as to what the word 'secular' means under the supreme law of the indian state. the analyses reveal that the parallel system, although impractical serves the cause of meeting the indian idea of secularism. the paper concludes that the secular ethos of indian democracy allow for infringement of certain common law values to make space for certain religious laws, even though they are more conflictive than complimentary. on the night of june 6th, 2005, imrana, a woman in her 20s and a mother of five children, was raped by her father-in-law in a village in the indian state of uttar pradesh. 1 imrana, and the family that she married into, was muslim. imrana's case was not reported and was not directly absorbed by the appropriate criminal-justice system as prescribed by indian statute. instead, the case was subjected to an informal parallel system of resolving muslim communal disputes. on first instance, the local leaders of the village's muslim community decided, relying on their interpretation of islamic law, as defined by the quoran and the hadith2, that imrana's marriage to her husband was void and that she must be married to her father-in-law. on a second instance of judicio-religious intervention, the editor of a local newspaper posed a question to a muslim scholar, a darul uloom3, of the deobandi4 school of thought asking for an opinion on the matter. the darul uloom concurred with the pronunciation of the muslim village leaders.5 in the whole judicio-religious process, none of the adjudicators were recognised by law or statute and none of the enquirers like the journalist were closely related to the case. the village leaders and the muslim scholars, like the darul uloom, derive legitimacy for their * brandeis undergraduate, class of 2018 1 vishwa lochan madan versus union of india & others. supreme court of india. 07 july 2014. print. 2 the body of traditions relating to muhammad, which now form a supplement to the qur'an, called the sunna. "hadith, n." oed online. oxford university press, march 2015. web. 20 april 2015. 3 a muslim scholar who has knowledge and training in judicial matters pertaining to islam. essentially, a judge for islamic law. 4 considered to be a radical school of thought by authors like salman rushdie. rushdie compares the deobandis to the taliban in afghanistan. 5vishwa lochan madan case pronouncements or fatwas6 through the reverence that is bestowed upon them by the members of the muslim community for their theocratic knowledge and study. vishwa lochan madan, in his capacity as a citizen of india, filed a civil writ petition in the supreme court of india asking for the abolishment and admonishment of the above illustrated judicio-religious system. the petitioner believed that such individuals and courts undermine the constitutional authority of the judiciary and that they use extralegal means to decide cases on the basis of unrecognised law. while eventually the sovereign law took its course and the father-in-law was found guilty of rape by virtue of a criminal case that was filed against him, the parallel system demonstrated no evidence of changing its position on the civil status of the marriage. the judge in the criminal case did not attempt to analyse the status of the marriage (a civil law subject) because of the criminal nature of the case. the imrana case illustrates an incompatibility between the coexistence of shariat and statutory law. the conflict is such that the sovereign jurisprudence criminalises an individual for the rape of his daughter-in-law, while at the same time, the applied islamic law declares the victim's marriage void and advises for the establishment of marriage between the rapist and the victim. although the judicial system of india espouses to reflect the values of the prevailing societal culture, the legal tolerance for shariat law is more conflictory than complimentary to india's secular judicial structure. the sovereign judicial system allows for coexistence on the presumption of superiority over the parallel system. however, in practice, the two systems have equal and comparable powers. the matter is further complicated by the prioritisation order. while the judicial system prioritises the criminal aspect, paying little heed to the civil status of the marriage, the parallel system analyses the case from the standpoint of the civil ramifications. this illustrates a difference in legal philosophy and therefore a difference in the modus operandi of the two systems, demonstrating a fundamental conflict. in 1947, after achieving independence from the british crown, india was geographically partitioned to create two dominions − india and pakistan. pakistan occupied two areas of the subcontinent, the north-western and eastern7. in basic terms, pakistan was created from those areas of the indian subcontinent where the muslims were in majority with the exception of kashmir. the ensuing population transfer due to the partition resulted in widespread violence and bloodshed between the hindus (and sikhs) coming from and the muslims going to pakistan. currently, india is the largest democracy in the world with a secular system of governance. pakistan is an islamic republic with a similar system of governance as india and has a judicial system that accommodates islamic law and jurisprudence to the extent that the requirement of a parallel system is null and void. india and pakistan have comparable number of muslims but india's secular nature and majority hindu population complicate the practical realities of governance and judicial exercise with respect to shariat law and hence the parallel system. while indian law has some accommodation for islamic principles and practices, it is not an islamic republic with dedicated infrastructure to deliver justice in a purely islamic fashion. this paper analyses the indian muslim's identity with respect to the prevailing judicial system and the system's capacity to absorb the values, traditions and customs of the muslims of india. although the paper does not directly compare the judicial systems of india and pakistan, it attempts to decipher whether india's secular judicial machinery has the ability to protect and preserve islamic principles and tenets as much as it perceives an islamic republic to. 6 a religious decree issued by a competent muslim scholar or authority. 7 after the 1971-72 india-pakistan war, east pakistan declared itself independent of pakistan and renamed itself as the people's republic of bangladesh. although partition created a dichotomy in the indian muslim's identity post-1947, the partition itself did not affect most muslims of the subcontinent. the indian muslim, who was not affected by partition, did not feel the pressure of choosing a side and continued to enjoy the comforts of secularism while maintaining indianess and muslimness, simultaneously. burjor avari, in his book, islamic civilisation in south asia corroborates this claim by stating, "in most parts of india, partition made little difference to muslim leading their lives."8 the purpose of this observation is to note that indian secularism is neither a newly constructed socio-legal phenomenon nor is it an idea created for the protection of muslims in post-colonial india. secularism in india exists independent of the interests of any one community and gives a sense of security to the muslims. again, not that it was created for the muslims but that the muslims derive legal security from it. avari mentions this aspect in his book while discussing the creation of the supreme law of the land, the constitution of india. "[a] factor in the muslims' sense of security was the promulgation of the new constitution in 1950, under the direction of dr. bhimrao ambedkar (1891−1956), the leader of the dalit community, the most deprived section of people within the hindu world."9 dr. ambedkar was born a hindu but subsequently converted to buddhism due to the ills of the caste system10. he is celebrated as the father of the indian constitution. "ambedkar's strong sense of justice, fairness and egalitarianism is manifest throughout the constitution; and every group and community in india can seek redress [from the judicial system] for injustice or inequality [as enshrined in] this secular constitution."11 in the indian context, not only does islamic law have legitimacy, it also has the right to thrive, as promised by the secular ethos of the constitution. in the western world the term 'secular' normally implies a non-religious or an antireligious outlook. in india, it has a different connotation. the indian constitution is not non-religious or anti-religious; it aims to maintain a neutral position in an arena of diverse religions. the indian state actually often provides help and encouragement to its citizens in the maintenance of their respective faiths.12 the spirit of this paper does not allow for judgement or assessment of the morality of communal customs but merely permits analysis from an academic perspective. the analysis focuses on the ramifications of such customs on the development of identity in a secular and diverse judicial environment. pursuant to its secular structure, the judiciary allows for the recognition of religious law and even enforces it in cases adjudicated by its sovereign courts. moreover, it does not object to the creation and operation of a de facto parallel judicial systems that aim to propagate and promote religious law. the only caveat, as stated in the vishwa lochan case in an advisory form, is the requirement for the "consent of the affected parties".13 the court reasons that such 'parallel' systems are akin to alternate dispute resolution mechanisms (or adrms), which are widely recognised in most, if not all, jurisdictions and therefore, allowable. 8 avari, burjor. islamic civilization in south asia: a history of muslim power and presence in the indian subcontinent. london: routledge, 2013. print., 228. 9 ibid. 10 a hierarchical social system that existed in erstwhile hindu society, remnants of which are still visible in contemporary hindu society. 11 islamic civilization in south asia, 228. 12 ibid., 228-29. 13 vishwa lochan madan case consent is a particularly important legal concept while discussing civil cases. the court in the vishwa lochan case noted that imrana's case was being discussed without her consent or her direct involvement. the darul uloom ordered an injunction for an infinite period disallowing imrana and her husband from continuing their marital life even though none of them approached the darul uloom. the question is whether the act of seeking a judicio-religious opinion in the absence of the affected party permitted? the sovereign judicial system advises against it and the parallel system functions regardless. this illustrates another fundamental difference in legal philosophy and creates a conflict of an elementary nature. moreover, religious 'adrms' are not really conventional adrms. non-conformance of a conventional adrm decision does not result in communal ostracisation and social death, while non-conformance with judicio-religious decisions do lead to such severe consequences. further, the unique phenomenon of honour killings14 also raises the possibility of murder by family members in the event of non-compliance with judicio-religious decisions. in such circumstances, a decision of a judicio-religious authority reaches the value of a sovereign court's order. the psychological pressure from the judicio-religious authority and the law enforcement's power become comparable. while sovereign judicial power possessed by courts is accountable, the judicio-religious power held by religious clerics is unaccountable. this dichotomy of power allows individuals like imrana to face the possibility of being married to her rapist, exemplifying another clear mismatch between the two systems. the mismatch is such that the same case can be decided differently with diversely different results depending on what law is applied, giving birth to mismatching concepts of justice. although the indian constitution refrains from granting special privileges to muslims, it allows for muslims to approach shariat courts and forums for adjudicating matters with respect to marriage, divorce, inheritance, death etc. the all india muslim personal law board (aimplb) is a non-governmental organisation that was formed in the 1970s by virtue of a convention of muslim scholars and jurists who rose in opposition of a parliamentary bill that wanted to establish a uniform civil code at the time. the establishment of such a code would have circumvented the applicability of muslim personal law (shariat law) in civil cases that applied to muslims. aimplb, inter alia, aims to limit government intervention in shariat matters, protect the retention and implementation of the shariat act, initiate studies on the different schools of islamic jurisprudence. aimplb is one of the principal actors in the active effort to establish a parallel informal judicial system for matters relating to the applicability of shariat law. aimplb functions like an adrm but because of its social status and intellectual reverence, it serves the purpose of strong and independent judicial system for muslim personal law matters. further, the aimplb, while deciding cases, relies on its interpretation of islamic law, which may or may not be in alignment with statutory enactments. however, there are certain parliamentary enactments that recognise and enforce specific fundamental tenants of shariat law. dissolution of the muslim marriages act, 1939 and the muslim personal law (shariat) application act, 1937 are examples of codified law that are judicially enforceable through sovereign judicial courts. even with such laws in place, independent actors such as the aimplb felt the requirement of expanding the applicability of shariat, which is achieved through the parallel system. the very existence of the parallel system provides evidence of failure of coexistence. the secular system did not plan for the parallel system and assumed the smooth resolution of affaires through state judicial machinery, which is more ideological than 14" the killing of a relative, especially a girl or woman, who is perceived to have brought dishonour on the family." oxforddictionaries.com. oxford dictionaries, 2015. web. 24 april 2015 practical. hence, although they are conflictory, the parallel system attempts to fill the void left by the judicial system. most scholars agree and i concede that the parallel structure has helped more than it has harmed. further, the existence of such judicio-religious systems is a symbol of religious tolerance and secular ethos − positive characteristics of a robust democracy. however, there are ample cases that illustrate the ills of an unaccountable and conflictory adjudicatory body. in another similar case, asoobi, a young girl, was raped by her father-in-law and a fatwa declared that the father-in-law could only be found guilty of rape if there was a witness to testify or if her husband endorsed her allegation. further, the fatwa disallowed her from filing a police complaint against her rapist.15 in yet another similar case, jatsonara, by virtue of a fatwa, was asked to recognise her rapist father-in-law as her legitimate husband and divorce her existing husband.16 both cases were cited by the petitioner in the vishwa lochan case as examples of a prevalent network of laws and proceedings that lack legal-backing but have psychological force equivalent to that of an enforceable judicial order. a brief analysis of the asoobi case reveals a larger systemic conflict. the fatwa debarred asoobi from filing a police complaint, which is her right as a citizen of india and more importantly, a matter of state judicial procedure. the situation is such that the parallel system forbids her from pursuing her right for justice, which is a fundamental right that the indian state strives to guarantee. further, the two systems have dissimilar and conflicting procedures for factfinding and evidence submission. asoobi was required to either produce a witness or convince her husband of the occurrence of rape in order to prove the father-in-law's guilt. such evidencing procedures are neither recognised nor recommended by the sovereign judicial system. the asoobi case reflects a direct conflict between the judicio-religious system and that of the indian judiciary in terms of relevant fact-finding procedures. india follows an adversarial system of judicial proceeding enshrined with the principles of the common law, one of which was put into words by the english jurist william blackstone. "it is better that ten guilty persons escape than that one innocent suffer."17 what blackstone said and wrote in 1769 holds as a fundamental principle in most common law jurisprudences. while the imrana, asoobi and jatsonara cases reflect scenarios where the victim is victimised for the purpose of enforcing 'divine' law, the legal philosophy of india's sovereign judicial system does not permit even a slight deviation that causes an innocent to suffer. this, yet again, demonstrates a mismatch and incompatibility between the legal philosophy of india and that of the parallel islamic system. islamic legal philosophy allows for interpretation and the use of human judgement in order to adjudicate cases in conformance with prevailing customs, traditions and requirements of a given geographic region. avari, in his book, mentions this aspect while discussing the quoran and the practices of the prophet to describe the origins of shariat. "wise and learned human beings can interpret the law in line with customs and conventions of a prevailing age or a particular part of the world, but they must do so without infringing the limits set by the divine law."18 although the indian judiciary allows for the existence of parallel systems practicing different schools of islamic legal thought, there is no definition for what is permitted and what is prohibited. the lack of definition is justified and rationalised by a self-constructed façade of religious freedom and tolerance. this allows for absurd ideas of justice and governance, which 15 vishwa lochan madan case 16 ibid. 17 blackstone, william. commentaries on the laws of england. oxford: clarendon, 1769. print. 18 islamic civilization in south asia, pg. 5 create villains out of victims and absolve criminals of crime. the purpose of this observation is to highlight the lack of definition that could, perhaps, cause a few mislead 'scholars' to stretch 'divine' law to meet outdated societal expectations. the deobandi school of thought from the imrana case has a reputation of harbouring and nurturing outmoded and irrelevant ideas of justice that many indian muslims do not prescribe or adhere to. to qualify this observation, in the imrana case, the darul uloom equated adultery to rape and therefore, did not consider the criminal aspect of the case and only focused on the civil ramifications to the existing marriage. the procedure to prove rape was so outdated that there was no admissible evidence in the eyes of the darul uloom. the sovereign judicial system refrains from extreme measures of outlawing such practices and procedure in the fear of being termed as an anti-minority system. this exemplifies an untreated and unmitigated conflict of procedure and practice between the two systems, demonstrating incompatibility. the indian state does not take responsibility for the enforcement of the adjudications of the parallel system but only recognises the right of such courts and institutions to exist.19 scholars who argue in favour of compatibility between sovereign judicial system and the parallel system often cite the origins of the modern-day islamic movement as evidence for compatibility. mian abdur rashid, a pakistani author, in his book, islam in the indo-pakistan subcontinent, mentions the origins of two reactionary movements stemming from the time of the british colonial period.20 one of these reactionary movements is the deobandi movement, as referenced in the imrana case. the movement commenced as an anti-british movement to rid islam of western influence and gain autonomy for islamic thought, including islamic legal thought. rashid mentions that the deobandis joined forces with the indian nationalists, who were predominantly hindu, to achieve their larger goal for islam in an independent india.21 although the deobandis viewed indian nationalism as a product of narrow-minded non-islamic westerninfluenced thought, they worked side by side with the indian nationalists in the hope of creating a state wherein they could achieve their goals. the idea was to compromise in the present for a brighter and better future. the deobandi school of thought established itself to purify orthodox islam to make it comparable to what it was during the glory years of the prophet. however, such reformation fails to account for changing times, practices and wishes of the newer generation of muslims, which islamic law actually allows for. owing to such myopic vision and operation, the deobandis have been losing followers. their practice of shariat is often deplored for its misinterpreted strictness. the muslim identity with respect to the judiciary in modern-day india is moulded by two simultaneous yet opposing forces. in maintenance of a secular ideology, the state recognises and encourages a parallel system that opposes the sovereign judiciary's practical (not legal) legitimacy. the parallel system would prefer that all muslims be subjected to their legal philosophy but the state emphasises the requirement of "consent". the state also attempts to remedy the multiple failings of the parallel system, as seen in the imrana, asoobi and jatsonara cases. in the whole process of locating identity, the indian muslim is offered a hybrid judicial system that is a product of a conflict of legal philosophy. the coexistence of these two systems is neither efficient nor sustainable but it serves the dual purposes of maintaining secular status and assuring the muslims of the protection of their legal philosophy. 19 vishwa lochan madan case, judgement, pg 13. print. 20 rashid, mian abdur. islam in the indo-pakistan subcontinent: an analytical study of the islamic movements. lahore: national book foundation, 1977. print., pg. 59 21 ibid. pg. 60-61 bibliography avari, burjor. islamic civilization in south asia: a history of muslim power and presence in the indian subcontinent. london: routledge, 2013. print. ahmad, imtiaz, ed. ritual and religion among muslims in india. new delhi: manohar, 1981. print. blackstone, william. commentaries on the laws of england. oxford: clarendon, 1769. print. dissolution of the muslim marriages act, 1939 rashid, mian abdur. islam in the indo-pakistan subcontinent: an analytical study of the islamic movements. lahore: national book foundation, 1977. print. muslim personal law (shariat) application act, 1937 schimmel, annemarie. islam in the indian subcontinent. leiden: e.j. brill, 1980. print. vishwa lochan madan versus union of india & others. supreme court of india. 07 july 2014. print. untitled document updating our rights with the internet: arguing the necessity of a fundamental right to internet access joshua rotenberg50 abstract: fundamental rights are essential to the functions of our democracy. a right is declared fundamental when the government must pass a strict scrutiny test in order to infringe upon it. this article is in support of a fundamental right to internet access given how essential the internet has become in the last decade, particularly post-pandemic. under this right, the united states government would need to go to great lengths to remove internet access from a citizen. malleability has been entrenched in american jurisprudence since its founding. with the advent of the digital age, once again american law must adapt to changing circumstances and ratify a fundamental right to steady internet access, or the “right to connect.” promoting the right to connect to a fundamental right ensures that, should the government desire to remove internet connectivity from a citizen, it would need to pass a strict scrutiny test. this test secures a right from infringement, requiring that the government would need to go to great lengths to revoke a right under strict scrutiny. strict scrutiny is the groundwork protecting other fundamental rights such as the right to privacy, the right to marriage, or the right to procreation. the current rule of law in the united states relating to the internet is primarily centered around censorship rather than pure access to the internet; there has yet to be a landmark case wherein the government removed one’s internet access in its entirety. while such a case has yet to occur in america, it is imperative that our government consider both the necessities of a fundamental right to connect, and the consequences of an unprotected right to connect in the post-pandemic world. to determine one’s digital rights, it is essential to establish the relationship between the online and real world as used today. in the modern era, people live entire lives on the internet. social media allows for communication comparable to face to face conversation, digital file storing services allow people to keep online possessions as they would physical copies, and applications that are used regularly to allow citizens to apply for jobs and work exclusively online. today, it is difficult to find an aspect of life that cannot be digitized. this is doubly true when considering the pandemic. given the outbreak of covid-19 society has been readjusted to function solely on a digital platform; businesses, families, friendships, and even the government itself now function wholly over the internet.51 for the first time in history, the supreme court broadcasted oral arguments online, while all parties were isolated at home during the pandemic.52 there are no signs of this trend toward digitalization slowing in the coming years. the threat of 52 honig, elie. “the sky didn't fall when the supreme court went live.” cnn, cable news network, 4 may 2020, www.cnn.com/2020/05/04/opinions/supreme-court-went-live-opinion-honig-cross-exam/index.html. 51 koeze, ella, and nathaniel popper. “the virus changed the way we internet.” the new york times, the new york times, 7 apr. 2020, www.nytimes.com/interactive/2020/04/07/technology/coronavirus-internet-use.html. 50 undergraduate at brandeis university, class of 2023. 21 the coronavirus will persist for the foreseeable future, and thus digital life will continue indefinitely. following the threat of the pandemic certain aspects of digital life will linger, due to the simple fact that the internet removes the barrier of physical distance. many companies are now finding more convenient ways to conduct business using the internet, pressured to do so by the pandemic. the modern circumstance renders the internet no longer a convenience, but a necessity; it has evolved to become a separate world in which humanity lives just as it would physically. with a new digital world should come newly digitized applications of fundamental rights, which are bound to be threatened should the government revoke internet access. furthermore, there is a plausible mortality connected to lack of internet access. today those with limited access to the internet are forced to work outside of their homes, possibly exposing themselves to the virus, jeopardizing themselves and those close to them. people who have the privilege of living with internet connectivity work from the safety of self-isolation, with minimal change to their daily pre-pandemic routine other than location and time spent using their computer. should the government remove connection to the internet, some citizens would be compelled to work in an unsafe environment, possibly threatening one’s fundamental right to life. of course, with time the dangers of the coronavirus will subside, but even after a new normal is established, removing access to the internet still prevents people from speaking their mind, associating with those they wish to associate with, or applying for the jobs they wish to work in. the calculation is simple: life has been digitized. thus, the rights and protections of american citizens must be updated to the digital medium as well. the only way to properly guarantee this outcome is to ensure that the government must go to great lengths to take away the sole path to the digital world citizens have, which is internet connectivity. just as previous fundamental rights were established through interpretation of precedent, the same can be done with the right to connect. when concluding the existence of the right to privacy from the landmark case griswold v. connecticut, justice douglas explained that the right was within the “penumbra” of previous rights established within the bill of rights. by explaining the right as a penumbra, he highlights that the right to privacy is a product of inference. douglas explained that this fundamental right can be inferred from the first amendment, wherein privacy is “protected from governmental intrusion,” as well as the third amendment, which prevents physical governmental intrusion through the prohibition of quartering of soldiers.53 in his conclusions justice douglas clarified for the court the common applications of the law as used by its citizens, and then redefined fundamental rights to fit those common applications. the same must be done today for the internet. the common applications of fundamental rights have been digitized just as applications of the first amendment changed, 53 griswold v. connecticut, 484. 22 resulting in justice douglas recognizing these penumbras of established fundamental rights. one can clearly see that the online applications of fundamental rights manifest digital rights. such online rights are easily identifiable when considering what rights are forcibly infringed upon should the government confiscate one’s internet access. in the event of a state sanctioned internet blackout, first amendment rights are likely to be the first to be torn from us citizens. previously, if a person wished to voice his opinion, they would do so through either the press or public speaking. while both practices are used today, the internet has become an astronomically more wide-reaching and efficient resource to spread one’s opinion. this links the use of the internet to the fundamental right to freedom of speech. freedom of association, a right tied to the first amendment, further binds internet usage to the first amendment. social media applications are home to groups of like-minded people, who join these groups for the purpose of discussing certain hobbies or passions. while physical meetings of like-minded people are of unquestionable prevalence, contemporary organizations that do not rely on the internet to function are rare. additionally, censorship cases have been the focus of internet jurisdiction for the past few decades. the 1997 case, reno v. american civil liberties union, determined that a law censoring indecent content on the internet violated the first amendment, as the act was determined to be a content-based restriction of speech, as caused by the complexities of the word “indecent.” a similar outcome is to be expected should the state remove internet access. all international examples of government instigated internet blackouts revolved around conflicts between citizens, which cause the government to block communication to prevent violence stemming from the disagreement. given the international precedent, it can be inferred that should an internet blackout occur in the united states, it would derive from similar issues concerning the content of speech and the consequential disagreement between people and government. the mass censorship that would follow would be a one-sided, unmerited violation of fundamental rights. the only way to circumvent such injustice would be with the strict scrutiny test. if the government wishes to remove first amendment rights via an internet blackout, they must provide a compelling state interest. simply preventing disagreement between government and people would not pass this test, thus preventing infringement upon american fundamental rights. naturally, there is a difference between internet regulation and internet control. a person can conduct nearly all functions of life online. these activities are subject to regulation. for example, in the 2003 case united states v. american library association, congress wished to pass the children’s internet protection act, which would require public libraries to install internet filters on all public computers within the library. this form of state action was deemed constitutional, as it was the only way of serving a compelling state interest of protecting children, while imposing “a comparatively small burden” on internet users. here, first amendment rights 23 are excused when applying to specific websites that can be harmful to children. however, baring one’s access to the internet prevents them from not only exercising fundamental rights, but from living online entirely. freedom to connect does not prohibit government internet regulation, simply government intrusion upon internet access. should state action create laws such as that of american library association, they can do so with ease under a fundamental freedom to connect, which would only protect access to this digital world on the grounds that digital life demands as many fundamental rights as the real world. in the physical world, the government creates law to regulate activities, but would never restrict the ability to exercise fundamental rights in the physical world without due process. there is a natural fundamental right to life. these same rights should be protected digitally as well. similarly, potential state action against access to the internet negates the established fundamental right to property. during an internet blackout, private conversations or files will be kept from citizens just as if the government physically sealed the entrance to one’s home or removed all private papers or possessions. the physical act of seizing property is an extreme violation of one’s rights, bound to cause an immediate and visceral reaction in opposition. there is no reason why the same standards should not be applied online. the modern zeitgeist is trending towards the existence of a digital life; a stable connection in each home is required to flourish in that life. a threat to it would be a threat to contemporary american life in a manner no government can reasonably enforce under the bounds of the constitution of the united states. protection of this digital life can only be achieved through recognizing the parallels and equalities between digital and physical life, and understanding that these parallels correspond to digital penumbras supported by the constitution, emphasizing the need for the fundamental right to access the world we now live in. of course, this is not to say that every citizen is required to maintain a stable connection to the internet; that would be an unreasonable request. there are many people who choose not to exercise some of their constitutional rights. the second amendment,which secures the right to bear arms, for example, is controversial. many exercise it, while just as many people do not. however, it is the citizens' prerogative to choose which path to take. similarly, there is a large population who choose not to live a digital life. however, this dispute is one of rights, and government restraint in removing those rights. it should be the right of the american citizen to choose how they live digitally, and if they desire, they should be able to exercise their fundamental rights digitally, free of the fear that the government will remove connection to the online world, and in doing so, disregard their fundamental rights. despite the obvious fact that the internet has changed with modern society, many will contest that it is unnecessary that we establish the fundamental right to connect. this is a natural conclusion, as there has not yet been a case where the government has forcibly removed internet 24 access in the united states, thus there is no pressing need for an update in the law. however, while such a case has yet to occur in america, governments have forced internet blackouts several times beyond the us border. these international examples highlight the ramifications and violations of basic rights a government shutdown of internet access enables, while also exemplifying the need for and the uses of a fundamental right to connect to prevent such an outcome. for example, nations such as egypt, iran, or india have shut down their internet during times of war or political turmoil simply because anti-government or anti-war protests were organized online via social media. egyptian and tunisian governments forced internet blackouts during the mayhem of the arab spring in 2011, and, most recently, in iran during the 2019 fuel protests. the iranian internet blackout obstructed families living outside the state from communicating with those still in iran while preventing protests from organizing over social media54. in this act both physical and digital versions of freedom of speech were seized from iranian citizens. there were economic and personal consequences as the entire nation was plunged into an archaic state of detachment from the world. reporting about the protests was limited, thus information about violence during those protests was kept from the world and was isolated to the locations wherein such violence was committed. the internet blackout in iran and the chaos that followed emphasized how great of an influence the internet is today, and how an internet blackout bluntly removed many fundamental rights a citizen has. in the kashmir region of india, the government imposed an internet blackout following a series of violent protests. these restrictions were applied “to prevent the propagation of terror activities and the circulation of inflammatory material”55. in the months that the blackout took place, the expected chaos ensued as citizens were stripped of their livelihoods, and connections to their families and friends. as a result, however, india remedied their policies by establishing the right to connect as a fundamental right within the indian constitution (dutta)56. they saw what a government enabled internet blackout could do to the modern population, and promptly amended their constitution to adapt to modern circumstance, accepting the fact that rights can be revoked both physically and digitally, with equal consequence. it is essential that america reach the same result. a more conservative court, such as the one we have now, will argue that it is not the place of the court to litigate, but to simply apply the rights of the constitution verbatim to whatever 56 dutta, prabhash k. “internet access a fundamental right, supreme court makes it official: article 19 explained.” india today, 10 jan. 2020, www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-e xplained-1635662-2020-01-10. 55 schultz, kai, and sameer yasir. “india restores some internet access in kashmir after long shutdown.” the new york times, the new york times, 26 jan. 2020, www.nytimes.com/2020/01/26/world/asia/kashmir-internet-shutdown-india.html. 54 hjelmgaard, kim. “'tool of repression': iran and regimes from ethiopia to venezuela limit internet, go dark online.” usa today, gannett satellite information network, 23 nov. 2019, www.usatoday.com/story/news/world/2019/11/23/irans-internet-blackout/4268948002/. 25 http://www.usatoday.com/story/news/world/2019/11/23/irans-internet-blackout/4268948002/ issue arises in the court. this is a perfectly valid argument, as there has yet to be a case of first impression concerning the right to connect. conservative judges may not recognize digital penumbras as justice douglas would. however, this paper is an argument for change, albeit through the judicial or legislative branch. should the court determine that it is not their place to ratify the freedom to connect as a fundamental right without a case, legislation can allow for such an amendment to occur. in these circumstances, the method is less important than the result. so long as the freedom to connect is protected under strict scrutiny, america may confidently move forward into its future. the american policy towards an internet blackout is, as of now, unknown. however, regulations exist specifying how government control of internet connectivity functions in the united states. the communications act of 1934 allows the president to shut down “any facility or station for wire communication” as per 47 us code, section 606, which clarifies war powers of the president. however, war is a chaotic time, and policies forged in the pursuit of winning a war are not always the just policy (consider, for example, the espionage act). this is why it is essential that freedom to connect be established before troubling times develop in the united states. it is the only way to ensure the prevention of injustice. as previously established, the one common aspect of all government internet blackouts was disagreement between state and public. either through protest or war, there was an aspect of public behavior that the government deemed dangerous, and to avoid the supposed “danger” of disagreement, they established restrictions that violated fundamental rights. america has been in such a position before, concerning the now unused bad tendency test of the first amendment. the “bad tendency” test allowed censorship towards inflammatory material, or parts of speech that contained a “bad tendency.” this method of identifying which form of speech to prohibit in the united states is identical to india’s reasoning behind their internet blackout, in both situations “inflammatory material” was cited. the bad tendency test was removed through a series of cases which redefined how the first amendment is used, beginning with schenck v. united states, and ending with abrams v. united states. in schenck v. united states, the supreme court ruled that the pamphlets charles schenck and elizabeth baer distributed contained a bad tendency for opposing the first world war and violated the espionage act. this case, decided by oliver wendell holmes, established the unjust bad tendency test as the precedent until holmes reversed his opinion following changes in societal norms. when a similar set of circumstances reappeared in 1918, after the war, justice holmes reprimanded the bad tendency test in his historic abrams dissent, where he reevaluated the state of the nation, and determined that the law must change. he recognized that “[e]very year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect 26 knowledge…that experiment is part of our system”57. the story of the bad tendency test, the fundamental right to privacy, and other changes in fundamental rights follow a similar path. holmes recognized the injustice perpetuated by the bad tendency test as well as the changing attitudes towards the first amendment; he extrapolated from these notions that a change in the law was required. today, similar injustices concerning first amendment rights, as well as all other digital rights, will be committed unless the government acts preemptively by safeguarding digital rights before they can be trampled upon. just as the bad tendency test changed over time, and the fundamental right to freedom of speech was redefined, the time has come to reach a similar conclusion concerning the internet. there is an existing precedent of considering the internet as a tool to be used at one’s own leisure. however, given the pandemic and the evolution of digital activities, the internet is no longer the device it once was. it has grown to touch all aspects of modern life and must be treated as such by the law. a change to our nation’s fundamental rights is required, just as holmes recognized with the bad tendency test. this debate leads to a clear conclusion. modern citizens carry two lives: one physically and one digitally. to remove the gateway to one’s digital life—a stable connection to the internet-is to violate the fundamental rights that coincide with the use of the internet. such rights include the right to freedom of speech, the right to property, and the right to freedom of association as established by the first amendment of the constitution. while there has yet to be a case concerning the american government revoking such digital rights, it is imperative that we preventively follow trends established by nations who have recognized this danger, such as india. the circumstances under which a government forces an internet blackout have been consistently controversial. legislating a fundamental right to freedom to connect is the only true way to ensure that the long-standing fundamental rights our nation has protected for centuries can be adapted into the modern setting justly and easily. continuing to ignore this need until a case of first impression arises will subject our nation to the near certainty of injustice, as caused by the very nature of such cases. the internet has delivered a new world to modern times, and our nation must prepare to protect its citizen’s rights as they navigate the complexities of digital life in the same way we have been since our creation. as darwinian evolution teaches, when faced with a new pressure, one must adapt to survive, or fall behind and perish. in order to ensure america continues to be the just nation it prides itself on being, it must adapt its fundamental rights to the digital age. establishing the freedom to connect as a fundamental right by amending our constitution is the only true way to ensure our nation’s next stage of evolution. 57 abrams v. united states, 250. 27 works cited dutta, prabhash k. “internet access a fundamental right, supreme court makes it official: article 19 explained.” india today, 10 jan. 2020, www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-courtmakes-official-article-19-explained-1635662-2020-01-10. hjelmgaard, kim. “'tool of repression': iran and regimes from ethiopia to venezuela limit internet, go dark online.” usa today, gannett satellite information network, 23 nov. 2019, www.usatoday.com/story/news/world/2019/11/23/irans-internet-blackout/4268948002/. honig, elie. “the sky didn't fall when the supreme court went live.” cnn, cable news network, 4 may 2020, www.cnn.com/2020/05/04/opinions/supreme-court-went-live-opinion-honig-cross-exam/in dex.html. koeze, ella, and nathaniel popper. “the virus changed the way we internet.” the new york times, the new york times, 7 apr. 2020, www.nytimes.com/interactive/2020/04/07/technology/coronavirus-internet-use.html. schultz, kai, and sameer yasir. “india restores some internet access in kashmir after long shutdown.” the new york times, the new york times, 26 jan. 2020, www.nytimes.com/2020/01/26/world/asia/kashmir-internet-shutdown-india.html. cases cited griswold v. connecticut, 381 u.s. 479 (1965). reno v. american civil liberties union, 521 u.s. 844 (1997). united states v. american library association, 539 u.s. 194 (2003). schenck v. united states, 249 u.s. 47 (1919). abrams v. united states, 250 u.s. 616 (1919). 28 http://www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-explained-1635662-2020-01-10 http://www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-explained-1635662-2020-01-10 http://www.usatoday.com/story/news/world/2019/11/23/irans-internet-blackout/4268948002/ http://www.cnn.com/2020/05/04/opinions/supreme-court-went-live-opinion-honig-cross-exam/index.html http://www.cnn.com/2020/05/04/opinions/supreme-court-went-live-opinion-honig-cross-exam/index.html http://www.nytimes.com/interactive/2020/04/07/technology/coronavirus-internet-use.html http://www.nytimes.com/2020/01/26/world/asia/kashmir-internet-shutdown-india.html brandeis university law journal fall 2021, volume 9, issue 1 application of european model to curtail hate speech in the u.s. sophia reiss1 as hate speech increases we may need to revisit the question of how to respond to it and whether to limit it within free speech or other areas of law. this article compares free speech law in the united states and the european union in an effort to explore how one might improve our care of ourselves and each other in the realm of free speech. the united states is one of several countries around the world that attempts to balance democratic ideals, historical prejudice, and practical concerns when it considers whether to restrict hate speech. both the united states and the european union have histories of racial prejudice and movements filled with hateful conduct and speech. despite this commonality, the two have attempted to deal with this behavior in different ways. american constitutional law and its supreme court have been very protective of free speech, allowing for the theoretical “marketplace of ideas” to thrive. while legal definitions vary, hate speech is defined by merriam webster as “speech expressing hatred of a particular group of people.”2 an example of this is the recent case speech first v. fenves in which the u.s. court of appeals for the fifth circuit struck down a college campus code restricting free speech as a first amendment violation. in an effort to maintain such strong free speech protections, american courts have gone to great lengths to restrict only the most harmful speech: that speech which actually incites violence. they have not restricted “hate speech” as such. the nations of the european union, by contrast, understood the impact of free speech from their historical experience, particularly during world war ii. the european union is made up of 27 member states including belgium, germany, france, and the netherlands.3 backed by this understanding, the european union aims to prevent hate speech that might lead to a similar genocidal path. while the united states allows for hate speech unless it is a threat or incites imminent violence, the eu and specifically the european 1 brandeis university undergraduate, class of 2023. 2 “definition of hate speech.” accessed september 24, 2021. https://www.merriamwebster.com/dictionary/hate+speech. 3 “list of countries in the european union,” accessed september 24, 2021, https://worldpopulationreview.com/country-rankings/european-union-countries. 5 https://worldpopulationreview.com/country-rankings/european-union-countries https://www.merriam-webster.com/dictionary/hate+speech https://www.merriam-webster.com/dictionary/hate+speech brandeis university law journal fall 2021, volume 9, issue 1 convention on human rights restricts hate speech. in the united states, the worry in restricting hate speech stems from the fear that it would be too restrictive of free speech. the united states has erred on the side of caution for protecting constitutional ideals while the european union has erred on the side of limiting speech, fearing a return to its troublesome history. 4 these differences need not represent a deep and impassable divide. rather, a standard should be created that would encourage american courts to look elsewhere to gain greater understanding of potential alternatives where new and difficult issues arise, especially where they are crucial to democratic values. in particular, when looking for other tactics to resolve legal issues that embrace core democratic values, american legal experts should look towards europe, canada, and other parts of the world which place a similar emphasis on democracy and free expression. alternatives to america’s free speech absolutism should be considered, especially those proven to be successful. american courts could be inspired by other countries’ approaches especially when venturing into a new area of law. this should be akin to how ukraine developed its intellectual property law through what is sometimes called “sideways integration.”5 specifically in the texas case speech first v. fenves and other hate speech cases, the united states legal system would have benefited from learning about the european stance on hate speech. while it may not be best to change our legal stances given the differences in both history and legal tradition of the united states, there should at least be an understanding of what other democratic countries have done, and that these sources may offer possibilities for improvement. in speech first v. fenves, the court held that the university of texas at austin’s policies regulating hate speech were unconstitutional, based on the united states’ traditionally-broad freedom of speech interpretations. the university of texas at austin’s policies restrict freedom of speech in order to protect students against many forms of speech, ranging from the merely offensive to those that may rise to the level of hate speech. the court case 4 ioanna tourkochoriti, “should hate speech be protected? group defamation, party bans, holocaust denial and the divide between (france) europe and the united states,” ssrn scholarly paper (rochester, ny: social science research network, february 23, 2014), https://papers.ssrn.com/abstract=2400105 . 5andrii neugodnikov, tetiana barsukova, and roman kharytonov, “protection of intellectual property rights in ukraine in the light of european integration processes,” journal of politics and law 13, no. 3 (2020): 203-11. 6 https://papers.ssrn.com/abstract=2400105 brandeis university law journal fall 2021, volume 9, issue 1 discussed the claim “that students ‘are afraid to voice their views out of fear that their speech may violate university policies.”6 a democracy, particularly one with our constitutional history, relies on free discourse, the exchange of ideas, and dissent in order to come up with solutions to political issues. the court notes “that speech first’s three student-members at the university have an intention to engage in a certain course of conduct, namely political speech” which is the focus of first amendment protections.7 as noted in the case, their policies restrict “verbal harassment” and speech qualifying as “‘harassment,’ ‘intimidation,’ and ‘incivility,’” in addition to “the hate and bias incidents policies against ‘bias incident[s]’ and ‘campus climate incident[s].’”8 the court ruled that these terms are too unclear and vague to be allowable restrictions on freedom of speech. instead, these terms “arguably cover the plaintiffs’ intended speech” including the area of political speech, and therefore violate the first amendment’s protections.9 unlike other school settings where some necessary discipline is protected under the tinker rationale, public universities have fewer prerogatives to restrict speech based on educational purposes. the case of tinker v. des moines underlining the tinker rationale provides the basis for freedom of speech application in the public school setting.10 tinker decided that public school students deserve the same free speech guarantees as adult citizens with the only exception being where schools’ educational interest is being hampered.11 universities educate adult students, provide a greater level of independence, and cultivate engagement within civil society. freedom of speech is a core value that americans cherish. while this case shows the first amendment at work through american legal theory, europe’s outlook on free speech, expression, and hate speech could provide insight into alternative balances. 6 edith h. jones. speech first, incorporated, v. gregory l. fenves, in his official capacity as president of the university of texas at austin, no. 19-50529 (united states court of appeals for the fifth circuit october 28, 2020) 18. 7 fenves,18-19. 8 fenves, 19. 9 fenves, 19. 10 “facts and case summary tinker v. des moines,” united states courts, accessed september 24, 2021, https://www.uscourts.gov/educational-resources/educational-activities/ facts-and-case-summary-tinker-v-des-moines. 11 “facts and case summary tinker v. des moines.” 7 https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines brandeis university law journal fall 2021, volume 9, issue 1 “sideways integration” occurs when a country’s courts look towards other countries for insight into alternative resolutions of a certain legal issue. what scholars call the “common core” is an attempt to encourage legal integration through extensive research into specific legal issues, with a view towards finding commonalities in legal responses around the world. these commonalities and common trends are then used to present best practices which judges can incorporate into their reasoning in decisions. the united states maintains a unique position in free speech law as the least restrictive country, as evidenced in its allowance of hate speech. europe, however, serves as an example of a legal system that balances complexities in the maintenance of democratic values. the u.s. courts need to rely on the u.s. constitution and statutes in their decisions, but that still allows for them to incorporate the experience of other countries. we could learn from the experience of europe that restricting hate speech and harassment actually allows for freer speech since potential participants in public discourse are not discouraged from engaging. the courts could justify allowance of restrictions like those found in the university of texas at austin by applying european experience. free speech could be enhanced through hate speech restrictions as seen through the european experience because hate speech intimidates and discourages other voices. these restrictions could help protect speech and be consistent with the greater goals of the first amendment, in contrast to the court’s ruling in fenves. if the court had implemented sideways integration from europe or the common core, speech first v. fenves would have had the opposite outcome. while there is no international definition of ‘hate speech,’ there are several provisions of international law outlawing particular aspects of hate speech.12 article 20 of the international covenant on civil and political rights (1966) focuses on advocacy of hate while article 4 of the international convention on the elimination of racial discrimination (1965) focuses on disseminating hateful ideas.13 such provisions arguably protect free discourse in respect to a democracy by enabling marginalized groups greater security when expressing ideas. in article 10 of the european convention on human rights, for example, the right to free speech is 12 sejal parmar, “the legal framework for addressing ‘hate speech’ in europe” (international conference: organised by the council of europe in partnership with the croatian agency for electronic meeting, zagreb, croatia, november 6, 2018). 13 parmar, “the legal framework for addressing ‘hate speech’ in europe.” 8 brandeis university law journal fall 2021, volume 9, issue 1 maintained through freedom of expression, but comes along with duties and restrictions including protecting other citizens, national security, and protection of reputation. article 17 restricts speech or conduct leading to interference with other rights and freedoms which also can result in conflicts in the application of article 10. merely “offensive speech” is allowed, but the european court of human rights’ decision in erbakan v. turkey noted that “as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote, or justify hatred based on intolerance.” despite the success of such approaches in europe, american law still maintains that restricting speech, especially political speech, is always problematic and restrictive of democracy. this claim may be wrong, as shown in europe through their continued maintenance of strong democracies, discussed later, while still restricting hate speech. democratic principles evolve, and given the harmful impacts of hate speech, free speech could potentially be better protected and encouraged in an environment in which virulent hate speech has no place. for example, consider the féret v. belgium case, which directly handled political speech and the harmful effects of hate speech. the european court of human rights ruled that the politician daniel feret was properly punished under belgian law for speech that demeaned people on the basis of religion and national origin.14 since people could have felt threatened by this speech which demeaned them, they would probably be less likely to speak. the court noted that statements like feret’s are a threat to peace and stability in belgium as racist hate speech devalues democratic principles, including diversity and plurality. this reasoning is similar to the argument that by restricting hate speech the united states would actually enable political speech to thrive. both this speech and this conduct are protected by the first amendment, but incorporating some of the european article 10’s restrictions could make american constitutional law more faithful to its constitutional and underlying democratic ideals. this incorporation could allow for and protect more laws at both the state and federal level that are restrictive of hate speech while being specific and limited enough to keep almost all speech free. european free speech law restricts hate speech much more than american courts do, but also fosters 14 “féret v. belgium,” global freedom of expression, accessed september 27, 2021, https://globalfreedomofexpression.columbia.edu/cases/feret-v-belgium/. 9 https://globalfreedomofexpression.columbia.edu/cases/feret-v-belgium/ brandeis university law journal fall 2021, volume 9, issue 1 democracy’s ideal of allowing for extremely wide, legitimate political dissent. despite what an american may expect, european democracies thrive even with these restrictions on hate speech. the slippery slope argument, that any free speech restriction will lead to worse ones, is not inevitable or even likely. it has not happened in europe. in fact, several european democracies show higher voter turnout than ours: six out of the 10 countries with the highest voter turnout are european, with a range from 87.21% to 71.65% of voter turnout.15 the netherlands has the sixth highest voter turnout at 77.31% and has several political parties, showing that political discourse is vibrant. the united states by contrast has a voter turnout of 55.70%.16 voter turnout is an important indicator of democracies’ health as it shows the level of participation. freedom of speech is a central component of democratic participation tied to voter turnout. much like how voters voice their assessment of the government and government agents through their vote, freedom of speech allows further avenues of critique and idea development. the united states inspired several countries to become democratic through the american revolution and its talk of freedom and representation. despite how several countries modeled themselves on the american example, the united states is still quite unique. some of this may be through differences in other countries’ democratic development including revisions and potential improvements. the european outlook on hate speech, which has become more common across the world’s democracies, may be one of these improvements. as first amendment precedents are well-founded, this would not clearly fall under the “new area of law” aspect of the standard. nevertheless, it would fit the other aspect of the standard, which encourages a comparative approach in tricky legal issues, especially those balancing democratic values and protecting against harm. current free speech law in the united states attempts to protect a “marketplace of ideas” vision of open dialogue and space for dissent. among the few allowable restrictions are those that are placed in content-neutral ways that only restrict the time, place, and manner of the expression.17 these laws and precedents’ only content-based restrictions are those which aim to protect against harms like that of 15 “voter turnout by country 2021,” accessed september 24, 2021, https://worldpopulationreview.com/country-rankings/voter-turnout-by-country. 16 “voter turnout by country 2021.” 10 https://worldpopulationreview.com/country-rankings/voter-turnout-by-country brandeis university law journal fall 2021, volume 9, issue 1 incitement to imminent danger, “fighting words,” threats, obscenities, and a few torts. in balancing this duality, an evolving first amendment interpretation could account for other aspects of the constitution that work to protect competing democratic values of freedom. hate speech could be restricted to some extent while keeping robust and constructive democratic debate unrestricted by authorities. this would allow for a truly free discourse and a lively engagement with ideas, similar to what european laws do. continuing in the first amendment legal tradition, hate speech could be restricted as a defense of democracy and an unsullied “marketplace of ideas,” similarly to the european law. hate speech inhibits free speech by causing people in protected classes or marginalized groups to feel unwelcome and potentially unable to speak. hate speech could prevent incredible thinkers from having the courage to express themselves and contribute productively to our communities. hate tends to drown out productive thinking and overwhelm other opinions. by restricting hate speech, democracy would be encouraged and an open thriving dialogue would be more possible. the “marketplace of ideas” would be more open and encouraging for all participants. while one may argue that courts are legal entities and should only focus on individual plaintiffs’ rights at issue in each case and not care about enhancing democracy, hate speech and harassment raise both of these vital roles that the courts hold. courts serve as a check to political entities and various political interests. through serving as this important balance, courts act to resolve legal problems as their decisions are applicable beyond each individual case and each individual case brings with it important legal issues. courts are both legal and political entities, as some of their more contentious cases touch on political issues, and their decisions may unavoidably affect life and political actions. an independent judiciary is crucial to democracy, in part because it adds a different perspective to a wide range of difficult questions. the judiciary also helps define terms and legal ranges of possibility. courts decide issues through legality, fairness, reason, rationality, and predictability. they also rely on past experience, expertise, and a wealth of knowledge through precedent, expert witnesses, 17 kevin francis o’neill, “time, place and manner restrictions,” accessed september 27, 2021, https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner restrictions. 11 https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions brandeis university law journal fall 2021, volume 9, issue 1 and research. the legal argumentative process allows for the airing of both sides of arguments in a “marketplace of ideas” where each side is on equal footing. the courts are naturally involved in democracy including the enhancement of it through their complementary role. legal and historical backgrounds provide divergent contexts between the united states and europe which help explain their differences in free speech law. their different contexts produce different approaches, both of which can be beneficial for the other to learn from. this is especially true when approaching new areas of law. when the united states develops a new area of law, it could make sense to refer to other countries for insight, similar to the practice of referring to precedent. prior experience can help other judicial systems see what to do and what not to do, and see what types of law and legal practices lead to what kinds of outcomes. in the development of new areas in other fields, we regularly look towards expertise. we should do the same in the legal arena through the use of sideways integration and common core incorporation. ukraine provides an example in the case of intellectual property. ukrainian legislation in intellectual property “began to take shape in 1993” protecting certain intellectual property rights.18 these laws mainly focused on patents out of which other intellectual property rights could and would grow. the article notes that “[i]n ukraine, the development of legislative regulation of free software is very poor, so the involvement of foreign experience may be appropriate.”19 in developing their intellectual property law, “ukraine must bring its legislation in line with the agreement on trade-related aspects of intellectual property rights (trips) 1993, which is one of the main legal documents of [the wto].”20 ukraine adopted the european community’s patent laws, trademark law, licensing agreements, and copyright laws in a way that harmonizes their laws with the rest of europe as a prime example of sideways integration. this could prove a helpful example in the united states’ legal development. 18 neugodnikov, barsukova, and kharytonov, “protection of intellectual property rights in ukraine in the light of european integration processes” 204. 19 neugodnikov, barsukova, and kharytonov, “protection of intellectual property rights in ukraine in the light of european integration processes” 206. 20 neugodnikov, barsukova, and kharytonov, “protection of intellectual property rights in ukraine in the light of european integration processes” 206. 12 brandeis university law journal fall 2021, volume 9, issue 1 integration should not be compulsory in developing new areas of law, but american courts should respect this resource more than they presently do. taking inspiration from the european example and creating improvements on american freedom of speech could create a new standard which can particularly help in situations when there are several core democratic values being balanced. european freedom of speech with its exclusion of hate speech takes into account more than simply a limitless idea of freedom. expertise and a greater amount of experience helps and could only improve legal development. given the variety within each area of law, the standard should not force acceptance or application of legal principles or rules that do not make sense. despite this difficulty, the standard could and should encourage learning from outside experience and having clear comparisons especially with a focus on the contexts around each legal theory and history. 13 brandeis university law journal fall 2021, volume 9, issue 1 works cited “definition of hate speech.” accessed september 24, 2021. https:// www.merriam-webster.com/dictionary/hate+speech. edith h. jones. speech first, incorporated, v. gregory l. fenves, in his official capacity as president of the university of texas at austin, no. 19-50529 (united states court of appeals for the fifth circuit october 28, 2020). united states courts. “facts and case summary tinker v. des moines.” accessed september 24, 2021. https://www.uscourts.gov/ educational-resources/educational-activities/facts-and-casesummary-tinker-v-des-moines. global freedom of expression. “féret v. belgium.” accessed september 27, 2021. https://globalfreedomofexpression.columbia.edu/cases/feret-vbelgium/. “list of countries in the european union.” accessed september 24, 2021. https://worldpopulationreview.com/country-rankings/europeanunion-countries. neugodnikov, andrii, tetiana barsukova, and roman kharytonov. “protection of intellectual property rights in ukraine in the light of european integration processes.” journal of politics and law 13, no. 3 (2020): 203–11. o’neill, kevin francis. “time, place and manner restrictions.” accessed september 27, 2021. https://www.mtsu.edu/firstamendment/article/1023/time-place-and-manner-restrictions tourkochoriti, ioanna. “should hate speech be protected? group defamation, party bans, holocaust denial and the divide between (france) europe and the united states.” ssrn scholarly paper. rochester, ny: social science research network, february 23, 2014. https://papers.ssrn.com/abstract=2400105. “voter turnout by country 2021.” accessed september 24, 2021. https://worldpopulationreview.com/country-rankings/voter-turnoutby-country. cases cited féret v. belgium, 15615/07 eur. ct. h.r. 573 (2009) 14 https://worldpopulationreview.com/country-rankings/voter-turnout-by-country https://worldpopulationreview.com/country-rankings/voter-turnout-by-country https://papers.ssrn.com/abstract=2400105 https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions https://worldpopulationreview.com/country-rankings/european-union-countries https://worldpopulationreview.com/country-rankings/european-union-countries https://globalfreedomofexpression.columbia.edu/cases/feret-v-belgium/ https://globalfreedomofexpression.columbia.edu/cases/feret-v-belgium/ https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines https://www.merriam-webster.com/dictionary/hate+speech https://www.merriam-webster.com/dictionary/hate+speech brandeis university law journal fall 2021, volume 9, issue 1 speech first v. fenves, 95 u.s. fifth circuit 2197 (2020) tinker v. des moines, 393 u.s. 503 (1969) erbakan v. turkey, 59405/00 eur. ct. h.r. 410 (2006) 15 microsoft word law journal issue 7_final.docx international law: the legacy of international criminal tribunals and the role of communication holly rutledge* as the field of international criminal law expands, the subject of legacy has become a key consideration for international courts and tribunals. while each international criminal institution faces different circumstances that affect its legacy, general themes and components of legacy may be observed based on their histories. as institutions such as the international criminal tribunal for the former yugoslavia (icty), international criminal tribunal for rwanda (ictr), and special court for sierra leone (scsl) come to a close or approach the end of their mandates, the academic community and their staff members reflect on the history of these institutions and the legacy that they will leave behind. examining legacy raises questions about what the ideal role of an international court is and what effects it can have politically, for victims, and on the peace and wellbeing of a nation. as legendary jurist antonio cassese wrote, “tribunals must leave something useful behind.”1 generally, these institutions are seen as steps towards an end to impunity and establishment of rule of law despite many obstacles. critical evaluation, however, is important for the development and improvement of future institutions. along with judicial proceedings, legacy projects and outreach programs protect the history of a court while supporting and strengthening a community. ms. sara darehshori, a senior counsel with the international justice program and human rights watch, stated that “outreach initiatives must be considered from the outset of a court’s operation,” and noted that the early ictr was too internally focused on its legal objectives and did not devote as much time or resources to making the trial accessible to the public. “it did not occur to the office of the prosecutor to publicize its work,” ms. darehshori states, “given that most lawyers came from national systems and legal cultures in which the legitimacy of the court system is taken for granted and courts are generally accessible to the population.”2 this quotation reflects one of the largest aspects of legacy that is often overlooked in the rush for a court to complete its formal mandate: outreach and the impact on the people of the affected region. due to misunderstanding of international laws and miscommunication between the affected region and international community, courts also often face expectations beyond their mandate, leading to frustration and confusion. therefore, a level of cooperation with civil society and outside actors is crucial to achieve justice for victims, to work towards healing beyond punitive justice, and to ensure that the efforts of the international community are as fruitful as possible. understanding and defining legacy legacy is defined as encompassing the broad, theoretical accomplishments of the courts as well as their material effects. the material legacy of a court refers to what it might physically * undergraduate at brandeis university, class of 2016 1antonio cassese. report on the special court for sierra leone. rep. residual special court for sierra leone, 12 dec. 2006. 61. 2symposium on the legacy of international criminal courts and tribunals in africa rep. the international criminal tribunal for rwanda, the international center for ethics, justice, and public life, brandeis university, feb. 2010. 37. leave behind. this can include its archives, facilities, and specific legacy projects implemented at the ground level. as defined by the icty, legacy is what “ the tribunal will hand down to successors and others.”3 at an international discussion on the legacy of the scsl hosted by the international center for transitional justice (ictj), legacy was defined as what would live on after the completion of its judicial work: “its decisions, archives, prison, and courtroom.”4 some of the broader aspects of legacy include a court’s contributions to international jurisprudence, such as protecting “victims’ rights to justice, strengthening the rule of law, and fighting impunity.”5 as international criminal law is a young and constantly evolving field of law, one of the important aspects of legacy is that each new tribunal will set a precedent for future international courts and international criminal justice.6 a court’s impact on broad social trends is referred to as its normative legacy. this normative legacy includes allowing victims of atrocities to establish a narrative, establishing greater accountability for crimes that have historically gone unpunished, and instituting rules that may be enforced in the future fight against impunity.7 the scsl website describes that legacy means something different to each of the affected parties, from the people of sierra leone to future tribunals, or more broadly to the system of international justice.8 although additional services are necessary to advance the healing and welfare of victims, this process in itself can have an intrinsic affect by providing a sense justice. given these different interpretations, it is clear that a court’s final legacy can encompass a myriad of different elements and components of a tribunals work. the international criminal tribunal for the former yugoslavia as the first international criminal tribunal since the nuremberg trials, the icty set many precedents for international law. founded in 1993 in response to a war involving multiple parties, the court was faced with determining who was at fault for which crimes, and informally was expected to put an end to the violent attacks against civilians. while it was successful in some respects, infamous attacks such as the massacre at srebrenica occurred after the founding of the court. the icty’s neutrality was aided by the fact that it prosecuted members of all groups involved, however this decision sometimes led to bitterness for the parties of the former yugoslavia. doctor rachel kerr, a senior lecturer at king’s college london in the department of war studies, examines the role of the icty in establishing peace in the region. kerr asserts that the tribunal’s judicial legacy includes “substantial inroads into substantive law issues, in particular with regard to the definition of genocide, the application of ‘grave breaches’ provisions, the elucidation and expansion of the laws applicable to non-international armed conflict, the definition of crimes against humanity and the nature of command responsibility” as well as setting a precedent for international law.9 as one of the first international tribunals, 3“assessing the legacy of the icty." icty. 24 feb. 2010. 4"international experts gather in freetown to discuss legacy of the special court for sierra leone." 5"ibid. 6un-ictr. external relations and communication outreach unit. ictr’s 20th anniversary commemoration and website launch in the hague. united nations international criminal tribunal for rwanda. n.p., 5 dec. 2014. 7magdalena spalińska, helena eggleston, and rada pejić-sremac, eds. "20 years of the icty: anniversary events and legacy conference proceedings." united nations international criminal tribunal for the former yugoslavia. icty outreach program, 2014. 7, 22. 8"legacy projects." the special court for sierra leone, the residual special court for sierra leone. 9rachel kerr, "peace through justice? the international criminal tribunal for the former yugoslavia." journal of southeast european & black sea studies 7.3 (2007): 373-385. academic search premier. web. 378. however, the icty initially put less emphasis on victim integration and outreach, which may have hindered its legacy for the affected people. one of the main functions of an international court is to pursue justice on behalf of affected groups, but this is also often the most contentious aspect of the tribunals. the icty made substantial contributions to the jurisprudence of international law, but a critique of the icty is that it failed to provide true justice for victims and did not adequately impact national reconciliation in the former yugoslavia.10 peter van der auweraert, a member of the international organization for migration, stated that the legacy of the icty is also the “legacy of the international community which has invested all its resources in punitive justice.”11 clearly this is a natural function of the tribunal’s structure, but it also indicates that perhaps there should be greater attention paid to supplementary programs that are restorative rather than punitive in nature. nataša kandić, founder of the humanitarian law center, does note that the tribunal’s work was important for the people in the regions of the former yugoslavia as a way to establish a factual narrative of events. without these facts, the people would have been deprived of the opportunity to come to “autonomous conclusions” and would have instead been left to rely on secondary sources.12 the proceedings of the tribunal and the transparent access to its findings were pivotal to its ability to prevent future crimes, end impunity, and establish justice. transitional justice is “an approach to achieving justice in times of transition from conflict and/or state repression”13 using judicial and non-judicial measures. while an international tribunal has an immense opportunity to promote transitional justice, it cannot do so without additional mechanisms and efforts. kerr states that the proceedings of the icty have been “central” to the transition to peace, but there has been criticism of inefficiency of the tribunal’s process and the lack of tangible impact on peace and reconciliation.14 on the other hand, this could also be an unavoidable consequence of a court that follows a war, in which each party will see their treatment as unjust compared to their former opponent. it is unclear how far the court can go to promote reconciliation while also providing justice in a way that is as neutral and as apolitical as possible. kerr asserts that “the nexus between peace and justice is to be found in the contribution that justice can make to the process of establishing sustainable peace.”15 the role of criminal trials in this process is important for establishing individual responsibility, deterring future events, providing a sense of justice for victims, establishing rule of law, removing perpetrators from the peace process, and providing an impartial record. other factors strongly impact this process, for example one observer stated that “‘[w]hether societies come to value tribunals as an equitable and effective way to confront their violent paths may ultimately depend more on the approval of a nation’s leaders than in anything an outreach programme can do’”16 while it is important for a tribunal to reach the people in an affected region, unrealistic expectations that transcend the mandate of the tribunal excessively may distract from the main obligations of the court and its ultimate legacy. as an international tribunal, it is necessary to consider the unique history of the region. changes and policies that are seen as impositions or that are not integrated into the community 10spalińska, eggleston, and pejić-sremac, eds, "20 years of the icty: anniversary events and legacy conference proceedings," 26. 11ibid. 84. 12ibid. 44. 13“what is transitional justice?” international center for transitional justice. 14kerr, "peace through justice? the international criminal tribunal for the former yugoslavia," 374. 15ibid. 379. 16ibid. will likely be less effective and not meet the needs of the community. dan saxon, a former prosecutor for the icty, explores the legacy of the icty in the region of the former yugoslavia and the broader role of the court in his essay "exporting justice: perceptions of the icty among the serbian, croatian, and muslim communities in the former yugoslavia." he critiques the practicality of some of the goals of the tribunal and what was hoped would be its legacy. for example, it is often assumed that the creation of an ad hoc tribunal will help to restore or foster the rule of law; saxon argues that since “the former yugoslavia has no history or tradition of a strong independent judiciary” such an establishment was perceived as a western imposition rather than an organic process based in the lived experience of many residents.17 for an international tribunal to have a lasting, positive impact on the domestic rule of law and judiciary, it must take steps to encourage local initiatives, policies, and adaptations. the international criminal tribunal for rwanda the ictr was established shortly after the icty in response to the devastating rwandan genocide in 1994. the tribunal was based in tanzania in an effort to bring the proceedings of the trial closer to the affected region than the icty had been. however, as with the icty, outreach was not an initial prerogative of the tribunal, which alienated the tribunal from the reality of rwanda. another factor that disadvantaged the tribunal was that it did not prosecute certain groups, which diminished its perceived legitimacy. both the icty and the ictr were criticized for the length of their proceedings and the cost of the trials, a particularly pressing concern when almost half of rwanda lives in poverty and limited resources must be allocated with care. part of the positive legacy of the ictr is its effect on the region, in particular the victims, the academic community, and the judicial system. not only did the ictr establish specific regional programs, such as legal journals or moot court exercises, it also helped to raise the profile of international law.18 some of the difficulties it faced centered on the task of integrating the court and international criminal law into the african education system and the domestic courts. major difficulties in this respect include a lack of communication or clear practice on how to address conflicts between international and domestic law as well as a metaphorical “’wall’…separating international and domestic law.”19 professor yitiha simbeye of the open university of tanzania and consultant legal officer of the international refugee rights initiative in kampala stressed the importance of the archives of the tribunal; in her opinion, access to the archives was crucial to the jurisprudence of the tribunal trickling down to the national courts.20 she additionally noted that there was a need for more education programs on the subject of international criminal law in order to strengthen international legal prospects in the region’s future. new institutions that contribute to this goal and could be used as resources include the african court of human and peoples’ rights and the open university of tanzania’s new international criminal law center.21 the transfer of the jurisprudence of the ictr to the local judicial systems is an essential part of the ictr’s legacy and its long term effect on the region. as sir dennis byron, 17 dan saxon, "exporting justice: perceptions of the icty among the serbian, croatian, and muslim communities in the former yugoslavia." journal of human rights 4 (2005): 559-72. print. 562. 18 symposium on the legacy of international criminal courts and tribunals in africa 8 19 ibid. 11. 20 ibid. 42. 21 ibid. the honorable ictr president stated, “it is only through such developments that the tribunal’s legacy will be safeguarded.”22 the proceedings of the ictr make it clear that while outreach and legacy programs are not always seen as part of the primary function of a court, they are necessary for the court to reach its full potential and mandate. mr. roland ammoussouga, a senior legal officer, ictr spokesperson and chief of external relations and strategic planning section at the ictr, spoke on the efforts of the tribunals outreach program in relation to legacy. he stressed the importance of outreach in fulfilling the tribunal’s mandate and expressed that “in order for the tribunal to contribute to the restoration and maintenance of peace in rwanda and the great lakes region, as mandated by the un security council, it is 'essential that the rwandan population and the peoples of the african continent have a clear understanding of the work of the tribunal.'”23 one of the main struggles for the rwandan outreach initiatives was the introduction of international law to a population that was not familiar with the concepts and institutions of international law. this gap in knowledge and background necessitated new and nontraditional forms of communication to reach the population.24 mr. ammoussouga specifically “called for prioritizing an outreach program that seeks to preserve and ensure the survival of the legacy of the ictr in rwanda, in the great lakes region, and throughout the african continent, in order to ‘help to increase and sustain the awareness of current and future generations about the achievements and challenges of international criminal justice and its quest for the eradication of the culture of impunity.’”25 this experience attests to the difficulties in communication that may arise for an international court and the necessity of versatile outreach programs. programs that work with the community are a necessary component to ensure that the trials are effective and that the court achieves its long-term goals. the special court for sierra leone as a hybrid tribunal funded by voluntary contributions, the trajectory of the scsl differed from the previous two tribunals. from the beginning, the scsl put an emphasis on outreach and adapting to fit the needs of the people. outreach projects and integration with the local population were aided by the hybrid nature of the court and its location in freetown, sierra leone. this resulted in better education on both the tribunal and international criminal law itself, which in turn improved public opinion of the court. thierry cruvellier, a journalist and writer who studied the scsl, notes that “while attention to its long-term legacy was not an explicit part of the special court’s mandate, its in-country presence and commitments reiterated by senior court officials led international policy makers and sierra leoneans to expect that it would have a significant impact on rule of law at the domestic level.”26 as a hybrid court, the special court was anticipated to have a “demonstration effect,” in which it would act as a catalyst for improvements to the domestic legal system.”27 the scsl instituted programs that facilitated one-on-one integration of its international employees and local employees, which assisted in strengthening the domestic judiciary. the hybrid court model was pioneered in an effort to avoid 22 ibid. 49 23 ibid 34. 24 ibid. 25 ibid. 35. 26 thierry cruvellier, "from the taylor trial to a lasting legacy: putting the special court model to the test." (2009): n. pag. international center for transitional justice and sierra leone court monitoring programme. web. 3. 27 cruvellier, "from the taylor trial to a lasting legacy: putting the special court model to the test," 28. some of the pitfalls of the previous tribunals, but it is clear that this was not entirely successful. in particular, excessive spending and length of the trials continued to be a challenge.28 cruvellier states that for the special court “the cost-per-defendant ratio is not a significant improvement on the record of the ad hoc tribunals,” though the narrow mandate of the court did limit overall costs of the special court.29 therefore, while improvements are still necessary to improve efficiency of international tribunals, the scsl sets a helpful precedent in terms of outreach, communication, and education within the community. binta mansaray, registrar at the scsl, stated that she felt the ictr had “created ‘unrealistic expectations’ regarding its capacity for effecting social change in the east african region.”30 in her view, the ictr was meant mainly to complement and support the domestic judiciary and many of the lower level cases should have been pursued in that venue. in terms of her own experience at the scsl, she stated that “the scsl also has a broad mandate to contribute to the consolidation of peace and to foster the rule of law.” mansaray stressed the significance of context specific grassroots programs that were able to better reach the community and foster understanding of the rule of law. it was considered important from the outset of the scsl to establish an outreach program in order to fulfill its broader mandate through “a robust public information and public education scheme.’”31 mansaray additionally made the point that rule of law cannot effectively stem only from the courtroom, but rather it must be a part of a larger campaign that provides information to the public and considers different ways of engaging target groups. in contrast to some of the critiques made of the ictr, the scsl has been relatively praised for its outreach; “its approach has been to engage the local population in the scsl’s judicial work by holding town and village meetings and by continually disseminating information through video, radio, workshops, and written materials.”32 the use of outreach and media is an important factor in the legitimacy of the court and the transparency of proceedings, both of which affect the legacy of the court in the affected region and for the international community. in instances where there was not an active outreach program, the work of the court was often misinterpreted and used for political purposes; for example, the icty was at times used by different groups for “propaganda purposes,” which ultimately damaged efforts to foster reconciliation in the areas of the former yugoslavia and impeded the prosecutor.33 therefore, by facilitating educational outreach and collaborative initiatives with local legal structures a court can present the facts of the situation in a way that will reach a broader audience. conclusions while each court has a unique context and legacy, it is a general recommendation that international tribunals must actively prioritize outreach and a methodology that will involve people at the domestic level throughout the duration of the trials. even the collaborative effort to create an international court can be an important step towards peace and the establishment of rule of law; martin ngoga, the prosecutor general of rwanda, emphasized that by acknowledging the rwandan genocide and the experiences of the victims, the mere creation of the ictr was a 28ibid 22. 29ibid 44. 30symposium on the legacy of international criminal courts and tribunals in africa 25. 31ibid. 39 32ibid. 37 33ibid. 37 political act of immense importance.34 such political effects are inevitable and must be taken into consideration, for example in the case of the icty prosecuting high ranking officials sent a political message and changed the political landscape. on the other hand, an international tribunal cannot be responsible for every aspect of establishing political peace and reconciliation in a region. encouraging specific programs that work in tandem with international tribunals allow the tribunals to most efficiently and effectively achieve their mandate, while working with local resources. use of outreach in the community helps to integrate the international resources into the affected country and to implement a comprehensive approach to protect and build the legacy of the court. one of the frequently expressed regrets in regards to legacy is that it was considered as an afterthought and was not prioritized in terms of time or budget allocation. additionally, major problems to be addressed by future tribunals are the establishment of legitimacy, finding the support of states and civil society, and reducing the length and cost of the trials. transparent trials that prosecute higher level offenders and members of different groups without prejudice help to establish legitimacy and benefit the international judicial legacy. in the future, it is essential that international tribunals ensure that their work is accessible, that they take measures to integrate the academic and judicial community of the nation, and that they are constantly evaluating and adapting to their context. legacy is the reflection of all of a tribunal’s years of investments by dedicated personnel and the international community, therefore it is important to consider legacy as early as possible and to take steps towards achieving valuable and lasting results. 34ibid. 46 bibliography "assessing the legacy of the icty." icty. united nations international criminal tribunal for the former yugoslavia, 24 feb. 2010. web. cassese, antonio. report on the special court for sierra leone. rep. residual special court for sierra leone, 12 dec. 2006. web. cruvellier, thierry. "from the taylor trial to a lasting legacy: putting the special court model to the test." (2009): n. pag. international center for transitional justice and sierra leone court monitoring programme. web. "ictr legacy project proposals." (n.d.): n. pag. united nations mechanism for international criminal tribunals. united nations international criminal tribunal for rwanda. web. "international experts gather in freetown to discuss legacy of the special court for sierra leone." international center for transitional justice. international center for transitional justice, 2 may 2013. web. kerr, rachel. "peace through justice? the international criminal tribunal for the former yugoslavia." journal of southeast european & black sea studies 7.3 (2007): 373-385. academic search premier. web. legacy: completing the work of the special court for sierra leone. rep. the open society foundations, 2011. web. "legacy projects." the special court for sierra leone, the residual special court for sierra leone. special court for sierra leone, n.d. web. "report on the completion strategy of the international criminal tribunal for rwanda as at 5 november 2014." (n.d.): n. pag. united nations international criminal tribunal for rwanda. united nations security council, 19 nov. 2014. web. "resource guide on strengthening judicial integrity and capacity." united nations office on drugs and crime. united nations, dec. 2011. web sadat, leila nadya. "the legacy of the international criminal tribunal for rwanda." washington university in st. louis school of law (n.d.): n. pag. washington university law. washington university school of law, 3 july 2012. web. saxon, dan. "exporting justice: perceptions of the icty among the serbian, croatian, and muslim communities in the former yugoslavia." journal of human rights 4 (2005): 559-72. print. spalińska, magdalena, helena eggleston, and rada pejić-sremac, eds. "20 years of the icty: anniversary events and legacy conference proceedings." (n.d.): n. pag. united nations international criminal tribunal for the former yugoslavia. icty outreach program, 2014. web. steinberg, richard h., ed. assessing the legacy of the icty. leiden, nld: brill, 2011. proquest ebrary. web. symposium on the legacy of international criminal courts and tribunals in africa. rep. the international criminal tribunal for rwanda, the international center for ethics, justice, and public life, brandeis university, feb. 2010. web. united nations international criminal tribunal for rwanda. un-ictr external relations and communication outreach unit. ictr opens two more information centres in rwanda. united nations international criminal tribunal for rwanda. n.p., 23 feb. 2009. web. "what is transitional justice?" international center for transitional justice. n.p., 22 feb. 2011. web. untitled document options for the biden administration to prevent iran from developing a nuclear weapon kevin a. mani94 abstract: today, iran’s nuclear program poses a threat to the united states’ (u.s.) security interests in the middle east. in 2015, under the obama administration, the u.s. joined the joint comprehensive plan of action (jcpoa), commonly referred to as the iran nuclear deal. the jcpoa was a multinational agreement meant to prevent iran from developing a nuclear weapon in return for the removal of sanctions on iran. however, in 2018, the trump administration withdrew from the agreement and re-imposed sanctions. despite the u.s.’ decision to withdraw from the agreement, iran continued to abide by it until the trump administration imposed new sanctions against their country. the biden administration has only two options to address this situation: the u.s. could either rejoin the jcpoa or increase economic sanctions. while increasing sanctions could pressure iran to negotiate, they would risk the rise of anti-american sentiment and enhance the power of hardliners in the government. on the other hand, if the u.s. rejoins the jcpoa, there is the risk that iran will continue with its missile program and its dominance in the region. introduction a joseph r. biden presidency renews hope of the united states (u.s.) rejoining the joint comprehensive plan of action (jcpoa), commonly referred to as the iran nuclear deal. the jcpoa was a preliminary framework agreement reached on july 14, 2015, between iran, the european union (e.u.), and the five permanent members of the united nations security council (unsc) — the united states, great britain, france, russia, and china — plus germany, commonly referred to as the p5+1.95 the agreement was a transaction in which iran promised to stop developing nuclear weapons for 15 years in return for the removal of economic sanctions.96 however, on may 8, 2018, under the trump administration, the u.s. withdrew from the agreement and reimposed sanctions on iran despite strong disapproval from the other signatories.97 trump backed his decision to leave, claiming that it was “defective at its core.”98 trump claimed that the limits of the agreement were “very weak,” “allow[ing] iran to continue 98 “the p4+1 and iran nuclear deal alert, may 16, 2018.” 97 “the p4+1 and iran nuclear deal alert, may 16, 2018,” arms control association, 2018, https://www.armscontrol.org/blog/2018-05-16/p41-iran-nuclear-deal-alert-may-16-2018. 96 kali, “what is the iran nuclear deal?” 95 kali robinson “what is the iran nuclear deal?” council on foreign relations, 2021, https://www.cfr.org/backgrounder/what-iran-nuclear-deal. 94 undergraduate at brandeis university, class of 2024. 43 https://www.armscontrol.org/blog/2018-05-16/p41-iran-nuclear-deal-alert-may-16-2018 https://www.cfr.org/backgrounder/what-iran-nuclear-deal enriching uranium and — over time — reach the brink of a nuclear breakout.”99 in november 2018, the trump administration re-imposed economic sanctions on iran.100 in april 2019, the u.s. threatened to impose sanctions on any country that continued to buy oil from iran.101 two months later, the trump administration imposed sanctions on the iranian supreme leader ali khamenei.102 the u.s.’ decision to not only withdraw from the agreement but also to increase sanctions on iran discouraged the country from continuing to abide by the limits set by the agreement. on july 1, 2019, iran violated the terms of the agreement when it surpassed the limit on its low-enriched uranium stockpile.103 a week later, iran breached the 3.67% limit on nuclear enrichment.104 the potential for political and economic destabilization poses a great risk to the u.s. and its allies in the middle east — israel and saudi arabia. therefore, the biden administration must decide what strategy to pursue to protect u.s. security interests in the region. the biden administration can pursue two strategies to address this situation: attempt to rejoin the original agreement or increase economic sanctions. the most effective strategy that will fulfill u.s. regional security interests is to rejoin the original agreement. background iran launched its civilian nuclear program in the 1950s under the shah, mohammad reza pahlavi.105 in 1968, iran signed the non-proliferation of nuclear weapons treaty (npt), ratifying the treaty two years later.106 the npt had three objectives: to prevent the spread of nuclear weapons, to promote the peaceful use of nuclear technology, and to strive for global 106 “the iran primer: iran and the npt,” united states institute of peace, 2020, https://iranprimer.usip.org/blog/2020/jan/22/iran-and-npt#:~:text=1968,develop%20or%20acquire%20nuclear%20w eapons. 105 joseph cirincione, jon b. wolfsthal, and miriam rajkumar, deadly arsenals: nuclear, biological, and chemical threats, carnegie endowment for international peace, washington, d.c.: 2014. 104 rafael mariano grossi, “verification and monitoring in the islamic republic of iran in light of united nations security council resolution 2231 (2015),” international atomic energy agency, 2019, https://www.iaea.org/sites/default/files/19/07/govinf2019-9.pdf. 103 rafael mariano grossi, “verification and monitoring in the islamic republic of iran in light of united nations security council resolution 2231 (2015),” international atomic energy agency, 2019, https://www.iaea.org/sites/default/files/19/07/govinf2019-8.pdf. 102 daphne psaledakis and humeyra pamuk, “u.s. imposes sweeping sanctions on iran, targets khamenei-linked foundation,” reuters, 2020, https://www.reuters.com/article/usa-iran-sanctions-int/u-s-imposes-sweeping-sanctions-on-iran-targets-khamenei-lin ked-foundation-iduskbn27y262. 101 edward wong and clifford krauss, “u.s. moves to stop all nations from buying iranian oil, but china is defiant,” the new york times, 2019, https://www.nytimes.com/2019/04/22/world/middleeast/us-iran-oil-sanctions-.html. 100 “the p4+1 and iran nuclear deal alert, may 16, 2018.” 99 donald j. trump, “remarks by president trump on the joint comprehensive plan of action,” trump white house archives, 2018, https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-actio n/. 44 https://iranprimer.usip.org/blog/2020/jan/22/iran-and-npt#:~:text=1968,develop%20or%20acquire%20nuclear%20weapons https://iranprimer.usip.org/blog/2020/jan/22/iran-and-npt#:~:text=1968,develop%20or%20acquire%20nuclear%20weapons https://www.iaea.org/sites/default/files/19/07/govinf2019-9.pdf https://www.iaea.org/sites/default/files/19/07/govinf2019-8.pdf https://www.reuters.com/article/usa-iran-sanctions-int/u-s-imposes-sweeping-sanctions-on-iran-targets-khamenei-linked-foundation-iduskbn27y262 https://www.reuters.com/article/usa-iran-sanctions-int/u-s-imposes-sweeping-sanctions-on-iran-targets-khamenei-linked-foundation-iduskbn27y262 https://www.nytimes.com/2019/04/22/world/middleeast/us-iran-oil-sanctions-.html https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/ https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/ nuclear disarmament. following the 1979 iran revolution, iran’s nuclear program came to a stillstand as many nuclear scientists had fled the country in the wake of the revolution and ayatollah ruhollah khomeini opposed the use of nuclear technology.107 in 1984, the u.s. added iran to its list of state sponsors of terrorism and gradually imposed economic sanctions and arms embargos on the country.108 later that year, khomeini restarted iran’s nuclear program to defend the islamic republic from external threats, such as iraq.109 over time, sanctions were used to address concerns that iran was using its civilian nuclear program as a cover for nuclear weapons development.110 almost two decades later, in 2002, the national council of resistance of iran (ncri), the political wing of the people’s mujahedin of iran, a militant opposition organization banned by the iranian government, revealed the existence of iran’s nuclear program.111 alireza jafarzadeh, a representative of the ncri, disclosed that iran had built two new nuclear facilities in natanz and arak.112 the following year, iran negotiated with the eu-3 — france, germany, and the united kingdom — in an attempt to avoid referral to the unsc.113 during this time, iran notified the iaea that it would suspend nuclear enrichment for the duration of the talks, commonly referred to as the paris agreement.114 however, diplomatic progress fell apart in 2005 after iran rejected the eu-3’s long-term framework agreement and decided to resume enriching uranium.115 in june 2006, the p5+1 proposed an agreement that would advance iran’s civilian nuclear technology if it suspended nuclear enrichment and resumed the implementation of additional protocols requiring iran to declare its nuclear activities and grant the iaea access to its nuclear facilities.116 although iran rejected the proposal, it admitted that it contained “elements which 116 “iran: nuclear,” nuclear threat initiative, 2020, https://www.nti.org/learn/countries/iran/nuclear/. 115 kelsey davenport, “timeline of nuclear diplomacy with iran,” arms control association, 2021. https://www.armscontrol.org/factsheets/timeline-of-nuclear-diplomacy-with-iran. 114 “communication dated 26 november 2004 received from the permanent representatives of france, germany, the islamic republic of iran and the united kingdom concerning the agreement signed in paris on 15 november 2004,” international atomic energy agency, 2004, https://www.iaea.org/sites/default/files/publications/documents/infcircs/2004/infcirc637.pdf. 113 “security council imposes sanctions on iran for failure to halt uranium enrichment, unanimously adopting resolution 1737 (2006),” united nations security council, 2006, https://www.un.org/press/en/2006/sc8928.doc.htm. 112 samore, iran's strategic weapons programmes: a net assessment, 16. 111 samore, iran's strategic weapons programmes: a net assessment, 16. 110 “chapter 3: state sponsors of terrorism overview.” 109 micah zenko, “iran’s nuclear program: history and eight questions,” council on foreign relations, 2012, https://www.cfr.org/blog/irans-nuclear-program-history-and-eight-questions#:~:text=according%20to%20an%20ia ea%20internal,islamic%20revolution%20from%20external%20threats. 108 “chapter 3: state sponsors of terrorism overview,” u.s. department of state, 2004, https://2009-2017.state.gov/documents/organization/225050.pdf. 107 gary samore, iran's strategic weapons programmes: a net assessment, london, uk: routledge, 2005, 9-16. 45 https://www.nti.org/learn/countries/iran/nuclear/ https://www.armscontrol.org/factsheets/timeline-of-nuclear-diplomacy-with-iran https://www.iaea.org/sites/default/files/publications/documents/infcircs/2004/infcirc637.pdf https://www.un.org/press/en/2006/sc8928.doc.htm https://www.cfr.org/blog/irans-nuclear-program-history-and-eight-questions#:~:text=according%20to%20an%20iaea%20internal,islamic%20revolution%20from%20external%20threats https://www.cfr.org/blog/irans-nuclear-program-history-and-eight-questions#:~:text=according%20to%20an%20iaea%20internal,islamic%20revolution%20from%20external%20threats https://2009-2017.state.gov/documents/organization/225050.pdf may be useful for a constructive approach.”117 in response, the unsc adopted resolution 1737, which gradually imposed economic sanctions on iran in an attempt to force the country to the negotiation table.118 in june 2008, the unsc proposed a new, more comprehensive framework agreement.119 unlike the first proposal, the unsc’s new proposal included a promise not to impose any additional sanctions on iran.120 a year later, under the obama administration, the u.s. initiated a “fuel swap” agreement whereby iran would trade a majority of its 3.5% enriched uranium in return for fuel for the tehran research reactor.121 although iran agreed, the country increased its stockpile of 3.5% enriched uranium, violating the agreement.122 in response, the unsc adopted resolution 1929, expanding sanctions on iran.123 six years later, on april 2, 2015, a general framework agreement was agreed upon, and a date was set to finalize the deal.124 however, before the agreement could be completed, the u.s. congress passed the “iran nuclear agreement review act of 2015,” a bill that gave congress the right to review any nuclear agreement negotiated with iran.125 congress had 60 days to pass a resolution in support of or in opposition to the agreement.126 if congress could not come to a decision, the choice would be — and ultimately was — left to the president.127 on july 14, iran, the eu, and the p5+1 met in vienna, austria, to finalize the agreement.128 however, in october, 128 michael r. gordon and david e. sanger, “deal reached on iran nuclear program; limits on fuel would lessen with time,” the new york times, 2015, https://www.nytimes.com/2015/07/15/world/middleeast/iran-nuclear-deal-is-reached-after-long-negotiations.html. 127 jennifer steinhauer, “democrats hand victory to obama on iran nuclear deal,” the new york times, 2015, https://www.nytimes.com/2015/09/11/us/politics/iran-nuclear-deal-senate.html. 126 “summary of the iran nuclear agreement review act, as amended by committee.” 125 “summary of the iran nuclear agreement review act, as amended by committee,” national iranian american council, 2015, https://www.niacouncil.org/resources/summary-of-the-iran-nuclear-agreement-review-act-as-amended-by-committe e/?locale=en. 124 “parameters for a joint comprehensive plan of action regarding the islamic republic of iran's nuclear program,” obama white house archives, 2015, https://obamawhitehouse.archives.gov/the-press-office/2015/04/02/parameters-joint-comprehensive-plan-action-rega rding-islamic-republic-ir. 123 colum lynch and glenn kessler, “u.n. imposes another round of sanctions on iran,” washington post, 2010, https://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/ar2010060902876.html. 122 poneman and nowrouzzadeh, “the deal that got away: the 2009 nuclear fuel swap with iran.” 121 daniel poneman and sahar nowrouzzadeh, “the deal that got away: the 2009 nuclear fuel swap with iran,” harvard kennedy school: belfer center for science and international affairs, 2021, https://www.belfercenter.org/publication/deal-got-away-2009-nuclear-fuel-swap-iran. 120 “updated p5+1 package.” 119 “updated p5+1 package,” u.s. department of state, 2008, https://2001-2009.state.gov/t/isn/rls/fs/106217.htm. 118 rafael mariano grossi, “cooperation between the islamic republic of iran and the agency in the light of united nations security council resolution 1737 (2006),” international atomic energy agency, 2007, https://www.iaea.org/sites/default/files/gov2007-07.pdf. 117 davenport, “timeline of nuclear diplomacy with iran.” 46 https://www.nytimes.com/2015/07/15/world/middleeast/iran-nuclear-deal-is-reached-after-long-negotiations.html https://www.nytimes.com/2015/09/11/us/politics/iran-nuclear-deal-senate.html https://www.niacouncil.org/resources/summary-of-the-iran-nuclear-agreement-review-act-as-amended-by-committee/?locale=en https://www.niacouncil.org/resources/summary-of-the-iran-nuclear-agreement-review-act-as-amended-by-committee/?locale=en https://obamawhitehouse.archives.gov/the-press-office/2015/04/02/parameters-joint-comprehensive-plan-action-regarding-islamic-republic-ir https://obamawhitehouse.archives.gov/the-press-office/2015/04/02/parameters-joint-comprehensive-plan-action-regarding-islamic-republic-ir https://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/ar2010060902876.html https://www.belfercenter.org/publication/deal-got-away-2009-nuclear-fuel-swap-iran https://2001-2009.state.gov/t/isn/rls/fs/106217.htm https://www.iaea.org/sites/default/files/gov2007-07.pdf the u.s. raised concerns to the unsc for iran’s medium-range ballistic missile tests, a possible violation of resolution 1929.129 in december 2016, u.s. secretary of state john kerry reissued sanctions waivers to demonstrate the u.s.’ commitment to jcpoa.130 in january 2017, iran tested medium-range ballistic missiles in violation of resolution 2231.131 two months later, the u.s. introduced new sanctions on iran targeting its ballistic missile program and its support of terrorism.132 the trump administration announced the u.s.’ withdrawal from the jcpoa in may 2018.133 trump referred to the deal as “defective at its core” and accused iran of exporting ballistic missiles to fuel proxy wars with israel and saudi arabia.134 many international organizations, countries, and u.s. scholars have criticized the trump administration’s decision to withdraw, while many u.s. conservatives, israel, and saudi arabia supported the move.135 former president barack h. obama called trump’s decision “a serious mistake.”136 he claimed that “without the jcpoa, the united states could eventually be left with a losing choice between a nuclear-armed iran or another war in the middle east.”137 once again, in july 2019, iran breached the agreement when it surpassed the limit on its low-enriched uranium stockpile.138 analysis iran’s nuclear program remains one of the united states’ most pressing foreign policy issues. if iran successfully develops a nuclear weapon, the safety of israel, saudi arabia, and other countries in the middle east will be in jeopardy. such a feat would further destabilize the region and threaten u.s. regional security interests. therefore, it is within the biden 138 grossi, “verification and monitoring in the islamic republic of iran in light of united nations security council resolution 2231 (2015).” 137 obama, “remarks: quitting the iran nuclear deal: ‘a serious mistake.’” 136 barack h. obama, “remarks: quitting the iran nuclear deal: ‘a serious mistake,’” arms control association, 2018, https://www.armscontrol.org/act/2018-06/features/remarks-quitting-iran-nuclear-deal-%e2%80%98-serious-mistake %e2%80%99. 135 landler, “trump abandons iran nuclear deal he long scorned.” 134 landler, “trump abandons iran nuclear deal he long scorned.” 133 mark landler, “trump abandons iran nuclear deal he long scorned,” the new york times, 2018, https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.html. 132 donald j. trump, “read the full transcript of trump’s speech on the iran nuclear deal,” the new york times, 2018, https://www.nytimes.com/2018/05/08/us/politics/trump-speech-iran-deal.html?partner=rss&emc=rss. 131 “iran’s compliance with unscr 2231: alleged violations must be addressed,” iran watch, 2017, https://www.iranwatch.org/our-publications/articles-reports/irans-compliance-unscr-2231-alleged-violations-must-be -addressed. 130 john kerry, “statement by secretary kerry on renewing waivers related to extension of the iran sanctions act,” u.s. department of state, 2016, https://2009-2017.state.gov/secretary/remarks/2016/12/265652.htm. 129 louis charbonneau, “u.s. confirms iran tested nuclear-capable ballistic missile,” reuters, 2015, https://www.reuters.com/article/us-iran-missiles-usa/u-s-confirms-iran-tested-nuclear-capable-ballistic-missile-idus kcn0sa20z20151016. 47 https://www.armscontrol.org/act/2018-06/features/remarks-quitting-iran-nuclear-deal-%e2%80%98-serious-mistake%e2%80%99 https://www.armscontrol.org/act/2018-06/features/remarks-quitting-iran-nuclear-deal-%e2%80%98-serious-mistake%e2%80%99 https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.html https://www.nytimes.com/2018/05/08/us/politics/trump-speech-iran-deal.html?partner=rss&emc=rss https://www.iranwatch.org/our-publications/articles-reports/irans-compliance-unscr-2231-alleged-violations-must-be-addressed https://www.iranwatch.org/our-publications/articles-reports/irans-compliance-unscr-2231-alleged-violations-must-be-addressed https://2009-2017.state.gov/secretary/remarks/2016/12/265652.htm https://www.reuters.com/article/us-iran-missiles-usa/u-s-confirms-iran-tested-nuclear-capable-ballistic-missile-iduskcn0sa20z20151016 https://www.reuters.com/article/us-iran-missiles-usa/u-s-confirms-iran-tested-nuclear-capable-ballistic-missile-iduskcn0sa20z20151016 administration’s best interest to prevent such an outcome from occurring by taking proactive steps to ensure that iran does not develop a nuclear weapon. rejoining the joint comprehensive plan of action prior to withdrawing from the jcpoa, the trump administration imposed various sanctions on iran without compromising the united states’ commitments to the iran nuclear deal.139 after withdrawing from the jcpoa, the trump administration introduced additional sanctions that violated u.s. commitments to the deal.140 the biden administration’s ability to re-enter the jcpoa is contingent upon addressing four different groups of sanctions: those imposed after may 2018 that violate the u.s.’ jcpoa commitments, sanctions imposed between january 2016 and may 2018 that are in line with the u.s.’ commitments, and non-nuclear sanctions imposed by the trump administration in 2019 that prevent efficient re-entry. by rejoining the jcpoa, the biden administration would have to address the current sanctions that contradict jcpoa commitments. this category of sanctions would be relatively easy to address because the administration would only need to revert to compliance with the deal. notably, these are the same sanctions that the obama administration lifted in 2016 to ensure u.s. compliance with the agreement.141 the sanctions cover iran’s petrochemical development, oil sales, and acquisition of hard currency.142 the second point of consideration in reentry would be the sanctions prior to withdrawal. as noted above, the trump administration had imposed various sanctions on iran that were in line with u.s. commitments under the jcpoa. the sanctions covered terrorist networks, iran’s prison system, the islamic revolutionary guard corps, and iran’s networks for ballistic missile procurement.143 in the negotiations phase, iran might advocate for a total reset to when the deal first went into effect. however, sanctions hereby outlined under the second category were made in compliance with jcpoa regulations, and it is unlikely that the biden administration will lift them. iran would need to agree to decrease its nuclear enrichment levels to the negotiated levels and to correct jcpoa restriction violations such as the development of new centrifuges and resuming heavy water production.144 144 kali, “what is the iran nuclear deal?” 143 o’toole, “rejoining the iran nuclear deal: not so easy.” 142 o’toole, “rejoining the iran nuclear deal: not so easy.” 141 o’toole, “rejoining the iran nuclear deal: not so easy.” 140 “the p4+1 and iran nuclear deal alert, may 16, 2018.” 139 brian o’toole, “rejoining the iran nuclear deal: not so easy,” atlantic council, 2021, https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/rejoining-the-iran-nuclear-deal-not-so-easy/. 48 https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/rejoining-the-iran-nuclear-deal-not-so-easy/ increasing economic sanctions the biden administration has the option to increase sanctions on iran. powerful nations and multilateral alliances use economic sanctions to force adversaries to change specific behaviors. the u.s. government has used sanctions on iran to degrade iran’s military and nuclear powers, influence its decision making, and “promote positive political change in the nature of the iranian regime.”145 as a coercive instrument of influence, the u.s. and its multilateral partners have used sanctions to discourage iranian defiance of international community demands. although sanctions are primarily economic, the overall price of sanctions is the coercive element that necessitates political changes.146 for example, sanctions proved effective in bringing iran to the negotiation table, which resulted in the jcpoa. these sanctions created unfavorable economic conditions for the people of iran and may have slowed the progress of the nuclear program due to economic hardship. nonetheless, economic struggles caused by sanctions do not always create positive political changes. in addition, sanctions could accelerate iran’s nuclear program.147 sanctions might also increase the population’s support for the regime’s economic defiance and consequently undermine the efficacy of economic sanctions.148 this can include building stronger political and economic relationships with u.s. adversaries such as china and russia. overall, economic pressure does not always guarantee effective control of the incumbent regime. in various ways, iran is not the ideal candidate for the use of economic sanctions by the u.s. in general, the outcomes of economic sanctions are uncertain when it comes to attempting to influence behavior.149 sanctions may fail to match their coercive objectives, particularly when imposed on authoritarian adversaries.150 although the u.s. has used coercive economic sanctions on iran for decades, the results have been far from ideal.151 since the reagan administration, the u.s. has imposed various sanctions to restrict monetary aid, arms trade, and economic activities between the u.s. and iran, among other penalties.152 during the bush administration, the u.s. restricted iran’s access to the international financial system with the objective of blocking or 152 mahapatra, “us–iran nuclear deal: cohorts and challenger.” 151 chintamani mahapatra, “us–iran nuclear deal: cohorts and challenger,” contemporary review of the middle east, 2016, https://journals.sagepub.com/doi/10.1177/2347798916632323. 150 tarock, “the iran nuclear deal: winning a little, losing a lot.” 149 adam tarock, “the iran nuclear deal: winning a little, losing a lot,” third world quarterly, 2016, https://www.tandfonline.com/doi/abs/10.1080/01436597.2016.1166049. 148 mousavian, “building on the iran nuclear deal for international peace and security.” 147 seyed hossein mousavian and mohammad mehdi mousavian, “building on the iran nuclear deal for international peace and security,” journal for peace and nuclear disarmament, 2018, https://www.tandfonline.com/doi/full/10.1080/25751654.2017.1420373. 146 shirley a. kan, “china and proliferation of weapons of mass destruction and missiles: policy issues,” congressional research service, 2015, https://fas.org/sgp/crs/nuke/rl31555.pdf. 145 robert reardon, “containing iran: strategies for addressing the iranian nuclear challenge,” rand corporation, 2012. https://www.rand.org/pubs/monographs/mg1180.html. 49 https://journals.sagepub.com/doi/10.1177/2347798916632323 https://www.tandfonline.com/doi/abs/10.1080/01436597.2016.1166049 https://www.tandfonline.com/doi/full/10.1080/25751654.2017.1420373 https://fas.org/sgp/crs/nuke/rl31555.pdf https://www.rand.org/pubs/monographs/mg1180.html discouraging banks from operating in iran.153 this policy continued in the obama administration and successfully limited iran’s access to the international financial system.154 the trump administration introduced sanctions on iran’s manufacturing, textiles, mining, and construction sectors, as well as imposing additional sanctions on specific companies, individuals, and authorities in a failed attempt to bring iran back to the negotiation table to negotiate a new agreement.155 if the biden administration chooses to tighten u.s. sanctions on iran, the key challenge will be to prevent a domestic backlash in iran. adverse coercive measures such as sanctions on iranian oil could have negative implications for the iranian population at large. although an oil sanction could inflict economic pain on iran, it could also rally the masses in support of the incumbent regime and strengthen the hardline position to block negotiations with the u.s. this risk is characteristically high, considering that hardliners support both the country’s uranium enrichment and missile program.156 to put it succinctly, it is unlikely that sanctions can be used as an effective way to limit the missile program of iran, which has been used by hardliners as a tool to secure their dominance in the region. conclusion although the biden administration has a variety of intervention options at its disposal, rejoining the jcpoa deal would be the most effective strategy. one option is to continue imposing further economic sanctions on iran. a drawback of this strategy is an increase in anti-american sentiment and drawing attention away from the oppressive behavior of the iranian government. the biden administration should secure re-entry into the jcpoa by renegotiating current sanctions that violate the united states’ commitment to the agreement. rejoining the jcpoa will not be easy. however, compared to economic sanctions, returning the jcpoa appears to be the most beneficial. despite the u.s.’ withdrawal during the trump administration, iran initially continued to abide by the deal. the current u.s. administration can use quiet diplomacy to ensure iran’s commitment to a new bargain agenda that covers various issues after u.s. withdrawal. first, the biden administration should ensure that all issues regarding compliance to the jcpoa be resolved before beginning re-entry talks. 156 ariane m. tabatabai and annie tracy samuel, “what the iran-iraq war tells us about the future of the iran nuclear deal,” international security, 2017, https://www.mitpressjournals.org/doi/full/10.1162/isec_a_00286; ali fathollah-nejad and amin naeni, “what explains the decline of iran’s moderates? it’s not trump,” brookings, 2020, https://www.brookings.edu/blog/order-from-chaos/2020/06/15/what-explains-the-decline-of-irans-moderates-its-nottrump/. 155 o’toole, “rejoining the iran nuclear deal: not so easy.” 154 robert, “containing iran: strategies for addressing the iranian nuclear challenge.” 153 mahapatra, “us–iran nuclear deal: cohorts and challenger.” 50 https://www.mitpressjournals.org/doi/full/10.1162/isec_a_00286 https://www.brookings.edu/blog/order-from-chaos/2020/06/15/what-explains-the-decline-of-irans-moderates-its-not-trump/ https://www.brookings.edu/blog/order-from-chaos/2020/06/15/what-explains-the-decline-of-irans-moderates-its-not-trump/ the u.s. would need to remove any sanctions not aligned with the jcpoa and reassure iran that the u.s. will not leave the agreement. iran would need to agree to decrease its nuclear enrichment levels to the negotiated levels and to correct jcpoa restriction violations such as the development of new centrifuges and resuming heavy water production.157 second, the biden administration should ensure that there is an agreement from tehran to engage in discussions regarding its missile program. in summary, the biden administration should return to the joint comprehensive plan of action. 157 kali, “what is the iran nuclear deal?” 51 works cited “chapter 3: state sponsors of terrorism overview.” u.s. department of state, 2004. https://2009-2017.state.gov/documents/organization/225050.pdf. charbonneau, louis. “u.s. confirms iran tested nuclear-capable ballistic missile.” reuters, 2015. https://www.reuters.com/article/us-iran-missiles-usa/u-s-confirms-iran-tested-nuclear-cap able-ballistic-missile-iduskcn0sa20z20151016. cirincione, joseph, jon b. wolfsthal, and miriam rajkumar. deadly arsenals: nuclear, biological, and chemical threats. carnegie endowment for international peace, washington, d.c.: 2014. “communication dated 26 november 2004 received from the permanent representatives of france, germany, the islamic republic of iran and the united kingdom concerning the agreement signed in paris on 15 november 2004.” international atomic energy agency, 2004. https://www.iaea.org/sites/default/files/publications/documents/infcircs/2004/infcirc637.p df. davenport, kelsey. “timeline of nuclear diplomacy with iran.” arms control association, 2021. https://www.armscontrol.org/factsheets/timeline-of-nuclear-diplomacy-with-iran. fathollah-nejad, ali, and amin naeni. “what explains the decline of iran’s moderates? it’s not trump.” brookings, 2020. https://www.brookings.edu/blog/order-from-chaos/2020/06/15/what-explains-the-declineof-irans-moderates-its-not-trump/. gordon, michael r. and david e. sanger. “deal reached on iran nuclear program; limits on fuel would lessen with time.” the new york times, 2015. https://www.nytimes.com/2015/07/15/world/middleeast/iran-nuclear-deal-is-reached-afte r-long-negotiations.html. grossi, rafael mariano. “cooperation between the islamic republic of iran and the agency in the light of united nations security council resolution 1737 (2006).” international atomic energy agency, 2007. https://www.iaea.org/sites/default/files/gov2007-07.pdf. grossi, rafael mariano. “verification and monitoring in the islamic republic of iran in light of united nations security council resolution 2231 (2015).” international atomic energy agency, 2019. https://www.iaea.org/sites/default/files/19/07/govinf2019-8.pdf. grossi, rafael mariano. “verification and monitoring in the islamic republic of iran in light of united nations security council resolution 2231 (2015).” international atomic energy agency, 2019. https://www.iaea.org/sites/default/files/19/07/govinf2019-9.pdf. 52 https://2009-2017.state.gov/documents/organization/225050.pdf https://www.reuters.com/article/us-iran-missiles-usa/u-s-confirms-iran-tested-nuclear-capable-ballistic-missile-iduskcn0sa20z20151016 https://www.reuters.com/article/us-iran-missiles-usa/u-s-confirms-iran-tested-nuclear-capable-ballistic-missile-iduskcn0sa20z20151016 https://www.iaea.org/sites/default/files/publications/documents/infcircs/2004/infcirc637.pdf https://www.iaea.org/sites/default/files/publications/documents/infcircs/2004/infcirc637.pdf https://www.armscontrol.org/factsheets/timeline-of-nuclear-diplomacy-with-iran https://www.brookings.edu/blog/order-from-chaos/2020/06/15/what-explains-the-decline-of-irans-moderates-its-not-trump/ https://www.brookings.edu/blog/order-from-chaos/2020/06/15/what-explains-the-decline-of-irans-moderates-its-not-trump/ https://www.nytimes.com/2015/07/15/world/middleeast/iran-nuclear-deal-is-reached-after-long-negotiations.html https://www.nytimes.com/2015/07/15/world/middleeast/iran-nuclear-deal-is-reached-after-long-negotiations.html https://www.iaea.org/sites/default/files/gov2007-07.pdf https://www.iaea.org/sites/default/files/19/07/govinf2019-8.pdf https://www.iaea.org/sites/default/files/19/07/govinf2019-9.pdf “the iran primer: iran and the npt.” united states institute of peace, 2020. https://iranprimer.usip.org/blog/2020/jan/22/iran-and-npt#:~:text=1968,develop%20or%2 0acquire%20nuclear%20weapons. “iran: nuclear.” nuclear threat initiative, 2020. https://www.nti.org/learn/countries/iran/nuclear/. “iran's compliance with unscr 2231: alleged violations must be addressed.” iran watch, 2017. https://www.iranwatch.org/our-publications/articles-reports/irans-compliance-unscr-2231 -alleged-violations-must-be-addressed. kan, shirley a. “china and proliferation of weapons of mass destruction and missiles: policy issues.” congressional research service, 2015. https://fas.org/sgp/crs/nuke/rl31555.pdf. kerry, john. “statement by secretary kerry on renewing waivers related to extension of the iran sanctions act.” u.s. department of state, 2016. https://2009-2017.state.gov/secretary/remarks/2016/12/265652.htm. landler, mark. “trump abandons iran nuclear deal he long scorned.” the new york times, 2018. https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.html. lynch, colum, and glenn kessler. “u.n. imposes another round of sanctions on iran.” washington post, 2010. https://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/ar2010060902876. html. mahapatra, chintamani. “us–iran nuclear deal: cohorts and challenger” contemporary review of the middle east, 2016. https://journals.sagepub.com/doi/10.1177/2347798916632323. mousavian, seyed hossein, and mohammad mehdi mousavian. “building on the iran nuclear deal for international peace and security.” journal for peace and nuclear disarmament, 2018. https://www.tandfonline.com/doi/full/10.1080/25751654.2017.1420373. obama, barack h. “remarks: quitting the iran nuclear deal: ‘a serious mistake.’” arms control association, 2018. https://www.armscontrol.org/act/2018-06/features/remarks-quitting-iran-nuclear-deal-%e 2%80%98-serious-mistake%e2%80%99. o’toole, brian. “rejoining the iran nuclear deal: not so easy.” atlantic council, 2021. https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/rejoining-the-iran-n uclear-deal-not-so-easy/. 53 https://iranprimer.usip.org/blog/2020/jan/22/iran-and-npt#:~:text=1968,develop%20or%20acquire%20nuclear%20weapons https://iranprimer.usip.org/blog/2020/jan/22/iran-and-npt#:~:text=1968,develop%20or%20acquire%20nuclear%20weapons https://www.nti.org/learn/countries/iran/nuclear/ https://www.iranwatch.org/our-publications/articles-reports/irans-compliance-unscr-2231-alleged-violations-must-be-addressed https://www.iranwatch.org/our-publications/articles-reports/irans-compliance-unscr-2231-alleged-violations-must-be-addressed https://fas.org/sgp/crs/nuke/rl31555.pdf https://2009-2017.state.gov/secretary/remarks/2016/12/265652.htm https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.html https://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/ar2010060902876.html https://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/ar2010060902876.html https://journals.sagepub.com/doi/10.1177/2347798916632323 https://www.tandfonline.com/doi/full/10.1080/25751654.2017.1420373 https://www.armscontrol.org/act/2018-06/features/remarks-quitting-iran-nuclear-deal-%e2%80%98-serious-mistake%e2%80%99 https://www.armscontrol.org/act/2018-06/features/remarks-quitting-iran-nuclear-deal-%e2%80%98-serious-mistake%e2%80%99 https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/rejoining-the-iran-nuclear-deal-not-so-easy/ https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/rejoining-the-iran-nuclear-deal-not-so-easy/ “parameters for a joint comprehensive plan of action regarding the islamic republic of iran's nuclear program.” obama white house archives, 2015. https://obamawhitehouse.archives.gov/the-press-office/2015/04/02/parameters-joint-com prehensive-plan-action-regarding-islamic-republic-ir. poneman, daniel, and sahar nowrouzzadeh. “the deal that got away: the 2009 nuclear fuel swap with iran.” harvard kennedy school: belfer center for science and international affairs, 2021. https://www.belfercenter.org/publication/deal-got-away-2009-nuclear-fuel-swap-iran. psaledakis, daphne, and humeyra pamuk. “u.s. imposes sweeping sanctions on iran, targets khamenei-linked foundation.” reuters, 2020. https://www.reuters.com/article/usa-iran-sanctions-int/u-s-imposes-sweeping-sanctions-o n-iran-targets-khamenei-linked-foundation-iduskbn27y262. “the p4+1 and iran nuclear deal alert, may 16, 2018.” arms control association, 2018. https://www.armscontrol.org/blog/2018-05-16/p41-iran-nuclear-deal-alert-may-16-2018. reardon, robert. “containing iran: strategies for addressing the iranian nuclear challenge.” rand corporation, 2012. https://www.rand.org/pubs/monographs/mg1180.html. robinson, kali. “what is the iran nuclear deal?” council on foreign relations, 2021. https://www.cfr.org/backgrounder/what-iran-nuclear-deal. samore, gary. iran's strategic weapons programmes: a net assessment. london, uk: routledge, 2005, 9-16. “security council imposes sanctions on iran for failure to halt uranium enrichment, unanimously adopting resolution 1737 (2006).” united nations security council, 2006. https://www.un.org/press/en/2006/sc8928.doc.htm. steinhauer, jennifer. “democrats hand victory to obama on iran nuclear deal.” the new york times, 2015. https://www.nytimes.com/2015/09/11/us/politics/iran-nuclear-deal-senate.html. “summary of the iran nuclear agreement review act, as amended by committee.” national iranian american council, 2015. https://www.niacouncil.org/resources/summary-of-the-iran-nuclear-agreement-review-act -as-amended-by-committee/?locale=en. tabatabai, ariane m., and annie tracy samuel. “what the iran-iraq war tells us about the future of the iran nuclear deal.” international security, 2017. https://www.mitpressjournals.org/doi/full/10.1162/isec_a_00286. 54 https://obamawhitehouse.archives.gov/the-press-office/2015/04/02/parameters-joint-comprehensive-plan-action-regarding-islamic-republic-ir https://obamawhitehouse.archives.gov/the-press-office/2015/04/02/parameters-joint-comprehensive-plan-action-regarding-islamic-republic-ir https://www.belfercenter.org/publication/deal-got-away-2009-nuclear-fuel-swap-iran https://www.reuters.com/article/usa-iran-sanctions-int/u-s-imposes-sweeping-sanctions-on-iran-targets-khamenei-linked-foundation-iduskbn27y262 https://www.reuters.com/article/usa-iran-sanctions-int/u-s-imposes-sweeping-sanctions-on-iran-targets-khamenei-linked-foundation-iduskbn27y262 https://www.armscontrol.org/blog/2018-05-16/p41-iran-nuclear-deal-alert-may-16-2018 https://www.rand.org/pubs/monographs/mg1180.html https://www.cfr.org/backgrounder/what-iran-nuclear-deal https://www.un.org/press/en/2006/sc8928.doc.htm https://www.nytimes.com/2015/09/11/us/politics/iran-nuclear-deal-senate.html https://www.niacouncil.org/resources/summary-of-the-iran-nuclear-agreement-review-act-as-amended-by-committee/?locale=en https://www.niacouncil.org/resources/summary-of-the-iran-nuclear-agreement-review-act-as-amended-by-committee/?locale=en https://www.mitpressjournals.org/doi/full/10.1162/isec_a_00286 tarock, adam. “the iran nuclear deal: winning a little, losing a lot.” third world quarterly, 2016. https://www.tandfonline.com/doi/abs/10.1080/01436597.2016.1166049. trump, donald j. “read the full transcript of trump’s speech on the iran nuclear deal.” the new york times, 2018. https://www.nytimes.com/2018/05/08/us/politics/trump-speech-iran-deal.html?partner=rs s&emc=rss. trump, donald j. “remarks by president trump on the joint comprehensive plan of action.” trump white house archives, 2018. https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-joint -comprehensive-plan-action/. “updated p5+1 package.” u.s. department of state, 2008. https://2001-2009.state.gov/t/isn/rls/fs/106217.htm. wong, edward, and clifford krauss. “u.s. moves to stop all nations from buying iranian oil, but china is defiant.” the new york times, 2019. https://www.nytimes.com/2019/04/22/world/middleeast/us-iran-oil-sanctions-.html. zenko, micah. “iran’s nuclear program: history and eight questions.” council on foreign relations, 2012. https://www.cfr.org/blog/irans-nuclear-program-history-and-eight-questions#:~:text=acc ording%20to%20an%20iaea%20internal,islamic%20revolution%20from%20external %20threats. 55 https://www.tandfonline.com/doi/abs/10.1080/01436597.2016.1166049 https://www.nytimes.com/2018/05/08/us/politics/trump-speech-iran-deal.html?partner=rss&emc=rss https://www.nytimes.com/2018/05/08/us/politics/trump-speech-iran-deal.html?partner=rss&emc=rss https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/ https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/ https://2001-2009.state.gov/t/isn/rls/fs/106217.htm https://www.nytimes.com/2019/04/22/world/middleeast/us-iran-oil-sanctions-.html https://www.cfr.org/blog/irans-nuclear-program-history-and-eight-questions#:~:text=according%20to%20an%20iaea%20internal,islamic%20revolution%20from%20external%20threats https://www.cfr.org/blog/irans-nuclear-program-history-and-eight-questions#:~:text=according%20to%20an%20iaea%20internal,islamic%20revolution%20from%20external%20threats https://www.cfr.org/blog/irans-nuclear-program-history-and-eight-questions#:~:text=according%20to%20an%20iaea%20internal,islamic%20revolution%20from%20external%20threats untitled document the fourth amendment judicial understanding: third parties sophia reiss5 abstract: this article explores the fourth amendment’s privacy protections specifically focused on the “third party exception” and the integrity of that exception to the fourth amendment and its definitions of privacy. additionally, this article examines the european union’s relatively new data privacy law as an alternative way to account for third parties while remaining faithful to the fourth amendment’s privacy ideals. the fourth amendment grants rights to privacy and protection from unnecessary government intrusion. justice louis brandeis’ dissent in olmstead v. united states deepened the understanding of what the fourth amendment protects, specifically what privacy means. this includes detailing what is allowed as a search and seizure under the specified definition of privacy. this understanding of the fourth amendment and its purpose serves as background to the “reasonable expectation of privacy” test that protects situations where there is a reasonable expectation of privacy. maryland v. smith contributed the “third party exception” to the judicial understanding of the fourth amendment. the “third party exception” is when the government is allowed to access information revealed to a third party without obtaining a warrant. this exception lessens the privacy protections against government intervention, and should therefore be abolished as it does not fit with justice brandeis’ explanation of the fourth amendment given technology’s new role in our lives. nowadays, it is hard to live a modern life without giving information to third parties as third parties have become so intertwined in our lives especially in the case of technology for example a smartphone is akin to a tracking device.6 despite technology and a lack of privacy pervading, “americans say they care deeply about protecting their data” according to the pew research center.7 unlike the united states government, the european union has worked to take account of this disparity. the european union wrote a data privacy law in 2016 in recognition of this new relationship with technology and the reasonable expectation of privacy that individuals expect in their interactions with technology. the fourth amendment’s meaning has evolved since its creation with olmstead v. united states (1928) becoming a crucial precedent. justice brandeis thought that the wire-tapping of olmstead violated the fourth amendment because the government violated olmstead’s privacy. justice brandeis wrote that the founders wrote the fourth amendment “to protect americans in their beliefs, their thoughts, their emotions, and their sensations” and against “unjustifiable 7 zomorodi, “do you know how much private information you give away every day?” 6 manoush zomorodi, “do you know how much private information you give away every day?,” time, march 29, 2017, https://time.com/4673602/terms-service-privacy-security/. 5 undergraduate at brandeis university class of 2023. 7 https://time.com/4673602/terms-service-privacy-security/ intrusion by the government upon the privacy of the individual.”8 as brandeis elaborates that “the privacy of the individual” includes “their beliefs, their thoughts, their emotions, and their sensations.”9 brandeis explained that privacy considerations would have to evolve over time and that given the potential of possible new innovations the founders allow for the fourth amendment protections to expand. the “third party exception” contradicts the reasonable expectation of privacy test because it does not fit with brandeis’ rationale for the fourth amendment. in maryland v. smith, the supreme court included the “third party exception” into the legal framework of the fourth amendment. the majority opinion explained that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”10 returning to brandeis’ explanation, individuals are protected “in their beliefs, their thoughts, their emotions, and their sensations.”11 even when expressing these protections to a third party, there is an expectation of privacy. for instance, when people have secrets they are often shared with a third party, but still treated as private information. the individual with the secret may “voluntarily” divulge the information to a friend, but this thought can still be regarded as private. this contradiction invalidates the “third party exception” to the legal understanding of the fourth amendment’s privacy protections. in united states v. jones (2012), the u.s. supreme court decided the ways in which information may be obtained by the government without a warrant. the court stated that gathering copious amounts of a wide range of information without a warrant might violate the fourth amendment’s right to privacy. in jones, the court mentioned that “[i]t may be that achieving the same result [as traditional surveillance] through electronic means, (..) is an unconstitutional invasion of privacy,” but justice scalia writing for the court chose to limit his discussion of electronic surveillance, focusing instead on the physical violation of the “search” provision of the fourth amendment.12 in contrast to maryland v. smith, jones outlines the core of the fourth amendment protections, which are grounded in intrusion on privacy of ideas often thought of as private property. additionally, united states v. jones portrayed how tracking methods can retain copious amounts of information of an individual’s whereabouts violates the fourth amendment. jones decided whether information obtained by installing a gps on someone’s car can be used as evidence against them. as justice sotomayor wrote in her jones 12 “united states v. jones,” lii / legal information institute, accessed november 23, 2019, https://www.law.cornell.edu/supremecourt/text/10-1259. 11 “olmstead v. united states, 277 u.s. 438 (1928).” 10 “smith v. maryland, 442 u.s. 735 (1979),” justia law, accessed november 23, 2019, https://supreme.justia.com/cases/federal/us/442/735/. 9 “olmstead v. united states, 277 u.s. 438 (1928).” 8 “olmstead v. united states, 277 u.s. 438 (1928),” justia law, accessed november 23, 2019, https://supreme.justia.com/cases/federal/us/277/438/. 8 https://www.law.cornell.edu/supremecourt/text/10-1259 https://www.law.cornell.edu/supremecourt/text/10-1259 https://supreme.justia.com/cases/federal/us/442/735/ https://supreme.justia.com/cases/federal/us/442/735/ https://supreme.justia.com/cases/federal/us/277/438/ https://supreme.justia.com/cases/federal/us/277/438/ concurrence, “gps monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”13 this statement demonstrates that tracking someone’s whereabouts gathers information that is beyond what would be obtained by other methods not involving a warrant. the “third party exception” counters this statement because when “a wealth of detail” similar to this is given to the third party the “third party exception” would decide that this information is no longer private.14 technology has proven to be pervasive in society blurring the boundaries of privacy which should lead to a reexamination of the “third party exception.” similarly to the gps tracking in jones, browser histories gather a plethora of information regarding personal matters which individuals would have a reasonable expectation of privacy. the “third party expectation” would not protect the privacy of browsing histories, private accounts, and websites. in the case of browser histories, internet providers, third parties, have access to the information of what one searched and everything one did online. browsing histories are similar to the “papers and effects'' that are protected by the fourth amendment and individuals would have a reasonable expectation of privacy in this information.15 according to a harvard law review article, “[v]iewing collection[s] of data'' should be viewed as a fourth amendment search as people reasonably expect this data, and other online data, to be private.16 this may fall within justice brandeis’ explanation that the fourth amendment “protect[s] americans in their beliefs, their thoughts, their emotions, and their sensations.”17 browsing histories contain information often over long periods of time and with a range of kinds of information: business and personal. similar to browsing histories, private social media accounts contain a copious amount of information which might be understood by individuals to be private. on various social media platforms, individuals may create private accounts where they have control over what people can see, and who can access their account. the information may be posts, messages, or other potentially personal information which should similarly fall within the “papers and effects” protected by the fourth amendment. additionally, private accounts would be reasonably understood to carry with a reasonable expectation of privacy given their namesake as “private” accounts. since the social media platforms have access to information in all accounts, the individuals would have given away this information to a third party losing all rights to its privacy 17 “olmstead v. united states, 277 u.s. 438 (1928).” 16 “digital duplications and the fourth amendment,” harvard law review 129, no. 4 (2016): 1046–67. 15 u.s. const. amend. 4 14 “united states v. jones.” 13 “united states v. jones.” 9 under the “third party exception” idea. this reality conflicts with their reasonable expectation of its privacy. the “third party exception” should be abolished because technology grants third parties access to information which individuals still believe is private. legal professions have noticed that technology’s changing role in society will affect privacy protections. as justice alito stated in his jones concurrence, “hypothetical reasonable person has a well-developed and stable set of privacy expectations” and “[b]ut technology can change those expectations.”18 the european union acknowledged this new relationship between technology and privacy with its data privacy law. the european union privacy law regulates what third parties can do with the information given to them, which has created a culture where european individuals expect a high level of privacy regarding information and their technology. to make individuals aware of technology companies’ interactions with their data and to provide individuals with greater control of their data, privacy law “would force internet companies like amazon.com and facebook to obtain explicit consent from consumers about use of their personal data, delete that data forever at the consumer’s request and face fines for failing to comply.”19 these companies' form of obtaining consent is generally through terms and conditions. while some may argue that terms and conditions are valid forms of obtaining consent, terms and conditions tend to be written to encourage compliance and they often are hard to read, long, and complicated. many do not read through the terms and conditions and as “researchers estimate [it] would take 76 hours a year to read all the user agreements we meant” while “clicking ‘no’ often means not using a tool that you may actually need to navigate, communicate or work.”20 the european union data privacy law takes into account this understanding of how we interact with these user agreements. part of the privacy law’s implementation includes requiring user agreements to be short, clear, and understandable. through “obtaining explicit consent from consumers” this law insures the individuals’ awareness that they are giving their information to a third party.21 given the ability of the consumers to “delete that data forever” with a request, they have additional control potentially expanding the boundaries of privacy protections within law especially with regard to data that third parties had access to.22 the european data privacy law is more faithful to the fourth amendment’s protection of privacy in the face of new technology. 22 sengupta, “europe weighs a tough law on online privacy and user data.” 21 sengupta, “europe weighs a tough law on online privacy and user data.” 20 zomorodi, “do you know how much private information you give away every day?” 19 somini sengupta, “europe weighs a tough law on online privacy and user data,” the new york times, january 23, 2012, sec. technology, https://www.nytimes.com/2012/01/24/technology/europe-weighs-a-tough-law-on-online-privacy-and-user-data.html. 18“united states v. jones.” 10 https://www.nytimes.com/2012/01/24/technology/europe-weighs-a-tough-law-on-online-privacy-and-user-data.html additionally, the expectation of privacy could change with greater awareness derived from companies’ presentation of privacy agreements. satariano states that “[a] central element of europe’s new regulations is that companies must clearly explain how data is collected and used.”23 this element could appear in a variety of ways, but would potentially produce a greater awareness of technologies’ role in our lives and refine individual’s expectations of what information is private.24 the “third party exception” would most likely be resolved by these new regulations which could possibly appear in the united states. the potential of privacy legislation is shown through the european union serves as an example for the united states as the author states “europe’s experience is being closely watched by policymakers in the united states, who are considering a new federal privacy law.”25 while legislation would change the manner in which the “third party exception” is discussed, the possibility of it in the future shows an acknowledgment of technological changes and crucial interactions with our privacy. due to the changed relationship between third parties and private information, the “third party exception” should be abolished. the “third party exception” introduced in maryland v. smith starkly contrasts with the understanding of the fourth amendment established in brandeis’ memorable olmstead dissent. this dissent has framed discussions of the fourth amendment within the court’s judicial opinions. in jones, the justices debated the extent to which technological surveillance could be used under the fourth amendment. providing further backing to abolish the “third party exception” is the european union’s new data privacy law which gives a crucial current acknowledgment of the changing nature of privacy. the “third party exception” would allow for information considered private within a reasonable expectation of privacy to be searched like browser histories and private accounts. americans would benefit from a greater sense of privacy and security backed by real control over their information. it also could increase public trust in government and a real understanding of the benefits of governmental intervention. 25 satariano, “google is fined $57 million under europe’s data privacy law.” 24 satariano, “google is fined $57 million under europe’s data privacy law.” 23 adam satariano, “google is fined $57 million under europe’s data privacy law,” the new york times, january 21, 2019, sec. technology, https://www.nytimes.com/2019/01/21/technology/google-europe-gdpr-fine.html. 11 https://www.nytimes.com/2019/01/21/technology/google-europe-gdpr-fine.html works cited satariano, adam. “g.d.p.r., a new privacy law, makes europe world’s leading tech watchdog.” the new york times, may 24, 2018, sec. technology. https://www.nytimes.com/2018/05/24/technology/europe-gdpr-privacy.html. ———. “google is fined $57 million under europe’s data privacy law the new york times,” may 24, 2018. https://www.nytimes.com/2019/01/21/technology/google-europe-gdpr-fine.html. sengupta, somini. “europe weighs tough law on online privacy.” the new york times, january 24, 2012, sec. technology. https://www.nytimes.com/2012/01/24/technology/europe-weighs-a-tough-law-on-onlin e-privacy-and-user-data.html. u.s. constitution, amend. 4. zomorodi, manoush. “do you know how much private info you give away every day?” time, march 29, 2017. https://time.com/4673602/terms-service-privacy-security/. cases cited olmstead v. united states, 277 u.s. 438 (1928). smith v. maryland, 442 u.s. 735 (1979). united states v. jones, 565 u.s. 400 (2012). 12 https://www.nytimes.com/2018/05/24/technology/europe-gdpr-privacy.html https://www.nytimes.com/2018/05/24/technology/europe-gdpr-privacy.html https://www.nytimes.com/2019/01/21/technology/google-europe-gdpr-fine.html https://www.nytimes.com/2019/01/21/technology/google-europe-gdpr-fine.html https://www.nytimes.com/2012/01/24/technology/europe-weighs-a-tough-law-on-online-privacy-and-user-data.html https://www.nytimes.com/2012/01/24/technology/europe-weighs-a-tough-law-on-online-privacy-and-user-data.html https://www.nytimes.com/2012/01/24/technology/europe-weighs-a-tough-law-on-online-privacy-and-user-data.html https://time.com/4673602/terms-service-privacy-security/ microsoft word law journal issue 7_final.docx the brandeis déjà vu: looking at the then and now of media privacy1 eric paik* introduction the accelerated development of cyber technology stands in distinction in a world that has, in the past few decades, witnessed strong dynamicity all throughout. it is easy to put the developmental rapidity of cyber technology into perspective, if one were to take the example of current u.s privacy laws and recognize them as being made antique by growing cybertechnology; a monumental reaction of the american legal system concerning the federal collection of personal information in computer databases was the privacy act of 1974, a framework that has been preserved to this day on how the u.s government “gathers, shares, and protects americans’ personal information.2 needless to say, forty years of technological development has long rendered the privacy act insufficient, resulting in a problematic amount of concerns and a concerning amount of problems related to data privacy and the american government.3 expectedly, government collection and utilization of digital data has received an abundance of media attention in the past few years, but we must appropriately remind ourselves that the urgent matter of privacy protection is one that encompasses much more, for example, the vast market of electronic commerce; new technology is everywhere to be found, and so are privacy concerns that come with it. after all, we live in a world where five exabytes (the equivalent amount of information, if hypothetically digitalized, accumulated throughout human history of texts and images until 2003) of information is produced in a matter of minutes.4 there is enough information on everyone’s plates. simply put, there is an abundance of highly portable information, technological ways to access the said information, entities that are interested in utilizing the information, and a shortage of ways to stop the daunting consequence of the whole situation: privacy invasion. if, by any chance, the given situation (which is seemingly unique to our modern digital age) triggers a déjà vu, that is because we have dealt with this issue before, more than a hundred years ago. former supreme court justice louis d. brandeis and samuel d. warren in their landmark article, the right to privacy, dealt with the legal conceptualization of privacy and the possible solutions of privacy intrusion in a time that witnessed the increasing usage of photographic technology by the media.5 with the rights to privacy being a foundational article of legal philosophy in american privacy law, it is an appropriate piece of literature that we could refer back to for the acquisition of guidance in thinking about privacy and its legal guardian * undergraduate at brandeis university, class of 2017 1 this article is part of the brandeis university law journal 2016 special volume, which is included in the "louis d. brandeis: an inspiring life” digital exhibition, an effort of the brandeis archives & special collections for the 100th anniversary celebration of justice brandeis's appointment to the supreme court. 2 state of federal privacy and data security law: lagging behind the times?: 1 3 the teaching company/the great courses. “privacy for the cyber age.” kanopy video, 33:00. 2013. https://brandeis.kanopystreaming.com/video/privacy-cyber-age 4 state of federal privacy and data security law: lagging behind the times?: 3 5 samuel d. warren and louis d. brandeis, “the right to privacy”, harvard law review. (1890): 195 today. so, therefore, it is in the following sections of this essay where we observe the rights to privacy in its legal philosophy and then attempt at determining its applicability in today’s cyberdominated world. in doing so, we specifically explore the birth of the privacy tort through the publication of the right to privacy, and then look towards the changing definition of privacy tort factors in today’s social media that necessitates a re-evaluation of brandeis and warren’s legal genius. the right to privacy (1980)—birth of the privacy tort from the perspective of tort law at the time, warren and brandeis’s argument that tort law should remedy psychological and emotional harm was fairly radical. their arguments about its evolutionary potential notwithstanding, the common law had traditionally rejected claims of emotional injury and had required plaintiffs to prove physical or property injuries to recover damages.6 the right to privacy still maintains its identity as a monumental article on the subject of legal protection of privacy. written by louis d. brandeis and samuel d. warren, and published in the harvard law review in 1890, the right to privacy famously referred to justice thomas m. cooley’s definition of privacy as the “right to be let alone,” and detailed the emergent concern of the violation of privacy due to technological inventions, specifically the technology utilized by the press.7 the increasing focus of print media on private affairs, aided by the newly implemented use of photography, had essentially created a market of information entailing rumors and personal details, one that was “pursued with industry as well as effrontery.”8 this situation had given rise to two concerns for the co-authors of the right to privacy, one of which was the fallen integrity and standards of print media, and another which carried more weight of legal significance was the lack of protection that privacy received.9 privacy in the interactions among private parties, though a growing concern, was not sufficiently protected by congressional statutes, and neither was it protected sufficiently through common law. in fact, the legal concept of privacy in the wake of growing technology was one without concrete identity. the initiating section of the article the right to privacy, therefore, spoke of the chronological appropriateness of a new legal recognition of rights: that the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. political, social, and economic changes entail the recognition of new rights.10 brandeis and warren explained that the “right to be let alone,” a product of the evolving interpretation of our basic right to life, faced a new chapter of threatening business trend in yellow journalism; even seemingly benign gossip could be utilized with evil intent, if the gossip accompanied large public presence, to jeopardize the emotional well-being of an individual.11 however, at the time of the article’s publication, emotional injury was not recognized by courts 6 neil m. richards, “puzzle of brandeis, privacy, and speech.” vanderbilt law review 63.5 (2010): 1303 7 warren and brandeis, “the right to privacy,” harvard law review 4.5 (1890): 195 8 ibid., 196 9 ibid., 196 10 warren and brandeis, “the right to privacy,” harvard law review 4.5 (1890): 193 11 ibid., 196 as a legal injury. therefore, a part of brandeis and warren’s argument was that emotional injury was deserving of a legal recognition and remedy. their philosophical basis in pushing this unconventional idea could be found towards the beginning of the article, which reads: “the intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things.”12 brandeis and warren respected the intangible value in honoring the “inviolate personality” of people, and so felt the need for the legal recognition of emotional harm as a legitimate injury.13 following the development of their logic, what brandeis and warren ultimately advocated was tort remedy for the emotional damage caused by privacy invasion. however, even in the case of the legal recognition of emotional harm as a legal injury, the existing tort law would not have protected privacy as described by brandeis and warren. what was laid out in the right to privacy, therefore, was the push for the creation of a new category of tort law that specifically protected privacy. in communicating this, brandeis and warren showcased their excellence in portraying the standalone uniqueness of the subject of privacy, one that demonstrated the lack of protection privacy received from already existing parts of the common law; privacy was embedded with characteristic details which separated it from the seemingly related legal concepts of property as well as defamation, and so privacy could not sufficiently be accommodated for through the principles of either. in clarifying this uniqueness of privacy in its qualities as a subject of tort, the co-authors first compared the nature of defamation (slander and libel) to that of privacy, highlighting the value of emotional and spiritual well-being that is unique to privacy and absent in defamation: owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel...the principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. it deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. the matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellowmen, -the effect of the publication upon his estimate of himself and upon his own feelings nor forming an essential element in the cause of action. in short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual.14 furthermore, the co-authors stated that though the category of property in tort law secured “to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others,”15 it did so in a problematic fashion that only concerned published material. property law did not, in its narrowness, deal with instances in which the issue at stake had nothing to do with obtaining profit through publication but rather the 12 ibid., 195 13 ibid., 205 14 warren and brandeis, “the right to privacy,” harvard law review 4.5 (1890): 197 15 ibid., 198 “relief afforded by the ability to prevent any publication at all.”16 in other words, property law came fairly close to protecting the essence of privacy, but its legal boundaries only included either published information or information which the rightful owner had the intention of publishing. what brandeis and warren stated was that the fundamental value of protecting the extent to which an individual shares her/his information should not be about the value of the intellectual information as a publishable or published material:17 a man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. no one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully; and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. what is the thing which is protected? surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. it is not the intellectual product, but the domestic occurrence.18 in both examples of the extension of tort law the emotional suffering of an individual in the public disclosure of unpublished private facts, which was the emergent concern, was unprotected. therefore, brandeis and warren propounded it necessary that the common law made fitting adjustments for the demanding and urgent situation, by first viewing emotional harm as a legal injury and then formulating a new tort recognition of privacy as a unique subject.19 even to this day the right to privacy is very deserving of its fame; it recognized the philosophical essence of the american common law dealing with one’s right “to be let alone” which was more or less lost in legal translation and only protected in a limited sense. in other words, louis d. brandeis and samuel d. warren had addressed the serious issue of emotional damage in the case of unauthorized and undesired circulation of unpublished information, one that slipped past the protection of property and against defamation, and together philosophized the legal category of privacy tort in reaction. while recognizing the significant value of what brandeis and warren advocated a century ago, the following section highlights a few factors that have changed and require further attention in how we view privacy tort today. important factors in modern application a more modern and specific interpretation of privacy tort was constructed by william lloyd prosser some seventy years after the article “the right to privacy” was published.20 prosser’s take on privacy tort in itself has merit as well as compatibility issues in its application to today’s world, with complex legal examples being notably stated by scholars such as professor danielle keats citron.21 however, this essay solely observes the broad original ideas of louis d. 16 warren and brandeis, “the right to privacy,” harvard law review 4.5 (1890): 200 17 ibid. 18 ibid., 201 19 ibid. 20 danielle keats citron. “mainstreaming privacy torts.” california law review 98.6 (2010): 1805 21 ibid. brandeis and samuel d. warren in their application to today’s world without considering william lloyd prosser’s more specific interpretation of privacy tort. the simplified essence of the right to privacy would be best described as a discussion about the much needed tort remedy for emotional injury arising from the undesired disclosure of unpublished private facts. in an attempt to translate that philosophy into today’s world, we must consider that modern societal complexity has changed the types and depth of the injury at risk as well as the perception of terms such as “unpublished” and “private facts.” though the essence of the article the right to privacy remains more important than ever, privacy tort should, and already does, deal with a much more complex reality. this section of the essay, therefore, attempts to observe two of many factors relating to the modern application of the philosophy of the right to privacy by specifically considering the example of social media. in sub-section one, the discussion focuses on the difficulty in maintaining the definition of privacy as exactly articulated in the right to privacy due to the changing definition and relevancy of consent and private space. in sub-section two, the increasing emotional harm as well as the emergence of new types of harm in social media are highlighted. section 1: gray areas of private space and consent-whose date is it anyway? given the current usage of social media, it is easy to argue that society generally has a lower expectation of privacy when it comes to sharing personal information online. that is, until their privacy is intruded upon.22 there are a few fundamental questions that require consideration when it comes to discussing the ideas of “the right to privacy” in its applicability to today’s cyberspace. to initiate the discussion, we start with the nature of social media in being representative of both private and public elements. the expectation of privacy in the arena of social media, if derived from the essence of the right to privacy, is confusing due to the following statement: “the right to privacy ceases if an individual, or someone by consent of the individual makes public the information themselves.”23 sharing information on social media is conventionally understood as a voluntary act which, if we were to refer to the statement above, could eliminate legal expectations of privacy. this is not a surprising development of logic because the common understanding of the intended function of social media is that “people post because they want others to read the information.”24 however, the added complexity of social media originates from the existence of adjustable privacy settings. taking the social media giant facebook as an example, it is apparent that, first of all, there are three modes of privacy settings at large: sharing information with your 22 renee prunty and amanda swartzendruber, “social media and the fourth amendment privacy protections.” in privacy in the digital age: 21st -century challenges to the fourth amendment, ed. nancy s. lind and erik rankin (santa barbara, california: praeger, 2015), 402-403 23 katherine leigh, “developments on the fourth amendment and privacy to the 21st century.” in privacy in the digital age: 21st-century challenges to the fourth amendment, ed. nancy s. lind and erik ranking (santa barbara, california: praeger, 2015), 14 24 meghan e. leonard, “the changing expectations of privacy in the digital age.” in privacy in the digital age: 21st -century challenges to the fourth amendment, ed. nancy s. lind and erik rankin (santa barbara, california: praeger, 2015), 317 approved “friends”, sharing information with the public that uses facebook services, and sharing information with the specific list of users selected. due to the existence of different privacy settings and some 1.23 billion active monthly users,25 it cannot be stated that every individual participates in social media with the same expectation of privacy; some people have facebook accounts with the expectation of sharing information with a limited group of people and they have the privacy setting details to help reinforce that will. what is implied through all of this is that social media participation does not necessarily constitute information being made public in the black and white sense. instead, selective publicity seems to better describe the general expectation of user experience when it comes to facebook. put another way, limited privacy is what the typical user might want or expect from using facebook.26 this gray area of situationally defining and expecting privacy is a source of trouble for privacy tort. considering the fact that different privacy settings generate varying user experiences with different execution of privacy protection, it is then crucial to understand that privacy settings are often complicated: “knowing exactly which settings to choose and how to best protect your privacy on facebook is difficult for even the most adept of users… in addition, the privacy setting options change frequently, as does the facebook interface.”27 social media users, in this case facebook account holders, may by mistake make information “more public” than what they had intended. a hypothetical college student under the legal drinking age might share a photograph depicting the consumption of alcohol with the intention of privately sharing his/her enjoyment of youthful energy with friends (not in reference to the facebook idea of “friends”) and unexpectedly face consequences of public viewership due to a mistake of a click or corporate-induced changes in privacy settings. the student in this given scenario faces privacy concerns, concerns that could very possibly bring with them emotional suffering, that the student did not anticipate or want at the time of sharing the information. however, in logical terms, this hypothetical student has indeed given her/his consent to facebook regarding privacy details as proven by the preferences selected online. here, we notice the difference between the issue of privacy back in the time of intruding print media and now: back in the day of yellow journalism it was easy to see that in the case of unauthorized and unwanted picture publication that very clearly there was no consent or the desire for disclosure, whereas in the case of facebook it is difficult to assume the same. after all, “facebook and other social-networking sites remind users of the privacy risks when creating an account.”28 the responsibility could be argued to belong solely with any user that mistakenly induces more publicity into the shared information. in analyzing the above situation, it might be helpful to turn to a relic of another side of the american legal system dealing with privacy, the fourth amendment case of katz v. united states.29 the portion of our concern is the court recognition of privacy rights in instances where intentionally private acts take place in public settings, and the contrary denial of privacy protection in situations where public disclosure of information is made in an expectedly private space.30 so going back to facebook, are we to understand the general utilization of social media 25 lisa m. austin, “enough about me: why privacy is about power, not consent (or harm),” in a world without privacy: what law can and should do?, ed. austin sarat (new york: cambridge university press, 2015), 147 26 austin, “why privacy is about power, not consent (or harm),” 149-150 27 leonard, “the changing expectations of privacy in the digital age”, 316 28 ibid. 29 katz v. united states, 389 u.s. 347 (1967) 30 prunty and swartzendruber, “social media and the fourth amendment privacy protections.” 402-403 as an act with private intent in a public area, or are we to understand it as public disclosure of information in an area that could be private? on one side we may be justified in expecting privacy, and on the flip side we may not, or it really may be situational. the discussion about consent and the varied expectation of privacy and user experience was initiated above, and is continued here. the factor of consent in the example of facebook is made even more confusing because of what is recognized by professor lisa m. austin, in the chapter “why privacy is about power, not consent (or harm)” which is published in the book a world without privacy, as “implied consent.”31 the legal acceptance of implied consent means that privacy recognition could happen at a broad level of general user expectation without considering the privacy affinity of each individual user: general expectation of users, formed through the active architectural choices of facebook, can even undercut individual consent entirely. for example, cippc complained that facebook does not provide users with the ability to opt-out of profile memorialization. although the assistant commissioner originally found this to contravene the consent requirements, she changed her view due to “reasonable expectations” with respect to content…because of this, the assistant commissioner found that facebook could rely upon implied consent. however, this implied consent is based on what “typical” users would want, and indeed what “users generally” would want in relation to another individual… reasonable expectations of the “facebook experience” trump individual consent.”32 facebook’s often changing privacy settings and policies, in other words, just have to conform to what would be legally recognized as acceptable general user standards and expectations. the fact that facebook “has no obligation to change its infrastructure so as to better enable individual choice”33 raises the possibility that accommodation for the varying privacy needs of social media users is unlikely to materialize. however, the emotional damage (the amplified nature of which is discussed in the next section) is very plausible to arise from genuine mistakes or unexpected changes in privacy settings, and could be then viewed as unintended sharing of private information. the application of the philosophy of the right to privacy is challenging when considering such an aspect of today’s privacy. this section is concluded with the peculiar example of a facebook function called “tagging.” facebook account holders often reveal information about others in photographs and texts through “tagging,” or name labeling, other people. “tagging” could involve other facebook users but could also involve those that have no participatory will when it comes to facebook. not only would it be a problem for individuals that are “tagged” to be unaware of their information being shared online, but there are only two offered solutions for a concerned and aware individual in that situation, and both of them are revealing of private information.34 the first solution is to make a facebook account and “untag” herself/himself, and the other solution is a method that still involves facebook obtaining the non-user’s email information.35 though 31 austin, “why privacy is about power, not consent (or harm),” 151 32 ibid., 147 33 austin, “why privacy is about power, not consent (or harm),” 152 34 ibid. 35 ibid., 153 the legal responsibility in the given scenario might lie primarily with the user of facebook that shared the information without consent, facebook still gains profitable private information from the “tagged” individual in the process of problem-shooting, so the issue of legal responsibility is made confusing.36 section 2: amplified injuries mean privacy tort is increasingly important renee prunty and amanda swartzendruber, in their co-authored section of the book privacy in the digital age titled social media and the fourth amendment privacy protections, identified the broad range of potential harm related to social media: “there are many possible negative consequences attached to the use of social media sites. these new forums create a place for gossip, rumors, unwanted contact, stalking, the use of data by third parties, hacking, and even identity theft.”37 though prunty and swartzendruber’s work analyzes the aspect of government surveillance and its constitutionality, many of the harms that they have listed are injuries that remind us of what brandeis and warren wanted to establish a tort remedy for; malicious gossip and rumors were specifically stated by brandeis and warren to cause emotional harm that was toxic to the human pursuit of happiness in life. however, what cannot go unnoticed in observing the list of harms above is that in it are things such as stalking and unwanted contact, actions that could consequently entail direct physical harm or robbery. another thing to keep in mind is the permanent nature of data and its availability which amplifies the emotional and reputational harm that was similarly discussed a century ago by brandeis and warren.38 this sub-section observes the expanded width and depth of injuries related to privacy that seek tort remedy, which allows us to see the increased value in privacy tort. again, the specific example we will observe is social media. as stated above, private information in the modern world is stored digitally. unlike a century ago when the private information of concern was circulated by print media and most likely withered away with time, private information on the web is permanent and searchable.39 the horror of digital data permanency for those suffering emotional harm from unwanted disclosure of information is perfectly described by professor danielle keats citron as “evoking a nietzschean image of persistent memory.”40 combine the permanent nature of digital data with the fact that data is now easily searchable and globally accessible, and we have at our hands the groundwork for the timeless preservation and return of emotional suffering for some individuals.41 besides, anybody with the intent to do so could publish private information of others with more ease and potential for publicity than any press we could have imagined a century back. private information on the web is at a constant risk of being shared by anyone, with the potential to spread globally like wildfire and to be preserved in its most accessible state for the time to come. if that was not enough to induce fear, the increased damage of privacy invasion is discussed next. 36 ibid. 37 prunty and swartzendruber, “social media and the fourth amendment privacy protections.” 408 38 citron, “mainstreaming privacy torts.” 1808 39 ibid. 40 citron, “mainstreaming privacy torts.” 1813 41 ibid. “in the past, physical injuries associated with privacy invasions typically involved a person's physical manifestations of emotional distress. for instance, individuals often suffered sleeplessness in the face of privacy invasions.”42 in today’s world of social media, the abundance of easily accessible personal data is allowing the occurrence of life threatening situations. participants of social media that have access to personal information of others could easily initiate unwanted disclosure of private facts anonymously, or even by pretending to be the very subject of the disclosed information. take for example the case referred to by professor dianne cintron: “in 2009, a long island, new york, mother allegedly posted an advertisement on craigslist seeking sex and directing men to the mother of her nine-year-old daughter's rival.”43 with malicious intent and enough personal information, imitating identity online to initiate danger for another individual could be achieved by anyone. to really reveal the alarming danger that is privacy invasion on social media, we end the section with another disturbing example referred to by professor dianne citron, one that serves as a powerful reminder of why the idea of privacy protection as suggested by brandeis and warren are more important than ever: in an early case of online impersonation, a security guard pretended to be a woman in a chat room, claiming that the woman wanted to be assaulted. the chat room posting asserted: "i want you to break down my door and rape me." it also provided the woman's name, address, and instructions about how to get past her building's security system. over the next few weeks, nine men showed up at her door, often in the middle of the night.44 conclusion louis d. brandeis and samuel d. warren understood a very important aspect of our legal system: the law evolves, and justifiably so due to the betterment of our recognition of values and needs over time: thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. later, there came a recognition of man's spiritual nature, of his feelings and his intellect.45 therefore, in the history of the evolution of american law, the right to privacy has its own special place for its awareness of a need for change. however, as important as it is that we take the principles of brandeis and warren to heart, it is now time for the brandeis or warren of our generation to step up to the plate. the cyber world that we inhabit is one that brandeis and warren could not have imagined more than a century ago, and quite frankly had no responsibility to do so. this new era of cyber development and its byproduct could only be interpreted by those that are responsible for it, namely us. the process of defining our newly adjusted “right to privacy” is to be anticipated in the days to come. 42 ibid., 1817 43 ibid., 1818 44 citron, “mainstreaming privacy torts.” 1818 45 warren and brandeis, “the right to privacy,” harvard law review 4.5 (1890): 193 bibliography austin, lisa m. “enough about me: why privacy is about power, not consent (or harm).” in a world without privacy: what law can and should do?, edited by austin sarat, 131– 89. new york: cambridge university press, 2015. citron, danielle keats. "mainstreaming privacy torts." california law review 98.6 (2010): 1805-1852. leigh, katharine. “developments on the fourth amendment and privacy to the 21st century.” in privacy in the digital age: 21st -century challenges to the fourth amendment, edited by nancy s. lind and erik rankin, 1-34. vol. 1. santa barbara, california: praeger, 2015. leonard, meghan e. "the changing expectations of privacy in the digital age." in privacy in the digital age: 21st-century challenges to the fourth amendment, edited by nancy s. lind and erik rankin, 307-326. vol. 1. santa barbara, california: praeger, 2015. meghan e. leonard, “the changing expectations of privacy in the digital age.” in privacy in the digital age: 21st-century challenges to the fourth amendment, ed. nancy s. lind and erik rankin (santa barbara, california: praeger, 2015) prunty, renee, and amanda swartzendruber. "social media and the fourth amendment privacy protections." in privacy in the digital age: 21st-century challenges to the fourth amendment, edited by nancy s. lind and erik rankin, 399-427. vol. 2. santa barbara, california: praeger, 2015. richards, neil m. "puzzle of brandeis, privacy, and speech." vanderbilt law review 63.5 (2010): 1295-1352. state of federal privacy and data security law: lagging behind the times?: hearing before the the committee on homeland security and governmental affairs, united states senate, 112th cong. 1 the teaching company/the great courses. “privacy for the cyber age.” kanopy video, 33:00. 2013. https://brandeis.kanopystreaming.com/video/privacy-cyber-age warren, samuel d.; brandeis, louis d. "right to privacy." harvard law review 4.5 (18901891): 193-220. brandeis university law journal fall 2021, volume 9, issue 1 on america’s inexplicit dignity joshua rotenberg21 while the united states explicitly protects many rights, it holds a few as unenumerated rights. this paper seeks to explain the lack of a constitutional right to dignity in america, and argue for such a right. the u.s. common law system allows rights to be developed only after a case of first impression. nonetheless, some rights-violations are so detrimental to democratic function that a case of first impression must not be required and preemptive protections must be put in place. the right to dignity is such a right. since 1787, the american constitution has been defined by malleability. the ability to adopt rights necessitated by the circumstances of evolving times secures the constitution as a “living” document. citizens of the united states enjoy the benefits of malleability through their protected rights, which, in an ideal democracy, help us address pertinent issues faced every day in a context of security. as the common law system teaches, the development of such rights may be traced back through prior cases. however, one of the detriments to a precedent-based legal system highlights an issue with legal development. more often than not, a right becomes protected only after injustice is committed. the prevalence of the miranda rights, for example, came only after ernesto miranda was unjustly arrested. the united states corrects our legal course only after we wander astray. there may be times, however, when a preemptive violation of a to-bedetermined right would cause such harm that prophylactic legal measures are a necessity. an example is the protection of the “right to dignity.” this right protects a human’s ability to be treated as such, and reinforces the basic tenets of equality and freedom of all citizens. the ramifications of a violation of this right fundamentally undermines the foundations of democracy. thus, the ability to violate such a right must be stifled before any specific “triggering injustice” can occur. what courts and lawmakers call the “right to dignity” is prevalent in many nations across the globe, primarily to prevent injustice in light of past experiences of political instability or tyranny. accordingly, the nation with the strongest protection of the right to dignity remains germany, who, 21 brandeis university undergraduate, class of 2023. 16 brandeis university law journal fall 2021, volume 9, issue 1 following the atrocities of world war two, protects this right above all others. the german right to dignity reads “human dignity is inviolable. to respect and protect it is the duty of all state authority.”22 dignity is established as a fundamental german right even before the right to life itself. this logic holds true considering the abomination of the third reich, which treated dignity as a preferential right bestowed only on those with the features or religion the government preferred. it could be argued that, had the right to dignity been instilled in each german citizen prior to the rise of the nazi party, genocidal policies could not have prevailed. the right to dignity ensures that each human is treated as such, and thus the dehumanization genocide demands would not be possible. dignity is upheld as a right across the european union, india, iran, south africa, and israel. there is no question that while america has yet to ratify this right, powers across the globe have successfully done so, holding the right to dignity up along with the same fundamental rights american values cherish. the history of dignity in america, however, is complicated by the preference for precedents that characterizes our common law system. american lawmakers never saw it fit to establish the right to dignity as a concrete, protected right in the constitution. alternatively, our courts only occasionally deploy the concept to supplement other rights, mentioning dignity in various cases as justification for a certain ruling. justice harlan, for instance, referenced dignity in his ruling on cohen v. california. he hoped that the right to freedom of expression would “ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.”23 his teachings are representative of dignity in america, which is thought to be a notion that simply justified other, specifically-protected rights. while germany may hold dignity as its first, most valued right, america presumes that its own most cherished rights, such as free speech, reflect a concern for dignity, even if that concern remains unspoken. in lawrence v. texas, justice kennedy associates dignity with the fourteenth amendment. he highlights a quote from a prior case, planned parenthood of southeastern pa v. casey. “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices 22 the provisions of article 1(1) of the german basic law. 23 cohen v. california, 403. 17 brandeis university law journal fall 2021, volume 9, issue 1 central to personal dignity and autonomy, are central to the liberty protected by the fourteenth amendment”24 here, dignity yet again is used as nothing but a supplemental concept, extrapolated through explaining or justifying other rights. thus, legal scholars looking to american law presume that a right to dignity is protected by the very existence of other legal protections. in his defense of a bill of rights, new york university law professor and legal philosopher, jeremy waldron, contends that the very presence of protected rights acknowledges dignity.25 he argues that when a government gives rights to a citizen, they automatically assume that the citizen has both autonomy and dignity; rights must be enforced, in this view, to respect and protect human dignity. in sum, american thinking on the right to dignity is simple: it is established through the application of our other rights, and this being so, there is little need to place it explicitly in the constitution. america has relied on this assumption since its founding, assuming that dignity will be protected through precedential application in past cases involving other, existing rights. of course, amending the constitution, while cherished as a common american practice, is arduous at best. if jurisprudence relies on implied rights, ratifying the right to dignity may not be worth the trouble. nonetheless, while american security in the protection of dignity is rooted in past success, prevention of future injustice requires a more solidly-grounded right to dignity ratified in the constitution. the primary reason for an explicit right to dignity may be found in the very principles of democracy. democratic theorists such as alexis de tocqueville have established a set of traits which define the democratic citizen.26 democratic principles include tolerance, cooperation, moderation, and ease of collective action. leniency in allowing the disruption of such principles in the citizenry could indicate democratic shortcomings. in a society without respect for dignity, such qualities would struggle to surface amongst the population. where dignity is not properly acknowledged, democratic engagement must suffer. perhaps it is no coincidence that america, which has no explicit right to dignity, suffers from widespread intolerance as political polarization increases. today, the breakdown of 24 planned parenthood of southeastern pa. v. casey, 851. 25 waldron, j. (2004). law and disagreement. oxford university press. 26 tocqueville, a. de, goldhammer, a., &amp; zunz, o. (2012). democracy in america. library of america paperback classics. 18 brandeis university law journal fall 2021, volume 9, issue 1 respect for core human dignity is interfering with democratic function. an equal and fair election, for example, is the hallmark of a democracy. the current rash of voter-suppression laws is hard to imagine in a place where all citizens respect each other’s essential dignity. a society which does not consistently reinforce the importance of dignity does not inspire democratic trust. especially in view of these recent developments, it is no longer enough to allow the right to dignity to reside on the margins of our law. protection against search and seizure and freedom of speech, for instance, are instilled in the average american through constant repetition. students memorize the amendments in grade school. americans are raised with a theoretical knowledge that they can speak their minds openly and should expect to be treated just as their peers would be under the law. students do not, however, recognize the existence of dignity as a protected right due to its obscurity. the average american is not aware of justice kennedy’s application of the casey ruling to use dignity to determine texas v. johnson. this average american may very well be aware of dignity as an important force in every-day life, but they are not repeatedly told that the government has an overriding interest in protecting their dignity. the logic which follows is that such an absence of reinforced dignity protection may cause a decline in trust, which, while not spelling the demise of democracy, makes it more likely that people will fall prey to polarization, and support more voter suppression laws. beyond hindering democratic function, where dignity is not enshrined as a freestanding right, there is a greater potential for the worst atrocities known to man. just as democracy cannot function without dignity, the atrocities of genocide, ethnic cleansing, and ethnic war can be prevented by a zealously protected dignity right. the holocaust, the rwandan genocide, and the ethnic violence in yugoslavia all involved the demonization of the “other.” a government forced by its constitution to protect dignity at all costs could not allow this demonization to take place. the united nations defined genocide in eight stages: classification, symbolization, dehumanization, organization, polarization, preparation, extermination, and denial27. in a government with a cherished and protected 27 wilson, t. (2020, august 29). eight stages of genocide: from classification to denial. the borgen project. retrieved november 30, 2021, from https://borgenproject.org/eightstages-of-genocide/. 19 brandeis university law journal fall 2021, volume 9, issue 1 right to dignity, only the first two steps could occur. a breakdown of one group’s conception of dignity as equally applied to their fellow citizens is a requisite to genocide. dehumanization simply cannot prevail should a government have the means, will, and capacity to enforce a right to dignity. a functioning democracy with a proper system of checks and balances could prevent such a horrendous outcome if dignity is instilled in each government official and citizen. critics may argue the american common law system has worked for centuries, and so there is no reason to break the tradition and preemptively establish a right without a triggering case of first impression. however, the potential consequences of not explicitly ratifying the right to dignity before a case of first impression make it essential. america has relied on precedent to shape its legal applications and definitions of dignity. this process, while perfectly acceptable under common law, is far from preventative. the abominations which may only arise without dignity are far too destructive to be recognized only with the benefit of hindsight. the actions of the nazi regime will leave a stain on modern day germany permanently. germany’s current emphasis on dignity stems from some of the most violent actions in human history. the german “case of first impression” was the greatest horror known to man. there is no reason why the rest of the world should not learn from such atrocities and make their prevention the first priority of a state. in fact, as determined above, many states have taken this lesson to heart, working dignity into their constitutions as a preventative measure. some may argue that if america equally takes such action, such atrocities could never be committed under american rule. however, recent events have taught us all too well the fallacy of believing that we are immune to the influence of dignity-denying demagogues. a self-serving leader, turbulent times, and a population without respect for the democratic process resulted in the storming of the capitol on january 6th, 2021. the capitol riots are by no means akin to genocide. nonetheless, the riot carries a much more powerful message: america may not rely on democracy to sustain itself. the functions which are essential to democracy are fragile, and demand reinforcement. a ratified right to dignity, held to the same standard as free speech, could very well be that reinforcement. the current system is simply not sufficiently preventative. inexplicit rights may be used by judges to reach a fair ruling, but they do not instill that right in the values of the citizens. moreover, they create loopholes 20 brandeis university law journal fall 2021, volume 9, issue 1 which may be exploited to allow for grave injustices. the magnitude of these injustices may be so large that it simply cannot be allowed to occur even once, requiring a preemptive establishment of the right to dignity to forestall such a horrendous outcome. the ability to extract a right from judicial precedent is common in american law. fundamental rights not stated in the constitution have been adopted before in light of modern issues. justice douglas’ opinion on griswold v. connecticut noted that a statute “forbidding the use of contraceptives violates the right of material privacy which is within the penumbra of specific guarantees of the bill of rights”28 the prior legal consensus on the right to privacy perfectly mimics the current applications of dignity in american jurisprudence. douglas highlights that the bill of rights creates “zones” of privacy via previously established amendments. the griswold ruling brought the right to privacy out of the haze of unenumerated rights and into a more solidified application. today, citizens expect that the government will not meddle with one’s possessions or personal life. moreover, the government knows to treat violations of the right to privacy with strict scrutiny, thus making an initial violation extraordinarily difficult. the right to dignity shares a similar status as the old right to privacy. it is unenumerated, and restricted to its use as a judicial tool and a background concept, but nothing more. in a vein with justice douglas’s ruling, dignity may be brought out from the penumbra of other rights. the difference between the two circumstances, however, are the implications of the potential violation. the right to privacy was not established until after griswold’s arrest. in the grand scheme of our nation’s functioning as a democracy, an unjust arrest is nothing uncommon. unjust arrest is, of course, a dire issue in need of resolution, but the violation of griswold’s right to privacy did not negate the values of democracy. a violation of human dignity, however, carries much more severe implications. for this reason, it is imperative that such a right be established not through the common law process but through a constitutional amendment. granted, a dignity-based case of first impression may not be as severe as the above paragraphs purport. it could very well be a simple nuisance in the life of one plaintiff. however, the very possibility that a case could carry such severe injustice mandates immediate action which bypasses a case of first 28 griswold v. connecticut, 381. 21 brandeis university law journal fall 2021, volume 9, issue 1 impression. our present political crisis also confirms that the time for making the right to dignity a firm part of our legal landscape has arrived. thus, the proposed action is not only desirable, but essential to the preservation of our democratic tendencies now and in the future. the implications of incorporating the proposed right to dignity has limited negative ramifications. one may argue that incorporation of this new personal freedom would severely change government function. what constitutes “dignity” may be subjective and difficult to define in a given case. while judges may apply dignity in new, unexpected methods, such rulings need not be cause for concern. every fundamental right suffers such constitutional growing pains. cases still arise today which change the definition of “speech” as protected by the first amendment. so long as the right to dignity is protected, the specificities of the protection will be shaped by a newly developing line of precedent. incorporating a new fundamental right will undoubtedly tie the hands of the government but this is the nature of strict scrutiny as a legal construction. however, since the right to dignity has been previously enforced as a passive, unenumerated right, the expectations of the legislature would not alter greatly. as previously established, violations to human dignity often entail violations of other rights. this is the very reason dignity was used by prior justices as a judicial tool. it may be easily predicted that ratifying a right to dignity will create new cases which will guide legal applications of the amendment away from undue subjectivity. moreover, the actual practice of this law will not drastically change the essential ability of legislatures to function, no more than other enumerated rights have done. the largest difference the right to dignity will make will be in the reassurance of the citizen in their newly protected dignity no matter how the future may challenge that right. the american legal system roots itself in the past. we make mistakes, correct them, and carry that lesson with us through continued use of precedent. it is a stable system; it functions properly and will likely continue to do so for years to come. that said, there are certain rights which, even if not fully ratified, are so essential to the function of government and life itself, that to not “go through the trouble” of ratification could spell disaster in the future. america has relied on the common law system to support the unenumerated right to dignity while the rest of the world has learned not just from their own legal history, but from that of nations who have failed to protect their population’s dignity. as a global hegemon, it is 22 brandeis university law journal fall 2021, volume 9, issue 1 simply irresponsible to assume that our system will protect us while others have suffered the consequences of that assumption. despite it’s status, the united states is not immune to democratic fault. to prevent severe ramifications of the potential failings of the future, we must take action today. a right to dignity must be added to the constitution, not to undermine the benefits of our common law system, but to take preemptive action to preserve that very system. 23 brandeis university law journal fall 2021, volume 9, issue 1 works cited tocqueville, a. de, goldhammer, a., & zunz, o. (2012). democracy in america. library of america paperback classics. waldron, j. (2004). law and disagreement. oxford university press. wilson, t. (2020, august 29). eight stages of genocide: from classification to denial. the borgen project. retrieved november 30, 2021, from https://borgenproject.org/eight-stages-of-genocide/. cases cited cohen v. california, 402 u.s. 15 (1971) griswold v. connecticut, 381 u.s. 479 (1965) lawrence v. texas, 539 u.s. 558 (2003) planned parenthood of southeastern pa v. casey, 505 u.s. 833 (1992) texas v. johnson, 491 u.s. 397 (1989) 24 microsoft word law journal issue 7_final.docx hog pollution in north carolina: policy and legal analysis emma wheeler* north carolina is renowned for its pulled pork. residents are quick to debate the merits of eastern-style versus lexington-style barbecue, a sweeter and redder version of the vinegarbased eastern variety. the state’s affinity for the pig is no surprise given that north carolina is the second biggest pork-producing state in the country, producing $2.9 billion in hog sales in 2012.1 with that revenue though, comes vast amounts of pollution in the form of hog waste, which pollutes the streams, rivers, and air. in this paper, i will establish that hog pollution in north carolina is an environmental and public health threat, representative of the broader challenge of regulating concentrated animal farming operations (cafos). the state of north carolina and the nation at large must take a hard look at ways of effectively regulating this industry within existing state and federal legal frameworks and through innovative policy solutions, as current permitting systems have proven to be ineffective. i will begin by looking at the current state of affairs of hog farms in north carolina to show that the hog industry has grown to the point that its pollution is no longer adequately regulated. i will then give an in-depth picture of the water and air pollution at stake, as well as the health risks implicit with this pollution. i will examine the role of the federal and state governments under the relevant federal environmental statutes, and will show that these statutes are ineffective as currently applied in north carolina and the nation at large. next, i will explore the extent to which hog pollution disproportionally affects minority groups and populations living in poverty. finally, i’ll look at the challenges of addressing cafos in general and make policy recommendations for better regulating this environmentally harmful method of raising animals. this is an urgent issue that has yet to be effectively addressed by the state or federal government, despite having been in the public eye for almost two decades, since the raleigh news and observer writers, joby warrick and pat stith, wrote a pulitzer prize-winning investigative series entitled, “hog boss” in 1995.2 while the hog industry is vital to north carolina’s economy and culture, its natural resources are just as essential. though i focus on the hog pollution problem in north carolina, these concerns are not specific to the state – the conversation on using existing and new legal frameworks to effectively regulate cafos is one that is long overdue. background information hog pollution in nc has become a wide-scale problem since the industrialization of the hog industry in the 1980s. previously, farmers had few enough hogs that the waste could be used as fertilizer without overloading the fields or having a need to store the waste.3 today, largescale hog farming in nc consists of over 2,100 industrial facilities raising nearly 10 million hogs4, producing an excess of waste to be dealt with as hogs produce an estimated two to five times the amount of waste as a human.5 a congressional report by the u.s. government * undergraduate at harvard university, class of 2017 1 usda nass, 2012 census of agriculture. 2 warrick, joby and pat stith, “new studies show that lagoons are leaking”, raleigh n&o. 3 peach, sara, “what to do about pig poop?” national geographic. 4 dove, rick, “hog pollution and our rivers” waterkeeper alliance and riverlaw. 5 kuo, lily, “the world eats cheap bacon at the expense of the nc’s rural poor” quartz. accountability office found that in 2002, hogs in five adjacent counties housing over 7.5 million hogs could have collectively produced 15.5 million tons of manure that year.6 by comparison, the entire state of north carolina’s human population numbers 9.94 million and generates approximately 7 million tons of human waste a year7, which is carefully treated and controlled. municipal human waste is sent to wastewater treatment plants where it is collected, treated, and disposed of in such a way to “prevent, as far as reasonably possible, any contamination of the land, groundwater, and surface waters”.8 in contrast to the treatment of human waste, hog waste is minimally treated and undergoes no standard or regulated treatment process. a typical hog facility in nc houses as many as 4,000 hogs, which are confined in close quarters, sometimes with little room for even basic mobility.9 when the contained hogs defecate in their stalls, the waste falls through slats in the floor and is then flushed into open-air lagoons. in the lagoons, exposure to naturally occurring bacteria causes the waste to turn an unsightly pink color, the only treatment the manure will receive. once in the pond, thicker sludge sinks to the bottom, theoretically creating a barrier that will prevent leakage. the liquid at the top is siphoned off and sprayed onto nearby fields as fertilizer.10 the use of the waste as manure prevents the lagoons from regularly overflowing; however, the process brings its own myriad of consequences. many residents live just feet away from the fields where the hog waste is sprayed. these neighbors complain of the offensive odor – a stench that fills their houses and makes their eyes burn. additionally, the spraying process releases harmful air pollutants, and facilitates the contamination of waterways by runoff. the lagoon systems are prone to seepage into groundwater sources and have been known to overflow, especially during storms.11 the hog industry has shown significant growth in recent decades, outgrowing regulations and wreaking havoc on the environment and nearby communities. the growth of the industry, coupled with the documented pollution effects and health risks associated with the waste necessitates a deeper look at the policy and law used to regulate the industry. pollution an abundance of research has been produced since the 1990s clarifying the link between industrial hog farms and environmental degradation. among the institutions researching this subject are the university of north carolina at chapel hill, north carolina state university and duke university. three major concerns are relevant in the conversation around industrial hog pollution: water pollution, air pollution, and health effects. water pollution is perhaps the most documented of these effects. studies have shown that sewage seeps from the lagoons into the ground water, allowing toxins to leak into potential water sources and deteriorate water quality. not only does hog pollution affect ground water, it also affects the states’ streams and rivers. 12 figure 2 in appendix a shows the relative locations of swine cafos relative to the river basins they affect.13 the figure shows just how widespread the hog pollution is, and the large-scale 6 gao report, “cafo – epa needs more information…” p.5. 7 calculated based on proportions of human waste in the gao report, p.5. 8 nc general statutes, article 11, chapter 130a, section 33. 9 lo, mariana, “hogwash from the pork industry” earthjustice. 10 kuo, lily, “the world eats cheap bacon at the expense of the nc’s rural poor” quartz. 11 peach, sara, “what to do about pig poop?” national geographic. 12 warrick, joby and pat stith, “new studies show that lagoons are leaking”, raleigh n&o. 13 harden, stephen l. “surface-water quality in agricultural watersheds”, usgs report. effects water pollution could have for major river basins in the eastern part of the state. high levels of nutrients and fecal matter in waterways are linked to low levels of oxygen in water, which can in turn cause fish kills.14 these results indicate that current waste disposal practices are insufficient in their prevention of seepage into groundwater sources, run-off into streams and watersheds, and leakage into surface water. eastern north carolina’s landscape, which features high groundwater tables and floodplains, makes the lagoons especially susceptible to leakage and flooding, enabling the waste to contaminate nearby waterways. additionally, excess spray runs off the land and into nearby creeks, streams, and rivers.15 the negative environmental effects associated with hog pollution are concerning if not potentially disastrous, and must be taken seriously by north carolina’s law and policy makers. health risks equally concerning are the health risks associated with proximity to industrial swine operations with open-air lagoon and spray field waste management systems. health effects are closely linked to air pollution and emissions from the hog facilities. the decomposition process of the waste can release as many as 400 volatile organic compounds into the air, including hydrogen sulfide, ammonia, dust, endotoxins, carbon dioxide, and methane.16 many of these compounds are known to cause health concerns and to pollute the environment. given the vast number of chemical emissions given off by the lagoon and spray field waste method and their documented health effects, it is no surprise that north carolina residents neighboring hog operations often report eye irritation, nausea, coughing fits, breathing difficulties, asthma, wheezing, and elevated blood pressure.17 studies have documented positive relationships between industrial agriculture output and infant mortality rates18, childhood asthma19, and blood pressure levels20. additionally, studies show that antibiotics used to keep the pigs healthy in close quarters may contribute to antibiotic resistance in human populations, which poses a major public health threat. the antibiotics are fed to pigs in large quantities, which often pass through the pigs and into the lagoons, where they may be sprayed onto fields or may seep into the groundwater, carrying the antibiotics, as well as resistant bacteria back into waterways and soil.21 antibiotics are used to fight infectious diseases, but are ineffective when bacteria become resistant to them. in individuals with compromised immune systems, exposure to antibioticresistant bacteria can be deadly; in healthy adults, it makes treatment a longer, costlier ordeal. given the severity of health and pollution consequences associated with the hog operations, it is astounding that they have been permitted to operate these hazardous waste management systems for so long. legal frameworks: the clean water act and permitting several existing state and federal legal frameworks regulate industrial hog facilities, but have proven ineffective in controlling the north carolina hog industry thus far. hog operations 14 "what is nutrient pollution?" national oceanic and atmospheric administration. 15 kuo, lily, “the world eats cheap bacon at the expense of nc’s rural poor” quartz. 16 marks, robbin, “cesspools of shame”, nrdc p.17. 17 peach, sara, “what to do about pig poop?” national geographic. 18 sneeringer, stacy, “does animal feeding operation pollution hurt public health?” p.124. 19 pavilonis, brian t. et al., “relative exposure to swine animal feeding operations”. 20 wing, steve et al., “air pollution from industrial swine operations” ehp. 21 marks, robbin, “cesspools of shame”, nrdc p.24. can come into regulation under the clean water act (cwa), the clean air act (caa), and even the comprehensive environmental response, compensation, and liability act of 1980 (cercla). the epa is the federal agency that oversees environmental regulations and the implementation of these federal acts; it is their responsibility to ensure that environmental pollutants are acknowledged and controlled. the extent to which industrial hog operations pollute nearby streams, surface water, groundwater, and watersheds makes the clean water act an obvious avenue through which to regulate hog farming. the clean water act is a comprehensive federal law controlling pollution of the rivers, lakes and wetlands of the united states.22 under the clean water act, a national pollution discharge elimination system (npdes) was established to limit the amount and type of pollutants from discrete facilities and point sources, which expressly include cafos. npdes permits may be issued by either by states or the federal epa, but are subject to enforcement by regulatory agencies.23 regulation at the state level north carolina developed its own general permitting system to regulate cafos, establishing several conditions that holders of certificates of coverage must meet each year. among these conditions: facilities must be designed to “prevent the discharge of pollutants to surface waters or wetlands”; must be “designed, operated and maintained to contain all waste plus the runoff from a 25-year, 24-hour rainfall event”; must design a certified animal waste management plan (cawmp) with the help of a certified technical specialist; waste must not be applied to fields at a rate faster than the nutrients can effectively be absorbed by crops.24 the current general permit is effective from october 1, 2014 until september 30, 2019. the north carolina general permit covers nearly all operation animal feeding operations, which are defined as feedlots involving more than 250 swine and a liquid waste management system.25 while these provisions sound good in theory, in practice they have had almost no effect in regulating the industry for several reasons. in 1997, the state placed a moratorium on the issuance of general permits for construction of new hog concentrated animal feeding operations (cafos), and issued a prohibition on the expansion of existing hog cafo operations. in 2007, the moratorium was made permanent under the swine farm environmental performance standards act, banning new lagoons and requiring that new or expanded cafo sites develop environmentally superior technology (ests). in order to remain permitted, sites undergoing expansions were required to reduce emissions substantially and prevent waste discharge into surface or ground water. although the state offered a sizable cost-share program, which would allow site operators to upgrade their lagoons and implement ests, only 8 had participated, as of 2013. the law, though promising in theory, grandfathered in the vast majority of existing operations, thereby allowing them to bypass regulation. a later act in 2011 allowed cafos to make updates to their buildings without needing to upgrade to ests or address their waste management practices. this effectively allowed all hog farms to increase their building and herd sizes without addressing their lagoons, counteracting any good a permit might have done.26 in september of 2014, the 22 “animal agriculture and the clean water act”, the pew environmental group. 23 “animal agriculture and the clean water act”, the pew environmental group. 24 swine waste management general permit, ncdeq. 25 “animal feeding operations program” ncdeq. 26 nicole, wendee, “cafos and environmental justice: the case of north carolina”, ehp. north carolina department of environment and natural resources (ncdenr) approved an extension of the general permitting system, making minimal changes to the process despite abundant information about the failures of the system. these permits will be in effect until september 30th, 2019.27 through ineffective policies, north carolina has allowed its hog industry to grow at an accelerated rate while failing to regulate its rudimentary hog waste disposal systems, in spite of more than two decades of public-awareness surrounding the issue. this failure on the part of the ncdenr and the state necessitates a closer look at the policies that have prevented the state from taking firm steps toward addressing the problem of hog cafo pollution. the current general permitting process lacks an oversight mechanism, which has partially contributed to its vast ineffectiveness. with no way to ensure that farms are operating as they should and a limited budget for enforcement and inspection, the permit system has been rendered ineffective at preventing pollution. additionally, the permitting process does not currently include a requirement for facilities to monitor their waste or the groundwater near their lagoons. required monitoring by the farms would facilitate the denr’s efforts to prevent groundwater contamination because farms would be more aware of their contamination, and the information would be more easily accessible. public disclosure of this information might make the owners of cafos less willing to ignore leakage and pollution problems, knowing that there would be enhanced levels of public scrutiny. though regulation at the state level has failed to effectively address hog pollution thus far, there are several actions the legislature and ncdenr could take to better protect the state’s natural resources and the health of its citizens. regulation at the national level the failure to effectively regulate cafos extends much further than north carolina’s borders. under the clean water act only about 40% of the nation’s 200,000 large livestock facilities are regulated, according to jon devine, senior attorney at the natural defense council.28 given the scale of cafos and the environmental degradation that accompanies these massive operations, this lack of regulation is astounding. in fact, the government accountability office report finds that the epa does not have a “systematic and coordinated process for collecting and maintaining accurate and complete information on the number, size, and location of permitted cafos” and therefore “does not have the information it needs to effectively regulate these operations”.29 without necessary information or even required reporting from cafos, the epa has had a difficult time appropriately regulating the industry. aside from the challenges already discussed, the epa has also struggled with issues of jurisdiction and authority in regulating certain aspects of cafos, such as the waste disposal systems of livestock and poultry farms. this has been based on disputes over the wording of the clean water act, which lists “agricultural storm water” as a non-point source, allowing some farms to skirt regulation.30 these ambiguities only add to the difficulties inherent in revising the existing legal framework to better regulate the nation’s cafos. the epa is likely to continue to face lawsuits and obstacles from the industry as they make efforts to reduce the scope of the cafo problem. 27 lado, marianne engelman, “complaint under title vi of the civil rights act”, p.5. 28 peach, sara, “what to do about pig poop?” national geographic. 29 gao report, “cafo – epa needs more information…” p.17. 30 rose acre farms v. ncdenr (2015), american farm bureau federation. environmental justice the rural poor of north carolina are disproportionately affected by the location of the hog facilities, which are almost always located near rural, low-income minority communities. residents whose homes neighbor industrial hog facilities face the following consequences: they are exposed to numerous health risks, must put up with the smells and fumes, often experience nausea and breathing problems associated with the spraying process, cannot leave laundry to dry outside, cannot use well water, cannot allow their children to play outside, often feel uncomfortable inviting guests to their homes, may not be able to get the smell of the hog waste out of their clothes, are at risk of exposure to raw waste during leaks and hurricanes, and may not be able to move because of property devaluation.31 the hog farms prevent neighbors from enjoying their property, destroy their quality of life, and cause undue stress. figure 1 in appendix a shows a map of north carolina featuring dots to represent the location of hog facilities, and colored blocks to represent the percentage of minorities living in a given area. there is a strong correlation between areas with large minority presences and the location of the odorous, polluting hog facilities. the graphic comes from a unc-ch study conducted by steve wing and jill johnston, from the department of epidemiology, which concluded that industrial hog operations in the state of north carolina disproportionately affect black, hispanic, and native american populations at a statistically significant rate, and seem to affect low-income minority communities significantly more than low-income white communities. they establish that the spatial pattern observed here is known as environmental racism.32 environmental racism does not necessarily suggest that hog farms were intentionally placed neighboring rural minority communities. often these locations are the paths of least resistance because the communities do not have the political or financial capital to prevent industrial hog operations in their communities.33 nevertheless, these populations are particularly vulnerable to environmental hazards and have reduced ability to relocate because of the industry’s effects on property values. they disproportionately bear the brunt of the pollution and harm caused by the industrial hog farming operations, and the plight of these communities cannot be ignored in the discussion of hog cafos. some advocacy groups are fighting to address these concerns and to bring about positive change for the communities affected. most notably, earthjustice – a non-profit environmental law firm – brought forth a petition to the epa alleging that the north carolina department of the environment and natural resources (ncdenr) had failed to adhere to the 1964 civil rights act in its hog pollution regulation. as mentioned above, the ncdenr is the state agency charged with protecting north carolina’s environmental and public health, and has the authority to issue permits consistent with this mission. this includes the authority to “regulate animal waste management systems at swine facilities”.34 the complaint alleged that the ncdenr’s general permit issuance to industrial swine facilities in the state had allowed the hog facilities to operate with “inadequate and outdated systems of controlling animal waste” and with minimal oversight, which proved to be detrimental to neighboring african american, latino, and native 31 nc hog farm factory litigation website. 32 wing, steve, and jill johnston, "industrial hog operations in north carolina. disproportionately impact africanamericans, hispanics, and american indians” unc-ch. 33 nicole, wendee, “cafos and environmental justice: the case of north carolina”, ehp. 34 lado, marianne engelman, “complaint under title vi of the civil rights act”, p.5. american communities.35 the complaint claims that because the ncdenr accepts funding from the epa, the department is subject to the civil rights act, title vi regulation, which prohibits discrimination, and to the epa’s title vi implementing regulations which state that “[n]o person shall be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving epa assistance on the basis of race, color [or] national origin”. earthjustice and the complainants allege that the ncdenr violated title vi by allowing the hazardous lagoon and spray field systems to continue without restriction, citing evidence that the ncdenr ignored pleas from the affected communities to require more diligent waste disposal practices, and claiming ncdenr has been aware of the hazards of the currently accepted waste disposal systems since the mid-1990s. they claim that the ncdenr “finalized the permit without analyzing the potential for disproportionate health or environmental impacts on african americans, latinos, and native americans”.36 the complaint concludes by suggesting several less discriminatory alternatives for the denr: that the department exercise their authority to require hog facilities to install monitoring and public reporting technology, waste management systems that minimize odors and pollution, and/or controls on confinement houses to filter air before it is emitted. finally, they ask that the epa “suspend or terminate epa funding to denr” should the denr not come into compliance with the 1964 civil rights act.37 in february of 2015, the epa announced that it would accept the complaint and would launch an investigation of the state agency. though an investigation does not guarantee that any of the complainants’ demands will be met, it is a step forward towards holding the ncdenr responsible for fulfilling its regulatory role. depending on the outcome of the epa’s investigation, the denr may be forced to revisit its permitting process and eventually work towards reducing pollution connected to hog farms. regardless, this complaint has served to bring the north carolina industrial hog farming back into the public eye, and has brought much needed attention to the underlying discrimination in the north carolina hog industry. while the epa investigation may not solve anything by itself, it may prompt the denr to make adjustments to its permitting process, and to consider ways of more effectively and fairly regulating hog operations. it is a shame that current state legislation fails to adequately safeguard the interests of the low-income communities who most need protection or to effectively regulate the industrial hog industry in a way that requires compliance with basic environmental standards. earthjustice’s approach of invoking the 1964 civil rights act in order to bring about environmental justice to the communities affected by hog pollution is an innovative legal solution. it is this type of legal solution that may be necessary on a large scale to address cafo pollution if legislators at the state and national level fail to provide policy solutions. recommendations and conclusion up to this point, the north carolina legislature has made futile attempts at regulating an industry that has shown blatant disregard for north carolina’s communities, air, rivers, and groundwater. the failure of legislation to regulate the existing industry is inexcusable. even without broad federal legislation regulating cafos, it is the state’s prerogative to bring hog pollution under control. one effective strategy for doing this would be to replace the moratorium on new hog facilities with technology-based compliance standards, effective immediately for 35 ibid. p.3. 36 ibid. p.11. 37 ibid. p.45. new and modified hog facilities. new regulations should remove exemptions for old hog farm facilities, and should instead give older facilities a set number of years to come into compliance. non-compliance should be a fineable offense, and to minimize the extent to which administrative and inspection positions become necessary, the new regulations should feature citizen-policing measures. such measures would allow citizens to receive a percentage of a non-compliance fine for bringing suit against a facility suspected of non-compliance. fines should be set-aside in a fund to help moderate environmental damage already caused by the hog farms, and to cover relocation costs for families wishing to move away from the polluted areas. the current permitting system instituted by the ncdenr fails to implement proper control and oversight of the hog operations, and should be revised to prioritize the health of communities situated near industrial hog operations, and to minimize emission, leakage, seepage or overflow of harmful environmental pollutants. an improved approach would not grandfather in existing facilities, but would also encourage efforts to reduce the damaged and pollution caused by current and future farms. as a nation, there are several viable avenues through which to begin to better address the problem. the epa and state agencies can continue to work under the same cwa permitting system as they currently are, making incremental improvements to the process and battling industry leaders in the courts as they struggle to retain authority. this leaves the fate of the vulnerable communities disproportionately affected by cafos at the mercy of the epa and state agencies that do not have a track record of protecting the needs of the rural minority populations. alternatively, congress could pass new legislation regulating cafos. if congress were to do so, the policy should ensure that existing facilities are expected to come into regulation within a reasonable number of years. the policy would also do well to include provisions for heavy fines for non-compliance, mandatory-monitoring systems with monthly public disclosure requirements, and incentives to continually improve existing technology standards. comprehensive federal regulations would be preferable for many reasons. it would prevent a race to the bottom among states at the expense of their rural poor populations, and would remedy the inconsistent regulation of cafos that currently exist throughout the nation. additionally, other avenues for regulation of cafos remain relatively unexplored. the clean air act was once considered as a means to regulate emissions for livestock facilities, but the lack of available data on emissions made writing feasible regulations for cafos under the caa difficult. the epa agreed that operators who monitored their own air quality were exempt from regulation during and prior to monitoring.38 depending on the success of earthjustice’s complaint using the 1964 civil rights act, future suits and complaints on the basis of environmental discrimination could be a viable short-term solution. we should be deeply concerned about the growth of industrial agriculture, and its impacts on our environment and natural resources. though this paper focused on hog cafos in north carolina, cafos are a national problem, with over 200,000 operating across the nation. the same failings in regulation of cafos at the north carolina level are present nationally as well. meat and products produced in cafos are artificially inexpensive, with hidden costs including the damage they cause to water, air, and public health. the food we eat, and the organizations we support through food choices, have real and palpable effects on the environment. public scrutiny is necessary to bring about positive change, as are conscious choices by the public to support 38 sneeringer, stacy, “does animal feeding operation pollution hurt public health?” p.124. farms and organizations that do not recklessly poison our waterways and fields. the state and federal governments have failed to regulate industrial agriculture operations in a way that prioritizes human health and the environment. this failure is indicative of the challenges in adequately regulating these powerful companies. it is essential that we continue to modify existing legal frameworks and explore innovative policy solutions in order to most effectively regulate nc hog pollution at the state level and to address the nationwide problems of cafos. appendix a: charts and figures figure 1: this graph shows the location of industrial hog operations in the state of north carolina relative to areas that are more heavily populated by minorities.39 figure 2: this chart shows the locations of permitted swine cafo operations in nc relative to the river basins they affect. 40 39 wing, steve, and jill johnston, "industrial hog operations in north carolina disproportionately impact africanamericans, hispanics, and american indians” unc-ch. 40 harden, stephen l. “surface-water quality in agricultural watersheds” usgs report. bibliography 2012 census of agriculture highlights hog and pig farming. rep. no. ach12-4. usda nass, june 2014. web. 2 dec. 2015. <http://www.agcensus.usda.gov/publications/2012/online_resources/highlights/hog_an d_pig_farming/>. "animal agriculture and the clean water act." (2008). the pew environment group. web. 7 dec. 2015. <http://www.pewtrusts.org/~/media/assets/2010/12/01/animal-agricultureand-the-clean-water-act.pdf>. "animal feeding operations program." nc department of environment and natural resources water quality. ncdeq, 2015. web. 5 dec. 2015. <http://portal.ncdenr.org/web/wq/aps/afo/program-summary>. "the attacks." protect nc farm families. 2015. web. 11 dec. 2015. <http://ncfarmfamilies.com/the-attack/>. concentrated animal feeding operations epa needs more information and a clearly defined strategy to protect air and water quality from pollution concerns. rep. no. gao-08944. united states government accountability office (gao), sept. 2008. web. 4 dec. 2015. <http://www.gao.gov/new.items/d08944.pdf>. dove, rick. "hog pollution and our rivers." waterkeeper alliance and riverlaw. web. 21 nov. 2015. <http://www.riverlaw.us/homepage.html>. edwards, bob, and anthony e. ladd. "environmental justice, swine production and farm loss in north carolina." sociological spectrum 20.3 (2000): 263-90. taylor and francis group, 30 nov. 2010. web. 8 dec. 2015. <http://www.tandfonline.com/loi/usls20>. harden, stephen l. surface-water quality in agricultural watersheds of the north carolina coastal plain associated with concentrated animal feeding operations. rep. no. 2015– 5080. virginia: usgs, 2015. web. 7 dec. 2015. <http://pubs.usgs.gov/sir/2015/5080/pdf/sir2015-5080.pdf>. heaney, christopher d., kevin myers, steve wing, devon hall, dothula baron, and jill r. stewart. "source tracking swine fecal waste in surface water proximal to swine concentrated animal feeding operations." science of the total environment 511 (2014): 676-83. elsevier, 17 jan. 2015. web. 5 dec. 2015. <http://www.ncbi.nlm.nih.gov/pubmed/25600418>. "humane society billboard campaign." twitter. humane society, 31 dec. 2013. web. 7 dec. 2015. <https://twitter.com/humanesociety/status/418062738326167553>. kuo, lily. "the world eats cheap bacon at the expense of north carolina’s rural poor." quartz. 14 july 2015. web. 5 dec. 2015. <http://qz.com/433750/the-world-eats-cheapbacon-at-the-expense-of-north-carolinas-rural-poor/>. lado, marianne engelman, and jocelyn d'ambrosio. "complaint under title vi of the civil rights act of 1964, 42 u.s.c. § 2000d, 40 c.f.r. part 7." letter to ms. mccarthy and ms. golightly-howell. 3 sept. 2014. earthjustice. web. 11 dec. 2015. <http://earthjustice.org/sites/default/files/files/north-carolina-ej-network-et-alcomplaint-under-title-vi.pdf>. lo, mariana. "hogwash from the pork industry." earthjustice. 11 dec. 2015. web. 13 dec. 2015. <http://earthjustice.org/blog/2015-december/hogwash-from-the-pork-industry>. marianne engelman lado on the environmental beef with industrial ag. rec. 2014. earthjustice. web. 11 dec. 2015. <http://earthjustice.org/audio/the-environmental-beefwith-industrial-ag>. marks, robbin. "cesspools of shame: how factory farm lagoons and sprayfields threaten environmental and public health." (2001). nrdc. natural resources defense council and the clean water network. web. 7 dec. 2015. <http://www.nrdc.org/water/pollution/cesspools/cesspools.pdf>. "nc hog farm factory litigation website." wallace & graham. 2015. web. 11 dec. 2015. <http://myhogfarmcase.com/>. nicole, wendee. "cafos and environmental justice: the case of north carolina." environmental health perspectives. national institute of environmental health sciences, june 2013. web. 4 dec. 2015. <http://ehp.niehs.nih.gov/121-a182/>. "the north carolina billboard campaign waterkeeper alliance." waterkeeper alliance. web. 12 dec. 2015. <http://waterkeeper.org/pure-farms-pure-waters/north-carolina-cafocampaign/the-north-carolina-billboard-campaign/>. north carolina. department of environment, health, and natural resources. division of environmental health on-site wastewater section. article 11 of chapter 130a of the general statutes of north carolina wastewater systems. 1 aug. 1998. web. 5 dec. 2015. <http://ehs.ncpublichealth.com/oswp/docs/rules/aug98amen.pdf>. north carolina department of the environment and natural resources. swine waste management general permit. 2014. 1 oct. 2014. web. 5 dec. 2015. <http://portal.ncdenr.org/c/document_library/get_file?uuid=2fb2070e-e9f3-4016-9fa94d9f4fba0c6d&groupid=38364>. pavilonis, brian t., wayne t. sanderson, and james a. merchant. "relative exposure to swine animal feeding operations and childhood asthma prevalence in an agricultural cohort." environmental research. u.s. national library of medicine, 15 jan. 2013. web. 11 dec. 2015. <http://www.ncbi.nlm.nih.gov/pmc/articles/pmc3980580/>. peach, sara. "what to do about pig poop? north carolina fights a rising tide." national geographic. national geographic society, 30 oct. 2014. web. 21 nov. 2015. <http://news.nationalgeographic.com/news/2014/10/141028-hog-farms-waste-pollutionmethane-north-carolina-environment/>. "regulations north carolina pork." north carolina pork council. 2015. web. 4 dec. 2015. <http://www.ncpork.org/responsibility/regulations/>. "rose acre farms v. north carolina department of environment and natural resources." afbf legal advocacy. american farm bureau federation. web. 11 dec. 2015. <http://www.fb.org/legal/recentdocket/123/>. sneeringer, stacy. "does animal feeding operation pollution hurt public health? a national longitudinal study of health externalities identified by geographic shifts in livestock production." american journal of agricultural economics 91.1: 124-27. oxford university, feb. 2009. web. 8 dec. 2015. <http://www.jstor.org/stable/20492413?search=yes&resultitemclick=true&searchtext=i nfant&searchtext=mortality&searchtext=hog&searchtext=production&searchtext=200 9&searchuri=/action/dobasicsearch?query=infant+mortality+hog+production+2009&ac c=off&wc=on&fc=off&group=none&seq=1#page_scan_tab_contents>. warrick, joby, and pat stith. "new studies show that lagoons are leaking; groundwater, rivers affected by wastewater." news and observer [raleigh, north carolina] 19 feb. 1995. the pulitzer prizes. web. 11 dec. 2015. <http://www.pulitzer.org/archives/5893>. "what is nutrient pollution?" national oceanic and atmospheric administration. noaa, 20 mar. 2014. web. 11 dec. 2015. <http://oceanservice.noaa.gov/facts/nutpollution.html>. wing, steve, and jill johnston. "industrial hog operations in north carolina disproportionately impact african-americans, hispanics and american indians." north carolina policy watch. university of north carolina at chapel hill department of epidemiology, 29 aug. 2014. web. 2 dec. 2015. <http://www.ncpolicywatch.com/wpcontent/uploads/2014/09/unc-report.pdf>. wing, steve, rachel avery horton, and kathryn m. rose. "air pollution from industrial swine operations and blood pressure of neighboring residents." environmental health perspectives 121.1. ehp, jan. 2013. web. 8 dec. 2015. <http://ehp.niehs.nih.gov/1205109/>. online version -volume 10, issue 2 brandeis university law journal spring 2023, volume 10, issue 2 editor-in-chief’s letter dear reader, your executive board is proud to present the spring 2023 issue of the brandeis university law journal. in line with our journal’s mission, this issue features five undergraduate-penned articles exploring important legal questions. these articles reckon with issues from the international community’s capacity to hold nations accountable for potential war crimes to a historical review of new york state’s conspicuous service laws, and an op-ed advancing an original super-statute that restores voting rights to the formerly incarcerated. the brandeis university law journal is unique in two respects. it is the first, and remains among the only, law journals in the country that is unaffiliated with a law school; and it is written, edited, and published by undergraduate students. as i often find myself repeating to new readers: this is a local operation. this journal is produced by a body of dedicated undergraduates who voluntarily contribute their scarce time to advance brandeisian undergraduate scholarship in national discussions concerning the law. the production of this issue would not have been possible without the contributions of our authors. their hard work in writing these five articles and their willingness to routinely revisit their work over the course of our rigorous editing process is deserving of utmost praise. additionally, our dedicated team of editors, who have so generously lent their time and skill to edit these articles is vital to maintaining the quality of writing presented in the following pages. their contributions are invaluable, and the executive board is indebted to their hard work. the current members of the executive board are worthy of many thanks, as their work in making the operations of the journal run smoothly have made this transitional semester much easier than it may have otherwise been. subsequently, we wish to thank the former members of the executive board, especially our former editor-in-chief and copy chief, sophia reiss and lauren davis. we will miss your guiding hands and are ever aware that were it not for sophia’s determination, this journal may have never been revived. the executive board would also like to thank our faculty advisors, professors breen and kabrhel, whose expertise has been essential to keeping the journal faithful to its original mission established by judah marans. furthermore, we thank the student union’s allocation board for contributing the funds needed to publish our journal. lastly, on a personal note, i would like to thank my copy chief, emanuel glinsky. manny, you are my editorial-rock. i could not do this job without you. your dedication to our work, trust in my leadership, and willingness to always be candid have made me a better leader. thank you. sincerely yours, gonny d. nir editor-in-chief 6 brandeis university law journal fall 2021, volume 9, issue 1 the discreet uniter: an analysis of elena kagan’s role on the roberts court gonny nir46 eleven years have passed since elena kagan’s appointment to the united states supreme court. kagan’s confirmation hearings were stifled with doubts concerning her lack of experience practicing law and outright absence of judicial experience. nevertheless, past colleagues, mentors, and former president obama all endorsed kagan’s intellectual prowess and her particular knack for forging consensus. since her appointment, doubts regarding the justice’s qualifications to apply justice under the law have gradually dissipated. this article aims to identify kagan’s success through examining her role as i) an advocate for democracy, ii) her textualist pragmatism, and iii) her role as an uniter on the court. pragmatic, narrow-ruling, impartial, consensus-building, and clever. these adjectives could all be used to describe justice elena kagan. kagan is neither the subject of a tumblr blog47 nor a dazzling dc star. a poll conducted by the american council of trustees and alumni found that only 44% of americans could identify kagan as a justice of the u.s. supreme court.48 evidently, kagan does not have the recognizability of some of her current or former colleagues. yet this upper west side new yorker has revealed herself to be the supreme court’s quiet and clever linchpin during her tenure thus far. the keys to kagan’s success largely stem from her jurisprudence, authoring style, and unique ability to forge consensus among her increasingly divided colleagues. jurisprudence examining kagan’s jurisprudence is essential to understanding what makes her unique from her colleagues.49 kagan’s jurisprudence is unusual in that it is grounded in the principles of textualism, a judicial method that 46 brandeis university undergraduate, class of 2025. 47 see, collaborative platform. “notorious r.b.g.” tumblr. 2013. https://notoriousrbg.tumblr.com/. 48 american council of trustees and alumni. “a crisis in civic education.” goacta.org, 2016. https://www.goacta.org/wp-content/uploads/ee/download/a_crisis_in_civic_education.pdf 49 jurisprudence is a legal theory that a judge utilizes to apply law. 33 https://www.goacta.org/wp-content/uploads/ee/download/a_crisis_in_civic_education.pdf https://notoriousrbg.tumblr.com/ brandeis university law journal fall 2021, volume 9, issue 1 interprets laws through the word choice of the legislator.50 conservative judges typically utilize this jurisprudence to conserve the role of the judiciary because it preserves a law’s primary language; traditionally resulting in a narrower ruling. hence, the term ‘conservative’ refers to the circumscribed outcomes resulting from textualism, rather than the political conservatism associated with the republican party. kagan’s decisions differ from the traditional use of textualism because she uses the principle to interpret a law and then apply the interpretation on a case-by-case basis, keeping in mind how the law will serve itself in practice. kagan’s decisions remain pragmatic, moderate, and reasonable by utilizing this kind of judicial philosophy. kagan garners intellectual respect from both her conservative and liberal-minded colleagues because she’s a grounded textualist who doesn’t stray far from the primary words of the legislator, as well as a pragmatist whose judgments are sensibly sound and founded in applicability. in sum, kagan’s jurisprudence is one of a reasonably-minded judge; which allows her to view cases in a uniquely fair fashion; free from strict ideological constraints. professor kate shaw of the cardozo school of law asserted that kagan’s jurisprudence is one of “a common-law judge who takes each case as it comes to her. she’s sort of a judge’s judge.”51 kagan doesn’t reside on either ideological extreme of the judicial spectrum, rather closer to the center. this has led her to forge consensus with much more ease than some of her more ideologically hard-minded colleagues. understanding kagan’s jurisprudence allows for a holistic understanding of her role on the roberts court. the following sections of this article will expand on her role as an advocate for democracy and how her unique jurisprudence has united both sides of the spectrum in the supreme court. an activist for democracy kagan is by no means a “people’s lawyer” in the same breath as justices ginsburg, t. marshall, or brandeis. yet, court-watchers were 50 nelson, caleb. “what is textualism?” virginia law review. september 2, 2013. https://www.virginialawreview.org/articles/what-textualism/. 51 talbot, margaret. “is the supreme court’s fate in elena kagan’s hands?” the new yorker, november, 11, 2019. sec. profiles, https://www.newyorker.com/magazine/2019/11/18/is-the-supreme-courts-fate-in-elenakagans-hands 34 https://www.newyorker.com/magazine/2019/11/18/is-the-supreme-courts-fate-in-elena-kagans-hands https://www.newyorker.com/magazine/2019/11/18/is-the-supreme-courts-fate-in-elena-kagans-hands https://www.virginialawreview.org/articles/what-textualism/ brandeis university law journal fall 2021, volume 9, issue 1 offered an exclusive glimpse of what invigorates the justice by virtue of her impassioned dissent in rucho v. common cause (2019). rucho encompassed two cases of gerrymandering in north carolina and maryland, where voter suppression materialized due to congressional districts drawn to appease political outcomes. the majority opinion, authored by chief justice john roberts, argued that “a ‘political question’... [is] nonjusticiable— outside the courts’ competence and therefore beyond the court’s jurisdiction.”52 in an uncharacteristically sharp dissent, kagan disputed that the judiciary is bound by an active pledge to protect the democratic process from politically charged harm. appealing to the very essence of representative republican democracy, kagan wrote: ...partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core american idea that all governmental power is fundamentally from the people… they encouraged a politics of polarization and dysfunction. if left unchecked, gerrymanders like the ones here may irreparably damage our system of government.53 the dissent, dripping in impassioned similarity to the dissenting style of her former colleague justice ginsburg, marked one of the few occasions where kagan has so viscerally rejected a majority’s opinion. in her quest for plurality, the justice has not dissented more than four times per term and she has yet to file more than three concurrences in one term.54 kagan’s dissents convey a heavier significance than some of her other colleagues because so few are issued per term. less is more in terms of kagan’s dissents; if she does dissent, it is due to a fundamentally rudimentary argument that she cannot align herself with. in kagan’s eyes, rucho v. common cause overstepped the bindings of the framers’ vision for this republic. kagan’s tone was that of a gutted justice, ending her dissent by stating, “with respect but deep sadness, i dissent.”55 52 rucho v. common cause, 588 u.s. 422 (2019). 53 rucho v. common cause, 4. 54 ballotpedia. “elena kagan,” ballotpedia.org, 2020. https://ballotpedia.org/elena_kagan 55 rucho v. common cause, 72. 35 https://ballotpedia.org/elena_kagan brandeis university law journal fall 2021, volume 9, issue 1 in the court’s 2020 term, kagan voted with the majority 75% of the time.56 her colleagues take note when she is among the minority, chiefly when she’s the author of the dissent. kagan favors unanimity as a method of safeguarding the court’s legitimacy, often phrasing her majority opinions in the narrowest sense, so that a majority of seven justices or more can be obtained. her technique is elementary yet effective: adhere to the text, and remain practical. an atypical textualist who directs novel alliances statutory interpretation, the term used to describe adhering to the primary text of a law, is traditionally considered a core principle among conservative judges. yet kagan’s use of it has enabled her decisions to remain equitable and has even earned a conservative colleague’s vote on several occasions. perhaps the optimal illustration of kagan’s adherence to statutory interpretation is exemplified by her dissent in yates v. united states (2015), which saw the conservative justices scalia, thomas, and kennedy sign on to her opinion.57 yates centered around a fisherman, john l. yates, and his crew, who ventured into the federal waters off the gulf of mexico. once the fishermen returned to the harbor, federal field officer john jones measured a group of fish that appeared to be less than the mandated twenty inches. jones issued yates a citation, informing yates that the national marine fisheries service would confiscate the fish upon the ship’s docking. yates and co. threw the fish overboard and reinstated a larger group of fish in direct violation of jones’ instructions. through criminal law, 18 u. s. c. §1519, yates was charged with falsification and destruction of evidence.58 the majority, authored by justice ginsburg, argued that yates was not in violation of 18 u. s. c. §1519 because congress intended the phrase “tangible object” to pertain solely to objects of “financial-fraud mooring… [a tangible object] must be one used to record or preserve information.”59 in a witty dissent, kagan argued the plain language stated: the term “tangible object” means the same thing in §1519 as it means in everyday language—any object capable of being touched… the term “tangible object” is broad, but clear… when congress has not 56 ballotpedia. “elena kagan,” ballotpedia.org, 2020. https://ballotpedia.org/elena_kagan 57 yates v. united states, 574 u.s. 528 (2015). 58 yates v. united states. 59 yates v. united states, 5. 36 https://ballotpedia.org/elena_kagan brandeis university law journal fall 2021, volume 9, issue 1 supplied a definition, we generally give a statutory term its ordinary meaning.60 the dissent flawlessly captures the universality of kagan’s textualist outlook in combination with her pragmatism. by examining the plain text of §1519, kagan implemented a common-law approach to a reasonably candid circumstance. the synthesis of textualism and pragmatism, showcased how kagan utilizes the plain meaning of a legislated statute to apply to a case, so that the outcome would make more comprehensive sense in practice. kagan’s unique approach to law has united her with justices of opposing jurisprudence more commonly than all of her ideologically-like-minded comrades.61 in this dissent, kagan even seized the accord of two of the staunchest originalists, justices scalia and thomas, on the court at the time. kagan’s unique ability to garner consensus by listening to opposing views ere to her tenure on the court is best exemplified by her deanship at harvard law school. kagan served as dean of harvard law between 2003 and 2009. within those years, twenty-four full-time professors were hired, an astounding number considering a two-thirds supermajority is required to appoint all new faculty members.62 believing that students should receive a holistic education, kagan sought out conservative-minded professors to add to an overwhelmingly liberal faculty. when testifying before the senate judiciary committee on her supreme court nomination, former harvard dean turned professor, robert c. clark stated, “it says something about the ability of the dean to build consensus.”63 expanding on kagan’s admiration of opposing views, clark attested, “she wasn’t just ‘political’; she actually learned to understand and appreciate many different points of view.”64 60 yates v. united states, 29. 61 bowers, jeremy, liptak, adam, & willis, derek. “which supreme court justices vote together most and least often.” the new york times, july 3, 2014, sec. the upshot. https://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html. 62 “hls professors testified on behalf of elena kagan ‘86,” harvard law today, july 7, 2010. sec. faculty scholarship, https://today.law.harvard.edu/hls-professors-testified-onbehalf-of-elena-kagan-86/. 63 “hls professors testified on behalf of elena kagan ‘86,” harvard law today, july 7, 2010. sec. faculty scholarship, https://today.law.harvard.edu/hls-professors-testified-onbehalf-of-elena-kagan-86/. 64 “hls professors testified on behalf of elena kagan ‘86,” harvard law today, july 7, 2010. sec. faculty scholarship, https://today.law.harvard.edu/hls-professors-testified-onbehalf-of-elena-kagan-86/. 37 https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ https://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html brandeis university law journal fall 2021, volume 9, issue 1 kagan’s sui generis65 capability to seek the crux of the opposing side’s argument is essential to understanding her role on the roberts court. kagan does not simply search for an argument’s elementary claims. rather, she wishes to comprehend the idea at its core. in his testimony before the senate judicial committee during kagan’s confirmation hearings, harvard professor jack goldsmith revealed, “kagan sought my views and expressed a genuine interest in my arguments and ideas. i never got the sense that she wanted to know what i thought as a conservative. for kagan, it was the idea and the argument that mattered.”66 perhaps the greatest testament to kagan’s thirst for intellectual difference comes from her late colleague, justice scalia, who confessed to cnn’s david axelrod that he hoped president obama would nominate kagan for a seat on the high bench. scalia divulged, “i hope he sends us someone smart… i hope he sends us elena kagan.”67 scalia unquestionably knew kagan’s jurisprudence would differ axiomatically from his. yet, scalia appreciated not only kagan’s intellectual capacity but her willingness to hear the other side for the sake of diversifying her views. in addition to peer confession, kagan’s martin-quinn (mq) score can discern another testament to her ideological overlap with her conservative colleagues. a martin-quinn score is a dynamic metric developed by a duo of political scientists from the university of michigan that measures a justices’ ideological lean by assessing their voting record. by plotting a given justice on a continuum with conservative on the positive range and liberal on the negative range, each vote a justice casts shifts the justice’s overall placement on the continuum which has no minimum or maximum values. the objective of the mq model is to quantitatively measure a justice’s ideological lean, with the hopes of gauging how justice’s align and morph throughout their tenure.68 kagan’s mq score 65 original, or unique. 66 “hls professors testified on behalf of elena kagan ‘86,” harvard law today, july 7, 2010. sec. faculty scholarship, https://today.law.harvard.edu/hls-professors-testified-onbehalf-of-elena-kagan-86/. 67 axelrod, david. “a surprising request from justice scalia,” cnn, march 9, 2016, sec. opinion, https://www.cnn.com/2016/02/14/opinions/david-axelrod-surprise-request-fromjustice-scalia/index.html. 68 farnsworth, ward. “the use and limits of martin-quinn scores to assess supreme court justices with special attention to the problem of ideological drift.”northwestern university law review colloquy. nov. 2007: 12, 38 https://www.cnn.com/2016/02/14/opinions/david-axelrod-surprise-request-from-justice-scalia/index.html https://www.cnn.com/2016/02/14/opinions/david-axelrod-surprise-request-from-justice-scalia/index.html https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ brandeis university law journal fall 2021, volume 9, issue 1 stands at -1.69, this reasonably dictates why justice brett kavanaugh (0.51) and chief justice john roberts (0.22) have frequently voted alongside kagan in cases.69 unanimity, she will pursue if the court is to be continually seen as a statutory institution, widespread consensus whenever and wherever possible is crucial. kagan’s textualist pragmatism, which tends to appease both sides of the bench to forge a more robust majority, is well exemplified by loughrin v. united states (2014). lourghin consisted of a bank-fraud scheme insinuated by the defendant, kevin loughrin, in which he stole mailed-out checks from individuals, bought items at target, and returned those items in exchange for cash. the question at hand regarded whether a federal prosecutor ought to prove a defendant’s intent to defraud a financial institution under 18 u. s. c §11344. at the outset of his trial, loughrin confessed the sole intent to defraud target inc., not the banking institutions from which the checks were derived. the second clause of §11344 states “whoever knowingly executes, or attempts to execute, a scheme or artifice… to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises’” be fined no more than $1,000,000 or 30 years in prison (or both).70 loughrin argued that if the court were to interpret the ‘by means of’ language to include all petty frauds involving checks “all frauds affected by receipt of a check would become federal crimes.”71 a federalism faux pas, as states are customarily tasked with prosecuting “bad check” cases. yet, kagan argued that “it is not enough that a fraudster scheme to obtain money from a bank and that he make a false statement… the criminal must acquire (or attempt to acquire) bank property ‘by means of’ the misrepresentation.”72 essentially ruling that bank fraud by means of a check can only be prosecuted federally if the criminal’s https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi? article=1110&context=nulr_online 69 michigan law school. “martin-quinn scores,” m|lsa, 2019, https://mqscores.lsa.umich.edu/measures.php 70 loughrin v. united states, 573 u.s. 316 (2014) 71 loughrin v. united states, 18. 72 loughrin v. united states, 14. 39 https://mqscores.lsa.umich.edu/measures.php https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1110&context=nulr_online https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1110&context=nulr_online brandeis university law journal fall 2021, volume 9, issue 1 deception naturally induces a bank to part with property or money in its possession.73 the central crux of loughrin’s claim rested on the assertion that by stretching the language of 18 u. s. c §11344(2), every bank fraud case committed by means of a check would be subject to federal prosecution. however, kagan with legislative history as an advocate for her argument, argued: “nothing in the [second] clause additionally demands that a defendant have a specific intent to deceive a bank… imposing that the requirement would prevent §11344(2) from applying to a host of cases falling within clear terms.”74 kagan clarified that 18 u. s. c §11344’s first clause “to defraud a financial institution,” was written with the intent to separate it from the language of the second clause so that a broader range of cases could be decided under 18 u. s. c §11344(1) and (2). this opinion chiefly represents how kagan’s textual pragmaticism was able to gain a broad consensus, as the court unanimously ruled 9-0. each conservative justice signed on to her opinion because of the clear and direct interpretation of 18 u. s. c §11344. yet, by interpreting it in such a practical manner, kagan was able to garner the consensus of her liberal colleagues as well. it’s not guaranteed that had the second clause of 18 u. s. c §11344 been interpreted alternatively, it would have secured a unanimous vote. justice scalia, for example, merely concurred in the ruling because he was unconvinced by the government’s ‘natural inducement’ test which the majority accepted. scalia expressed that the court heard “scant argument (nothing but the government’s bare-bones assertion) in favor of the ‘by means of’ textual limitation, and no adversary presentation whatever opposing it.”75 scalia believed that interpreting §11344(2)’s ‘by means of” language, should follow the dictionary’s definition, of “[a]method, or course of action, by the employment of which [bank property was] attained,” so that 18 u. s. c §11344 would innately involve criminally inducing a bank away from its money or property.76 scalia remained unconvinced by the government’s ‘natural inducement,’ test, thus expressing that the court should have left deciding the textual limitations of the ‘by means of” test for another case. yet, it should be noted that justice thomas was the sole signed 73 loughrin v. united states, 18. 74 loughrin v. united states, 7. 75 loughrin v. united states, 18. 76 loughrin v. united states, 19. 40 brandeis university law journal fall 2021, volume 9, issue 1 justice to scalia’s opinion. yet kagan’s received eight signatures, it suffices to show that kagan’s pragmatic interpretation of 18 u. s. c §11344 permitted that unanimity to materialize. in an era of severe political polarity infiltrating the halls of the legislature and the office of the executive, americans are becoming increasingly pessimistic regarding the federal government’s ability to govern. thus, the judiciary must take it upon itself to be a model of what the framer’s would identify as “good government,” or what modern generations refer to as “productive.” suppose the court consistently turned out 5-4 or 63 decisions. in that case, the american people would see the judiciary as just another political branch of government that cannot put its differences aside to solve palpable issues. a number of justices have professed their concern for the court’s legitimacy. yet, none have expressed the concern more directly and frequently than kagan. in a lecture given at georgetown law, kagan professed that “during these polarized times… [the justices should] look and see if there’s something smaller we can agree on, some greater consensus we can achieve,” adding that unanimity was crucial to maintaining the court’s legitimacy.77 kagan comprehends the colossal weight currently placed on the court’s shoulders. thus it’s not a stretch of the imagination to conclude that she has the court’s legacy in mind while she’s tenured on the high bench. conclusion in concluding this analysis, it is of great importance to view kagan as a unique player on the roberts court. due to her unparalleled jurisprudence, she likely possesses the greatest ability to sway justices from one side of an opinion to the other. kagan’s narrow-rulings allow her to feel more comfortable siding with her decisions as they don’t necessarily change the court’s precedent dramatically. court-watchers mustn’t mistake kagan’s fairness for disinterest, she shows a great deal of passion for protecting the voting rights of citizens and has zero tolerance for political gerrymanders, regardless of which side of the political aisle they benefit. fairness, in every sense of the word, perfectly describes kagan as a judge. she’s shown 77 “what justice kagan told aba about decision-making, politics, pro bono, and more.” american bar association. november 2018. https://www.americanbar.org/news/abanews/publications/youraba/2018/november-2018/ what-justice-kagan-told-the-aba-about-decision-making--politics-/ 41 https://www.americanbar.org/news/abanews/publications/youraba/2018/november-2018/what-justice-kagan-told-the-aba-about-decision-making--politics-/ https://www.americanbar.org/news/abanews/publications/youraba/2018/november-2018/what-justice-kagan-told-the-aba-about-decision-making--politics-/ brandeis university law journal fall 2021, volume 9, issue 1 distinguished humbleness and admiration for the position she currently holds; her tenure, though only in its early stages, has proven to be one of vital importance to this unique era of the supreme court. 42 brandeis university law journal fall 2021, volume 9, issue 1 works cited collaborative platform. “notorious r.b.g.” tumblr. 2013. https://notoriousrbg.tumblr.com/ nelson, caleb. “what is textualism?” virginia law review. september. 2, 2013. https://www.virginialawreview.org/articles/what-textualism/. american council of trustees and alumni.“a crisis in civic education,” goacta.org, 2016. https://www.goacta.org/wp-content/uploads/ee/download/a_cris_in_civic_ education.pdf talbot, margaret. “is the supreme court’s fate in elena kagan’s hands?” the new yorker, november, 11, 2019. sec. profiles, https://www.newyorker.com/magazine/2019/11/18/is-the-supreme-courtsfate-in-elena-kagans-hands ballotpedia. “elena kagan,” ballotpedia.org, 2020. https://ballotpedia.org/ elena_kagan bowers, jeremy, liptak, adam, & willis, derek. “which supreme court justices vote together most and least often.” the new york times, july 3, 2014, sec. the upshot. https://www.nytimes.com/interactive/2014/06/24/upshot/24upscotus-agreement-rates.html. “hls professors testified on behalf of elena kagan ‘86,” harvard law today, july 7, 2010. sec. faculty scholarship, https://today.law.harvard.edu/ hls-professors-testified-on-behalf-of-elena-kagan-86/ axelrod, david. “a surprising request from justice scalia,” cnn, march 9, 2016, sec. opinion, https://www.cnn.com/2016/02/14/opinions/davidaxelrod-surprise-request-from-justice-scalia/index.html farnsworth, ward. “the use and limits of martin-quinn scores to assess supreme court justices with special attention to the problem of ideological drift.” northwestern university law review colloquy. nov. 2007: 12, 43 https://www.cnn.com/2016/02/14/opinions/david-axelrod-surprise-request-from-justice-scalia/index.html https://www.cnn.com/2016/02/14/opinions/david-axelrod-surprise-request-from-justice-scalia/index.html https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ https://today.law.harvard.edu/hls-professors-testified-on-behalf-of-elena-kagan-86/ https://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html https://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html https://ballotpedia.org/elena_kagan https://ballotpedia.org/elena_kagan https://www.newyorker.com/magazine/2019/11/18/is-the-supreme-courts-fate-in-elena-kagans-hands https://www.newyorker.com/magazine/2019/11/18/is-the-supreme-courts-fate-in-elena-kagans-hands https://www.goacta.org/wp-content/uploads/ee/download/a_crisis_in_civic_education.pdf https://www.goacta.org/wp-content/uploads/ee/download/a_crisis_in_civic_education.pdf https://www.virginialawreview.org/articles/what-textualism/ https://notoriousrbg.tumblr.com/ brandeis university law journal fall 2021, volume 9, issue 1 https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi? article=1110&context=nulr_online michigan law school. “martin-quinn scores,” m|lsa, 2019, https://mqscores.lsa.umich.edu/measures.php “what justice kagan told aba about decision-making, politics, pro bono, and more.” american bar association. november 2018. https://www.americanbar.org/news/abanews/publications/youraba/2018/ november-2018/what-justice-kagan-told-the-aba-about-decision-making-politics-/ cases cited rucho v. common cause, 588 u.s. 422 (2019) yates v. united states, 574 u.s. 528 (2015) loughrin v. united states, 573 u.s. 316 (2014) 44 https://www.americanbar.org/news/abanews/publications/youraba/2018/november-2018/what-justice-kagan-told-the-aba-about-decision-making--politics-/ https://www.americanbar.org/news/abanews/publications/youraba/2018/november-2018/what-justice-kagan-told-the-aba-about-decision-making--politics-/ https://www.americanbar.org/news/abanews/publications/youraba/2018/november-2018/what-justice-kagan-told-the-aba-about-decision-making--politics-/ https://mqscores.lsa.umich.edu/measures.php https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1110&context=nulr_online https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1110&context=nulr_online untitled document reining in the imperial presidency: the case for a weak executive julian flesch158 abstract: over the years, the executive branch, in particular the presidency, has become extremely powerful. in fact, it has far more power than the constitution allows. what can be done to limit executive power as the constitution intended? the powers and functions of the presidency, mainly found in article ii of the constitution, are actually very limited, but public perception and legal theories have given the institution immense power. in particular, former president trump and his administration have dangerously increased the power of the executive branch. this piece discusses the theories and actions that have led us to this point, and proposes necessary changes to curb executive power in accordance with the constitution and founding principles. in 1973, in the imperial presidency, arthur schlesinger described an out-of-control, monarchical institution. he argued that the presidency then (nixon had just begun his second term) had far more power than the constitution allows. in my view, that is still the case. former president trump believed he was above the law, and had a monarchist attorney general to aid him. both men were fully content to run roughshod over two co-equal branches of government, and that means it is clear that the presidency has spun out of control and that it is time to rein it in. a constitutional amendment or amendments to minimize executive power would be too difficult to enact given the process. therefore, changes to the law and to legal policy are the only way to limit executive power. here, i will outline the constitutional functions of the president, the origins of today’s broad view of executive power, and the changes that the next administration and congress need to make. article ii of the constitution defines the powers of the presidency. article ii, section i states that “the power of the executive branch shall be vested in a president of the united states.”159 the word “vested” is the basis for the monarchical “theory of the unitary executive”, which holds that the president is the absolute head of the executive branch and holds broad power over its many administrative agencies. proponents of this theory also argue that the president can intervene on all agency decision-making, including matters in which they have a personal stake, and that he can fire any agency official for any reason. i disagree. while it is true that executive branch officials serve at the pleasure of the president, that does not mean they can issue illegal orders or fire them in order to cover up illegal actions, and courts have ruled on presidential immunity in investigations. the constitution also gives the president the power to appoint members of his cabinet, ambassadors, and judges with the advice and consent of the senate. third, the president is the commander in chief of the armed forces, and has the power to pardon. his most important responsibilities are to keep the nation safe, to protect the 159 us const., art. 2 sec. 1. cl.1 158 undergraduate at brandeis university, class of 2022. 56 constitution, and to “take care that the laws be faithfully executed.”160 some argue that this makes the president the chief law enforcement officer of the united states. this argument fails because implementation and enforcement are two different things. implementation, or execution, of the law, means that the president is ensuring that the laws take effect. enforcement means ensuring that people obey the laws once they take effect as well as punishing those who break them. there is no reason to think the president is the chief law enforcement officer. not only has executive power itself expanded; so has the belief in a strong, monarchical presidency. this is true in most circles of public life, not only conservative america. the american public looks to the president to lead the nation in times of crisis, and to use the power of his office to better the lives of the citizenry and to protect the national interest: we want our president to stimulate our national economy while protecting our local ones—and we roundly condemn him when either shows signs of weakness. we call on the president to simultaneously liberate the creative imaginations of private industry and regulate corruption within. we call on the president, as the main steward of the nation’s welfare, to resuscitate our housing and car industries while reducing the national debt. we bank on the president, as commander in chief, to wage our wars abroad while remaining attentive to all emergent foreign policy challenges beyond today’s battlefields. we look to the president, as the nation’s figurehead, to be among the first on the scene at disasters, to offer solace to the grieving, to assign meaning to lives lost and ruined. all this we expect presidents can do. all this we insist they must do.161 although the constitution strongly limits what the president can actually do, the public believes that the president to be all powerful and expects the president to use that power. howell notes that “most americans see their entire government in the presidency.”162 this means that americans are more likely to support a president who seeks to exercise power and perhaps to disregard the constitution, especially if that president belongs to their own political party. an authoritarian figure may be attractive for that reason. as the public might see it, a weak executive will plunge the country into ruin. after the great depression, strong government programs in the new deal as well as government cooperation with industry led the country out of this collapse. in the 1960s, lyndon johnson implemented the great society, a master at projecting presidential power. but even american conservatism, supposedly devoted to the principle of limited government, has championed executive power. conservatives in fact devised 162 howell, “primacy” p.5. 161 william howell, “thinking about the presidency: the primacy of power”, princeton, 2015, p.1. 160 us const., art. 2, sec. 3 cl.5 57 the aforementioned “theory of the unitary executive”. while one might expect originalists, as conservatives often claim to be, to believe in a weaker executive, steven skowronek notes that [t]he overall effect [of this new view of executive power] is to authorize the president to capitalize on all that the historical development of national power has created while leaving to others the constitution’s most rudimentary and combative instruments: term limits and quadrennial elections, congressional control of the purse and senate review of appointments, judicial intervention and the threat of impeachment.163 conservatives are not against enumerated checks and balances such as impeachment and the advice and consent clause, but they are against unenumerated checks such as general congressional oversight absent impeachment and congress’s being able to regulate various executive agencies. similarly, they are against criminal investigations of and lawsuits against a president from outside the legislative branch. writing for the minnesota law review, then-judge brett kavanaugh wrote: “congress might consider a law exempting a president—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”164 in line with the conservative stance against other unenumerated checks and balances, the only constitutional mechanism they accept for punishing the president is impeachment. therefore, they would argue, a strong executive subject only to these guidelines is constitutional. skowronek also notes that conservative proponents of executive power “have reinvigorated traditional conservative arguments for resting power on original understandings of the constitution.”165 this belief that the founders outlined a strong executive in the constitution has been dominant among conservative lawyers and jurists for decades, and extends into the current day and our current government, including the department of justice. in 2018, attorney general william barr166, at the time a private citizen, wrote a nineteen page unsolicited memo to then deputy attorney general rod rosenstein. in that memo, barr argued that special counsel robert mueller’s supposed application of the obstruction of justice laws would undermine the presidency: 166 barr was the attorney general at the time this piece was written. he resigned on december 23rd, 2020 165 skowronek, “insurgency,” p.2077 164 judge brett kavanaugh, separation of powers during the forty-fourth presidency and beyond, minnesota law review, vol.93, 2009, p.1461 https://www.minnesotalawreview.org/wp-content/uploads/2012/01/kavanaugh_mlr.pdf 163 steven skowronek, “the conservative insurgency and presidential power: a developmental perspective on the unitary executive”, harvard law review vol. 122, 2009, p.2077 http://harvardlawreview.org/wp-content/uploads/pdfs/skowronek.pdf 58 https://www.minnesotalawreview.org/wp-content/uploads/2012/01/kavanaugh_mlr.pdf http://harvardlawreview.org/wp-content/uploads/pdfs/skowronek.pdf mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction. apart from whether mueller has a strong enough factual basis for doing so, mueller’s obstruction theory is fatally misconceived. as i understand it, his theory is premised on a novel and legally insupportable reading of the law. moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.167 here, barr argues that even if mueller did have a factual basis for questioning president trump on obstruction of justice, he cannot do so because his theoretical interpretation of the law is wrong. this is a circular argument, because barr is saying that even if mueller has a legal basis to interview the president, he has no legal basis to do so. barr also gives a hint of his maximalist views on the executive, because he asserts that simply allowing an interview with the president on obstruction would be bad for the office. barr continues by arguing that “the constitution vests plenary authority over law enforcement proceedings in the president, and therefore one of the president’s core constitutional authorities is precisely to make decisions ‘influencing’ proceedings.”168 under this theory, a prosecutor cannot imply that interfering in law enforcement proceedings would be obstruction of justice -when in fact that is the very essence of obstruction of justice. but such an authority -to make decisions that influence what the justice department does -is not enumerated. barr’s argument renders the president a monarch. if the president can interfere with a law enforcement proceeding or refuse to cooperate with one, that would place them above the law. barr also argues that obstruction of justice does not apply to “facially lawful act[s],”169 but this argument also renders the president above the law because it does not matter if something is lawful on its face. the intent of the action is what matters: whether the president is attempting to obstruct the proceeding even if what they do is, as barr would put it, “facially lawful.” now barr argues that the impeachment clause still exists as a remedy. however, under a unitary executive, investigations that are a roadmap to impeachment, including congressional ones, are unconstitutional, because the constitution does not have explicit provisions for them. after all, the theory holds that the president has authority over the whole executive branch, not congress, and is therefore entitled to direct cooperation or lack thereof, with all investigations. 169 barr, p.9 168 barr, “obstruction,” p.9 167 united states department of justice, william barr, memorandum “re: mueller’s ‘obstruction’ theory,” june 8th, 2018, p.1 https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/f ull.pdf 59 https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/full.pdf https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/full.pdf over the past year, we have seen a runaway executive guided by these theories. after the release of the mueller report, the special counsel documented 10 instances of potential obstruction of justice. barr concluded that the evidence was insufficient. mueller could not even offer a conclusion on that issue because doj policy forbids indicting a sitting president and to conclude that trump committed a crime without an indictment, something that would give him his day in court, would leave the president unable to truly defend himself against such allegations. so, congress attempted to investigate further. however, president trump directed former white house counsel don mcgahn, a key witness, not to testify before the house judiciary committee under subpoena, citing a made-up doctrine of “absolute immunity.”170 the white house asserted executive privilege over documents across the administration. they also refused to allow many administration officials to testify before congress. when they did, white house officials directed them not to answer any questions about their time in the white house. in fact, the white house even asserted executive privilege over the testimony of former trump campaign manager corey lewandowski, who never worked in the white house. now, the conservative legal movement might argue that these investigations were unenumerated, and therefore, the white house did not have to cooperate. however, the white house also obstructed the house of representatives’ impeachment inquiry this past year. in a letter to various committee chairs and to house speaker nancy pelosi, white house counsel pat cipollone said that “in order to fulfill his duties to the american people, the constitution, the executive branch, and all future occupants of the office of the presidency, president trump and his administration cannot participate in your partisan and unconstitutional inquiry.”171 he cited various due process concerns and complained that the process was unfair. he did not, however, assert any legal basis for the white house’s refusal to cooperate. in more finely worded language, he essentially invoked the president’s war cries of “witch hunt” and “presidential harassment.” nor did he ever assert legal bases for blocking administration officials from testifying in the inquiry, only the nonexistent doctrine of “absolute immunity,” which the supreme court rejected earlier this year in trump v. vance. this refusal to cooperate with congressional subpoenas even in an impeachment inquiry allows the president to run roughshod over a co-equal branch of government. the executive does not get to decide whether it will cooperate with an impeachment inquiry, because under article 171 pat cipollone, letter on october 9th, 2019, p.2 https://docs.google.com/viewerng/viewer?url=https://www.whitehouse.gov/wp-content/uploads/2019/10/pac-letter -10.08.2019.pdf?utm_source%3dtwitter%26utm_medium%3dsocial%26utm_campaign%3dwh 170 pat cipollone, letter to chairman nadler re: mcgahn testimony, may 20th, 2019 https://d3i6fh83elv35t.cloudfront.net/static/2019/05/pacletterjn05.20.2019.pdf 60 https://docs.google.com/viewerng/viewer?url=https://www.whitehouse.gov/wp-content/uploads/2019/10/pac-letter-10.08.2019.pdf?utm_source%3dtwitter%26utm_medium%3dsocial%26utm_campaign%3dwh https://docs.google.com/viewerng/viewer?url=https://www.whitehouse.gov/wp-content/uploads/2019/10/pac-letter-10.08.2019.pdf?utm_source%3dtwitter%26utm_medium%3dsocial%26utm_campaign%3dwh https://d3i6fh83elv35t.cloudfront.net/static/2019/05/pacletterjn05.20.2019.pdf 1, “the house shall have the sole power of impeachment.”172 a refusal to cooperate because of perceived unfairness cannot stand. with no legal bases to adjudicate in the courts, this refusal constitutes a clear obstruction of congress. there is nothing judiciable in ordering the blanket defiance of subpoenas. merely ordering a blanket defiance of subpoenas, or as the president would put it, “fighting all the subpoenas” because “these are not impartial people,” is not something that can be litigated. in light of these actions, it is time for congress and the next department of justice to make changes to the law and legal policy in order to restore the constitutional order. the first necessary change is to criminalize defiance or ordering defiance of congressional subpoenas absent the assertion of executive privilege or some other verified legal basis. one of the articles of impeachment against trump was obstruction of congress. this charge centers on the trump white house’s ordering current and former administration officials not to comply with subpoenas. as mentioned above, he and cipollone argued that current and former officials are "absolutely immune" from testifying to congress, even under subpoena. this doctrine is nonexistent; it both nullifies the power of the legislature and helps to render the executive monarchical. therefore, it must be illegal to defy subpoenas or to order others to do so. on the point of cooperation, congress should pass a law or rule change to authorize the sergeant-at-arms, in a committee hearing, to hold any witness in contempt of congress if necessary without a full vote in either house of congress or a decision from the federal judiciary. lewandowski repeatedly refused to answer questions under subpoena, claiming executive privilege, even though he did not work in the white house. holding a vote in congress or going through the court system leads to untenable potentially year-long delays and allows the executive to stall and run out the clock on legitimate processes. therefore, this change is also necessary to restore checks and balances. it is not only the presidency that is out of control, but also the department of justice. currently, the only remedy for crimes committed by the attorney general of the united states is impeachment. this cannot stand. because impeachment and removal of any government official is difficult to accomplish, it is nearly impossible to hold the attorney general to account when he commits a crime such as lying under oath to congress (as attorney general barr did in 2019)173. it should not be so difficult to hold the ag accountable, considering that it is a crime for anyone else to lie to congress. 173 in testimony before a senate subcommittee in april of 2019, barr stated that he did not know if mueller supported the conclusions in his march 24th letter to congress about the report. however, barr received a letter from mueller criticizing this letter, and the two spoke over the phone. mueller said barr’s conclusions were not inaccurate but that the press had covered his work incorrectly due to the letter. if mueller said barr’s conclusions were not inaccurate, he supported the conclusion. if he said it was inaccurate or incomplete, he did not support the conclusion. either way, barr would know. 172 us const., art. 1, sec. 2, cl. 5 61 when an attorney general chooses to act as the president’s personal lawyer, as barr has done, there is little chance that he will appoint a special counsel to investigate potential illegal activity by the president or their administration. with that in mind, congress should pass a law allowing a vote in both houses to appoint a special counsel to investigate allegations of presidential misconduct in the event that the attorney general refuses to do so. a simple majority in both houses should be sufficient to authorize the appointment, and the resolution could originate in either chamber. the law should also require the other house of congress to take up the resolution and vote on it, within a short time period (thirty days?) if the originating chamber passes it. any such resolution should designate a specific special counsel, so that the attorney general will not appoint a paper tiger. congress should also consider reviving the independent counsel statute, the ethics in government act, which expired in 1999. this law gave the judiciary the authority to appoint a special counsel with the same authority as any special counsel that the doj appoints. this allows for oversight by authorities other than the attorney general. the attorney general cannot overrule charging decisions by the independent counsel, and the president cannot fire the independent counsel, which allows them to finish their investigation without interference. last, but certainly not least, the next department of justice should reverse the office of legal counsel opinion barring the indictment of a sitting president of the united states.174 special counsel robert mueller declined to make a traditional prosecutorial judgment on whether president trump obstructed justice because of this policy. attorney general barr was then able to lie about whether the evidence was sufficient, when in fact there was overwhelming evidence to establish that the president obstructed justice. had mueller been able to say that, and speak for the evidence rather than letting it speak for itself, barr could not have lied about it. nothing in the constitution bars the indictment of a sitting president. some would argue that the policy exists to ensure the separation of powers. they argue that it is the responsibility of the congress to charge a sitting president with wrongdoing and to remedy such misconduct via impeachment. they argue that an indictment interferes with that power. however, i believe that an indictment and a prosecution are two different things. a prosecution is a proceeding, where the accused must defend themselves in a court of law, while an indictment is an allegation. i agree that a prosecution would interfere with the powers of the congress, which include the power to impeach. if a president were to be found guilty in an ordinary court of law, no one would be able to remove them from office to serve their sentence since only congress can vote to remove the president. impeachment is the only way to remove anyone from office under the 174 united states department of justice, office of legal counsel, “a sitting president’s amenability to indictment and criminal prosecution: memorandum opinion for the attorney general,” october 16th, 2000 https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf 62 https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf constitution. an indictment, however, is merely a formal accusation of a crime. the prosecution does not have to take place while the president is in office. in fact, the indictment itself can be a recommendation of impeachment. in that regard, congress, or the states, might also consider a constitutional amendment to make indictment the penalty for statutory crimes other than treason or bribery, and in the event of an indictment, a trial can take place, and conviction will result in removal from office. i believe that all of these changes will lead to a return to a limited executive branch as the constitution intended. the founders did intend for the president to have the ability to be decisive, but they did not intend to make the president a monarch. therefore, they placed strict limits on what the president could do when they crafted the constitution. restoring the power of the legislature, the judiciary, and the justice system will bring about a return to the constitutional system of checks and balances that the framers designed in order to prevent autocracy. 63 works cited barr, william, memorandum, “re: mueller’s obstruction theory”, united states department of justice, june 8th, 2018 https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39 318dd2d136b3/optimized/full.pdf cipollone, pat, “letter to chairman nadler re: mcgahn testimony”, may 20th, 2019 https://d3i6fh83elv35t.cloudfront.net/static/2019/05/pacletterjn05.20.2019.pdf cipollone, pat, “letter on october 9th, 2019” https://docs.google.com/viewerng/viewer?url=https://www.whitehouse.gov/wp-content/u ploads/2019/10/pac-letter-10.08.2019.pdf?utm_source%3dtwitter%26utm_medium%3 dsocial%26utm_campaign%3dwh howell, william, thinking about the presidency: the primacy of power, princeton, 2015. kavanaugh, brett, “separation of powers during the forty-fourth presidency and beyond”, minnesota law review, vol.93, 2009, pp.1454-1486 https://www.minnesotalawreview.org/wp-content/uploads/2012/01/kavanaugh_mlr.pdf skowronek, steven “the conservative insurgency and presidential power: a developmental perspective on the unitary executive”, harvard law review vol. 122, 2009, pp.2070-2103 http://harvardlawreview.org/wp-content/uploads/pdfs/skowronek.pdf united states department of justice, office of legal counsel, “a sitting president’s amenability to indictment and criminal prosecution: memorandum opinion for the attorney general,” october 16th, 2000 https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0. pdf us constitution, articles i and ii https://www.archives.gov/founding-docs/constitution-transcript 64 https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/full.pdf https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/full.pdf https://d3i6fh83elv35t.cloudfront.net/static/2019/05/pacletterjn05.20.2019.pdf https://docs.google.com/viewerng/viewer?url=https://www.whitehouse.gov/wp-content/uploads/2019/10/pac-letter-10.08.2019.pdf?utm_source%3dtwitter%26utm_medium%3dsocial%26utm_campaign%3dwh https://docs.google.com/viewerng/viewer?url=https://www.whitehouse.gov/wp-content/uploads/2019/10/pac-letter-10.08.2019.pdf?utm_source%3dtwitter%26utm_medium%3dsocial%26utm_campaign%3dwh https://docs.google.com/viewerng/viewer?url=https://www.whitehouse.gov/wp-content/uploads/2019/10/pac-letter-10.08.2019.pdf?utm_source%3dtwitter%26utm_medium%3dsocial%26utm_campaign%3dwh https://www.minnesotalawreview.org/wp-content/uploads/2012/01/kavanaugh_mlr.pdf http://harvardlawreview.org/wp-content/uploads/pdfs/skowronek.pdf https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf https://www.archives.gov/founding-docs/constitution-transcript brandeis university law journal fall 2021, volume 9, issue 1 an exploration of justice in the context of ethical guidelines emily bar-mashiah191 an appellate court in missouri has decided to uphold a 2.1 billion dollar judgment against johnson & johnson (j&j) over the presence of asbestos in their baby powder, despite being unable to directly link the asbestos to the development of ovarian cancer in j&j consumers. by exploring the meaning of ‘justice,’ this paper will defend the court’s decision that j&j owes its consumers punitive damages for the physical and emotional distress caused by exposure to asbestos. this paper will draw comparisons between the case in question and the anderson v wr. grace and beatrice foods case from a civil action, by jonathan harr, to reinforce the ways ethics should be considered in litigation involving public health risks. in june 2020, the appellate court of missouri upheld a 2.1 billion dollar judgment against johnson & johnson (j&j), a company that manufactures and sells healthcare-related products, in ingham v johnson and johnson. a class action suit was filed by a group of women who claimed that the use of j&j’s baby powder in the genital region contributed to the development of ovarian cancer due to the ingredient asbestos, which is a known carcinogen. however, a study from the journal of the american medical association (jama) highlights that the chances of women developing ovarian cancer that is linked to johnson & johnson’s baby powder are not compelling, as the risk-ratio between the women exposed to the baby powder and those not exposed to the baby powder was below 2 (in other words, the studies failed to show that, as a legal matter, it was more likely than not that levels of asbestos in j&j’s led to plaintiffs’ cancers).192 despite this research, the court upheld the multi-billion dollar verdict against j&j, reinforcing that the verdict against j&j is both fair and just. according to the legal dictionary, justice can be defined as one of three things including “fairness, moral rightness, and a scheme or system of law in which every person receives his/her/their due from the system, including all 191 brandeis university undergraduate, class of 2023. 192 gianna melillo, “jama study finds no significant link between talc powder, ovarian cancer”, american journal of managed care, (january 2020). 80 brandeis university law journal fall 2021, volume 9, issue 1 rights, both natural and legal.”193 although these definitions seem different from one another, at their core they all indicate a goal of protection from various threats. consumers’ safety and security were threatened by j&j, and this breach of trust damages the informal agreement of trust between consumers and manufacturers. through this understanding, the verdict of the case was, indeed, “just.” the concept of justice is crucial in justifying the appellate court’s ruling. the appellate court was upholding the standard and goal of justice by reinforcing protection for consumers from being taken advantage of. it is important for the law not only to create order, but to set precedents that will ensure the safety of the people who are governed by it. while courts should use reliable scientific evidence and expert testimony to make an informed decision, which is demonstrated in the following cases, it’s important that the evidence is considered within the context of justice so that decisions can support the greater good. first of all, multiple labs were able to confirm the presence of asbestos. a representative from the materials analytical sciences lab surveyed containers of baby powder to check for traces of asbestos and found that twenty of the thirty-six containers randomly sampled did contain asbestos. although the defendants attempted to invalidate these claims based on the procedures the lab used during testing, the court found the evidence to be reliable. in addition to these findings, other experts testified that there was asbestos in j&j’s baby powder after reading nearly 1,400 studies conducted by the fda and several other sources194. the verdict of the j&j case can be compared to the similar anderson v wr. grace and beatrice foods in 1986. similar to j&j’s behavior, the defendant grace and beatrice foods in the woburn, ma case allowed civilians to use municipal water wells that were negligently contaminated with trichloroethylene (tce). children in woburn developed leukemia, in unexplainably high numbers. while we do not know if the tce caused these cancers, there is no doubt that grace helped pollute the wells, and was very slow to acknowledge this. j&j has also been less forthcoming than grace; they even went so far as to try to prevent the publication of medical literature on the topic. for instance, when mount sinai school of medicine 193 “justice”, dictionary.law.com, https://dictionary.law.com/default.aspx? selected=1086&bold= 194 ingham v. johnson & johnson, 608 s.w.3d 663 (mo. ct. app. 2020). 81 https://dictionary.law.com/default.aspx?selected=1086&bold= https://dictionary.law.com/default.aspx?selected=1086&bold= brandeis university law journal fall 2021, volume 9, issue 1 published findings of asbestos in j&j’s baby powder, j&j requested that the literature be removed from materials that were being made public, and pressured them to take back the results of their studies. extensive evidence proved there were multiple attempts on j&j’s part to conceal the health risks of their products from consumers. similarly, in the woburn case the defendant grace did not disclose the fact that they were dumping dangerous substances into wells of municipal water g and h outside of their factory and put consumers at an unknown risk. cheeseman, grace and beatrice foods’ lawyer, had said that tce was kept in the plant’s paint shop so it could be used to clean machinery, but then eventually admitted that the company had dumped cleaning solvents into a drainage ditch behind the plant.195 in both of these cases, the defendants posed physical threats to their consumers while concealing the safety hazards of their behavior to the public. under the definition of justice, this was immoral and unethical. upon exposure to these details, the consumers of j&j, like the families in woburn, experienced emotional stress due to concerns regarding their wellbeing. in addition to the fact that the presence of asbestos in the baby powder was confirmed, it should also be reiterated that asbestos is a known carcinogen. according to expert testimony, “...asbestos causes or significantly contributes to causing ovarian cancer... because it is microscopic in size, can travel throughout the bloodstream and the body, and can be found in every organ in the body, including the ovaries.”196 this notion is corroborated by the international agency for research on cancer (“iarc”), the american cancer society, the u.s. department of health and human services, the environmental protection agency, and the national cancer institute. additionally, the epa has “...classified asbestos as group a, human carcinogen.”197 similar to the j&j case, the tce in the water wells of woburn was found to be a harmful chemical. according to the minnesota department of health, tce can affect both immune and reproductive systems, liver, kidneys, the central nervous system, and fetal development during pregnancy.198 in addition to the burden of their physical 195 harr, jonathan. a civil action. firsted. new york: random house, 1995. 196 ingham v. johnson & johnson, 608 s.w.3d 663 (mo. ct. app. 2020). 197 “learn about asbestos”, environmental protection agency, last modified february 3, 2021, https://www.epa.gov/asbestos/learn-about-asbestos#asbestos . 198 “trichloroenthelyne and your health”, minnesota department of health, https://www.health.state.mn.us/communities/environment/hazardous/topics/tce.html#health 82 https://www.health.state.mn.us/communities/environment/hazardous/topics/tce.html#health https://www.epa.gov/asbestos/learn-about-asbestos#asbestos brandeis university law journal fall 2021, volume 9, issue 1 conditions, the women may also be concerned about other aspects, such as what the implications of their diagnoses will mean for their families, careers, and social life. it is unfair for j&j to threaten consumers and compromise their health and safety without paying them damages. although the jama research claims that there was not a great difference between women who were and were not exposed to j&j baby powder and their risks of developing cancer, one can not say that any amount of asbestos should be considered “safe.” while the risk of cancer in women exposed to j&j baby powder only increased by 8% compared to those who were not, there is no way to prove that the exposure was not a contributor to the development of ovarian cancer, even if it was not the one main cause. experts have stated that they believe that asbestos could facilitate the development of cancer that would have occurred from preexisting conditions and perhaps even make cancer more aggressive against treatment. the epa has stated that “[i]n general, the greater the exposure to asbestos, the greater the chance of developing harmful health effects.”⁴ one of the doctors at the trial testified that the more bottles of baby powder a woman was exposed to, the higher chance she had of being exposed to asbestos which implies that over time, the plaintiffs had a high likelihood of being exposed to asbestos, due to the frequency with which they used the powder. similarly, the risk of developing an illness was correlated with the amounts of exposure to tce in the woburn case. even though the tce was not directly linked to the development of leukemia, it was a contributor that may have facilitated or triggered pre-existing health conditions in children. in both the j&j case and in the woburn case, the company’s actions may well have been catalysts for the development of the illnesses they are believed to have induced. the expert testimony representing j&j would say that the verdict was unjust because general causation, which addresses whether or not a substance can cause an illness, could not be established and it is not “more likely than not” that the asbestos had caused cancer, as required by the legal standard. however, this employs an unfair understanding of what justice means in cases of this nature. based on the insufficient causal relationship, the concept of justice would be limited to palpable evidence and hard, concrete claims of physical damage. this is not a sufficient definition of justice because it excludes emotional burdens, threats posed to plaintiffs by defendants, and overall allows people to take advantage of others, which 83 brandeis university law journal fall 2021, volume 9, issue 1 favors companies over individuals. this is extremely unjust because consumers are being taken advantage of and deceived about the safety of the products they are using. this could harm many people as individuals have their own respective preferences and pre-existing conditions. justice should protect consumers from all threats, including both emotional and physical. it should not come as a shock to consumers that the products they are purchasing contain dangerous substances. rather, the presence of toxins should be disclosed in advance so that each consumer can make the best decision for themself. the similarities in behavior between j&j in ingham v johnson and johnson and grace and beatrice foods in anderson v wr. grace and beatrice foods are very clear. both defendants violated public trust by not being transparent about posing threats to health and safety, causing an undue burden of emotional and physical threats and stress. since the public had to suffer under the conditions that j&j put upon them unknowingly, the verdict of the missouri appeals case was just. it is unjust and immoral to purposefully deceive consumers about health threats. this breaks consumer trust and the implied social contract a company has with the public. the distress caused by the knowledge that the baby powder contains asbestos, in addition to the development of ovarian cancer, justifies the need for j&j to pay damages. 84 brandeis university law journal fall 2021, volume 9, issue 1 works cited harr, jonathan. 1995. a civil action. new york: random house. ingham, gail lucille. “united states district court eastern district of missouri eastern division,” 5. “legal dictionary | law.com.” accessed november 10, 2021. https://dictionary.law.com/default.aspx?selected=1086&bold=. melillo, gianna. 2020. “jama study finds no significant link between talc powder, ovarian cancer.” american journal of managed care, january 2020. “trichloroethylene (tce) and your healtheh: minnesota department of health.” n.d. accessed november 10, 2021. https:// www.health.state.mn.us/communities/environment/hazardous/topic s/tce.html#health. us epa, ocspp. 2013. “learn about asbestos.” other policies and guidance. march 5, 2013. https://www.epa.gov/asbestos/learnabout-asbestos. 85 https://www.epa.gov/asbestos/learn-about-asbestos https://www.epa.gov/asbestos/learn-about-asbestos https://www.health.state.mn.us/communities/environment/hazardous/topics/tce.html#health https://www.health.state.mn.us/communities/environment/hazardous/topics/tce.html#health https://www.health.state.mn.us/communities/environment/hazardous/topics/tce.html#health https://dictionary.law.com/default.aspx?selected=1086&bold= brandeis university law journal fall 2021, volume 9, issue 1 86 brandeis university law journal fall 2021, volume 9, issue 1 gender, crime, and the disparities in the criminal justice system alyssa fu141 crime rates in the united states have dropped overall, pointing to the efficacy of rehabilitation. when the data is separated by gender, however, female recidivism rates have exponentially increased. this suggests a failure in the criminal justice systemin fact, women may be more vulnerable to a cycle of crime. to resolve this issue, we must first understand what gender differences our system currently neglects. studies have shown that women involved in crime experience greater amounts of psychological distress and trauma—both risk factors for recidivism. thus, gender-focused programs may be necessary to properly address unique female pathways and experiences in crime. introduction before the united states legal system can create curated programs for specific groups to reduce and prevent crime, we must have an idea of where the key differences between groups are in our current statistical trends. generalizations about pathways into crime can be difficult to pinpoint when individual factors vary significantly based on crime type and personal background. one key feature that existing research has been able to evaluate within these findings is the role that gender plays within these factors. law and criminology have previously studied several questions involving gender, but one remains: what are the effects of gender discrepancy in the united states justice system? this article will analyze crime statistics and criminology theories to understand and reform a systemic issue in united states criminal law. based on these findings, we will provide potential recommendations for institutional change in order to better address the needs of specific genders to prevent a cycle of crime and allocate more attention to underserved groups. the substantial rise in crime within the female population presents a juxtaposition in crime rates based on a gross disparity between the genders.142 despite an increase for one group, the overall rate of crime in the 141 brandeis university undergraduate, class of 2021. 142 “crime in the united states: five-year arrest trends by sex 2013-2017.” federal bureau of investigation, u.s. department of justice (2017). 67 brandeis university law journal fall 2021, volume 9, issue 1 us has declined in the past few decades.143 this indicates there are factors causing female offenders to be left behind in many existing diversion programs designed to reduce crime. initial research shows it is true that male recidivism remains statistically higher than females.144 however, gender differences often begin with psychological norms and conformity to societal expectations. as such, criminology-related research may also help to inform what causes this gender disparity and how we might better address a frequently overlooked group. ultimately, focusing on gender-specific solutions will improve the methods of reducing crime in our communities. history of women’s involvement with crime and law 143 “u.s. arrests estimates, 1980-2014.” bureau of justice statistics, u.s. department of justice (2019). 144 “crime in the united states: ten-year arrest trends by sex 2009-2018.” federal bureau of investigation, u.s. department of justice (2018). 68 brandeis university law journal fall 2021, volume 9, issue 1 women have historically been underrepresented in studies of crime and rehabilitation. this may be a result of a large majority of female charges being within the category of property crimes or drug-related misconduct, because most women tend to avoid confrontational forms of crime as opposed to men.145 very few women commit violent crime, and as of 2018, 75% of those who had only perpetrated minor forms of assault.146 the rate of women committing homicides has always been low and has declined within the past decade. statistically, the average amount of time served for any conviction is also shorter for females than for males who have committed the same offenses.147 based on the types and degrees of crime that women are more prone to, our institutions consider the consequences of male crime as more threatening, and so provide these perpetrators with better services. in general, men are found to be more often violent and more likely to have a juvenile history or multiple convictions.148 women in the legal system do not receive adequate rehabilitation to suit their needs because they only make up a small portion of arrests. as of 2017, 27% of arrests were of women compared to 73% of men (figure 1),149 but the same graph shows a rise in female arrests. some analysts argue that much of the initial surge in the incarceration of women is from amplified 145 lawrence a. greenfeld & tracy l. snell. “women offenders.” bureau of justice statistics special report, (2000): 9. 146 “crime in the united states: ten-year arrest trends by sex 2009-2018,” (2018). 147 greenfeld & snell, “women offenders,” (2000): 5. 148 anonymous prosecutor in discussion with the author, may 2021. 149 “crime in the united states: five-year arrest trends by sex 2013-2017,” (2017). 69 figure 1: female arrests have increased while males decreased brandeis university law journal fall 2021, volume 9, issue 1 prosecution toward female perpetrators of domestic violence in the 1990s.150 however, this justification is far too outdated to explain why many categories of major crime have continued to occur at an increasing rate for females in the past two decades.151 the tendency to focus more attention on men over women due to perceived higher threat is also seen in criminal law enforcement. overall, men are more likely to be contacted by the police while females are more likely to initiate contact to report crimes, disturbance, suspicious activity, or other reasons for seeking help even though they usually avoid doing so.152 for both traffic and street stops, males are more likely than females to have their most recent contact with authorities be initiated by the officers, whereas women will more often look to police as a source of security and assistance.153 such findings may be compounded by the idea that women are often victims of crime. in 2000, a survey found that 60% of women who entered the realm of recidivism experienced physical or sexual abuse in the past, with just over 50% reporting that their aggressor was a family member or intimate partner.154 this percentage has only grown since, which indicates a clear connection for female pathways to crime. in 35 states, the crime rates for women have been consistently higher than crime rates for men in the past five years.155 even though a low percentage of offenders are women, their involvement in crime reflects unique, gendered problems that are not sufficiently addressed in our justice system. a collective history of victimization is evidence of the need female offenders have for enhanced support and resources. different life circumstances also illustrate that women’s motives in committing crime diverge from men. while male pathways are often explained as part of their inherent gendered traits, such as an expectation for violence, women appear to be more externally motivated. some scholars claim that women involved in crime may be 150 greenfeld & snell, “women offenders,” (2000): 3. 151 greenfeld & snell, “women offenders,” (2000): 11-12. 152 elizabeth davis, anthony whyde, & lynn langton. “contacts between police and the public, 2015.” bureau of justice statistics special report, (2018): 11. 153 davis, whyde, & langton. “contacts between police and the public, 2015,” (2018): 27. 154 greenfeld & snell, “women offenders,” (2000). 155 sawyer, wendy. “the gender divide: tracking women’s state prison growth.” prison policy initiative (2018). 70 brandeis university law journal fall 2021, volume 9, issue 1 propelled by the need to support children or other family members.156 numerous incarcerated women also suffer from chronic substance abuse, but the lack of treatment programs in certain states creates difficulty for those seeking recovery.157 gender-specific challenges can be overwhelming, so we must determine why they exist before we can propose resolutions. criminology theories: pathways to crime for men and women from a psychological and criminological perspective, there are circumstances of perceived gender biases targeting both men and women leading to the idea that males involved in the criminal justice system require more attention. in the process of implementing these male-centric programs, the criminal justice system has neglected the perspectives of women. a notable issue starts with psychological beliefs about gender wherein young men have grown up in a society that reinforces male assertiveness and dominance.158 traditional gender roles have historically shaped men to be controlling and aggressive, and the perspectives resulting from this are further exacerbated for communities of color. such principles can create problematic behavior in young boys, posing a risk for societal perception of future criminal actions. one study examined boys between the ages of 8 and 14, discovering that criminal offenses were more likely if the subject accumulated behavioral problems earlier in childhood.159 the risk for future violent crime was highest for those who exhibited conduct issues alongside aggressiveness, while failure in school combined with aggressiveness correlated with high risk for future property offenses.160 these findings indicate that the pathways to crime are influenced by reinforcement of outdated gender norms. a similar criminology study found that certain childhood factors are reliable predictors of male crime. stressful situations such as parent separation, conflict, socio-economic instability, and poor child-rearing can contribute to recidivism later in life because of their tendency to enable children to participate in delinquent behavior.161 the behaviors most strongly associated with higher levels of repeated offenses were reports of 156 abrams & greaney, “report of the gender bias study,” (1989): 119-120. 157 abrams & greaney, “report of the gender bias study,” (1989): 123. 158 lee ellis. “a theory explaining biological correlates of criminality.” european journal of criminology 2 no. 3 (2005): 288. 159 ellis, “a theory explaining biological correlates of criminality,” (2005): 292. 160 hamalainen, minna & pulkkinen lea. “problem behavior as a precursor of male criminality.” development and psychopathology 8 no. 2 (1996): 447. 71 brandeis university law journal fall 2021, volume 9, issue 1 truancy and other behavioral conduct problems as well as low education level.162 self-reported internal distress notably served as a sign for risk of future criminal activity, but these youth were given a voice through early assessments so appropriate measures could be taken to intervene with various educational programs and social skills training before they encountered opportunities to enter crime.163 these results contribute to our understanding of why many treatment programs are particularly concerned with male offenders since society may believe this behavior has the potential to become a positive feedback loop. the prevalence of young males committing offenses that are considered more extreme and thus more harmful to the public also contributes to prioritizing their treatment.164 it is equally imperative to note that traditional gender roles still influence how women are perceived. those who conform to the expectations that females ought to be submissive and avoid confrontation are indeed more leniently treated than male offenders.165 for example, one prosecutor interviewed by the author believes committing forgeries or retail theft are passive crimes and often result in a reduced charge for first offenses.166 women who do not conform to societal gender expectations, however, are treated even more harshly compared to men, often with more severe charges and longer sentences.167 with the development of modern feminism, female offenders who do not conform to gender roles may be more common than in the past. perhaps as a result, society perceives the actions of women as not so easily excused now as they once were.168 two theories borrowed from criminology can help explain our society’s evolving treatment of accused females. the chivalry hypothesis suggests that a male-dominated criminal justice system will more often excuse women due to the dated attitude that men are obligated to protect 161 andre sourander, henrik elonheimo, et al. “childhood predictors of male criminality: a prospective population-based follow-up study from age 8 to late adolescence.” journal of the american academy of child and adolescent psychiatry 45 no. 5 (2006): 581. 162 sourander, et al. “childhood predictors of male criminality.” (2006): 584. 163 sourander, et al. “childhood predictors of male criminality.” (2006): 588. 164 anonymous prosecutor in discussion with the author, may 2021. 165 abrams & greaney, “report of the gender bias study,” (1989): 129. 166 anonymous prosecutor in discussion with the author, may 2021. 167 abrams & greaney, “report of the gender bias study,” (1989): 128-129. 168 anonymous prosecutor in discussion with the author, may 2021. 72 brandeis university law journal fall 2021, volume 9, issue 1 women.169 the majority of positions for judges, law enforcement officers, and attorneys continue to be dominated by males, so when faced with a female defendant that fits their schema of how women should behave, they may show more compassion toward them.170 alternatively, the theory of paternalism emphasizes the “weaker sex” as incapable of committing serious crimes because male authorities view them as childlike, naïve, and therefore not fully responsible.171 both theories can be used to reward female offenders in traditionally submissive roles with lower charges while punishing those who violate gender expectations with more severe charges. failing to meet a standard ideal induces additional perceived criminalization of the conduct that conflicts with the expectation. the female experience in the criminal justice system 169 abrams & greaney, “report of the gender bias study,” (1989): 128. 170 abrams & greaney, “report of the gender bias study,” (1989): 130. 171 abrams & greaney, “report of the gender bias study,” (1989): 131-132. 73 brandeis university law journal fall 2021, volume 9, issue 1 although men are perceived as more aggressive and there are overall higher numbers of male offenders,172 the socialization of these beliefs alone cannot explain the gender disparity found in criminal arrests. the rising crime rates for women on average nationally suggest a missing link that the existing system has failed to address adequately.173 one example found that 100% of women in a framingham, massachussetts facility reported experiencing at least one of these situations during their time in rehabilitation: sexual or physical abuse, rape, forced prostitution, or separation from children.174 over time, treatments have rarely focused on female interests which means that women are deprived of services to resolve traumatic experiences in their past simply because they obtained shorter terms of incarceration. intentionally or not, criminal law has focused on and reflected male interests for too long. we have only recently begun to notice the enduring effects of this systemic flaw. female offenders usually lack the typical factors used to predict criminal activity. instead, criminal cases often describe women as ill and pathological, reinforcing the stereotype that psychological hysteria explains all abnormal female behavior.175 the reliance of our justice system on these explanations reflects society’s unwillingness to address female problems as anything other than illness. although some criminal cases do have a basis in psychological disorders and mental health can play a role, we must also 172 abrams & greaney, “report of the gender bias study,” (1989): 124. 173 “crime in the united states: five-year arrest trends by sex 2013-2017,” (2017). 174 abrams & greaney, “report of the gender bias study,” (1989): 118. 175 dorothy e. roberts. “the meaning of gender equality in criminal law.” journal of criminal law and criminology 85 no. 1 (1994): 10. 74 figure 2: women are more prone to psychological distress brandeis university law journal fall 2021, volume 9, issue 1 consider the pathways that have led women into recidivism. the previously discussed traumatic situations many women trapped in crime face may explain why 66% of incarcerated women currently report a history of general mental unwellness.176 a larger percentage of females than males in both prisons and jails meet the threshold for serious psychological distress regardless of their crime or sentence length (figure 2).177 as recently as 2017, two-thirds of women in us prisons reported also suffering from mental disorders, and many experienced distress such as feelings of worthlessness or anxiety within a month preceding the survey.178 these statistics indicate most rehabilitation that women currently receive has been unsuccessful because they are often provided poorer quality support services compared to men in the same facilities. the root cause of increased female crime rates lies in the incongruent pathways to crime between men and women. women experience different risk factors in entering crime compared to men,179 especially upon receiving one conviction, because they are more susceptible to harm from backgrounds of instability. mental illness, past trauma, and substance abuse are all capable of kindling an onset to crime and are subsequently worsened by incarceration.180 victimization from abuse in particular is a good predictor of mental health complications which in turn predicts entrance into criminal activity.181 those with severe psychological distress usually experience higher rates of victimization, more extensive histories of prior offenses, and increased probability of violent crime.182 as such, correctional programs should recognize the female experience of victimization in combination with mental health as an influence on entering crime. 176 roberts. “the meaning of gender equality in criminal law.” (1994): 10; jennifer bronson & marcus berzofsky. “indicators of mental health problems reported by prisoners and jail inmates, 2011-12.” bureau of justice statistics special report, (2017): 7. 177 bronson & berzofsky. “indicators of mental health problems.” (2017): 10-11. 178 bronson & berzofsky. “indicators of mental health problems.” (2017): 14. 179 anonymous prosecutor in a survey response to the author, may 2021. 180 shannon m. lynch, et al. “women’s pathways to jail: examining mental health, trauma, and substance use.” bureau of justice assistance policy brief (2013). 181 lynch, et al. “women’s pathways to jail,” (2013). 182 lynch, et al. “women’s pathways to jail,” (2013). 75 brandeis university law journal fall 2021, volume 9, issue 1 suggested upgrades in rehabilitation services for women women face different difficulties within the criminal justice system because it neglects the uniqueness of the female gender. thus, women’s rehabilitation services need to implement genderspecific treatment to optimize care and prevent future recidivism.183 for example, women overcoming recidivism through hard work (worth), a program in connecticut, recognized this necessity and established a prison intended for women.184 there, incarcerated women created a community that fostered accountability and healing rather than punishment.185 the program included youth mentoring opportunities, which were restorative and gave them the positive outlook they needed to change their lifestyle.186 given that women have significantly different experiences with the traditional criminal justice system and its prisons, if rehabilitation strategies are not gender-specific, they may not function the same way for women as for men. to continue reducing crime, our correctional systems must emphasize the importance of supporting women to prevent reentry. such modifications should be applied to individual state programs to address the complex needs for women in the criminal justice system, such as parent-child relationships, reunifying families, as well as unique mental and physical health concerns. until recently, statistics for incarcerated women have been obscured by total rates. society must work to reduce criminal offenses for both sexes, not exclusively males. the rate of women in federal 183 anonymous prosecutor in discussion with the author, may 2021. 184 ryan shanahan, et al. “how young women are building promise in a connecticut prison.” vera institute of justice (2018). 185 shanahan, et al. “how young women are building promise in a connecticut prison.” (2018). 186 shanahan, et al. “how young women are building promise in a connecticut prison.” (2018). 76 figure 3: states drive the gender disparity in incarceration rates brandeis university law journal fall 2021, volume 9, issue 1 prisons has remained relatively constant, but the average rate of all 50 states’ prisons illustrates a much steeper and more rapid rise (figure 3).187 since national statistics show that specific states are driving this gender disparity, the changes will be most effective if enacted at both state and local levels. some states’ efforts to reduce the population of offenders may have ended up benefitting men significantly more.188 other states whom we ought to make an example of, such as new york and california, have inverted the course of female incarceration with rates lower than the calculated average by implementing programs that cater to women.189 proposal for change ultimately, the criminal justice system should focus on treating female pathways to crime including mental health, past trauma, and substance use in lieu of criminalizing women merely because they do not conform to the expected gender norms. in their efforts to reduce crime, states can advocate for initiatives that will assist and enhance opportunities for former inmates. while it is true that female convicts returning from prison need housing, employment, and financial support, they also would benefit greatly from a higher availability of guided strategies to overcome trauma and stress that they may have experienced before and during incarceration. gender-focused programs are the best option to address the reentry needs of women in crime because they strive for life-changing goals such as family reunification and treatment for mental and physical health. women can benefit from resources which focus on reconnecting them to society, aiding in breaking these cycles of crime. our traditional programs place the larger male prison population as a priority and deny adequate services to women,190 but the continually rising female crime rate demonstrates that it is necessary to shift attention toward this underrepresented group. through tackling the gender disparities of incarcerated women, our criminal justice system could develop the appropriate tools to also address unique needs of non-binary, non-conforming, and transgender identities. 187 sawyer. “the gender divide.” (2018). 188 anonymous prosecutor in discussion with the author, may 2021. 189 sawyer. “the gender divide.” (2018). 190 wendy sawyer. “who’s helping the 1.9 million women released from prisons and jails each year?” prison policy initiative report (2019). 77 brandeis university law journal fall 2021, volume 9, issue 1 works cited abrams, ruth i. & greaney, john m. “report of the gender bias study of the supreme judicial court.” commonwealth of massachusetts, u.s department of justice (1989): 111-133. anonymous prosecutor interviews. survey responses to the author, may 2021. bartram, wanda. “state-level studies identify causes of the national ‘gender divide’.” prison policy initiative report (2018). bronson, jennifer & berzofsky, marcus. “indicators of mental health problems reported by prisoners and jail inmates, 2011-12.” bureau of justice statistics special report, (2017): 1-17. “crime in the united states: five-year arrest trends by sex 2013-2017.” federal bureau of investigation, u.s. department of justice (2015-2018). “crime in the united states: ten-year arrest trends by sex 2009-2018.” federal bureau of investigation, u.s. department of justice (2015-2018). davis, elizabeth, whyde, anthony, & langton, lynn. “contacts between police and the public, 2015.” bureau of justice statistics special report, (2018): 1-33. ellis, lee. “a theory explaining biological correlates of criminality.” european journal of criminology 2 no. 3 (2005): 287-315. greenfeld, lawrence a. & snell, tracy l. “women offenders.” bureau of justice statistics special report, (2000): 1-14. hamalainen, minna & pulkkinen lea. “problem behavior as a precursor of male criminality.” development and psychopathology 8 no. 2 (1996): 443455. lynch, shannon m.; dehart, dana d.; belknap, joanne; & green, bonnie l. “women’s pathways to jail: examining mental health, trauma, and substance use.” bureau of justice assistance policy brief (2013). “policing women: race and gender disparities in police stopes, searches, and use of force.” prison policy initiative (2019). 78 brandeis university law journal fall 2021, volume 9, issue 1 roberts, dorothy e. “the meaning of gender equality in criminal law.” journal of criminal law and criminology 85 no. 1 (1994): 1-14. sawyer, wendy. “the gender divide: tracking women’s state prison growth.” prison policy initiative report (2018). sawyer, wendy. “who’s helping the 1.9 million women released from prisons and jails each year?” prison policy initiative report (2019). shanahan, ryan; duran, jack; frank, alex; & lowen, matthew. “how young women are building promise in a connecticut prison.” vera institute of justice (2018). sourander, andre; elonheimo, henrik; niemela, solja; nuutila, ari-matti; helenius, hans; sillanmaki, lauri; piha, jorma; tamminen, tuula; kumpulainen, kirsti; moilanen, irma; & almqvist, frederik. “childhood predictors of male criminality: a prospective population-based follow-up study from age 8 to late adolescence.” journal of the american academy of child and adolescent psychiatry 45 no. 5 (2006): 578-586. “u.s. arrests estimates, 1980-2014.” bureau of justice statistics, u.s. department of justice (2019). “women’s health care in correctional settings.” national commission on correctional health care (2021). 79 brandeis university law journal fall 2021, volume 9, issue 1 7,341 incidents and counting: analyzing the evolution of american hate crime legislation and how it varies by state jessica daniel78 this article will explore what hate crimes are, and explore why they have been on the rise in recent years. i will track the evolution of hate crime legislation on both a federal and state level and argue that while rises in hate are consistent throughout time, they are also episodic. i will justify the need for hate crime legislation and demonstrate how state hate crime laws vastly differ, using a case study as support. i will make policy suggestions to improve existing legislation and advocate for an increase in federal funding allocated to hate crime training for law enforcement agencies. lastly, i will suggest that training should also be required in schools and workplaces in order to diminish ignorance and intolerance, and to encourage communities to embrace and celebrate diversity rather than fear it. what is a hate crime? before elucidating the complexities associated with hate crimes and hate crime legislation, it is important to first define what a hate crime is, and explain why these crimes occur. considering that each state has its own legal definition of the term hate crime, it is challenging to pinpoint its exact definition. however, the general consensus among scholars is that a hate crime has three main components: (1) it must be a threatened, attempted, or completed overt criminal act, (2) it must be intentionally motivated by bias, and (3) it must target a specific category of identity or property that is protected by law. what is considered a protected category varies by state and can often be controversial. the most common protected categories are race, ethnicity, religion, and national origin. in the wake of the covid-19 pandemic, hate crimes directed toward asian americans have been on the rise, with at least 2,800 incidents reported in 2020 across the nation.79 according to the anti-defamation league audit of antisemitic incidents, in 2020, there were 2,024 reported antisemitic incidents in the united states, including 1,242 cases of 78 brandeis university undergraduate, class of 2021. 79 “covid 'hate crimes' against asian americans on the rise.” bbc news , april 2021. https://www.bbc.com/news/world-us-canada-56218684. 45 brandeis university law journal fall 2021, volume 9, issue 1 harassment, 751 incidents of vandalism, and 31 cases of assault.80 additionally, the human rights commission reported that 37 transgender and gender non-conforming people were killed.81 these days, it seems as though reports of hate crimes are always in the news cycle, putting names and faces to these evergrowing statistics and attracting national attention. hate crimes are not a recent phenomenon, but they are a continually increasing trend.82 hate crimes send a powerful message to members of a victim’s group that they are “unwelcome and unsafe in their communities,” and can further marginalize minority groups.83 in 2019, 7,314 total hate crimes were reported across the country (a 3.95% increase from 2018), but because of issues related to reporting (to be explained more in-depth in a later section of this paper), it is estimated that more than half of all hate incidents that could be reported are not formally documented.84,85 in a study regarding hate crimes, sociologists jack mcdevitt and jack levin categorized hate crimes into four classifications. the first and most common classification is “thrill hate crimes,” meaning that offenders are looking to “have some fun and stir up a little excitement … but at someone else’s expense.”86 they rarely know their victims and choose to target a certain individual who differs from them for psychological 80 “audit of antisemitic incidents 2020.” anti-defamation league. anti-defamation league , april 2021. https://www.adl.org/audit2020#executive-summary. 81 roberts, madeleine. “marking the deadliest year on record, hrc releases report on violence against transgender and gender non-conforming people.” the human rights campaign . the human rights campaign, november 19, 2020. https://www.hrc.org/pressreleases/marking-the-deadliest-year-on-record-hrc-releases-report-on-violence-againsttransgender-and-gender-non-conforming-people. 82 hernandez, joe. “hate crimes reach the highest level in more than a decade.” npr, 1 sept. 2021, https://www.npr.org/2021/08/31/1032932257/hate-crimes-reach-thehighest-level-in-more-than-a-decade?t=1634395011991. 83 “the psychology of hate crimes.” american psychological association. american psychological association , august 2017. https://www.apa.org/advocacy/interpersonalviolence/hate-crimes. 84 “hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 85 shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 86 levin , jack, and jack mcdevitt. “hate crimes.” encyclopedia of peace, violence and conflict 2 (2008). https://jacklevinonviolence.com/articles/hatecrimesencyc92206final.pdf. 46 brandeis university law journal fall 2021, volume 9, issue 1 excitement and social acceptance by their peers. 87 an example of this kind of hate crime is when a group of teenage offenders selects a person who looks different from them and physically attacks them for that reason. the second category is defensive hate crimes. the perpetrator in this type of crime uses a triggering incident as a catalyst for the expression of their emotions. these types of perpetrators justify the attack of someone deemed as an outsider by claiming it is necessary to protect the public from “intruders.”88 additionally, they usually do not know the victim personally and choose them at random. an example of this kind of attack would be if a black family moved into a predominantly white neighborhood and had a rock thrown through their window. retaliatory hate crimes are the third category, in which the perpetrator is acting out against a stranger in response to a world event and partially blaming him or her for its cause.89 an example of this would be an attack on an arab individual during the aftermath of 9/11. the last form of hate crime is rare and mission-based. the perpetrator views individuals who are perceived to be different as grave threats, and feels as though it is their mission to “act before it is too late.”90 these types of perpetrators are the most likely of all types of perpetrators to join an organized hate group.91 it is important to note that although some of these hate crime typologies imply that most hate crimes are perpetrated by white supremacists, white supremacy is not the only reason why hate crimes are on the rise. even though data indicates that acts of hate have increased, there are many who do not believe that hate crime legislation is necessary because they believe that hate crime legislation provides minority groups with special treatment, as most offenders tend to identify as white.92 however, this is not always the case. in 2019, 23.9% of offenders identified as african 87 shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 88 levin , jack, and jack mcdevitt. “hate crimes.” encyclopedia of peace, violence and conflict 2 (2008). https://jacklevinonviolence.com/articles/hatecrimesencyc92206final.pdf. 89 levin and mcdevitt. “hate crimes.” 90 levin and mcdevitt. “hate crimes.” 91 levin and mcdevitt. “hate crimes.” 92 “hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 47 brandeis university law journal fall 2021, volume 9, issue 1 american, and 10% identified as hispanic.93 furthermore, in the landmark case wisconsin v. mitchell (508 u.s. 476 (1993), the victim identified as white and the perpetrator identified as black. this dispels the argument that hate crime laws only benefit marginalized groups, as the defendant received the same sentence a white perpetrator would receive if they had committed the same crime.94 in 2019, data indicates that individuals of all races were victims of a hate crime, further weakening this argument.95 additionally, the mitchell case thwarts another anti-hate crime legislation argument related to the first and fourteenth amendments. the supreme court ruled that there is a meaningful difference between punishing the content of speech and using speech as evidence of the motive behind a crime. even so, there continues to be a vocal group of individuals who, for as long as hate crime legislation has been in existence, have been adamant in abolishing it. historical background and federal legislative history hate crimes have been long embedded within the american experience, although they may appear to be a relatively recent phenomenon. throughout history, individuals within marginalized communities have been subjected to various forms of discrimination and hatred due to elements of their identities that caused them to be percieved as “different.”96 while it can be argued that a rise in hate crimes toward a certain demographic is an episodic reaction to a particular historical moment or event, such as the spike in hate faced by japanese americans during the second world war, it is also evident that the persistence of hate crimes throughout time demonstrates the power and tenacity of prejudice. a prominent example of this is the hatred that those of african descent have historically experienced. while the expressions of hatred they experience has evolved over time, from government protection of slavery via legislation such as the slave trade act of 1794 to the intentional shooting at a predominately african american 93 “hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 94 feinman, amy. northeast area civil rights counsel at anti-defamation league. “interview with jessica daniel.” april 2021. 95 “hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 96 shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 48 brandeis university law journal fall 2021, volume 9, issue 1 church in charleston, south carolina in 2015, the fact that they do experience hatred solely because of who they are has remained.97 the fact that intolerance and disdain toward racial, ethnic, religious, gender and sexual minorities has been a constant within american society is incredibly important to recognize, as it reveals a strong contradiction between constitutional rights in theory versus in practice. while the constitution puts forth the assumption that all americans’ right to freely be who they are is protected, the recurrence of hate crimes serves as a reminder that this is not necessarily always true, especially for marginalized populations. there have been efforts made by the federal government to combat civil rights violations and prevent discrimination since the enactment of the civil rights act of 1866. however, the first time the federal government began to address hate crimes specifically was over a century later in 1968 through the passage of 18 u.s.c. section 245(b)(2), which created federally protected activities.98 this code states that it is illegal for individuals to willfully injure, intimidate, or interfere with another person’s ability to “participat[e] in or enjoy[...] any benefit, service, privilege, program, facility or activity provided or administered by any state or subdivision thereof” due to his or her race, color, religion, or national origin.99,100 while the creation of legislation designed to bar discrimination on the account of these four identifying categories is significant, it is important to note that this statute was limited in its application, as only six activities were explicitly listed as federally protected. in 1990, the hate crimes statistics act (28 u.s.c. section 534) was passed which required the department of justice to collect and publish data about crimes motivated by hatred based on race, religion, ethnicity and sexual orientation. the data that continues to be collected annually comes 97 shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 98 edward kennedy, hate crimes: the unfinished business of america, 44 boston bar j. 6 (jan / feb. 2000) accessed april 27, 2021. 99 “18 u.s. code § 245 federally protected activities.” legal information institute . cornell law school . accessed april 27, 2021. https://www.law.cornell.edu/uscode/text/18/245. 100 shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 49 brandeis university law journal fall 2021, volume 9, issue 1 from voluntary submissions by state and federal law enforcement agencies. since reporting is not mandatory, the numbers that are reported are not an accurate reflection of hate crime occurrences each year which can have many harmful consequences. this act is especially significant because it “defined the criminal conduct that constituted a hate crime: hate crimes are acts that manifest evidence of prejudice based on actual or perceived race, religion, [national origin], or ethnicity.”101 four years later, the hate crimes sentencing enhancement act was passed and added to the violent crime and law enforcement act of 1994 as an amendment (42 u.s.c. chapter 136). this act permits federal judges to impose harsher penalties for hate crimes while also expanding protected categories to include hate crimes motivated by gender, disability, and sexual orientation if they occur on federal property. 102, 103 the hate crimes prevention act (18 u.s.c section 249) was passed in 2009 as a response to the deaths of matthew shepard and james byrd jr. which were both hate crimes. this act expanded federal hate crime laws further and officially included gender, disability, gender identity, and sexual orientation to the definition of a hate crime while removing jurisdictional obstacles to prosecutions of racially and religiously motivated violence.104 other hate crime related federal laws include the criminal interference with right to fair housing act (42 u.s.c section 3631), which made it illegal to interfere with an individual’s housing rights due to any of their actual or perceived characteristics and the damage to religious property, church arson prevention act (18 u.s.c. section 247), which “prohibits the intentional defacement, damage, or destruction of religious property because of the religious nature of the property [...] or because of the race, color, or 101 shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 102 stacey, michele. 2015. "the effect of law on hate crime reporting: the case of racial and ethnic violence." american journal of criminal justice : ajcj 40 (4) (12): 876-900. doi:http://dx.doi.org/10.1007/s12103-015-9289-3. 103 “hate crimes timeline.” the human rights campaign. the human rights campaign. accessed may 5, 2021. https://www.hrc.org/resources/hate-crimes-timeline. 104 “matthew shepard and james byrd, jr. hate crimes prevention act.” legal information institute. cornell law school. accessed may 5, 2021. https://www.law.cornell.edu/wex/matthew_shepard_and_james_byrd_jr_hate_crimes_preve ntion_act. 50 brandeis university law journal fall 2021, volume 9, issue 1 ethnic characteristics of the people associated with the property.”105, 106 additionally, 18 u.s.c. section 241 makes the involvement of two or more people in the conspiracy to commit a hate crime or intimidate an individual due to their actual or perceived characteristics from enjoying constitutional rights illegal in any context where the federal government would have jurisdiction.107 through the passage of multiple legislative acts designed to prevent hate crimes from occurring or punish those who commit a crime with the intent of harming a specific person due to an element of who they are, hate crimes became a topic that garnered national attention. demonstrating that hate crimes are a serious offense, the creation and implementation of these laws has encouraged victims to come forward and report incidents they experience as well as motivated states to add strong hate crime statutes to their criminal codes. hate crime legislation on a state level states are granted primary regulatory authority over their own criminal codes through the tenth amendment, which allows for all “powers not delegated to the united states by the constitution, nor prohibited to it by the states” to be granted to the states.108 the tenth amendment also gives states police power, which essentially provides states with the right to establish and enforce laws that pertain to the wellbeing of its citizens.109 this delegation of power is a significant reason why hate crime statutes vary so drastically. it is left up to the states’ discretion to determine what is a hate crime and how, if at all, they should be regulated or criminalized. in a recent interview i conducted with amy feinman, the northeast area civil rights counsel for the anti-defamation league, an organization that is devoted to securing justice and fair treatment for all, she noted that this varia nce is also 105 “42 u.s. code § 3631.violations; penalties.” legal information institute. cornell law school . accessed may 7, 2021. https://www.law.cornell.edu/uscode/text/42/3631. 106 “18 u.s. code § 247 damage to religious property; obstruction of persons in the free exercise of religious beliefs.” legal information institute. cornell law school . accessed may 7, 2021. https://www.law.cornell.edu/uscode/text/18/247. 107 “18 u.s. code § 241 conspiracy against rights.” legal information institute. cornell law school. accessed may 5, 2021. https://www.law.cornell.edu/uscode/text/18/241. 108 “federalism.” criminal law by university of minnesota. university of minnesota. accessed may 5, 2021. https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/. 109 “police powers.” legal information institute . cornell law school. accessed may 5, 2021. “federalism.” criminal law by university of minnesota. university of minnesota. accessed may 5, 2021. https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/. . 51 brandeis university law journal fall 2021, volume 9, issue 1 due to existing statutory frameworks.110 given how their criminal codes are structured, some states opt to create free-standing hate crime statutes while others choose to embed regulations regarding bias-motivated crimes into pre-existing legislation. 111 this variation also determines whether states will choose to adopt a penalty enhancement sentencing model. the rationale behind this model is to “recognize and effectively address this unique type of crime” and use a stiffer sentence to dissuade others from engaging in this problematic and incredibly impactful criminal behavior.112 the penalty enhancement model is seen by some as a violation of an individual’s first and fourteenth amendment rights . however, in the decision of the 1993 case wisconsin v. mitchell, the penalty enhancement model was upheld as constitutional by the supreme court. in the case, mitchell, a young black male, and his friends were found guilty of aggravated assault after beating a white male on the street into a coma. the facts of the case indicate that mitchell intentionally selected his victim due to his race, which caused him to receive an increased sentence due to wisconsin provision section 939.645. mitchell challenged the constitutionality of the enhanced penalty sentence by claiming that it was a violation of his first amendment rights to be sentenced more harshly due to what the legislature considered “offensive thought.”113 he also claimed it was a violation of his fourteenth amendment rights under the equal protection clause.114 the court disputed these claims and ruled that because it was not mitchell’s thoughts that were being criminalized but rather his motive, which were clearly displayed through his actions, the enhanced 110 feinman, amy. northeast area civil rights counsel at anti-defamation league. “interview with jessica daniel.” april 2021. 111 stacey, michele. 2015. "the effect of law on hate crime reporting: the case of racial and ethnic violence." american journal of criminal justice : ajcj 40 (4) (12): 876-900. doi:http://dx.doi.org/10.1007/s12103-015-9289-3.;feinman, amy. northeast area civil rights counsel at anti-defamation league. “interview with jessica daniel.” april 2021. 112 “hate crime laws.” anti-defamation league. anti-defamation league, 2012. https:// www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/hate-crimeslaw.pdf. 113 donna m. evans; colleen b. mcelhaney, "historical overview: massachusetts court decisions shaping federal constitutional law," boston bar journal 44, no. 1 (january/february 2000): 20-[ii] 114 “wisconsin v. mitchell.” legal information institute. cornell law school. accessed may 5, 2021. https://www.law.cornell.edu/supct/html/92-515.zo.html. 52 brandeis university law journal fall 2021, volume 9, issue 1 sentence was constitutional and justified. this case is noteworthy because it justified the use of penalty enhancement sentencing models and recognized on a national level the consequences of hate crimes. these repercussions include “provok[ing] retaliatory crimes, inflict[ing] distinct emotional harms on their victims, and incit[ing] community unrest.115” another area of difference is how hate crimes are defined by each state, or more specifically, which identifying categories are considered legally protected. while federal law classifies a hate crime as a crime motivated by bias against race, color, religion, national origin, sexual orientation, gender, gender identity, or disability, many states have politicized some of these categories, resulting in sexual orientation, gender, and gender identity being omitted by some states.116 according to the antidefamation league, only twenty states have statutes that do not exclude federally recognized populations from receiving legal protection.117 the final element that distinguishes hate crime legislation across various states is data reporting. because the 1990 federal hate crimes statistics act requires data to be collected on a voluntary basis, there are many problems that can arise, including the fact that not all states collect hate crime data. according to the department of justice, only eighteen american states and territories have data reporting mandates.118 this can explain why states with prominent hate groups report such low numbers of hate incidents. for instance, for the past two years, alabama has reported to the fbi that no hate crime instances have occurred within the state even though the fbi’s hate crime statistics report shows that there was a 113 percent increase in violent hate crimes across the country in 2019.119 alabama does not have a state law that mandates hate crime data collection. while it is very plausible to assume that unreported hate crimes have 115 amy feinman, “marblehead police training” (zoom, april 21, 2021). 116 hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 117 thebault, reis. “nearly every state has a hate crime law. why don't more people use them?” the washington post. the washington post, april 26, 2021. https://www.washingtonpost.com/nation/2021/04/26/hate-crime-laws-explained/. 118 morava, maria and saba hamedy. "49 states and territories have hate crime laws - but they vary." cnn wire service, mar 17, 2021. 119 “alabama only state in u.s. to report zero hate crimes.” adl atlanta. antidefamation league , november 16, 2020. https://atlanta.adl.org/news/alabama-only-statein-u-s-to-report-zero-hate-crimes/. 53 brandeis university law journal fall 2021, volume 9, issue 1 occurred in alabama within the past few years, due to the lack of a formal reporting mechanism in place, it makes sense that victims may be fearful of coming forward. without universally required data reporting laws, victimized populations in states without these laws do not feel as though they have support from law enforcement and legislators to report incidents. this further strains the relationship between marginalized populations and law enforcement and also affects how much funding for hate-crime related training and data collection the state receives from the federal government. this also impacts communities within that state which are the most targeted, as an inaccurate data set may mean that these communities receive less of the resources that they need. training in hate crime education is essential, especially for law enforcement officers. a significant reason why hate crimes may not be formally reported is because officers may not recognize when they happen. only twelve states require special training for law enforcement officers so that they can properly identify hate crimes if they occur, which is an alarming statistic given the prevalence of hate crimes in recent years.120 furthermore, due to the fact that agencies possess varying knowledge about the ways that bias can motivate crime, there are instances where hate is present in a crime in a less glaring manner that may be overlooked. additionally, some manifestations of hate that occur are not considered part of a state’s official hate crime reporting data, such as bullying in schools where a slur or symbol is used to intimidate another student.121 therefore, it makes sense that over half of the estimated 250,000 hate crimes that occurred annually between 2005 and 2014 around the country were not formally reported, as there are many reasons that a victim may be dissuaded from coming forward (including the fear of retaliation from the perpetrator).122 it is very problematic that hate crime statistics are inaccurate 120 shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. 121 ross, janell. why americans can’t agree on which crimes are hate crimes: what an image about the care and pace of investigating a white baton rouge man possibly involved in hate crimes tells and conceals. washington: wp company llc d/b/a the washington post, 2017. 122 ross, janell. why americans can’t agree on which crimes are hate crimes: what an image about the care and pace of investigating a white baton rouge man possibly involved in hate crimes tells and conceals. washington: wp company llc d/b/a the 54 brandeis university law journal fall 2021, volume 9, issue 1 and appear to be lower than the actual instance, and prevents the well-being of victimized groups from becoming a national priority. case studies: massachusetts and pennsylvania in order to better understand the extent to which hate crimes legislation varies in terms of structure and implementation, the hate crime laws of massachusetts and pennsylvania will be analyzed. these two states were selected because it is interesting to assess hate crime laws of two states within the same geographic region, but with divergent political leanings. the evaluation of laws from each state detailed below will demonstrate how and why legal responses toward hate crimes are so separate and dissimilar on a state by state basis. i also will explore how arguments against hate crime statutes have informed the creation of legislation. in massachusetts, there were 388 total incidents of hate crimes reported in 2019. the three highest categories of crimes committed include: race, ethnicity, and ancestry (213), religion (10), and sexual orientation (92).123, massachusetts uses a penalty enhancement sentencing model and defines hate crime officially through mass. gen laws ch. 22c, section 32 as any criminal act that is committed with biased intentions. this means that any crime in which a victim or property is intentionally selected due to their racial, religious, ethnic, disability, gender identity, or sexual orientation is legally classified as a hate crime.124 the commonwealth requires hate crime data to be collected through mass. gen laws ch. 22c, sections 33-35 and made available to all law enforcement agencies within the state.125 through mass. gen law ch. 266, section 127a, it is a felony to “destroy, deface, mar or injure a church, synagogue, or other structure [...] or threaten to do so.”126 furthermore, massachusetts is one of only twelve states to require washington post, 2017. 123 “state hate crimes statutes.” brennan center for justice. brennan center for justice, july 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimesstatutes.; “hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 124 “hate crime law in massachusetts.” mass.gov. commonwealth of massachusetts. accessed may 7, 2021. https://blog.mass.gov/masslawlib/legal-topics/hate-crime-law-inmassachusetts/. 125 “state hate crimes statutes.” brennan center for justice. brennan center for justice, july 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimesstatutes. 126 “state hate crimes statutes.” brennan center for justice. brennan center for justice, july 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimes55 brandeis university law journal fall 2021, volume 9, issue 1 law enforcement officers to receive training through mass. gen laws ch. 6, section 116b, which could be an indication of why massachusetts hate crime statistics appear much higher than alabama’s, and other states with a significant history of intolerance and racism. additionally, massachusetts treats hate crimes as a separate criminal violation through mass. gen laws ch. 265, section 39, which states that it is illegal to “commit assault or battery upon a person, or damage the real or personal property of a person, with the intent to intimidate” due to any of the state’s listed protected categories.127 currently, there is a new hate crime bill being discussed that would amend section 39 to provide clear explanations of each element of the existing legislation and expand protected categories to include gender and immigration status. it would also “combine civil rights and hate crime statutes into one section of law, [...] impose stricter maximum sentences on serious offenses and strengthen penalties for repeat offenders.”128 while stressing the need for a new bill and attempting to gain support for it from colleagues and constituents, representative tram nugueyen, one of the new proposed bill’s lead authors, is quoted as saying: “hate crimes are not just against individuals. these crimes are meant to terrorize entire communities. these are crimes against all of us [...] hate crimes, much like terrorism, are designed to create fear and make people feel unsafe. we need to name them for what they are — hate crimes — and prosecute them to an added degree to tell the community that we see them, that they are valued, and that we won’t tolerate such violence and hate.” 129 statutes. 127 “section 39: assault or battery for purpose of intimidation; weapons; punishment.” the 192nd general court of the commonwealth of massachusetts. mass.gov. accessed may 7, 2021. https://malegislature.gov/laws/generallaws/partiv/titlei/chapter265/ section39#:~:text=(a)%20whoever%20commits%20an%20assault,of%20not%20more %20than%20five. 128 lisinski, chris. “massachusetts attorney general maura healey: times call for overhaul of hate crime laws.” the lowell sun, march 31, 2021. https://www.lowellsun.com/2021/03/31/healey-times-call-for-overhaul-of-hate-crime-laws/. 129 lisinski, chris. “massachusetts attorney general maura healey: times call for overhaul of hate crime laws.” the lowell sun, march 31, 2021. https://www.lowellsun.com/2021/03/31/healey-times-call-for-overhaul-of-hate-crime-laws/. 56 brandeis university law journal fall 2021, volume 9, issue 1 representative nuguyen’s statement epitomizes why it is essential for massachusetts, and all states, to implement stronger legislation in response to the rise in hate witnessed around the country. while massachusetts is actively working on eradicating hate by considering newer, more updated legislation, pennsylvania has had the same hate crime laws with little modification since 1982. although there has recently been discussion on the local level to expand protected categories, progress has not yet been achieved. in its laws, pennsylvania does not explicitly use hate crime as a legal term, but rather, classifies it as ethnic intimidation. pennsylvania’s ethnic intimidation law (18 p.s. section 2710) defines ethnic intimidation by stating that it is illegal for an individual to commit certain crimes with motivation either partly or in whole rooted in hatred toward the race, color, religion, or national origin of another person or group.130 ethnic intimidation is usually considered to be a separate offense, but can be charged if one of the following charges also occur: criminal mischief, assault, harassment, threats, stalking or homicide.131 related is the crimes code (18 p.s. section 3307) which makes it a crime to knowingly deface a religious facility.132 furthermore, pennsylvania mandates data collection for all crimes through its code (pa. adm. code section 710) regarding state police responsibilities, so technically, even though it is not explicitly mentioned, hate crime data collection is required.133 even so, hate crime numbers are very low in pennsylvania, with 41 total incidents reported in 2019. 28 incidents were related to race, ethnicity, and ancestry, 9 were connected to religion, and 4 were related to 130 “2010 pennsylvania code title 18 crimes and offenses chapter 27 assault 2710 ethnic intimidation.” justia us law. justia. accessed may 7, 2021. https://law.justia.com/codes/pennsylvania/2010/title-18/chapter-27/2710. 131 “state hate crimes statutes.” brennan center for justice. brennan center for justice, july 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimesstatutes. 132 “hate crime.” office of attorney general josh shapiro. office of the attorney general of the commonwealth of pennsylvania . accessed may 7, 2021. https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/. 133 “bias and hate crimes.” pennsylvania human rights commission. commonwealth of pennsylvania, https://www.phrc.pa.gov/resources/pages/hate-crime.aspx. 57 brandeis university law journal fall 2021, volume 9, issue 1 sexual orientation.134 pennsylvania uses a penalty enhancement model for ethnic intimidation violations, but because convictions are minimal despite the fact that pennsylvania is a very populous state, it is rarely used. if one were to be considered a victim of ethnic intimidation, however, under civil redress (42 pa. c.s.a. section 8309) they can file a civil rights lawsuit against the perpetrator of a hate crime.135 there are several reasons that could explain why this is the case, the most plausible being that the list of protected categories is quite short, excluding many populations who also face bias-motivated crimes. the reason why various demographics are excluded seems entirely political. for instance, in a 2002 amendment, sexual orientation was briefly a protected category in pennsylvania. however, due to public outcry and how controversial it was, sexual orientation was removed as a protected category.136 another reason for why there are minimal ethnic intimidation convictions is because the term hate crime is never explicitly used, and the phrase ethnic intimidation appears to have different connotations on various state websites. this may amount to confusion on what would count as ethnic intimidation. this can dissuade individuals from feeling comfortable coming forward and also may cause law enforcement officials to improperly recognize and respond to a hate incident, since training related to hate crimes is not a requirement in pennsylvania. the difference in the number of convictions reported in massachusetts (388) and pennsylvania (41) in 2019 proves how the variations seen in hate crime laws and procedures by state have drastically different outcomes.137 it is not outrageous to assume that pennsylvania, a state with a population nearly double the size of massachusetts, would have 134 hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 135 “hate crime.” office of attorney general josh shapiro . office of attorney general commonwealth of pennsylvania, 2021. https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/. 136 boren, michael. “pa expands protections for lgbt people, but hate-crime law still doesn’t include them.” the philadelphia inquirer . the philadelphia inquirer, august 27, 2018. https://www.inquirer.com/philly/news/pennsylvania/lgbt-hate-crimes-pennsylvaniahuman-relations-commission-20180817.html. 137 “hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 58 brandeis university law journal fall 2021, volume 9, issue 1 more incidents of hate crimes occurring than what is formally reported. however, what we have is an inaccurate picture of hate in pennsylvania and other states with similar protocols. this is due to a variety of factors including different definitions of hate crimes, protected categories, and different training requirements. to further demonstrate how problematic this discrepancy is, i will use a federal hate crime case example and address, based on their current hate crime statutes, how massachusetts and pennsylvania would respond if the case occurred in either state. in may 2020, sean díaz de león and juan carlos pagán bonilla were convicted of knowingly targetting two transgender women in a violent carjacking.138 they had sexual relations with the two women who were visiting puerto rico from new york and were angered after discovering that they were transgender.139 the defendants then attacked the women, shot at them, and then set their car on fire. if this case were to happen in massachusetts, it would be classified as a hate crime because gender identity is considered a protected category. furthermore, through mass. gen laws ch. 265, section 39, the crime would be counted as a separate offense and the defendants would receive an enhanced penalty sentence. however, if this case occurred in pennsylvania, it would not be considered in violation of 18 p.s. section 2710, as gender identity is not a legally recognized protected category. the families of the victims would not get justice, and the fact that the case would proceed missing an ethnic intimidation charge would send a message to transgender pennsylvania residents that if hate crimes occur against them, no action would be taken by law enforcement because of the identifying factors that make them who they are. conclusion senator edward kennedy, a staunch supporter of hate crime legislation, once said “[h]ate crimes are a modern plague afflicting communities throughout the nation. again and again, lives have been shattered by the violence of hate.”140 while it is evident that instances of 138 “hate crime case examples.” united states department of justice. u.s. department of justice . accessed may 5, 2021. https://www.justice.gov/hatecrimes/hate-crimes-caseexamples. 139 ring, trudy. “two men indicted for murders of transgender women in puerto rico.” https://www.advocate.com/crime/2020/5/14/two-men-indicted-murders-transgenderwomen-puerto-rico. advocate, may 14, 2020. 140 edward kennedy, hate crimes: the unfinished business of america, 44 boston bar j. 6 (jan / feb. 2000) accessed april 27, 2021. 59 brandeis university law journal fall 2021, volume 9, issue 1 hate have been woven into the american experience since its very beginning, kennedy’s quote is accurate in reflecting the urgency and necessity of legislation to combat a rising tide of hostility and violence experienced by marginalized communities. white supremacy, xenophobia, racism, antisemitism, homophobia, and other expressions of intolerance toward difference are nothing new, but have simply been magnified in recent years due to immense social, political, and economic change. even though hate crime legislation exists on both a federal level and in most states, it is clear that there are flaws that must be addressed in order to ensure that the legislation is as effective as possible. it is imperative that all states have at least basic hate crime statutes implemented and utilize similar definitions of hate crimes to prevent confusion about what the term means in practice. currently, arkansas, south carolina, and wyoming do not have any hate crime statutes in place which is very problematic, as it implies that hate crimes are not legitimate or do not occur within those areas, which is not true. while it is understandable that different states have different statutory structures, making universal hate crime laws across all states difficult to achieve, the categories of identity that are legally protected should be consistent within all states. in order to effectively combat hate experienced by one marginalized group in one state or location, it is essential to send the message that hate toward that group is not tolerated anywhere. furthermore, training for law enforcement officers in each state should be mandatory, so that they can accurately recognize and report hate crimes if they occur and ensure that they are being entered into the system accordingly. federal funding should be allocated to state agencies to ensure that each agency has the resources necessary to accomplish this endeavor. to that end, it should be required that all states report data of hate crimes that occur and sentencing that follows. this may dissuade potential perpetrators from manifesting hate into action and sends a message to affected communities that their experiences are being taken seriously. ways to report hate crimes should be more accessible for those who experience them. training should be a requirement in schools and workplaces to spread awareness about hate crimes and help individuals who experience them be able to accurately report them. additionally, it would be beneficial if there was a hotline in place to help victims and provide guidance for how they can 60 brandeis university law journal fall 2021, volume 9, issue 1 achieve justice. if these steps are implemented, relationships between victimized communities, law enforcement, and legislators could improve and individuals who experience hate crimes would feel more comfortable coming forward, sharing their experiences, and assisting in the efforts for change. while hate crime legislation is important, it is not the one solution to halting hate crimes for good. it is important to look outside the legal system and dismantle or transform systems of oppression that keep marginalized communities marginalized. additionally, because hate crimes are often rooted in intolerance and ignorance, it is essential for there to be educational efforts in schools and workplaces to help the public to understand each other’s differences, rather than fear them. there should be events within communities to celebrate different cultures, customs, and traditions, as well as more local efforts to create community and unity. for future research, it would be interesting to assess recent manifestations of hate, such as the murder of george floyd, through the lens of hate crimes and evaluate if and how current laws would apply. 61 brandeis university law journal fall 2021, volume 9, issue 1 works cited “18 u.s. code § 241 conspiracy against rights.” legal information institute. cornell law school. accessed may 5, 2021. https://www.law.cornell.edu/uscode/text/18/241. “18 u.s. code § 245 federally protected activities.” legal information institute . cornell law school . accessed april 27, 2021. https://www.law.cornell.edu/uscode/text/18/245. “18 u.s. code § 247 damage to religious property; obstruction of persons in the free exercise of religious beliefs.” legal information institute. cornell law school . accessed may 7, 2021. https://www.law.cornell.edu/uscode/text/18/247. “2010 pennsylvania code title 18 crimes and offenses chapter 27 assault 2710 ethnic intimidation.” justia us law. justia. accessed may 7, 2021. https://law.justia.com/codes/pennsylvania/2010/title18/chapter-27/2710. “42 u.s. code § 3631.violations; penalties.” legal information institute. cornell law school . accessed may 7, 2021. https://www.law.cornell.edu/uscode/text/42/3631. “alabama only state in u.s. to report zero hate crimes.” adl atlanta. anti-defamation league , november 16, 2020. https://atlanta.adl.org/news/alabama-only-state-in-u-s-to-report-zero-hatecrimes/. amy feinman, “marblehead police training” (zoom, april 21, 2021) feinman, amy. northeast area civil rights counsel at anti-defamation league. “interview with jessica daniel.” april 2021. “audit of antisemitic incidents 2020.” anti-defamation league. anti-defamation league , april 2021. https://www.adl.org/audit2020#executive-summary. 62 https://www.law.cornell.edu/uscode/text/18/241 https://www.adl.org/audit2020#executive-summary https://atlanta.adl.org/news/alabama-only-state-in-u-s-to-report-zero-hate-crimes/ https://atlanta.adl.org/news/alabama-only-state-in-u-s-to-report-zero-hate-crimes/ https://www.law.cornell.edu/uscode/text/42/3631 https://law.justia.com/codes/pennsylvania/2010/title-18/chapter-27/2710 https://law.justia.com/codes/pennsylvania/2010/title-18/chapter-27/2710 https://www.law.cornell.edu/uscode/text/18/247 https://www.law.cornell.edu/uscode/text/18/245 brandeis university law journal fall 2021, volume 9, issue 1 “bias and hate crimes.” pennsylvania human rights commission. commonwealth of pennsylvania, https://www.phrc.pa.gov/resources/pages/ hate-crime.aspx. boren, michael. “pa expands protections for lgbt people, but hate-crime law still doesn’t include them.” the philadelphia inquirer . the philadelphia inquirer, august 27, 2018. https://www.inquirer.com/philly/news/pennsylvania/lgbt-hate-crimespennsylvania-human-relations-commission-20180817.html. “covid 'hate crimes' against asian americans on the rise.” bbc news , april 2021. https://www.bbc.com/news/world-us-canada-56218684. donna m. evans; colleen b. mcelhaney, "historical overview: massachusetts court decisions shaping federal constitutional law," boston bar journal 44, no. 1 (january/february 2000): 20-[ii] “federalism.” criminal law by university of minnesota. university of minnesota. accessed may 5, 2021. https://open.lib.umn.edu/criminallaw/ chapter/1-1-federalism/. “hate crime case examples.” united states department of justice. u.s. department of justice . accessed may 5, 2021. https://www.justice.gov/hatecrimes/hate-crimes-case-examples. “hate crime law in massachusetts.” mass.gov. commonwealth of massachusetts. accessed may 7, 2021. https://blog.mass.gov/masslawlib/legal-topics/hate-crime-law-inmassachusetts/. “hate crime laws.” anti-defamation league. anti-defamation league, 2012. https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/ hate-crimes-law.pdf. “hate crime statistics (2019).” the united states department of justice . u.s. department of justice , 2019. https://www.justice.gov/hatecrimes/hate-crime-statistics. 63 https://www.justice.gov/hatecrimes/hate-crime-statistics https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/hate-crimes-law.pdf https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/hate-crimes-law.pdf https://blog.mass.gov/masslawlib/legal-topics/hate-crime-law-in-massachusetts/ https://blog.mass.gov/masslawlib/legal-topics/hate-crime-law-in-massachusetts/ https://www.justice.gov/hatecrimes/hate-crimes-case-examples https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/ https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/ https://www.bbc.com/news/world-us-canada-56218684 https://www.inquirer.com/philly/news/pennsylvania/lgbt-hate-crimes-pennsylvania-human-relations-commission-20180817.html https://www.inquirer.com/philly/news/pennsylvania/lgbt-hate-crimes-pennsylvania-human-relations-commission-20180817.html https://www.phrc.pa.gov/resources/pages/hate-crime.aspx https://www.phrc.pa.gov/resources/pages/hate-crime.aspx brandeis university law journal fall 2021, volume 9, issue 1 “hate crime.” office of attorney general josh shapiro . office of attorney general commonwealth of pennsylvania, 2021. https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/. “hate crime.” office of attorney general josh shapiro. office of the attorney general of the commonwealth of pennsylvania . accessed may 7, 2021. https://www.attorneygeneral.gov/protect-yourself/civil-rights/ hate-crime/. “hate crimes timeline.” the human rights campaign. the human rights campaign. accessed may 5, 2021. https://www.hrc.org/resources/hate-crimes-timeline. levin , jack, and jack mcdevitt. “hate crimes.” encyclopedia of peace, violence and conflict 2 (2008). https://jacklevinonviolence.com/articles/hatecrimesencyc92206final.pdf. lisinski, chris. “massachusetts attorney general maura healey: times call for overhaul of hate crime laws.” the lowell sun, march 31, 2021. https://www.lowellsun.com/2021/03/31/healey-times-call-foroverhaul-of-hate-crime-laws/. “matthew shepard and james byrd, jr. hate crimes prevention act.” legal information institute. cornell law school. accessed may 5, 2021. https://www.law.cornell.edu/wex/matthew_shepard_and_james_byrd_jr_hat e_crimes_prevention_act. morava, maria and saba hamedy. "49 states and territories have hate crime laws -but they vary." cnn wire service, mar 17, 2021. https://search.proquest.com/wire-feeds/49-states-territories-have-hate-crimelaws-they/docview/2501895775/se-2?accountid=9703. “police powers.” legal information institute . cornell law school. accessed may 5, 2021. “federalism.” criminal law by university of minnesota. university of minnesota. accessed may 5, 2021. https://open.lib.umn.edu/criminallaw/chapter/1-1-federalism/. . 64 https://search.proquest.com/wire-feeds/49-states-territories-have-hate-crime-laws-they/docview/2501895775/se-2?accountid=9703 https://search.proquest.com/wire-feeds/49-states-territories-have-hate-crime-laws-they/docview/2501895775/se-2?accountid=9703 https://www.law.cornell.edu/wex/matthew_shepard_and_james_byrd_jr_hate_crimes_prevention_act https://www.law.cornell.edu/wex/matthew_shepard_and_james_byrd_jr_hate_crimes_prevention_act https://www.lowellsun.com/2021/03/31/healey-times-call-for-overhaul-of-hate-crime-laws/ https://www.lowellsun.com/2021/03/31/healey-times-call-for-overhaul-of-hate-crime-laws/ https://jacklevinonviolence.com/articles/hatecrimesencyc92206final.pdf https://www.hrc.org/resources/hate-crimes-timeline https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/ https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/ https://www.attorneygeneral.gov/protect-yourself/civil-rights/hate-crime/ brandeis university law journal fall 2021, volume 9, issue 1 “the psychology of hate crimes.” american psychological association. american psychological association , august 2017. https://www.apa.org/advocacy/interpersonal-violence/hate-crimes. ring, trudy. “two men indicted for murders of transgender women in puerto rico.” https://www.advocate.com/crime/2020/5/14/twomen-indicted-murders-transgender-women-puerto-rico. advocate, may 14, 2020. https://www.advocate.com/crime/2020/5/14/two-men-indictedmurders-transgender-women-puerto-rico. roberts, madeleine. “marking the deadliest year on record, hrc releases report on violence against transgender and gender nonconforming people.” the human rights campaign . the human rights campaign, november 19, 2020. https://www.hrc.org/press-releases/marking-the-deadliest-year-on-recordhrc-releases-report-on-violence-against-transgender-and-gender-nonconforming-people. ross, janell. why americans can’t agree on which crimes are hate crimes: what an image about the care and pace of investigating a white baton rouge man possibly involved in hate crimes tells and conceals. washington: wp company llc d/b/a the washington post, 2017. “section 39: assault or battery for purpose of intimidation; weapons; punishment.” the 192nd general court of the commonwealth of massachusetts. mass.gov. accessed may 7, 2021. https://malegislature.gov/ laws/generallaws/partiv/titlei/chapter265/section39#:~:text=(a) %20whoever%20commits%20an%20assault,of%20not%20more%20than %20five. shattuck, john, and mathias risse. “hate crimes.” carr center for human rights policy , february 22, 2021, 1–13. https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf. “state hate crimes statutes.” brennan center for justice. brennan center for justice, july 2, 2020. https://www.brennancenter.org/our-work/research-reports/state-hate-crimesstatutes. 65 https://www.brennancenter.org/our-work/research-reports/state-hate-crimes-statutes https://www.brennancenter.org/our-work/research-reports/state-hate-crimes-statutes https://carrcenter.hks.harvard.edu/files/cchr/files/hate_crimes.pdf https://malegislature.gov/laws/generallaws/partiv/titlei/chapter265/section39#:~:text=(a)%20whoever%20commits%20an%20assault,of%20not%20more%20than%20five https://malegislature.gov/laws/generallaws/partiv/titlei/chapter265/section39#:~:text=(a)%20whoever%20commits%20an%20assault,of%20not%20more%20than%20five https://malegislature.gov/laws/generallaws/partiv/titlei/chapter265/section39#:~:text=(a)%20whoever%20commits%20an%20assault,of%20not%20more%20than%20five https://www.hrc.org/press-releases/marking-the-deadliest-year-on-record-hrc-releases-report-on-violence-against-transgender-and-gender-non-conforming-people https://www.hrc.org/press-releases/marking-the-deadliest-year-on-record-hrc-releases-report-on-violence-against-transgender-and-gender-non-conforming-people https://www.hrc.org/press-releases/marking-the-deadliest-year-on-record-hrc-releases-report-on-violence-against-transgender-and-gender-non-conforming-people https://www.advocate.com/crime/2020/5/14/two-men-indicted-murders-transgender-women-puerto-rico https://www.advocate.com/crime/2020/5/14/two-men-indicted-murders-transgender-women-puerto-rico https://www.apa.org/advocacy/interpersonal-violence/hate-crimes brandeis university law journal fall 2021, volume 9, issue 1 thebault, reis. “nearly every state has a hate crime law. why don't more people use them?” the washington post. the washington post, april 26, 2021. https://www.washingtonpost.com/nation/2021/04/26/hate-crime-lawsexplained/. “wisconsin v. mitchell.” legal information institute. cornell law school. accessed may 5, 2021. https://www.law.cornell.edu/supct/html/92515.zo.html. 66 https://www.washingtonpost.com/nation/2021/04/26/hate-crime-laws-explained/ https://www.washingtonpost.com/nation/2021/04/26/hate-crime-laws-explained/ brandeis university law journal fall 2022, volume 10, issue 1 what would happen if…? gianna bruno49 in this paper, i will discuss the implications of a hypothetical case that would allow the environmental protection agency to first, regulate greenhouse gasses, and second, interpret 42 u.s. code § 7411 to call for a constant decrease of greenhouse gas emissions and require the shutdown of all coal-fired plants in the united states. i will also discuss opinions on the inflation reduction act, which was signed into law on august 16, 2022, and could pave the way for a hypothetical such as this to become a reality. i. hypothetical the environmental protection agency (epa) has introduced a new regulation that will affect existing sources that emit greenhouse gasses called the existing source rule. the hypothetical regulation would limit the amount of greenhouse gas emissions that are produced by a state’s electricity grid. in short, the law aims to limit greenhouse gas emissions in order to reach a net-zero value of emissions in the united states by 2030. experts believe that under this regulation, it would be possible to eliminate greenhouse gas emissions by 2030 if states shut down all of their coal-fired power plants. the epa believes that this regulation is necessary and proper as it is the “best system of emissions reduction” because they regulate grids as a whole rather than any marginal or fractional changes to the grid which could 49 brandeis university undergraduate, class of 2023. 24 brandeis university law journal fall 2022, volume 10, issue 1 create greater environmental benefits.50 the supreme court found that the epa’s interpretation of the “best system of emissions reduction” was reasonable and therefore it should be implemented.51 thus, future policies and decisions will be affected by the gravity of this hypothetical supreme court decision. this paper aims to provide an analysis of possible policy implications as well as how the consequences of the supreme court (scotus) decision will affect the epa, the clean air act (caa), other future cases such as this one, and climate change. ii. background before delving into the hypothetical, it is important to define the variables. first, the epa was created on december 4, 1970, by order 1110.2 as directed by president nixon in order to combat negative effects on the common good due to pollution; thus, the epa plays a direct and active role in the regulation of air pollutants.52 second, the clean air act (caa) is a set of federal laws that regulate air emissions. most importantly, the caa grants the authority to the epa to protect public health and public welfare and to regulate emissions of hazardous air pollutants.53 briefly put, the caa was created to encourage pollution prevention.54 the caa, establishes “a series of regulatory programs to control air pollution from stationary sources” which articulates the regulation of power plants just like the ones the epa are attempting to regulate in the hypothetical.55 power plants are considered stationary sources because under the caa, a “stationary source” is 55 “summary of the clean air act,” 2022. 54 42 u.s.c. § 740l (b). 53 “summary of the clean air act,” 2022. 52 “epa order 1110.2 -initial organization of the epa,” 2016. 51 42 u.s.c. § 7411. 50 42 u.s.c. § 7411. 25 brandeis university law journal fall 2022, volume 10, issue 1 specifically defined as “any building, structure, facility, or installation which emits or may emit any pollution”56 and thus, under this definition power plants can be regulated under the section entitled “standards of performance for new stationary sources” or 42 u.s.c. § 7411.57 iii. analysis to reiterate, the scotus decision from the hypothetical case declared that the epa’s interpretation of “best system of emission reduction” was reasonable insofar that the interpretation aligned with the congressional intention to protect the nation's air quality.58 therefore, in order for the states to be able to comply with the continual need to decrease emissions, all coal-fired power plants must be shut down by 2030. once all the coal-fired power plants are shut down, what would this mean for future policies regarding greenhouse gas emissions? first, it is important to note that as of 2019, greenhouse gas emissions from the power sector make up about 25% of emissions. even though coal-fired power plants will not be eliminated until 2030, there will be a steady annual decrease. policymakers could now shift their focus from creating policies regarding power-based greenhouse gas emissions and focus their attention on other sectors producing emissions such as transportation and industries.59 second, setting this interpretation in stone removes any and all political will from possible legislation.60 assuming this case is not appealed, it would be safe to declare that the annual grid-wide decrease will occur up until the point that the power plants are 60 betts, “can the u.s. phase out coal's greenhouse gas emissions by 2030?” 59 “federal climate policy 101: reducing emissions.” 58 42 u.s.c. § 740l (b). 57 42 u.s.c. § 7411. 56 42 u.s.c. § 7411(a). 26 brandeis university law journal fall 2022, volume 10, issue 1 inevitably shut down, which no policy can change because scotus declared the reasonability of the epa to make that regulation in perpetuity. therefore, it is impossible for the legislature to change the outcome. at this point, any policies that would merge post-implementation would be used for specific adjustments or regulations on how the grid-wide decrease will proceed. a. environmental protection agency even though greenhouse gasses are not criteria pollutants, the epa declared that they are a danger to public health and welfare, therefore, scotus acknowledged their danger when they declared the term “best” to refer to the most advantageous adjustment in regard to protecting the nation’s air quality. the scotus decision affirming this standard allows the epa to implement similar policies across the agency because this case, among others, upholds the danger of greenhouse gasses and gives support to the epa to enforce regulations to reduce those emissions. post-implementation, the epa can now set more standards outside of power plants that will limit greenhouse gas emissions. b. clean air act the scotus decision will impact the caa in a similar fashion to the way that the decision affected the epa. the epa can utilize the approved interpretation of the “best system of emission reduction” under the caa to implement more strict pollution control standards across the nation and related sectors that emit greenhouse gasses. the scotus decision does not affect the words of the act itself, but rather the decision allows for a more generous reading of the 27 brandeis university law journal fall 2022, volume 10, issue 1 promotion of pollution prevention, which, in turn, allows the epa to enforce emission reductions.61 c. future cases like this as stated above, this case set the precedent of regulating greenhouse gasses in place. therefore, any future cases that may arise are more likely to be dismissed because scotus concluded the epa’s interpretation to be reasonable, and therefore, the regulation may be implemented. potential upcoming cases that could arise would include cases regarding emissions standards not being met, cases involving legislative policies regarding implementation standards and subsequent epa interpretations, or perhaps cases about technological implementations. however, any cases that question the implementation of the “existing source rule” must be dismissed because the reasonableness of the regulation is upheld by the scotus decision. d. climate change lastly, the scotus decision will have great implications on climate change. “coal (...) is the energy source that is most responsible for accumulated fossil-fuel co2 in today’s atmosphere,”62 therefore, under the implementation of the “existing source rule,” coal-fired power plants will be eliminated by 2030, which means the elimination of coal as a power source. since coal is the leading source of greenhouse gas emissions, removing coal as an emission source would substantially slow the speed at which the world is heading into 62 betts, “can the u.s. phase out coal's greenhouse gas emissions by 2030?” 61 42 u.s.c. § 740l (b). 28 brandeis university law journal fall 2022, volume 10, issue 1 a climate crisis.63 researchers and scientists fighting climate change could then also focus on reducing the emissions from other greenhouse gas emitters without needing to focus their energy into decreasing coal emissions. iv. recent developments on august 16th, 2022, the inflation reduction act of 2022, h.r.5376, became law.64 the act has been worked into the fiscal year 2022 budget and “allocates hundreds of billions of dollars to facilitate a clean energy transition, primarily through clean energy tax credits.”65 the act, while primarily a fiscal document, makes major strides toward environmental justice. in the next paragraphs, i will analyze lisa friedman’s report from the new york times and marlo lewis, jr.’s article from the competitive enterprise institute about how the inflation reduction act could affect the epa’s regulation power. a. democrats designed the climate law to be a game changer. here’s how lisa friedman starts her article by boldly stating that congress has now given the epa the authority to make regulations that would move the u.s. away from needing to burn fossil fuels. according to the act and friedman’s report, “that language (...) explicitly gives the e.p.a. the authority to regulate greenhouse gasses and to use its power to push the 65 “5 things to know about the inflation reduction act's environmental provisions,” 2022. 64 “inflation reduction act of 2022.” h.r.5376, 117th congress (2021-2022). 63 betts, “can the u.s. phase out coal's greenhouse gas emissions by 2030?” 29 brandeis university law journal fall 2022, volume 10, issue 1 adoption of wind, solar, and other renewable energy sources.”66 furthermore, she states that the act grants billions of dollars to the epa to fund the means in which emissions are reduced and work to ensure that carbon dioxide is not emitted into the atmosphere. in short, friedman reports that only some environmental experts claim the inflation reduction act will not have any large effect on policies. however, the overall tenor of the piece points towards the conclusion that this act is legislatively understood to be congress giving the epa the authority to address the climate crisis regarding the power sector.67 b. inflation reduction act and west virginia v. epa: legislative history refutes sen. carper’s spin in contrast, marlo lewis, jr. refers to friedman’s article and claims that her understanding of the inflation reduction act is flawed. from his viewpoint, the provisions of the act could in no way authorize the epa to implement new or stronger regulatory measures. rather, he reports that the act is merely a vessel for fiscal power that could lead to better technology with the power to change emission standards. lewis criticizes the former interpretation of taking too much liberty in dictating what the undertones of the act could mean, rather than focusing on the actual content of the act. both lewis and friedman agree that the inflation reduction act can cause positive changes to curb the climate crisis. while lewis believes those changes are coming from the budget giving way for new technologies, friedman contends that those changes 67 friedman, “democrats designed the climate law to be a game changer,” 2022. 66 friedman, “democrats designed the climate law to be a game changer,” 2022. 30 brandeis university law journal fall 2022, volume 10, issue 1 can come directly from the epa itself based on the expansion of regulatory powers.68-69 c. h.r. 5376 the precept of the inflation reduction act yields two contrasting understandings of the epa’s potential new regulatory power. this section will briefly relay how the act touches upon environmental policies. first, this act introduces the methane emissions charge which will mandate a fee on greenhouse gas emissions. second, the act is slated to budget $30 billion dollars to go towards greenhouse gas emission reduction projects. lastly, the act “has a strong focus on environmental justice.”70 the budget will be used to improve communities who are greatly affected by the climate crisis. in short, the act does not give the epa the direct authority to make regulations regarding greenhouse gas emissions, however, it does outline the harmful nature of greenhouse gasses and provides means of which to lessen the emissions for the sake of the common good.71 v. conclusion overall, it is unclear how exactly the inflation reduction act will affect future environmental policies. as of august 22, 2022, the epa has not commented on the act or how the agency itself could be affected by the act. 72 at 72 friedman, “democrats designed the climate law to be a game changer,” 2022. 71 “5 things to know about the inflation reduction act's environmental provisions,” 2022. 70 “5 things to know about the inflation reduction act's environmental provisions,” 2022. 69 friedman, “democrats designed the climate law to be a game changer,” 2022. 68 lewis, “inflation reduction act and west virginia v. epa,” 2022. 31 brandeis university law journal fall 2022, volume 10, issue 1 face-value, the act could potentially lead to legislation that will create a positive impact on the environment, such as the law and effect proposed in the hypothetical case. 32 brandeis university law journal fall 2022, volume 10, issue 1 bibliography betts, kellyn “can the u.s. phase out coal's greenhouse gas emissions by 2030?” acs publications. accessed march 19, 2022. https://pubs.acs.org/doi/full/10.1021/es101320m. “epa order 1110.2 -initial organization of the epa.” epa. environmental protection agency, september 6, 2016. https://www.epa.gov/archive/epa/aboutepa/epa-order-11 102-initial-organization-epa.html. “federal climate policy 101: reducing emissions.” resources for the future. accessed march 19, 2022. https://www.rff.org/publications/explainers/federal-clim ate-policy-101/#:~:text=the%20 major%20 greenhouse%20gas%20 reduction,technology%20 subsidies%2c%20and%20performance%20standards. friedman, lisa. “democrats designed the climate law to be a game changer. here's how.” the new york times. the new york times, august 22, 2022. https://www.nytimes.com/2022/08/22/climate/epa-supre me-court-pollution.html. “h.r.5376 117th congress (2021-2022): inflation reduction act of 2022.” accessed september 17, 2022. https://www.congress.gov/bill/117th-congress/house-bil l/5376. lewis, marlo, “inflation reduction act and west virginia v. epa: legislative history refutes sen. carper's spin.” competitive enterprise institute, september 14, 2022. https://cei.org/blog/inflation-reduction-act-and-west-vir ginia-v-epa-legislative-history-refutes-sen-carpers-spin/ . “summary of the clean air act.” epa. environmental protection agency. accessed september 16, 2022. https://www.epa.gov/laws-regulations/summary-clean-a ir-act. 33 brandeis university law journal fall 2022, volume 10, issue 1 “5 things to know about the inflation reduction act's environmental provisions: insights: vinson & elkins llp.” vinson & elkins, september 20, 2022. https://www.velaw.com/insights/5-things-to-know-abou t-the-inflation-reduction-acts-environmental-provisions/ . codes cited 42 u.s.c. § 740l. 42 u.s.c. § 741l. 34 final spring law journal copy brandeis university law journal spring 2022, volume 9, issue 2 jan nisbet (with contributions from nancy weiss), pain and shock in america: politics, advocacy, and the controversial treatment of people with disabilities daniel breen1 one night in august of 2007, a man placed a call to the judge rotenberg center, a facility dedicated to the treatment of “emotionally disturbed students” in canton, ma, and instructed staff members to wake up two of the residents and subject them to a series of electric shocks. the man, who purported to be calling on behalf of one of the clinicians at the center, explained that the shocks were to be punishment for infractions committed by the students earlier in the day. the staff members dutifully woke up the two students, 16 and 18 years old, tied them down, and proceeded to administer 29 shocks to one of them and 74 to the other. the call turned out to be a hoax; but what most readers will find surprising is the fact that electric shocks could be considered, under any circumstances, to be valid forms of clinical treatment for children. in fact, the judge rotenberg center happens to be the only facility in the united states authorized to deploy electric shock therapy—a kind of “aversive method,” as it is known at the center—to treat children with psychiatric problems. in this book, jan nisbet tells the strange tale of how this came to be, and how in the progressive bastion of massachusetts, and only in massachusetts, such things are permitted to happen. the tale begins all the way back in 1971, when dr. matthew israel founded the behavior research institute (bri) in providence, ri. it was israel’s theory that persons whose autism or mental disabilities caused them to hurt themselves, or behave disruptively, could learn to control that behavior if clinicians consistently responded to it by “aversive methods,” such as pinching or spanking them, or by administering electric shocks (one bri patient, for example, was given 174 spanks one day in 1980). while dr. israel and his successors have clung to their faith in these practices, it did not take long before the vast majority of mental health professionals had condemned them, not to mention the united nations’ special rapporteur on torture, which in 1 jd, phd, brandeis university associate professor of the practice in legal studies. 6 brandeis university law journal spring 2022, volume 9, issue 2 2013 found them to be potential violations of international conventions against the use of torture. yet when the massachusetts office for children attempted to close a series of bri-related group homes in the state, the institute used all the legal means at its disposal to fight back. the result was a truly labyrinthine series of hearings, appeals, charges and counter-charges, beginning in 1985 and continuing to the present day. nisbet is a sure guide through these proceedings, which can be so complex that readers trying to follow along may find themselves crying for mercy. yet in the midst of the procedural details, and to her immense credit, she never loses sight of the main theme. through all the years of claims and counter-claims, no one was ever able to make a winning legal argument out of the simple moral proposition that it is wrong to inflict pain upon people as a tool for modifying their behavior. thus, when in 1986, well-meaning administrators like mary kay leonard at the office for children sought to curtail aversive methods in massachusetts, bri attorneys were able to deploy anecdotal evidence of the efficacy of these methods to persuade judge ernest rotenberg, of the bristol county probate court, that they should continue. particularly persuasive to the judge was a “before and after” video depicting a patient named janine, who went from banging her head on the floor to exhibiting “normal” behavior after several years at bri. “why is there a controversy,” wondered judge rotenberg, “i have viewed the school. i have seen janine. i can’t understand any reason in the world why this is a controversial procedure.” on the basis of evidence akin to this, and in view of the pleas of parents who, badly served by other medical providers and feeling bereft of other options, saw aversive methods as the only hope for their loved ones, rotenberg presided over a “consent decree” by which bri was, and still is, 36 years later, able to continue using these methods in massachusetts. in honor of this ruling, the bri, having relocated from providence to canton, would change its name to the judge rotenberg center. lost in the shuffle was any serious judicial attention to the growing consensus among doctors that positive reinforcement, not pain, was the key to any lasting, successful treatment of disruptive and harmful behaviors (janine, as a matter of fact, reverted to self-harm as soon as the aversive methods stopped). instead, relying on selectively-chosen case studies and the testimony of parents rather than ethics, the judgments of administrators, and the scientific method, bri lawyers consistently won by depicting the controversy in the simplest of storybook terms, as one somehow pitting a 7 brandeis university law journal spring 2022, volume 9, issue 2 heartless and power-mad state bureaucracy (goliath) against clinicians who -they claimedwere only out to treat patients in the best way they knew (a set of gallant davids). it is easy to feel moral outrage as the story unfolds, especially after 2000, as the patient population at the judge rotenberg center were drawn less from persons with autism, and similar disabilities, and more from the population of persons -largely from new york city, and largely members of racial minoritieswhose behavioral issues might stem from learning disabilities or ptsd (the center would actually advertise over new york’s “hot 97” radio station, urging families to send “emotionally disturbed” children to canton). in the larger picture, nisbet’s meticulously detailed work reminds us that in our world, this kind of moral outrage too often lacks an effective form of legal expression. the reader comes away from the book with a sense of profound discouragement regarding the standards that govern our courts, joined with a feeling of admiration for the author’s painstaking, indefatigable dedication to telling this story. 8 brandeis university law journal fall 2022, volume 10, issue 1 qui tam: an ingenious bulwark against fraud tavorr vaxman-magid186 in 1863, the “qui tam” provision was introduced to the united states (u.s.) in the false claims act (fca) and has since served as the foundational law of u.s. government fraud prevention. the fca set up the consequences for individuals found to have defrauded the u.s. government. it also introduced provisions which allowed private citizens to sue a person or company for defrauding the government.187 in essence, the fca allowed private citizens to initiate lawsuits against other private citizens on the government’s behalf, as if the government were suing them itself. introduction as one of the most significant nations on the world stage, the united states has a seemingly endless list of fiscal obligations. from funding defense, to subsidizing businesses, to paying the salaries of elected officials and civil servants, there is an immense variety of government programs into which the u.s. pours its money. with such extensive fiscal responsibilities, it is imperative that the u.s. safeguards its money from misappropriation. after all, it would not be fitting for a government ‘of, by, and for’ the people to be neglecting the tax revenue it acquires from the people. to protect government spending from misappropriation and misuse, the u.s. has safeguards designed to regulate, protect, and ensure the proper use of government funding. of the many safeguards that exist to regulate government money, perhaps one of the 187 howard, “false claims act,” 1863. 186 brandeis university undergraduate, class of 2025. 85 brandeis university law journal fall 2022, volume 10, issue 1 most useful of these defense systems, is the qui tam doctrine. by providing both ‘a will and a way’ to whistleblowers, qui tam makes for a very effective tool for recovering stolen government money, and is thus a powerful defense against fraud. the pandemic & fraud the qui tam doctrine is a legal protocol that allows citizens to act as whistleblowers against individuals or entities who have defrauded the u.s. government. it has garnered increased publicity in recent years due to the covid-19 pandemic, particularly in relation to loan programs operated by the u.s. small business administration (sba). designed to help bail out small businesses that struggled financially during the pandemic, the sba created the paycheck protection program (ppp) and the economic injury disaster loan program (eidl).188 the ppp was hastily administered in march 2020 by the cares act, and operated until may 2021. during that time, it is estimated that the ppp and eidl distributed over 800 billion dollars to various businesses across the country.189 part of the programs’ main mission was to quickly distribute enough money to small businesses to prevent them from failing during the difficult first year of the covid-19 pandemic, and to allow them to keep workers employed. because of the time pressure, the ppp and eidl sacrificed security for speed, and disbursed 800 billion dollars over the course of one year, with minimal security or surveillance. so serious was the lack of security that almost immediately upon the program’s initiation in 2020, “the sba’s 189 o’brien, “bloomberg where, exactly, did $800 billion in ppp money go?,” 2021. 188 “paycheck protection program.” 86 brandeis university law journal fall 2022, volume 10, issue 1 inspector general had detected the possibility of ‘widespread potential fraud’ in the eidl program.” 190 to lose even a small portion of 800 billion dollars to fraud would be counter to all the ideals of responsible governance; as the sba’s loan programs continued, it became clear that the level of fraudulent acquisition of loan money was quite large. according to bloomberg, “the university of texas at austin noted that $76 billion of a $780 billion pool of ppp loans it examined involved ‘questionable’ lending.”191 the scope of fraudulent lending was indicative of a major problem. however, disbursing loan money to businesses who legitimately needed it was too important, and implementing the kinds of security measures necessary to eliminate fraud would slow the loan process down. as a consequence of these considerations, the sba elected to do nothing and leave the program as it was. being unable to stop misappropriation of emergency program funding, the government elected to turn its attention towards restitution after the fact. tracking down $76 billion or more missing loans would be a daunting task, but u.s. prosecutors and investigators began immediately at the first sign of widespread fraud. in may 2020, two individuals from rhode island became the first to be charged with defrauding the paycheck protection program.192 over the following months, dozens of others were charged with defrauding the program. according to arnold & porter, a major multinational law firm, by august 2022, 708 individual cases had been opened investigating pandemic fraud. these cases concern alleged fraud anywhere 192 martin, “guilty plea in first-in-the-nation cares act fraud case,” 2021. 191 o’brien, “bloomberg where, exactly, did $800 billion in ppp money go?,” 2021. 190 o’brien, “bloomberg where, exactly, did $800 billion in ppp money go?,” 2021. 87 brandeis university law journal fall 2022, volume 10, issue 1 from a $10,000 eidl grant to millions of dollars of ppp loans.193 how does qui tam recover on fraud? the 708 cases tracked by arnold & porter represent only a fraction of the total money defrauded in the past year from the eidl, ppp, and other pandemic-related loan programs. even with u.s. investigators operating at their maximum efficiency, recovering all estimated 76 billion dollars lost to fraud is a titanic task. depending on how well fraudsters hide their illegal actions, the u.s. government, on its own, may never recover all of the money lost to fraud. it is here that the qui tam doctrine is especially important. the qui tam provision was introduced in the false claims act (fca) of 1863 and gave u.s. citizens the ability to sue somebody, on the government’s behalf, if they suspected that that individual had defrauded the government. if proven correct in court, these whistleblowers would be entitled to a portion of the settlement. citizens’ ability to sue on the government’s behalf, in exchange for a portion of restitution, gave citizens a means and incentive to act as whistleblowers. however, the effectiveness of the qui tam provision is predicated on the assumption that private citizens will actually use it. in a situation where an individual suspects somebody of stealing from the u.s. government, there may be little incentive to file suit against them on the government’s behalf. after all, the government is perfectly capable of filing its own lawsuits, so why would anybody want to waste time and money on a lawsuit where the government, and not them, is eligible for restitution? filing a lawsuit can be a very time consuming procedure, even in the case of qui tam, where in some cases the original relator/plaintiff does not need to be deeply involved. 193 green, et al., “cares act fraud tracker.” 88 brandeis university law journal fall 2022, volume 10, issue 1 so, even if, as stated earlier, a financial incentive existed (a portion of the settlement), how much was that incentive, and would it be enough to get citizens to sue under qui tam? while the specific amount of money that a person filing a qui tam suit can be entitled varies depending on the circumstances, it can be quite significant. once a qui tam suit is filed, there are divergent paths for the suit before reaching trial. the first step in a qui tam case is submitting the case and notifying the government. once a qui tam suit is filed, the relator must submit a copy of the complaint and any evidence they have collected against the accused. the government then has 60 days to respond to the complaint, during which time the complaint is not yet served and remains sealed (secret).194 the government may extend the time during which the complaint is under seal, which it can use to investigate the complaint and process the evidence submitted by the relator. only once this period has elapsed can the case actually be served upon the respondent. the next step is a government decision. after it reviews the complaint, the government has two choices: it can either assume responsibility for the case, and prosecute it (sidelining the relator), or it can elect not to pursue the case, in which case the original relator can choose to either pursue the case alone or drop it. after the government has responded, the case proceeds as any other civil action. government intervention (or lack thereof) in qui tam cases is the main factor that determines what percentage of restitution/settlement the original relator may be entitled to. if the government chooses to intervene in a qui tam suit and take over its prosecution, the original relator is entitled to anywhere from 15-25 percent of the settlement, depending on the significance of their contribution to the case. for example, if a relator files a claim that is taken over by the government, but 194 green, et al., “cares act fraud tracker.” 89 brandeis university law journal fall 2022, volume 10, issue 1 then chooses not to continue as a party to the case, they may be entitled to a lower reward. however, if a relator continues as a party, and provides more meaningful evidence, they may receive up to 25 percent of the settlement.195 however, if the government chooses not to intervene in a qui tam suit, a relator who chooses to prosecute the case alone may be entitled to 25-30 percent of the settlement. the justification for this has to do with personal effort and cost. if an individual prosecutes a qui tam case alone, without government help, they are solely responsible for hiring legal counsel, paying the costs of the suit, and possibly appearing in court. if the government intervenes, however, a relator may not have to do any of these things, and so is entitled to a lower reward. remember, a qui tam action is, by definition, an action taken on the government’s behalf in response to fraudulent acquisition of government money, so regardless of whether or not the government intervenes in a case, it always is entitled to the restitution from the action. the fca allows the government to intervene in any qui tam suit that it originally chose not to if it is able to show the relevant court compelling evidence of “good cause.”196 the “good cause” definition is relatively vague, but is generally recognized as giving the government the ability to return to a case it previously passed over, if during the course of that case information was uncovered relevant to the government’s prosecutorial priorities.197 if the government intervenes later in a suit, the relator remains entitled to the 25-30 percent range of the settlement that they would have been entitled to if they continued to prosecute the case alone. despite these general guidelines, the fca also lays out certain circumstantial restrictions on the percentage of a settlement that the relator can claim. for example, under certain conditions, a court may 197 lii / legal information institute (cornell), “good cause.” 196 green, et al., “cares act fraud tracker.” 195 green, et al., “cares act fraud tracker.” 90 brandeis university law journal fall 2022, volume 10, issue 1 be able to reduce the claim of a relator down to less than 10 percent namely in cases where the relator’s evidence against the respondent came from mainly public sources.198 finally, to close a loophole, a relator who planned or participated in the fraud that the respondent is being accused of may not benefit from any percentage of the settlement from a qui tam case.199 ultimately, the goal of the qui tam doctrine is to allow private citizens to act on cases in which they suspect another fellow citizen is defrauding the government. if they are correct, they are entitled to a certain percentage of the overall settlement. this allows the government to remove pressure from its investigators, and enables individuals far removed from the government to assist in addressing fraudulent actions. this strategy makes it easier to prosecute individuals defrauding the u.s. government, because it means that it is easier for evidence not directly available to investigators to more easily be brought to their attention by private citizens and whistleblowers. does qui tam work? the idea that a monetary reward will motivate people to invoke qui tam more frequently is good in theory, but it begs the question: is there any data proving whether or not it actually works? after all, bringing a lawsuit is a time consuming task for anybody, even if– in the case of many qui tam suits– the relator does not need to actually prosecute the case. is the offer of a percentage of a settlement enough incentive for individuals to actually bring forward qui tam cases against others? does qui tam actually work to recover on fraud, and if so, how effective is it? 199 “the false claims act,” 2010. 198 howard, “false claims act,” 1863. 91 brandeis university law journal fall 2022, volume 10, issue 1 qui tam suits have been remarkably effective at catching fraud and getting settlements. according to the government accountability office (gao), “the false claims act is one of the government's primary weapons to fight fraud against the government… from fiscal years 1987 through 2005, settlements and judgments for the federal government in fca cases have exceeded $15 billion, of which $9.6 billion, or 64 percent, was for cases filed by whistleblowers under fca's qui tam provisions.”200 the sheer value of the amount of money recovered by the government– $9.6 billion, over the course of only 18 years– shows just how effective the qui tam provisions are. this money represents nearly ⅔ of all money returned to the government that was previously misappropriatedmoney that otherwise might not have been found. the data from the gao demonstrates that a massive majority of money handed to the federal government in fraud settlements comes from qui tam suits. only 36 percent of fraud settlements given to the government come from cases initiated by the government itself. the amount of money ‘loses’ in awarding relators, which according to the gao is approximately $1.6 billion, is far less than the amounts recovered by qui tam actions. the prevalence of qui tam as a share of both volume of fca suits, and value of fca suits, as well as the minimal worth of money lost to relator payouts, conveys just how effective qui tam suits are in returning money defrauded from the government. although the information provided by the gao only covers cases between 1987 and 2005, it provides an important insight into the more recent past of qui tam cases, as well as its future. according to the gao’s report, “[the] doj’s civil division received 8,869 fca cases from fiscal years 1987 through 2005. during this period, the number of qui tam fca cases generally increased as a proportion of total fca 200 u. s. government accountability office, “information on false claims act litigation,” 2006. 92 brandeis university law journal fall 2022, volume 10, issue 1 cases.”201 further, the report indicates that the number of qui tam suits related to health care fraud and procurement fraud greatly increased over the observed time period. other conclusions about data collected from the gao shows that the government chose to pursue these cases more frequently, and also received greater settlements in cases related to health care and procurement fraud. part of the reason health care and procurement fraud became more common over the period of time observed by the gao is because the u.s. government became increasingly involved in these industries. according to the gao’s report, the department of health and human services and the department of defense were most frequently named in qui tam suits as having been defrauded.202 over the same time period, the u.s. greatly increased funding towards both departments. in 1987, the u.s. spent a nominal $115.1 billion* on healthcare outlays, which had increased to $549.2 billion by 2005.*203 on defense, the u.s. spent $221.6 billion* in 1987, increasing to $600 billion* in 2005.204,205 more money being spent means more money possibly exposed to fraud. the presence of whistleblowers is particularly important in the defense and healthcare industries due to the understandably private nature of both industries. this helps explain why qui tam suits have become a greater share of fca suits during the monitored period. because the u.s. has begun spending more money in industries that are secretive or private, the qui tam doctrine is 205 chantrill, “us federal budget actual spending breakdown 2000-2005.” 204 chantrill, “us federal budget actual spending breakdown 1982-1987.” 203 chantrill, “us federal budget actual spending breakdown 1982-1987.”; chantrill, “us federal budget actual spending breakdown 2000-2005.”; note: all values for money spent noted with an asterisk (*) are in nominal usd and represent spending outlays. 202 u. s. government accountability office, “information on false claims act litigation,” 2006. 201 u. s. government accountability office, “information on false claims act litigation,” 2006. 93 brandeis university law journal fall 2022, volume 10, issue 1 becoming more important than ever in protecting against fraud. by encouraging whistleblowers to bring suit against those who defraud the government, the government ensures a greater recovery of money defrauded from it. the future of qui tam the story of qui tam did not end in 2005. based on the trends from the gao’s observed period of 1987-2005, the volume of money the government loses to fraud has likely also increased in line with the u.s. budget. thus, the number and proportion of fca suits which are qui tam have most likely also increased over the last 18 years, and will continue to increase as the government spends more money. this prediction is predicated on current trends, including increasing government budgets, and previous trends from the original 1987-2005 gao report. however, besides predicting future qui tam trends, important current events such as the covid-19 pandemic also highlight the relevance of qui tam today. during the pandemic, the u.s. distributed vast sums of money to small businesses with little oversight. only a small percentage of the estimated amount of money that was defrauded from these emergency loans has been located by u.s. investigators. in the immediate future, qui tam is likely to emerge as more significant than ever; as investigators struggle to locate large amounts of money defrauded by the government, the task of locating these funds is likely to fall on qui tam whistleblowers. much of predicting the future of qui tam is just speculation and extrapolation based on previously recorded trends for cases. this is because, besides the gao’s report, it is difficult to find compiled data regarding qui tam cases. as such, further research of qui tam cases and the statistics behind them may be necessary. this fact is not lost on the u.s. congress and also has historical precedents. in 1943 and 1986, congress commissioned various budget analyses which made it 94 brandeis university law journal fall 2022, volume 10, issue 1 clear to u.s. investigators that the government was losing significant amounts of money to fraud. in response, congress amended the false claims act to improve qui tam and ease the burden on investigators.206 in 2021, congress began the process to once again amend the fca.207 although the amendments were not as significant as the 1943 and 1986 amendments, the 2021 year-end fca amendment, if passed, could serve to also ease the burden on investigators by redefining what kinds of fraud were eligible to be sued for under qui tam suits. this would have the effect of making it easier for potential relators to bring suits. the 2021 fca amendment would order the gao to compile another report on the effectiveness of the fca. similar to the report on fca actions between 1987-2005, this report would examine more recent uses and developments of the fca.208 the data from this new gao report, if commissioned, could be extremely useful in shedding light on current qui tam trends and would be helpful in predicting the future volume of qui tam use. unfortunately, this will only occur if the u.s. congress passes the fca amendment, which is currently stuck in committee. although the fca amendment has not yet passed, the u.s. congress did pass a law to extend the statute of limitations for defrauding the ppp and eidl program to 10 years.209 all of these congressional actions show that the u.s. congress expects the fca to be invoked at a greater frequency in the near future, as the scale of covid-19 relief fraud becomes evident over the coming months. the government’s actions serve to make it easier for potential relators to bring forth qui tam suits and appear to be encouraging them 209 brewer, “bills extend statute of limitation for prosecuting ppp, eidl fraud,” 2022. 208 “false claims amendments act of 2021” (2021). 207 “false claims amendments act of 2021,” s.2428, 117th congress (2021-2022), 2021. 206 whistleblower law firm, “false claims act history.” 95 brandeis university law journal fall 2022, volume 10, issue 1 considerably as the government attempts to recover large amounts of money defrauded during the covid-19 pandemic. so, what can be concluded from this? for one, there is not enough information on the current trends of qui tam suits. the last gao report on fca and qui tam cases recorded cases only between 1987 and 2005 and is now outdated. the last 18 years have yet to be compiled. if the gao were to examine the last 18 years (and especially the time since the covid-19 pandemic), it would likely find that the usage and settlement values of qui tam have increased and will continue to increase. this is not an unreasonable extrapolation of the trends found in the 1987-2005 report, but to draw any solid conclusions, a new gao report (or something similar) examining the total volume of all qui tam suits is needed. at the very least, we can say with confidence that a rising importance of qui tam suits is currently expected by congress, as evidenced by its moves to enable qui tam further, and potentially investigate the last two decades of qui tam cases. finally, even if all of this turns out to be true, and the last 18 years do not follow the previous decades’ trends with qui tam, the fallout from the covid-19 pandemic is certain to increase the usage of qui tameven if just in the short term. conclusion qui tam is a very effective protection against fraud. it gives whistleblowers a way and a will when it comes to supporting fraud recovery. during extraordinary times, such as the last three years (2019-2022), even the colossal bureaucracy of the united states needs a helping hand tracking down money unlawfully stolen from it. qui tam grants exactly the type of help needed. by allowing regular citizens to become whistleblowers and help return stolen money to its rightful place, qui tam helps u.s. investigators find the money that slips between the cracks of the justice system. 96 brandeis university law journal fall 2022, volume 10, issue 1 by incentivizing people to act, qui tam ensures that the u.s government has an effective defense against fraud. the potential power of millions of citizens willing to become whistleblowers far outweighs any surveillance or accountability apparatus the government could devise. it is for this reason that qui tam is an effective defense against fraud. because of its effectiveness, the u.s. congress has taken action to revitalize the doctrine as the country faces a great wave of fraudulent activity, and may soon commission a new gao report on qui tam. when tax revenue that people expect to be invested in their collective prosperity is stolen, justice demands that such money be returned. qui tam enables that, in a very literal sense. as the latin phrase goes, from which the name of the doctrine originates, “qui tam pro domino rege quam pro se ipso in hac parte sequitur,”who sues on behalf of the king, sues on behalf of himself. though the king is now a congress, the concept has stood the test of time. qui tam today remains a powerful bulwark against fraud. 97 brandeis university law journal fall 2022, volume 10, issue 1 bibliography brewer, kevin. “bills extend statute of limitation for prosecuting ppp, eidl fraud.” journal of accountancy, august 10, 2022. https://www.journalofaccountancy.com/news/2022/aug/ bills-extend-statute-limitation-prosecuting-ppp-eidl-frau d.html. chantrill, christopher. “us federal budget actual spending breakdown 1982-1987 pie chart.” www.usgovernmentspending.com. accessed september 8, 2022. https://www.usgovernmentspending.com/federal_budge t_detail_1987bs22000n#usgs302. chantrill, christopher. “us federal budget actual spending breakdown 2000-2005 pie chart.” www.usgovernmentspending.com. accessed september 8, 2022. https://www.usgovernmentspending.com/federal_budge t_detail_2005bs21987n#usgs302. whistleblower law firm. “false claims act history.” accessed september 8, 2022. https://www.whistleblowerfirm.com/healthcare-fraud/fa lse-claims-act/history/. false claims amendments act of 2021 (2021). https://www.congress.gov/bill/117th-congress/senate-bi ll/2428. lii / legal information institute (cornell). “good cause.” accessed september 17, 2022. https://www.law.cornell.edu/wex/good_cause. green, jonathan, kevin toomey, matthew bemis, kodjo kumi, maya kouassi, and aidan mulry. “cares act fraud tracker.” arnold & porter. accessed september 13, 2022. 98 brandeis university law journal fall 2022, volume 10, issue 1 https://www.arnoldporter.com/en/general/cares-act-frau d-tracker. howard, jacob. false claims act (1863). https://www.law.cornell.edu/uscode/text/31/3730. martin, jim. “guilty plea in first-in-the-nation cares act fraud case.” www.justice.gov, may 17, 2021. https://www.justice.gov/usao-ri/pr/guilty-plea-first-nati on-cares-act-fraud-case. o’brien, timothy. “bloomberg where, exactly, did $800 billion in ppp money go?” www.bloomberg.com, august 19, 2021. https://www.bloomberg.com/opinion/articles/2021-08-1 9/where-exactly-did-800-billion-in-ppp-money-go. office, u. s. government accountability. “information on false claims act litigation.” www.gao.gov, january 31, 2006. https://www.gao.gov/products/gao-06-320r. paycheck protection program. “paycheck protection program.” accessed september 12, 2022. https://www.sba.gov/funding-programs/loans/covid-19relief-options/paycheck-protection-program. “the false claims act: a primer,” 2010. https://www.justice.gov/sites/default/files/civil/legacy/2 011/04/22/c-frauds_fca_primer.pdf. 99 brandeis university law journal fall 2022, volume 10, issue 1 necessities to life: the fundamental rights to clean water and clean air sophia reiss1 americans are guaranteed fundamental rights, including some not enumerated in the constitution. the supreme court has recognized several, such as the right to parent one's children. the right to clean water and clear air are necessary to “promote the general welfare” and so should be recognized as fundamental rights. this paper walks through the importance of both water and air protections, where the united states legal framework could possibly allow for protections, what current protections exist, why further protections are vital. introduction certain fundamental rights are guaranteed in the u.s. constitution. while many of these, such as freedom of speech, are expressly named in the document, the ninth amendment establishes the existence of “unenumerated rights” which are deemed to be implied by the foundational american texts. these rights are a place where the framers acknowledge the necessity to achieve other goals and enable for these rights to become judicially enforceable through their underlying presence in the preamble. since the preamble declares that two of the principal goals of the constitution are to “promote general welfare” and “liberty,” and since clean air and water are vital to human survival, the right to clean water and clear air should therefore be recognized. federal protection for these rights stems from the clean water act and clean air act, 1 brandeis university undergraduate, class of 2023. 6 brandeis university law journal fall 2022, volume 10, issue 1 passed by congress in the 1960s. several states recognize the right to clean air and water in their state constitutions or through legislation, but the u.s supreme court has yet to consider the question of whether clean air and water ought to be considered as rights guaranteed by the ninth amendment. recognizing these as fundamental rights in the u.s. constitution, would expand their protections and raise the hurdles that would need to be overcome to deny them to people. public health is a fundamental concern, so the resources crucial to maintaining it are as well: clean water and air. legal mandates for clean water and air have a significant impact on the environment and on our health. for example, during the flint water crisis, the city’s drinking water was contaminated, causing widespread lead poisoning across the city.2 across the state in chicago, a lack of clean air due to longstanding pervasive industrial pollution and minimal regulation has caused elevated rates of asthma among the city’s population.3 legal context the ninth amendment of the constitution notes that the people retain rights not enumerated in the constitution and there is a long history of court rulings that there are rights implied. in meyer v nebraska, in which the court ruled that states cannot forbid the teaching of a foreign language, the court noted broadly that the “liberty guaranteed under u.s. const. amend. xiv denotes not merely freedom from bodily restraint but also” several other unenumerated rights including “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to 3 “chicago now ranked 18th most polluted city in the u.s.” 2 guyadeen, “new york’s constitutional right to water,” 2021. 7 brandeis university law journal fall 2022, volume 10, issue 1 marry, establish a home and bring up children.”4 the case mentions that this list is not exhaustive and that the ninth amendment provides protections “generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”5 most of the jurisprudence conferring unenumerated rights has focused on “liberty” guaranteed in the 5th and 14th amendments. when the supreme court has recognized such rights, as well as when states have added rights to clean air or clean water to their constitutions, they have not spelled out precisely what these rights entail or how they will be protected. those concerns have been left to the legislatures and courts to define. this paper argues that maintaining one’s life and health are clearly essential to enjoying the privileges of liberty. so, the case for guaranteeing clean air and clean water may be grounded in the “general welfare” clause in the preamble as well as “life” and “liberty” guarantees in both the 5th and 14th amendments. the right to clean air and clean water should be recognized as implicit in the general welfare clause, as it would be impossible to promote the general welfare without them.6 fundamental rights are protected by the standard of strict scrutiny hence, requiring a high level of justification for any infringement. according to the legal information institute, strict scrutiny is defined as “a form of judicial review that requires a ‘compelling governmental interest,’ and must have narrowly tailored the law to achieve that interest.”7 strict scrutiny serves as “the highest standard of review” requiring a robust defense and evidence to satisfy the high burden.8 recognizing clean air and water as fundamental rights would protect them from government infringement in future. 8 lii / legal information institute, “strict scrutiny.” 7 lii / legal information institute, “strict scrutiny.” 6 thefreedictionary.com, “unenumerated rights.” 5 meyer v. nebraska, 262 u.s. 390, 1923. 4 meyer v. nebraska, 262 u.s. 390, 1923. 8 brandeis university law journal fall 2022, volume 10, issue 1 clean water the right to clean water serves as a “compelling government interest” because human survival depends on the presence of water, maintained as about 75% of the human body.9 the constitution outlines the government’s role in “promot[ing] the general welfare,” and this general welfare requires public access to clean water. water is integral to our survival, so whenever this basic resource is not protected that same survival comes under threat.10 the flint water crisis is a chilling example of what can happen in the absence of clean water. in 2014, the city of flint attempted to switch the water source of the drinking water to save money.11 the change proved disastrous. “flint's nearly 100,000 residents complained their tap water was undrinkable: cloudy, foul smelling and tasting of chemicals or worse” and “e. coli outbreaks,” leading to contention between government authorities and citizens over the potability of the water.1213 the government ultimately admitted its mistake, and switched the water source back from detroit’s water system to the flint river.14 this switch was meant to be temporary, “[u]ntil flint's pipeline connecting to the kwa [was] operational.”15 initially, the switch seemed promising, as the flint river was “[flint’s] main water source until the 1960s.”16 bottled water was provided and “[f]ederal and state funds are helping flint fix its broken water system.”17 even though the crisis was eventually 17 npr.org, “5 years after flint’s crisis began, is the water safe?” 16 npr.org, “lead-laced water in flint.” 15 npr.org, “lead-laced water in flint.” 14 npr.org, “5 years after flint’s crisis began, is the water safe?” 13 npr.org, “5 years after flint’s crisis began, is the water safe?” 12 npr.org, “5 years after flint’s crisis began, is the water safe?” 11 npr.org, “5 years after flint’s crisis began, is the water safe?” 10 sitnflash, “biological roles of water,” 2019. 9 sitnflash, “biological roles of water,” 2019. 9 brandeis university law journal fall 2022, volume 10, issue 1 identified and temporarily resolved, including a $600 million dollar combined settlement going towards the victims, the damage of “drinking flint's lead-tainted tap water” is going to have long-lasting effects on the community, due to the likely possibility of lead poisoning. 18 the flint water crisis shows the horrifying and potentially fatal results that can occur when unclean water is provided to citizens, underscoring how essential clean water is to human life.19 clean water is essential to life on earth and a livable environment.20 the right to clean water would provide the necessary baseline of protections allowing for a livable context and environment.21 as a fundamental right, clean water would be provided, to the best extent it could given the circumstances, and required, by the highest standards, for healthy lives and a healthy environment. clean water as a fundamental right may have prevented the flint water crisis by requiring greater caution and may have protected the citizens of flint by giving them standing to sue with their concerns of their water quality. a fundamental right to clean water would require a standard upon which to base judicial decisions of what constitutes clean water and the minimum requirements for the clean water. in the environmental protection agency (epa)’s “[r]egulatory [d]etermination 3,” “[t]o regulate a contaminant [the safe drinking water act] requires that epa determine whether: [first] [t]he contaminant may have an adverse effect on the health of persons,”22 and whether “a substantial level of the contaminant will occur in public water systems with a frequency and at levels of public health concern.”23 the third requirement is that “regulation of the contaminant presents a 23 ow us epa, “regulatory determination 3,” 2014. 22 ow us epa, “regulatory determination 3,” 2014. 21 sitnflash, “biological roles of water,” 2019. 20 sitnflash, “biological roles of water,” 2019. 19 sitnflash, “biological roles of water,” 2019. 18 npr.org, “5 years after flint’s crisis began, is the water safe?” 10 brandeis university law journal fall 2022, volume 10, issue 1 meaningful opportunity for health risk reductions for persons served by public water systems” or that regulating the contaminant would meaningfully reduce health risks.24 this was certainly the case in the flint water crisis where the levels of lead—a well-known toxin linked to health issues like memory loss, high blood pressure, and kidney disease—were subsequently found in the residents blood. in addition to a requirement of water for drinking and other basic needs, the right to clean water also should include protection of natural bodies of water like lakes, especially those in the public domain, as this is also necessary for human and environmental health. the structure for this is already in place with the clean water act, but making clean water a fundamental right would strengthen the epa’s ability to enforce this law and to protect bodies of water in other ways. currently, the environmental protection agency regulates clean water through “[t]he clean water act (cwa)” which “establishes the basic structure for regulating discharges of pollutants into the waters of the united states and regulating quality standards for surface waters.”25 under this regulation, the wastewater management systems and bodies of water are monitored for pollutants.26 any disposal of oil or other potential pollutants is regulated in order to maintain human and environmental health.27 the clean water act establishes further regulators like permit programs to control pollutant discharges.28 the amount of regulation and protection show the importance of water and its impact on humans and the environment. supreme court recognition of clean water as a fundamental right, would support a broader definition and reinforce its legal status. for example, this recognition would 28 oa us epa, “summary of the clean water act,” 2013. 27 oa us epa, “summary of the clean water act,” 2013. 26 oa us epa, “summary of the clean water act,” 2013. 25 oa us epa, “summary of the clean water act,” 2013. 24 ow us epa, “regulatory determination 3,” 2014. 11 brandeis university law journal fall 2022, volume 10, issue 1 allow for water access to be ensured beyond simply regulation of pollutants. the united nations provides an example more centrally focused on water access and availability while providing international recognition of the need for clean water. this further supports the case that clean water should be a recognized right. the united nations sustainable development goals consist of 17 sdgs “adopted by all united nations member states in 2015” which outlines an active global partnership effort to recognize international need and strategies to create “peace and prosperity for people and the planet, now and into the future.”29 the united nations’ sustainable development goal 6 provides another standard definition of clean water and how much is required by the world and individuals.30 scarcity of clean water is a major issue as “[w]ater scarcity affects more than 40 percent of people, an alarming figure that is projected to rise as temperatures do.”31 guaranteeing a fundamental right to clean water will provide necessary protection in the face of water scarcity.32 water security and access is necessary to our survival, health, safety, and our environment. the united nations recognizes this, and the u.s. ought to do the same. if the right to clean water were fundamental, then a right to clean water would require the government to regulate and undo pollution damage, as well as to establish national regulations aiming to restore contaminated water sources or preserve current water reserves. this responsibility would likely fall to the epa, and the army corps of engineers would be required to formulate and enforce water regulations in order to ensure that all water within the u.s. is kept clean enough to 32 undp, “goal 6.” 31 undp, “goal 6.” 30 united nations western europe, “sustainable development goals (sdg 6).” 29 “the 17 goals | sustainable development.” 12 brandeis university law journal fall 2022, volume 10, issue 1 meet a standard baseline fulfilling this right. this would also protect for future access and water usage which would further achieve united nations sustainable development goal 6. clear air much like clean water, the right to clean air is similarly critical because it is fundamental to all health – global, environmental, and human – which provides the context for the constitutional promotion of “the general welfare.” clean air is a “compelling government interest,” as everyone needs to breathe it in order to live. air pollution is a result of contaminants, known as pollutants, in the air, which are detrimental to human health and to the environment. the united nations monitors air quality through the global environment monitoring system for air (gems air). 33 this program aims to improve air quality through innovation and scientific knowledge.34 good air quality is necessary for human survival, as “[a]irborne pollutants are responsible for about one third of deaths from stroke, chronic respiratory disease, and lung cancer,” and “one quarter of deaths from heart attack.”35 air pollution can also cause asthma, “a chronic, or long-term, condition that intermittently inflames and narrows the airways in the lungs.36 the same airborne pollutants also alter the climate and affect the health of the environment. 37 the sources of air pollution vary “from cookstoves and kerosene lamps to coal-fired power plants, vehicle emissions, industrial furnaces, wildfires, and sand and dust storms.”38 a fundamental right to clean air would 38 u. n. environment, “why does air matter?,” 2017. 37 u. n. environment, “why does air matter?,” 2017. 36 “asthma | national heart, lung, and blood institute (nhlbi).” 35 u. n. environment, “why does air matter?,” 2017. 34 u. n. environment, “monitoring air quality,” 2017. 33 u. n. environment, “monitoring air quality,” 2017. 13 brandeis university law journal fall 2022, volume 10, issue 1 create the opportunity to sue polluters, to reduce pollution, and to further monitor air quality, giving the general population increased control over the air they breathe. like clean water, the right to clean air requires a standard to base judicial decisions and recognition as a fundamental right would strengthen these current standards. the clean air act “authorizes [the] epa to establish national ambient air quality standards (naaqs) to protect public health and public welfare and to regulate emissions of hazardous air pollutants.”39 the epa sets standards upon which it regulates pollutants and emissions. since clean air is not provided by the government the way clean tap water is, it could be argued that it is not the place of courts or the government to provide it. however, this argument fails to understand that air is still maintained and kept clean through government action. due to the necessity of government action to keep air clean, clean air should be considered a fundamental right. current governmental protections for both clean air and water several states have added provisions for clean air and water to their constitutions, but these protections are still not adequately extensive, and do not apply to the whole country. for instance, new york state amended its constitution to include protections for clean air and water in november 2021, but the state legislature is still in the process of appropriately funding this endeavor.4041 previously, massachusetts and 41 ny state senate, “ny state assembly bill a6566,” 2021. 40 murray and kominers, “the human right to water in the united states;” food & water watch, “ny votes to enshrine right to water and healthful environment in state constitution,” food & water watch, 2021. 39 oa us epa, “summary of the clean water act,” 2013. 14 brandeis university law journal fall 2022, volume 10, issue 1 pennsylvania have recognized the human right to clean air and water through their own constitutional amendments.42 these states show that it is possible to provide constitutional protection for these rights, but there is still a need for further forward momentum to reach the federal government. the need for clean water has become particularly urgent today in the wake of droughts and other climate disasters. international law recognizes the right to water in several treaties, and in a united nations general assembly (unga) resolution in 2010.43 most recently, on july 28, 2022, “the united nations general assembly agree[d] to declare the ability to live in ‘a clean, healthy and sustainable environment’ a human right for all” as an effort to increase urgency and work towards protecting the environment.44 the european court of justice added the right to clean air as a fundamental right in the european union in 2014.45 in 2021, the world health organization published air quality guidelines to protect clean air as “a basic human right” and serve as “a global target for national, regional and city governments” in reducing air pollution in a release of guidelines which they regularly update since the first release in 1987.46 the most recent update “is in response to the real and continued threat of air pollution to public health.”47 the united nations and its member states recognize the importance of air quality and reducing air pollution to maintain clean air necessary for human and environmental health as illustrated further through the international day for clean air for blue 47 “what are the who air quality guidelines?” 46 “what are the who air quality guidelines?” 45 unep, “the right to breathe clean air,” 2017. 44 world economic forum, “the un just declared a new human right.” 43 murray and kominers, “the human right to water in the united states.” 42 food & water watch, “ny votes to enshrine right to water and healthful environment in state constitution,” food & water watch, 2021. 15 brandeis university law journal fall 2022, volume 10, issue 1 skies with the “healthy air, healthy planet,”48 and it is time for the u.s. to do the same. the rights to clean water and air should be understood as fundamental rights as both clean water and air are important governmental interests. the standard of fundamental rights provides a robust, but baseline standard which would allow for protection of these resources, access to these resources, and ensure that they will be provided to all. this still leaves open how exactly access would be provided. what this baseline standard would look like exactly, but to some extent that goes beyond the scope of this article and is still left open to debate and discovery. 48 united nations, “international day of clean air for blue skies.” 16 brandeis university law journal fall 2022, volume 10, issue 1 bibliography association, american lung. “new report: chicago now ranked 18th most polluted city in the u.s.” accessed january 10, 2023. https://www.lung.org/media/press-releases/new-report -chicago-now. “asthma what is asthma? | nhlbi, nih.” accessed january 10, 2023. https://www.nhlbi.nih.gov/health/asthma. attorney, robert t. caccese, esq , staff. “an overview of pennsylvania water law.” website, january 16, 2018. https://www.springcreekwatershedatlas.org/post/2018/ 01/16/an-overview-of-pennsylvania-water-law. “bill text ab-685 state water policy.” accessed august 6, 2022. https://leginfo.legislature.ca.gov/faces/billtextclient. xhtml?bill_id=201120120ab685. campbell, carla, rachael greenberg, deepa mankikar, and ronald d. ross. “a case study of environmental injustice: the failure in flint.” international journal of environmental research and public health 13, no. 10 (october 2016). https://doi.org/10.3390/ijerph13100951. environment. “five years on, the flint water crisis is nowhere near over,” april 25, 2019. https://www.nationalgeographic.com/environment/20 19/04/flint-water-crisis-fifth-anniversary-flint-river-po llution/. environment, u. n. “monitoring air quality.” unep un environment programme, june 19, 2017. http://www.unep.org/explore-topics/air/what-we-do/m onitoring-air-quality. environment, u. n. “why does air matter?” unep un environment programme, june 19, 2017. 17 brandeis university law journal fall 2022, volume 10, issue 1 http://www.unep.org/explore-topics/air/why-does-airmatter. frontline. “flint water crisis deaths likely surpass official toll.” accessed may 6, 2020. https://www.pbs.org/wgbh/frontline/article/flint-water -crisis-deaths-likely-surpass-official-toll/. “flint water prosecutors drop criminal charges, with plans to keep investigating the new york times.” accessed may 6, 2020. https://www.nytimes.com/2019/06/13/us/flint-water-c risis-charges-dropped.html. guyadeen, angela. “new york’s constitutional right to water: a first step.” nrdc, march 18, 2021. https://www.nrdc.org/experts/angela-guyadeen/new-y orks-constitutional-right-water-first-step. nrdc. “about us.” accessed august 4, 2022. https://www.nrdc.org/about. nrdc. “is water a human right?” accessed august 4, 2022. https://www.nrdc.org/onearth/water-human-right. npr.org. “lead-laced water in flint: a step-by-step look at the makings of a crisis.” accessed may 7, 2020. https://www.npr.org/sections/thetwo-way/2016/04/20/ 465545378/lead-laced-water-in-flint-a-step-by-step-lo ok-at-the-makings-of-a-crisis. npr.org. “5 years after flint’s crisis began, is the water safe?” accessed may 7, 2020. https://www.npr.org/2019/04/25/717104335/5-years-a fter-flints-crisis-began-is-the-water-safe. martin. “water and sanitation.” united nations sustainable development (blog). accessed may 7, 2020. https://www.un.org/sustainabledevelopment/water-an d-sanitation/. 18 brandeis university law journal fall 2022, volume 10, issue 1 “massachusetts constitution.” accessed august 6, 2022. https://malegislature.gov/laws/constitution. justia law. “meyer v. nebraska, 262 u.s. 390 (1923),” https://supreme.justia.com/cases/federal/us/262/390/. reuters. “michigan to end free bottled water for flint, saying water crisis over,” april 7, 2018. https://www.reuters.com/article/us-michigan-water-id uskcn1hd2vi. miller, brett a. “navigating the confluence: sources of reconciliation flowing between the human right to water and economic efficiency.” duke environmental law & policy forum, 2017. gale academic onefile select. murray, kevin, and sara kominers. “the human right to water in the united states: a primer for lawyers and community leaders.” accessed august 4, 2022. https://law.northeastern.edu/wp-content/uploads/2021/ 04/phrge-water-primer.pdf. nations, united. “international day of clean air for blue skies.” united nations. united nations. accessed august 15, 2022. https://www.un.org/en/observances/clean-air-day. news, a. b. c. “michigan supreme court hears case over flint water liability.” abc news. accessed may 6, 2020. https://abcnews.go.com/us/wirestory/michigan-supre me-court-hears-case-flint-water-liability-69396413. “now with bill moyers. science & health. troubled waters a brief history of the clean water act | pbs.” accessed may 4, 2020. https://www.pbs.org/now/science/cleanwater.html. ny state senate. “ny state assembly bill a6566,” march 19, 2021. https://www.nysenate.gov/legislation/bills/2021/a656 6. 19 brandeis university law journal fall 2022, volume 10, issue 1 food & water watch. “ny votes to enshrine right to water and healthful environment in state constitution,” november 3, 2021. https://www.foodandwaterwatch.org/2021/11/03/ny-v otes-to-enshrine-right-to-water-and-healthful-environ ment-in-state-constitution/. paul, tara e. “plugging the democracy drain in the struggle for universal access to safe drinking water.” indiana journal of global legal studies 20, no. 1 (winter 2013): 469–503. https://doi.org/10.2979/indjglolegstu.20.1.469. “pennsylvania’s environmental rights amendment.” accessed august 4, 2022. https://conservationadvocate.org/pennsylvanias-envir onmental-rights-amendment/. ap news. “prosecutors in flint water probe: we’re still on the case,” april 17, 2020. https://apnews.com/82aa2e68c2eea99bb000c0f17ba7 b4e7. carter ledyard & milburn llp. “recognizing right to clean water: the time has come in the u.s.,” september 14, 2016. https://www.clm.com/recognizing-right-to-clean-wate r-the-time-has-come-in-the-u-s/. sitnflash. “biological roles of water: why is water necessary for life?” science in the news (blog), september 26, 2019. https://sitn.hms.harvard.edu/uncategorized/2019/biolo gical-roles-of-water-why-is-water-necessary-for-life/. smith, mitch, julie bosman, and monica davey. “flint’s water crisis started 5 years ago. it’s not over.” the new york times, april 25, 2019, sec. u.s. https://www.nytimes.com/2019/04/25/us/flint-water-c risis.html. 20 brandeis university law journal fall 2022, volume 10, issue 1 oyez. “solid waste agency of northern cook county v. united states army corps of engineers.” accessed may 12, 2020. https://www.oyez.org/cases/2000/99-1178?_escaped_f ragment_=#! lii / legal information institute. “strict scrutiny,” https://www.law.cornell.edu/wex/strict_scrutiny. lii / legal information institute. “33 u.s. code chapter 26 water pollution prevention and control.” accessed may 4, 2020. https://www.law.cornell.edu/uscode/text/33/chapter-2 6. thefreedictionary.com. “unenumerated rights,” n.d. https://legal-dictionary.thefreedictionary.com/unenum erated+rights. united nations western europe. “sustainable development goals (sdg 6).” accessed august 4, 2022. https://unric.org/en/sdg-6/. unep. “the right to breathe clean air,” december 1, 2017. http://www.unep.org/news-and-stories/story/right-brea the-clean-air. undp. “goal 6: clean water and sanitation.” accessed may 8, 2020. https://www.undp.org/content/undp/en/home/sustaina ble-development-goals/goal-6-clean-water-and-sanitat ion.html. us epa, oa. “summary of the clean water act.” overviews and factsheets. us epa, february 22, 2013. https://www.epa.gov/laws-regulations/summary-clean -water-act. us epa, ow. “clean water act approved jurisdictional determinations.” data and tools. us epa, december 15, 2016. 21 brandeis university law journal fall 2022, volume 10, issue 1 https://www.epa.gov/cwa-404/clean-water-act-approv ed-jurisdictional-determinations. us epa, ow. “epa determinations that new or revised water quality standards are necessary.” policies and guidance. us epa, august 10, 2016. https://www.epa.gov/wqs-tech/epa-determinations-ne w-or-revised-water-quality-standards-are-necessary. us epa, ow. “navigable waters protection rule.” policies and guidance. us epa, may 5, 2017. https://www.epa.gov/nwpr. us epa, ow. “regulatory determination 3.” overviews and factsheets. us epa, october 28, 2014. https://www.epa.gov/ccl/regulatory-determination-3. usafacts. “air pollutant emissions in tons.” accessed august 4, 2022. https://usafacts.org/data/topics/security-safety/energyand-environment/environmental-protection/air-quality -emissions-tons/. usafacts. “air quality in the us since the passage of the clean air act.” accessed august 4, 2022. https://usafacts.org/articles/earth-day-air-quality/. usafacts. “seven percent of the us is in ‘exceptional drought.’” accessed august 4, 2022. https://usafacts.org/articles/seven-percent-of-the-us-is -in-exceptional-drought/. “u.s. constitution the preamble | resources | constitution annotated | congress.gov | library of congress,” https://constitution.congress.gov/constitution/preambl e/. “what are the who air quality guidelines?” accessed august 15, 2022. https://www.who.int/news-room/feature-stories/detail/ what-are-the-who-air-quality-guidelines. 22 brandeis university law journal fall 2022, volume 10, issue 1 world economic forum. “the un just declared a new human right.” accessed august 19, 2022. https://www.weforum.org/agenda/2022/08/the-un-just -declared-a-universal-human-right-to-a-healthy-sustai nable-environment-here-s-where-resolutions-like-thiscan-lead/. 23 online version -volume 10, issue 2 brandeis university law journal spring 2023, volume 10, issue 2 a restoration of voting rights & humanity brandon samuels254 as a nation that has always touted its democratic principles, the united states of america restricts citizens’ right to vote. voter disenfranchisement laws particularly silence the voices of formerly incarcerated individuals. these laws often restrict or make it harder for formerly incarcerated americans to vote in federal and state elections. individuals who have fully completed their sentence continue to face voting obstacles beyond prison that non-incarcerated americans do not encounter. these laws hamper individuals who have completed their sentences and discriminate against the rights of formerly incarcerated people. this article questions why formerly incarcerated individuals are not eligible to enjoy the same voting rights as their fellow americans. to combat this unjust treatment, this article proposes an original super-statute: the voting rights restoration act. this novel proposal ensures that formerly incarcerated individuals will be respected under the law as equal citizens of the united states. i. a proposed statute: the voting rights restoration act a fundamental right that all americans are entitled to is the ability to participate in our nation’s democratic processes. however, there are numerous state laws that exclude millions of americans with past criminal convictions from voting in both state and federal elections.255 the voting rights restoration act seeks to address this anti-democratic injustice. 255 chung, jean, and amy fettig. “voting rights in the era of mass incarceration: a primer.” the sentencing project,3 sept. 2021, https://www.sentencingproject.org/publications/felony-disenfranchisementa-primer/. 254 brandeis university undergraduate, class of 2025. 86 brandeis university law journal spring 2023, volume 10, issue 2 this proposed statute is a super-statute because it addresses a fundamental aspect of national life: the ability for all americans to participate in democracy.256 super-statutes, such as the civil rights act of 1964 or the voting rights act of 1965, provide a broad pathway for citizens to exercise their fundamental rights that are enshrined in the constitution of the united states.257 the fundamental right to participate in our democracy is directly addressed under section 1 of the 14th amendment of the constitution which states, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”258 this amendment is particularly significant because it states that the laws of the united states, including voting laws, must be applied equally to all citizens.259 the voting rights restoration act reinforces the equal protection clause because it promotes the constitutional principle that every american citizen is entitled to vote in elections and that no state shall abridge this right. finally, the voting rights restoration act is a super statute because it would be a “landmark” of our law.260 not only does this proposed piece of legislation give practical 260 breen, “class lecture.” 259 u.s. const. amend. xiv, § 1. 258 u.s. const. amend. xiv, § 1. 257 breen, daniel. 221lgls: civil rights and civil liberties: legislative. 26 january. 2022, brandeis university, waltham. class lecture. 256 scholars william n. eskridge, jr. and john ferejohn define a super-statute as, “a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute” (1216); eskridge, william n., and john ferejohn. super-statutes , https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context =dlj 87 brandeis university law journal spring 2023, volume 10, issue 2 effect to the equal protection clause, a core constitutional command, but it also restores the right to vote to every formerly incarcerated american. in summation, the voting rights restoration act pertains to the three criteria that define a super-statute; the legislation addresses a fundamental aspect of our national life, it gives effect to deeply held beliefs and aspirations, and it is a “landmark” in our law.261 the voting rights restoration act would also allow any individual who has completed a sentence in prison or jail to be eligible to vote upon release. further, the act would allow individuals who are on parole or supervised probation to exercise their right to vote in elections. states such as florida, alabama, arizona, and tennessee have adopted laws that have made restoration of voting rights “conditional on an individual’s payment of all restitution, fines, and fees.”262 formerly incarcerated individuals who are required to make monetary payments in order to exercise their right to vote encounter hindrances in fulfilling their civic responsibilities that are not encountered by non-incarcerated individuals. the sentencing project is a research and advocacy center that seeks to limit the decriminalization of youths and adults by undertaking an initiative to analyze laws related to voter disenfranchisement. the center estimates that almost 900,000 floridians are barred from voting, despite a 2018 referendum which guaranteed their restoration of voting rights.263 the proposed voting rights restoration act abolishes any law that requires former imprisoned to pay any restitution, fine, or fee to vote. the act of voting or exercising one’s voice in democracy should not be dependent on a monetary contribution. voting is an intangible mechanism that has no monetary function because it is both a freely guaranteed and not transferable right. instead, voting ought to be regarded as a 263 uggen et al., “locked out 2020.” 262 chung et al., “voting rights.” 261 eskridge, william n., and john ferejohn. super-statutes. 88 brandeis university law journal spring 2023, volume 10, issue 2 fundamental right that any citizen can freely exercise, regardless of income level or previous incarceration. the voting rights restoration act seeks to restore the right to vote for formerly incarcerated individuals while also enforcing the rule of law in a rational manner. when an individual violates the laws of the united states, they are subject to incarceration. a convicted individual forfeits many freedoms, including the right to vote, while they are incarcerated. therefore, the voting rights restoration act pertains to individuals who are no longer incarcerated as well as individuals who are in a period of parole.264 the application of this proposed statute depends on if the individual is imprisoned or has been released from incarceration. the proposed statute does not apply to individuals who are currently serving a prison sentence. while individuals relinquish their right to vote during their period of confinement and/or probation, this restriction should end upon the termination of a person’s sentence. after an individual completes their sentence, they have served their time and ought to be reintegrated back into a society where voting is a regular practice. lastly, the voting rights restoration act would be a federal law enacted by congress, meaning it is applicable to all 50 states and territories of the united states. ii. why the voting rights restoration act is needed the voting rights restoration act is needed today because it reflects the current call to combat the oppression of minority groups disproportionately affected by the criminal justice system.265 as it stands, disenfranchisement of voting 265 brennan center for justice, “criminal disenfranchisement laws.” 264 a great debate exists regarding if currently incarcerated individuals should enjoy the right to vote. while this issue is worthy of discussion, its breadth is beyond the scope of the voting rights restoration act and this article. 89 brandeis university law journal spring 2023, volume 10, issue 2 rights for formerly incarcerated individuals is widespread across the nation. the brennan center for justice, a nonprofit law and policy institute which seeks to hold american political institutions to account, states that “twenty-seven states bar community members from voting, simply on the basis of convictions in their past.''266 essentially, it does not matter the reason individuals have been incarcerated, the duration of their incarceration, or how they behaved while incarcerated; all that matters is that they were, for some time, and for some reason, incarcerated.267 the impact of these laws disenfranchising formerly incarcerated people has only intensified as “the number of people disenfranchised because of a felony conviction increased dramatically, rising from 1.17 million in 1976 to 6.1 million by 2016, just as mass incarceration and criminalization took hold in the u.s.''268 moreover, incarcerated individuals' disenfranchisement laws have a disproportionate impact on communities of color. as of 2020, the sentencing project found that “in seven states—alabama; florida; kentucky; mississippi; tennessee; virginia; wyoming—more than one in seven black adults are disenfranchised. in total, 1.8 million black citizens are banned from voting.”269 the significance of this statistic illustrates that voter disenfranchisement laws are specifically targeting black individuals from pursuing their constitutional right to participate in democracy. this is a pattern of social injustice that has plagued america since its founding. it is time to address voter disenfranchisement laws to ensure equality under the law for all american citizens. 269 uggen et al., “locked out 2020.” 268 chung et al., “voting rights.” 267 brennan center for justice, “criminal disenfranchisement laws.” 266 brennan center for justice, “criminal disenfranchisement laws.” 90 brandeis university law journal spring 2023, volume 10, issue 2 iii. a lineage of super statutes in general, the proposed super statute reflects a long history of fundamental american principles, which include democratic participation and equality under the law. at the core of american democracy is civic participation through regularly held elections.270 while the ability to vote is more accessible today than it was a century ago, there are clearly still limitations to voting rights for americans with past criminal convictions. there is a long history of americans fighting for more equal voting rights with the enactment of meaningful legislation.271 the passage of the voting rights act of 1965 represents the battle to make voting a more accessible and inclusive process.272 at the time of enactment, this 1965 statute abolished poll taxes and literacy tests. since its enactment, it has aimed to prevent any jurisdiction from abridging the right to vote on account of race and has required a preclearance requirement which bars specific jurisdictions from changing voting laws without approval from the united states attorney general or district court judgment.273 the voting rights act of 1965 prevented discriminatory voter suppression tactics, thereby giving more americans the chance to exercise their right to vote. similarly, the proposed voting rights restoration act seeks to make voting more accessible for previously incarcerated individuals by eliminating the obstacles that are prevalent in our current laws. congress tried to address racial discrimination in voting through the voting rights act of 1965, but criminal disenfranchisement remains an apparatus of oppression in a criminal justice system that disproportionately affects people of 273 breen, “class lecture.” 272 breen, “class lecture.” 271 breen, “class lecture.” 270 breen, “class lecture.” 91 brandeis university law journal spring 2023, volume 10, issue 2 color.274 for this proposed act to have a broad application to all previously incarcerated americans, it should be a federal law enacted by the united states congress. the hypothetical passage of the voting rights restoration act would illuminate america’s precious norms of democratic participation and equality under the law. since there is no existing federal legislation and individual states are adopting radically different voting laws, there is a great disparity in the voting rights that formerly incarcerated americans receive.275 part of this inconsistent application of criminal disenfranchisement laws stems from the supreme court of the united states’ decision in richardson v ramirez (1974). in this case, three men who had served time for felony convictions in california sued the state for the right to vote by alleging that the state’s policies denied them the right to equal protection guaranteed under the u.s. constitution’s 14th amendment.276 the court ruled in favor of california, stating that the equal protection clause does not prohibit disenfranchisement policies and that section 2 of the 14th amendment allows for states to deny voting rights “for participation in rebellion, or other crime.”277 however, the court’s interpretation of the equal protection clause in richardson is inconsistent with the court’s previous decision in harper v. virginia board of elections (1966) where the court found that “the equal protection clause is not shackled to the political theory of a particular era.”278 rather, it “draws much of its substance from changing social norms and evolving conceptions of equality.”279 the 279 tribe, laurence h. american constitutional law . (2nd ed.) ed., foundation press, 1988. 278 harper v. virginia bd. of elections, 383 u.s. 669 (1966). 277 richardson v. ramirez, 418 u.s. 42 (1974). 276 richardson v. ramirez, 418 u.s. 24 (1974). 275 chung et al., “voting rights.” 274 chung et al., “voting rights.” 92 brandeis university law journal spring 2023, volume 10, issue 2 court’s inconsistent reasoning on criminal disenfranchisement laws places more authority in the hands of state legislatures who continue to limit the rights of formerly incarcerated americans.280 this should be an incentive for a law that is nationally applicable by congress’ enactment as well as enforced by the department of justice. the proposed voting rights restoration act ought to be enacted federally so that every formerly incarcerated american can participate in the electoral process, regardless of the state in which they live. iv. a message to lawmakers while the hypothetical voting rights restoration act is a law for fundamental rights and equality, opponents of this legislation might label the statute as too “soft” on crime. lawmakers could argue that felons ought to be restricted from voting as a means of punishment for the crime(s) they committed.281 however, this article argues that it is redundant, cruel, and unjust to deprive formerly incarcerated persons of an essential right that all americans are entitled to after they have already been punished. additionally, if lawmakers want to prevent more crimes from occurring, they should endorse the voting rights restoration act. the proposed law reintegrates formerly incarcerated individuals back into their communities, preventing them from repeating their past mistakes. a sentencing project study concluded that “among individuals who had been arrested previously, 27 percent of non-voters were rearrested, compared with 12 percent of voters.”282 lawmakers should also support the proposed statute 282 uggen et al., “locked out 2020.” 281 clegg, roger. “there are good reasons for felons to lose the right to vote.” the heritage foundation. accessed may 26, 2023. https://www.heritage.org/election-integrity/commentary/there-are-good-reas ons-felons-lose-the-right-vote. 280 chung et al., “voting rights.” 93 brandeis university law journal spring 2023, volume 10, issue 2 because “a clear majority of u.s. residents support voting rights for citizens who have completed their sentence.”283 ultimately, the constituents of politicians are supportive of formerly incarcerated individuals exercising their democratic right to vote in elections, which should be an incentive for lawmakers to support this proposed super-statute. a 2018 pew research center survey titled “re-enfranchisement for those convicted of felonies” found that a majority of both democrats and republicans support re-enfranchisement.284 the survey demonstrates that there is a strong bipartisan sentiment regarding this issue, which is another reason why lawmakers ought to endorse the aforementioned act. before voting against the suggested voting rights restoration act, opposing lawmakers should reconsider their decision based on the law’s fairness, the positive impacts of prisoner reintegration, and the bipartisan support amongst americans for re-enfranchisement. in closing, the voting rights restoration act illuminates the fundamental american principle that every citizen should be able to vote. the proposed super-statute would not only seek to stop the disenfranchisement of formerly incarcerated individuals, but would also specifically aid communities of color who are disproportionately affected by the criminal justice system. the fight for expanding voting rights and criminal justice reform is not a new endeavor for lawmakers. in fact, the passages of the voting rights act of 1965, the first step act, and many other laws have enforced the ideas of civic 284 bialik, kristen. “how americans view some of the voting policies approved at the ballot box.” pew research center, pew research center, 2 oct. 2020, https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-so me-of-the-voting-policies-approved-at-the-ballot-box/. 283 uggen et al., “locked out 2020.” 94 brandeis university law journal spring 2023, volume 10, issue 2 participation and voting equality under the law. the voting rights restoration act seeks to promote these precious norms by nationally permitting formerly incarcerated people to vote once they have completed their sentence, are on parole, or are serving probation. this proposed legislation reflects civic republicanism and positive liberty in its efforts to make the democratic system a more inclusive, consistent, and accessible space for previously incarcerated people. now is the time for lawmakers to be brave and support a bill that will reinforce the united states’ commitment to a more equal and ethical criminal justice system.285 285 this op-ed was authored in the spring of 2022. as of 05/18/2023, senator benjamin l. cardin (d-md) introduced the democracy restoration act of 2023. senator cardin's act would restore voting rights to 5.8 million formerly-incarcerated americans; "s.1677 118th congress (2023-2024): democracy restoration act of 2023." congress.gov, library of congress, 18 may 2023, https://www.congress.gov/bill/118th-congress/senate-bill/1677; “democracy restoration act.” ben cardin u.s. senator for maryland: press release, 10 april 2014, http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:t ext=the%20democracy%20restoration%20act%20would,back%20living %20in%20their%20communities. 95 brandeis university law journal spring 2023, volume 10, issue 2 bibliography bialik, kristen. “how americans view some of the voting policies approved at the ballot box.” pew research center, pew research center, 2 oct. 2020, https://www.pewresearch.org/fact-tank/2018/11/15/how -americans-view-some-of-the-voting-policies-approved -at-the-ballot-box/. breen, daniel. 221lgls: civil rights and civil liberties: legislative. 24 january. 2022, brandeis university, waltham. class lecture. cardin, ben. “democracy restoration act.” ben cardin u.s. senator for maryland: press release, 10 april 2014, http://www.cardin.senate.gov/press-releases/democracy -restoration-act/#:~:text=the%20democracy%20restor ation%20act%20would,back%20living%20in%20their %20communities. chung, jean, and amy fettig. “voting rights in the era of mass incarceration: a primer.” the sentencing project, 3 sept. 2021, https://www.sentencingproject.org/publications/felonydisenfranchisement-a-primer/. clegg, roger. “there are good reasons for felons to lose the right to vote.” the heritage foundation. https://www.heritage.org/election-integrity/commentary /there-are-good-reasons-felons-lose-the-right-vote. “criminal disenfranchisement laws across the united states.” brennan center for justice, https://www.brennancenter.org/our-work/research-repor ts/criminal-disenfranchisement-laws-across-united-state s. eskridge, william n., and john ferejohn. super-statutes , https://scholarship.law.duke.edu/cgi/viewcontent.cgi?art icle=1108&context=dlj potyondy, patrick. “felon voting rights.” felon voting rights, 96 brandeis university law journal spring 2023, volume 10, issue 2 https://www.ncsl.org/research/elections-and-campaigns/ felon-voting-rights.aspx. smith, ed. “marijuana deep dive: state policy updates.” marijuana deep dive | state policy updates, https://www.ncsl.org/bookstore/state-legislatures-magaz ine/marijuana-deep-dive.aspx. tribe, laurence h. american constitutional law . (2nd ed.) ed., foundation press, 1988. uggen, chris, and amy fettig. “locked out 2020: estimates of people denied voting rights due to a felony conviction.” the sentencing project, 13 aug. 2021, https://www.sentencingproject.org/publications/lockedout-2020-estimates-of-people-denied-voting-rights-dueto-a-felony-conviction/. legal documents and cases cited constitution of the united states. https://constitution.congress.gov/constitution/. harper v. virginia bd. of elections, 383 u.s. 663 (1966) “harper v. virginia bd. of elections, 383 u.s. 663 (1966).” justia law, supreme.justia.com/cases/federal/us/383/663/. richardson v. ramirez, 418 u.s. 24 (1974). “richardson v. ramirez, 418 u.s. 24 (1974).” justia law, supreme.justia.com/cases/federal/us/418/24/. "s.1677 118th congress (2023-2024): democracy restoration act of 2023." congress.gov, library of congress, 18 may 2023, https://www.congress.gov/bill/118th-congress/senate-bill/ 1677. 97 brandeis university law journal fall 2022, volume 10, issue 1 dedicated to judah marans ’11 we are incredibly grateful to the brandeis law journal’s founder, judah, for creating this forum for discussion and learning in and around the legal field. his creation of the journal enables and empowers us to do our work and learn today. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. judah’s contribution to the brandeis community will forever be remembered and greatly appreciated. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. we extend our deepest sympathies to his family and friends throughout the brandeis community. may his memory be a blessing. mission statement the brandeis university law journal aims to provide brandeis university with the opportunity to contribute to discussions of law and law-related topics with the publication of undergraduate scholarship. we hope to aid in the furtherance of brandeis university’s motto of “truth even unto its innermost parts” through publishing rigorously researched articles and engaging in respectful, thoughtful, and insightful debates. this journal is both a publication and a constant work in progress as we are grounded in an undergraduate academic environment and constantly trying to learn, grow and improve. our journal provides a platform for intellectual growth and debate where academic scholarship can flourish. we focus on academic excellence, encouraging expressions of scholarship, and encouragement of educational purposes. disclaimer the contents of this publication do not necessarily reflect the views or stances of the brandeis university law journal association nor of the brandeis university or of any individuals or groups associated with either institution. 1 brandeis university law journal fall 2022, volume 10, issue 1 brandeis university law journal fall 2022 volume 10 issue/no. 1 copyright 2022 brandeis university law journal editor-in-chief sophia reiss copy chief communications lauren davis gianna bruno publisher and treasurer josh rotenberg layout editor content editor emanuel “manny” glinsky gonny nir secretary noah risley faculty advisor faculty advisor professor rosalind kabrhel professor daniel breen senior editors: grace ahlin, daniel block, gianna bruno, lauren davis, julia fair, peyton gillespie, emanuel “manny” glinsky, lilah goldberg, gabby grunfeld, elijah herenstein, josh hopen, lauren lederer, samara miller, gonny nir, sophia reiss, noah risley, veronica rojas, josh rotenberg, sofia siegel, rebecka sokoloff, claire sterin, oona wood junior editors: maria antonio, athena bai, osvaldo carnalla, tyler carruth, alex diamond, alyssa golden, eamonn golden, kiah holmstrom, prateek kanmadikar, ella majeski, saul munn, ellen pehlivanian, naomi stephens, tavorr vaxman-magid, john wang, paul weir 3 brandeis university law journal fall 2022, volume 10, issue 1 table of contents editor-in-chief’s letter ……...…..….…………………...……5 necessities to life: the fundamental rights to clean water and clean air, sophia reiss…………….……………..……...6 what would happen if…?, gianna bruno……………………...………………………...24 op-ed: a country of immigrants, but not in their favor, lauren davis………………………………………………...35 “the family separation crisis that no one knows about” how our flawed legal and prison systems work to keep incarcerated parents from their children, jenna blocher ......53 how has covid impacted the call for reform of the criminal justice system?, olivia sinkoff…………………..……….…73 qui tam: an ingenious bulwark against fraud, tavorr vaxman-magid…………………………..…………..86 restricting freedom of speech: an analysis of censorship cases in relation to misinformation during the covid-19 crisis, anika jain………………………………………….101 the halachic mandate for gender affirming care: examining the potential efficacy of religious liberty claims made by jewish health care providers, daniel block ...…………….116 4 brandeis university law journal fall 2022, volume 10, issue 1 editor-in-chief’s letter dear reader, the brandeis university law journal is proud to present our most recent issue delving into legal developments. these eight rigorously-edited articles show insightful research and prompt, vital discussions about contemporary issues. the issue is written, edited, and collected by brandeis university undergraduates and unassociated with any law school. the articles cover topics from examinations of potential environmental regulations to an opinion on u.s. immigration law, and discussions of changes in criminal law and health care law. the brandeis university law journal is accessible both in print and on our website at https://brandeislawjournal.wordpress.com through an e-publication and pdfs. the work reviving the journal with all these talented people and those in the past several years as the journal became reinvigorated has been a privilege that i will cherish. with the graduation of myself and several current editors, we confidently leave the journal in the capable hands of the new leadership team. a huge thanks goes to our incredible current leadership team especially our new board members, writers, and editors. their dedication, passion, and creativity are evident throughout this issue and provide the foundation for our publication. we also express our gratitude to the allocations board on student union for providing us the necessary funding to print this issue. inspired as ever by judah marans’ foundational example, we continue to grow the journal’s success. we greatly appreciate the support of our two phenomenal faculty advisors, professors breen and kabrhel. we really appreciate all of their insight, advice, and support of our revival and continuity. sincerely, sophia reiss editor-in-chief 5 microsoft word law journal issue 7_final.docx elction 2016: is ted cruz eligible to run for president of the united states? noah lourie * abstract: the office of president of the united states is one of the most important positions in the country. the commander in chief is in charge of the most powerful military complex, the most affluent nation and must make decisions that will drastically affect the domestic and global community. the power bestowed upon the president and the trust they must earn from the american people, demonstrates the importance that each candidate fulfills the requirements outlined in the constitution. while most of the conditions necessary for one’s presidential candidature defined in the constitution are clear, the specific phrase, “natural born citizen,” contains much ambiguity and has continued to be a source of conflict during presidential elections. this ambiguity extends to the current presidential candidate ted cruz, who was born in alberta, canada in 1970. i. introduction the constitution of the united states does not delineate many conditions for the office of president. article ii section i of the constitution outlines that elections for president will be held every four years, that candidates must be at least thirty-five years old, and have lived in the united states for at least fourteen years.1 most importantly however, it states that, “no person except a natural born citizen… at the time of the adoption of this constitution, shall be eligible to the office of president.”2 this particular language is deliberately ambiguous, as the founders wanted to allow for almost anyone to be able to run for public office without significantly limiting the potential of citizens to participate in the public sphere. while the constitution never truly defines the term natural born, and the founders wanted it to be enigmatic, the office of the president still denotes the highest importance. ensuring that candidates are natural born citizens guarantees a level playing field for the most important political office in the country; but more importantly, guarantees that there is no conflict of interest between the candidate and their true country of origin. just as the constitution does not define the term natural born, neither has the united states supreme court. in the cases, inglis v. trustees of sailor’s snug harbor, minor v. happersett, and united states v. wong kim ark, the supreme court was asked to elucidate the meaning of citizen, and while these cases provide an important historical precedent, the ambiguity still remains. ultimately the question can be reduced to the potential definition the founders had, past supreme court cases, the difference between constitutionally and congressionally conferred citizenship, and most importantly, the distinction between becoming a citizen at the moment of birth and having to achieve it later through the process of naturalization. the fact that senator ted cruz was born in a region that was and remains out of the united states’ jurisdiction means he fails to satisfy the natural born requirement and therefore disqualifies him for president. ii. founders’ definition of “natural born citizen” * undergraduate at brandeis university, class of 2019 1 national constitution center, “the constitution of the united states.” 2 ibid. when the constitution was ratified in 1789, there were many different interpretations of the meaning of citizen, as well as natural born, that influenced the founders’ rationale behind the specific terminology. one influential source for the founders was great britain, as the colonies had only recently declared and won their independence, and many people were still coming to terms with being american citizens rather than british subjects. thus, the english jurist, sir william blackstone, who wrote extensively on the meaning of natural born subjects as early as 1760, impacted the founders definition of natural born citizen. in 1765 blackstone authored, commentaries on the laws of england, and wrote that, “the first and most obvious division of the people is into aliens and natural-born subjects. natural-born subjects are such as are born within the dominions of the crown of england, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.”3 the idea of allegiance was paramount for the founders, who, at the time of drafting the constitution, were establishing a new government in which the citizens’ obedience was crucial. this sentiment was echoed by james madison, who is widely considered to be the father of the constitution, when he said during a house of representatives meeting in may of 1789, “it is an established maxim, that birth is a criterion of allegiance. birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the united states…the sovereign cannot make a citizen by any act of his own; he can confer denizenship; but this does not make a man either a citizen or subject. in order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation.”4 madison’s conception of natural born citizen then is based on allegiance, as he suggests that the only way to achieve this is by making natural born citizens solely those who are born in the united states. further, he notes that that while a state can designate someone a denizen by statute or legislation, this does not make them equal to someone who is an actual citizen by virtue of birth. while blackstone undoubtedly influenced the authors of the constitution, english statutory law is not congruent with american common law, and further, there is an important distinction between “subject” and “citizen.” in england during the 18th century, not every natural born subject could become the king, but only a small category of subjects called the royalty.5 while the founders were concerned primarily with allegiance, they would disapprove of such a small number of citizens able to become president. another highly influential source for the founders was the french philosopher, emer de vattel, who published the, law of nations, in 1758 on the law of sovereigns and free and independent states. in book i chapter xix, vattel discusses the meaning of native citizen, writing that, “the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. the natives, or natural-born citizens, are those born in the country, of parents who are citizens. as the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. i say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, 3 blackstone, william. commentaries on the laws of england: a facsimile of the first edition of 1765--1769. (chicago: university of chicago press, 1979). (accessed march 22, 2016), * undergraduate at brandeis university, class of 2019 4 the founders’ constitution, “volume 2, article 1, section 5, clauses 1--4, document 13.” (the university of chicago press: 2000), (accessed march 22, 2016). 5 lawrence b. solum, “originalism and the natural born citizen clause.” illinois public law. april 18, 2010. (accessed march 28, 2016). it will be only the place of his birth, and not his country.”6 the influence of vattel’s reasoning is clearly represented in the naturalization act of 1790, congress’ first substantive immigration law. in the act, congress asserted that, “any alien, being a free white person, who shall have resided in the limits and under the jurisdiction of the united states for the term of two years, may be admitted to become a citizen thereof… and the proceedings thereon; and thereupon such person shall be considered as a citizen of the united states. and the children of such persons so naturalized, dwelling within the united states, being under the age of twenty-one years at the time of naturalization, shall also be considered as citizens of the united states. and the children of citizens of the united states, that may be born beyond the sea, or out of the limits of the united states, shall be considered natural born citizens.”7 the naturalization act of 1790, building upon article ii section i of the constitution, established that children of american citizens born abroad should be considered as natural born citizens. many argue that this suggests that the founders, while undoubtedly influenced by sir blackstone, relied more heavily upon the philosophy of monsieur vattel, and thought that children born abroad to american citizens should be natural born citizens as well. iii. the fourteenth amendment while the naturalization act of 1790 offered the first meaningful definition of natural born citizen, the term was further defined by the passage of the fourteenth amendment in 1868. before the passage of the fourteenth amendment, it was widely believed that one was a citizen of the united states by being a citizen of any state. ratified shortly after the culmination of the civil war, the fourteenth amendment states in section i that, “all persons born or naturalized in the united states and subject to the jurisdiction thereof, are citizens of the united states and of the state wherein they reside.”8 this amendment was one of three passed in the wake of the civil war; the thirteenth amendment abolished slavery, and the fifteenth amendment allowed men to vote regardless of race.9 the fourteenth amendment allowed newly freed slaves to be citizens of the united states, but also established several important implications for the meaning of natural born citizenship. firstly, by virtue of being in the constitution, the fourteenth amendment made national and state citizenship subject to federal law.10 more importantly, the citizenship clause further defined the founders original intentions behind the meaning of natural born citizen, by drawing a distinction between two kinds of citizenship; birthright citizens and naturalized citizens.11 the first part of the fourteenth amendment, or, the citizenship clause, automatically designates citizenship to all those, “subject to the jurisdiction of the united states.”12 this is 6 emer de vattel, “the law of nations: principles of the law and nature applied to the conduct and affairs of nations and sovereigns.” library of congress. t. & j. w. johnson, law booksellers, (philadelphia: 1844), 101. (accessed march 23, 2016). 7 library of congress, “a century of lawmaking for a new nation: u.s. congressional documents and debates, 1774 1875.” (accessed march 23, 2016). 8 national constitution center. 9 linda r. monk, “equality and the fourteenth amendment: a new constitution.” pbs. (accessed march 23, 2016). 10 robert clinton, “ted cruz isn't a 'natural born' citizen.” us news. january 27, 2016. (accessed march 24, 2016). 11 clinton. 12 linda r. monk, “citizenship and privileges clauses.” pbs. (accessed march 25, 2016). known as birthright citizenship, and means anyone born in the united states is consequently a citizen.13 the fourteenth amendment was written in response to the supreme court’s ruling in dred scott v. sandford, in which chief justice taney ruled that african americans were not citizens because of their race. thus, the citizenship clause unequivocally confers citizenship to anyone born in the united states, regardless of their race or skin color; and to children who are born in the united states to illegal aliens. people born in america are constitutionally citizens, while those who are born out of the country must have their citizenship designated by federal law, under article i section 8 clause iv of the constitution, which asserts that it is the power of congress, “to establish an uniform rule of naturalization… throughout the united states.”14 thus, birthright citizenship describes someone who at the time of their birth did not have to go through a naturalization proceeding or process at some later time, and it is this kind of person that is constitutionally eligible to run for president.15 iiii. the supreme court and natural born citizenship nowhere in the constitution is the term natural born citizen delineated, and the supreme court likewise has yet to explicitly define the citizenship clause and who can be eligible for president, however the court has ruled on several important citizenship cases, such as, inglis v. trustees of sailor’s snug harbor, minor v. happersett, and united states v. wong kim ark. in, inglis v. trustees of sailor’s snug harbor (inglis), the court had to solve the complications of citizenship during the revolutionary war. the main complication was due to the fact that the court wanted to ensure that proper allegiance would be owed to the united states, since many citizens were former british subjects. in inglis, the court said that, “nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.” this established the precedent that if someone is born in this country, even to parents who are citizens of another, their children are automatically american citizens. this principle, of jus soli, or the right of anyone born in a territory to citizenship is consistent with the fourteenth amendment and american jurisprudence. another paramount case that built upon the precedent set in inglis is the 1874 case of minor v. happersett (minor). virginia minor filed a lawsuit against the state of missouri after she was disallowed from registering to vote because she was a woman. minor argued that preventing her to vote was a violation of the fourteenth amendment; and as the case came before the supreme court, chief justice morrison waite, in his majority opinion, first discussed whether minor was a citizen of the united states in terms of the fourteenth amendment and common law. on behalf of a unanimous court, chief justice waite wrote the following in regards to the common law definition of natural born citizen, the constitution does not in words say who shall be natural-born citizens. resort must be had elsewhere to ascertain that. at common law, with the nomenclature of 13 monk, “citizenship and privileges clauses.” 14 the constitution center. 15 neal katyal and paul clement, “on the meaning of “natural born citizen.” harvard law review. march 11, 2015. (accessed march 25, 2016). which the framers of the constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. these were natives or natural-born citizens, as distinguished from aliens or foreigners. some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. as to this class there have been doubts, but never as to the first. it is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.16 this establishes several key distinctions between the different kinds of citizenship present within the united states. firstly, as the court expressly reaffirms, natural born citizens are those that are born in country to parents who are citizens. this is distinct from the second class defined by chief justice waite, those who have no claim to citizenship because they are foreigners. the final class of citizenship defined in minor is the category of those who are born within the jurisdiction of the united states, but not to parents who are themselves citizens. chief justice waite had reservations about designating this class as natural born citizens, but was adamant that children born in america to citizen parents are themselves natural born citizens. finally, in 1897 the supreme court was presented with united states v. wong kim ark, which signified the last meaningful citizenship case the court has adjudicated. wong kim ark was born in 1873 during the height of the anti-chinese sentiment and the exclusion era. both his parents were chinese and had been living in northern california for some time, but because of the difficulty for chinese businesses in particular, the family moved back to china when ark was nine years old.17 when ark tried to return to san francisco in 1895, despite being an american-born citizen, he was barred entry under the chinese exclusion act. signed into law in 1882, the chinese exclusion act prevented the chinese from immigrating to the united states and becoming citizens primarily because of economic concerns.18 ark was able to acquire a writ of habeas corpus, by claiming he was a citizen under the fourteenth amendment of the constitution; however when the case reached the supreme court, the nine justices were burdened with first answering the question of whether ark was a natural born citizen and could stay in america. justice gray wrote in the majority opinion that the law, “irresistibly lead us to these conclusions: the fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, the amendment, in clear words and in manifest intent, includes the children born, within the territory of the united states, of all other persons, of whatever race or color, domiciled within the united states. every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the united states.”19 thus, the 16 minor v. happersett. 88 u.s. 162, (1874). 17 fred barbash, “donald trump meet wong kim ark, the chinese american cook who is the father of ‘birthright citizenship.’” the washington post. august 31, 2015. (accessed march 30, 2016). 18 harvard university, “chinese exclusion act (1882).” open collections program: immigration to the us. (accessed april 2, 2016). 19 united states v. wong kim ark, 169 u.s. 649, (1898). court upheld that the fourteenth amendment’s citizenship guarantee applies to children born to foreigners on american soil, despite the fact that the parents might not be american citizens and further unable to attain american citizenship in their own right.20 in the dissent, justice fuller enumerated several important points, challenging the premise that wong kim ark was in fact “subject to the jurisdiction of the united states.” he wrote, “the true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage… the place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction.”21 he continued on to say, “the framers of the constitution were familiar with the distinctions between the roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing.” 22 the dissent emphatically proposes that citizenship cannot be qualified merely by birth place, but rather is contingent on lineage, as the parents’ citizenship is the true determinant of a child’s loyalties. v. evolution of natural born citizen the meaning of natural born citizen has evolved significantly since the founders first included it as a necessary condition to become president of the united states. the authors of the constitution indicated that the meaning of the clause was to preclude and deter foreign manipulation of the new american government and prevent a foreign actor from becoming its leader. in july of 1787, john jay wrote a letter to george washington, in which he said, “permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of foreigners into the administration of our national government, and to declare expressly that the command in chief of the american army shall not be given to, nor devolved on, any but a natural born citizen.”23 the founders were apprehensive about foreign manipulation in their their newly established government; and while they wanted to allow for most anyone to be able to achieve the highest office in the land, they wanted to ensure that the allegiance of the candidate would not be questioned. although immigration and citizenship policy has changed since the ratification of the constitution, allegiance has always remained a constant part of the definition of natural born citizen and present in the opinions of supreme court rulings. james madison noted the importance of allegiance during his address to the house of representatives, and specifically how place rather than lineage was the best determinant of loyalty. allegiance was also a theme throughout the supreme court rulings, as the court consistently upheld that a child born, “within the jurisdiction of the united states,” even if it is to parents who are not citizens, are themselves natural born. although the naturalization act of 1790 indicated that natural born citizenship extends to children who are born to american 20 garrett epps, “the citizenship clause: a “legislative history.” american university law review, 2010. (accessed april 5, 2016), 332. 21 united states v. wong kim ark. 22 ibid. 23 “to george washington from john jay, 25 july 1787.” founders online, national archives. (accessed april 6, 2016). citizens abroad, this accordance of citizenship to foreigners has since been repudiated. the term natural born citizen used to describe children abroad in the 1790 naturalization act was left out of the an updated version of the same piece of legislation five years after the passage of the original.24 after the naturalization acts of the late eighteenth century, the fourteenth amendment was the next significant legislation to define citizenship. the fourteenth amendment, as reaffirmed by several supreme court cases, established that anyone born in the united states is a natural born citizen, regardless of the citizenship status of either of their parents. the evolution of the natural born citizen definition demonstrates that ted cruz is ineligible to be a candidate for president of the united states. vi. the ineligability of ted cruz ted cruz was born in alberta, canada in 1970, where he lived until he was four years old, when the family relocated to texas.25 while his mother was born in delaware, his father was a cuban citizen; and evidence suggests that along with cruz’ mother, was seeking permanent residency in canada at the time of their sons’ birth.26 based on original intent, a method for interpreting the meaning of the constitution by emphasizing what the authors initially envisioned, it is clear that the natural born citizen requirement was primarily to ensure that candidates for president would be loyal only to the united states. even if birthplace were to be discounted in terms of determining allegiance, cruz still lived in canada for the first four years of his life. original intent clearly suggests that the founders consciously drew a distinction between natural born citizen and any other kind of citizenship; and further, that they created the distinction to ensure commonality among all presidential candidates and ensure that only loyal americans could attain the office of president. proponents of ted cruz’ eligibility for president argue that a natural born citizen is someone who is a citizen from birth and does not have to go through the process of naturalization.27 in the harvard law review, two former solicitor generals, neal katyal and paul clement, wrote, “congress has made equally clear from the time of the framing of the constitution to the current day that, subject to certain residency requirements of the parents, someone born to a u.s. citizen parent generally becomes a u.s. citizen without regard to whether the birth takes place in canada, the canal zone, or the continental united states.”28 ted cruz did not have to go through a process of naturalization because his mother was an american citizen, and therefore her citizenship automatically passed to him when he was born. based on an immigration bill ratified by congress in 1952, cruz can claim to be a natural born citizen because his mother is a u.s. citizen; and yet there is a difference between natural born and citizen, and while congress does have the power to confer citizenship, it does not have the power to convert someone to natural born status 24 indiana university, “naturalization laws: 1790-1795.” (accessed april 7, 2016). 25 mathew piper, “utahn’s federal suit challenges presidential eligibility of cruz.” the salt lake tribune. january 26, 2016. (accessed april 9, 2016). 26 piper. 27 katyal and clement. 28 ibid. without amending the constitution.29 to naturalize a foreigner is to confer citizenship, but it does not make them born in american, and similarly, to bestow citizen statutorily to someone born abroad to an american parent cannot ostensibly make them a natural born citizen.30 further, katyal and clement significantly rely on british statutory law and blackstone’s reasoning, instead of american common law as their definition for why cruz is a natural born citizen. although the founders were influenced by british law, there are clear differences between blackstone’s definition of subjects and the founders description of citizens. it is also understood that it is the common law that is relevant to defining natural born citizen, rather than british statutory law. additionally, katyal and clement heavily depend on the naturalization act of 1790, as a demonstration for the founders’ true intentions. while the legislation in 1790 did designate foreign children born to american citizens as natural born, that specific language was left out by the third congress.31 this denotes both the importance and distinction of natural born citizenship, as the founders themselves deliberated about the terms’ true meaning. while ted cruz is currently having his presidential eligibility debated, other presidential candidates, such as john mccain and barack obama in 2008, likewise had their candidacy questioned on the basis of natural born citizenship. mccain was born in 1936 on a military base in the panama canal zone to citizen parents. although mccain, like cruz, was not born in the continental united states, there is a difference between the former and current presidential candidate. the panama canal zone where mccain was born, was sovereign u.s. territory at the time of the senator’s birth; as the supreme court explained in o’connor v. united states, “from 1904 to 1979, the united states exercised sovereignty over the panama canal and the surrounding 10-mile-wide panama canal zone.”32 the fourteenth amendment expressly states that anyone is a citizen if they are born in the united states or a place, “subject to the jurisdiction thereof.” thus, although mccain was not born in one the states, the panama canal zone still constituted united states territory at the time of his birth, meaning that he was a natural born citizen and eligible for the presidency. the current president of the united states, barack obama, also had his citizenship debated during the presidential election of 2008. it was challenged that president obama was not born in this country, but rather in kenya, and therefore his status as a natural born citizen was questioned.33 the president provided birth certificate records that indicated he was born in honolulu, hawaii in 1961, automatically making him a natural born citizen. the difference between president obama and ted cruz is that obama was born in the united states, while cruz was born outside of it. consistent with both the original intent of the founders to ensure that the president would be a loyal american unburdened by the 29 mary b. mcmanamon, “ted cruz is not eligible to be president.” the washington post. january 12, 2016. (accessed april 9, 2016). 30 eric posner, “ted cruz is not eligible to be president.” slate. february 8, 2016. (accessed april 10, 2016). 31 library of congress, “a century of lawmaking for a new nation: u.s. congressional documents and debates, 1774 – 1875, naturalization act of 1795, third congress.” january 29, 1795. (accessed april 10, 2016). 32 o’connor v. united states, 479 us 27, (1984). 33 gary tuchman, “cnn investigation: obama born in us.” cnn. april 25, 2011. (accessed april 10, 2016). inclinations of other countries, and common law, a presidential candidate can only be born on american soil or within its jurisdiction. vii. conclusion the requirement of natural born citizen in order to become a candidate for president is one of the most important limitations in the constitution. throughout human history, civilizations and communities have been built and destroyed by the movement of people. the united states has long represented the possibility that anyone can come to america and not only succeed but also flourish. america is built upon what has historically been an open immigration policy, conferring citizenship both constitutionally through birth, and statutorily through congress. the founders of this nation however saw a difference between someone earning citizenship through a naturalization process, and through birth. the primary reason for the distinction between natural born and citizen, is the belief that allegiance is represented best by those who acquire citizenship through birth. throughout history, relationships between people and countries have not become simpler but rather more convoluted, politicians’ positions more entrenched, consensus harder to achieve, and loyalties easily strained. the united states has emerged as a powerful nation that other countries try and emulate. while there are hundreds of congressman and women, and nine members of the high court, there can be only one president. the importance of the president then denotes that there should be a difference between a citizen and one that is naturally born. no one has been elected president of the united states after having been born outside the country.34 not only was ted cruz born outside the jurisdiction of the united states, but he continued to reside in canada for four years, and did not renounce his citizenship until 2014.35 while the length of time it takes to develop loyalty to a sovereign is seemingly arbitrary, four years is not inconsequential; and if birth does not necessarily determine loyalty, but rather lineage, cruz’s parents were possibly seeking canadian citizenship at the time of their sons’ birth.36 this ambiguity is precisely why the founders created the distinction between natural born and citizen, and added the former as a requirement to be president. ted cruz’ presidential run does a disservice to the other candidates seeking the same office who are themselves qualified, and most importantly, the american people that have put their faith in the fairness of the system and faith in the founders to create the most representative government. in order to uphold the continuity of the american electoral system, and ensure that the eventual president will be loyal to the united states, ted cruz should be disqualified as a candidate for president on account of his canadian birth. 34 david g. savage, “is ted cruz, born in canada, eligible for the presidency? legal experts say yes.” latimes. january 8, 2016. (accessed april 10, 2016). 35 saeed ahmed, “it's official: ted cruz a citizen of the u.s. and the u.s. only.” cnn. january 9, 2016. (accessed april 10, 2016). 36 piper. bibliography aclu. "defending citizenship under the 14th amendment to the u.s. constitution." https://www.aclu.org/frequently-asked-questions-defending-citizenship-under-14thamendment-us-constitution. ahmed, saeed. "it's official: ted cruz a citizen of the u.s. and the u.s. only." cnn. january 9, 2016. http://www.cnn.com/2014/06/11/politics/ted-cruz-canada-citizenship/. adler, jonathan h. "yes, ted cruz is a ‘natural born citizen’." the washington post, january 7, 2016. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/07/yes-tedcruz-is-a-natural-born-citizen/. barbash, fred. "donald trump meet wong kim ark, the chinese american cook who is the father of ‘birthright citizenship’." the washington post, august 31, 2015. https://www.washingtonpost.com/news/morning-mix/wp/2015/08/31/donald-trump-meetwong-kim-ark-the-chinese-american-cook-who-is-the-father-of-birthright-citizenship/. barbash, fred. "ted cruz and that ‘natural born citizen’ requirement: what were the founding fathers afraid of?" the washington post, january 15, 2016. https://www.washingtonpost.com/news/morning-mix/wp/2016/01/15/that-vexing-naturalborn-citizen-requirement-what-were-the-founding-fathers-afraid-of/. bradner, eric. "john mccain: ted cruz's presidential eligibility a legitimate question." cnn. january 7, 2016. http://www.cnn.com/2016/01/06/politics/ted-cruz-birthplace-johnmccain/. barnett, randy. "why ted cruz is a “natural born citizen”." the washington post, january 7, 2016. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/07/whyted-cruz-is-a-natural-born-citizen/?tid=a_inl. clement, paul, and neal katyal. "on the meaning of “natural born citizen”." harvard law review 128, no. 161 (march 11, 2015). http://harvardlawreview.org/2015/03/on-themeaning-of-natural-born-citizen/. clinton, robert. "ted cruz isn't a 'natural born' citizen." us news. january 27, 2016. http://www.usnews.com/opinion/articles/2016-01-27/ted-cruz-is-not-a-natural-borncitizen-according-to-the-constitution. collins, loren. "the tribe/olson 'natural born citizen' memo." scribd. march 19, 2008. https://www.scribd.com/doc/25457698/the-tribe-olson-natural-born-citizen-memo. dierks, konstantin. "naturalization laws 1790-1795." indiana university. http://www.indiana.edu/~kdhist/h105-documents-web/week08/naturalization1790.html. dobbs, michael. "mccain's birth abroad stirs legal debate." the washington post, may 2, 2008. http://www.washingtonpost.com/wpdyn/content/article/2008/05/01/ar2008050103224.html. epps, garrett (2010) "the citizenship clause: a "legislative history"," american university law review: vol. 60: iss. 2, article 2. http://digitalcommons.wcl.american.edu/aulr/vol60/iss2/2 farley, robert. "was mccain born in the usa?." politifact. may 12, 2008. http://www.politifact.com/truth-o-meter/article/2008/may/12/born-usa/. finkelmen, paul. "ted cruz: our first foreign-born president?." huffington post. january 12, 2016. http://www.huffingtonpost.com/paul-finkelman/ted-cruz-our-firstforeig_b_8958476.html. fitzpatrick, david, and drew griffin. "what were ted cruz's parents doing in canada when he was born?." cnn. january 31, 2016. http://www.cnn.com/2016/01/30/politics/ted-cruzcanada-rafael-eleanor-calgary/. holan, angie d. "is ted cruz, born in canada, eligible to run for president?." politifact. august 20, 2013. http://www.politifact.com/truth-o-meter/article/2013/aug/20/ted-cruz-borncanada-eligible-run-president/. hulse, carl. "mccain’s canal zone birth prompts queries about whether that rules him out." new york times, february 28, 2008. http://www.nytimes.com/2008/02/28/us/polit ics/28mccain.html?_r=1. hulse, carl. "ted cruz and john mccain share history in questions over ‘natural born’ status." the new york times, january 7, 2016. http://www.nytimes.com/politics/firstdraft/2016/01/07/ted-cruz-and-john-mccain-share-history-of-facing-natural-bornquestions/. immigration and nationality act of 1952, public law number 82-414, § 303, 66 stat. 163, 236– 37. klukowski, ken. "ted cruz and the constitution’s ‘natural born citizen’ clause." breitbart. january 7, 2016. http://www.breitbart.com/big-government/2016/01/07/ted-cruzconstitutions-natural-born-citizen-clause/. library of congress, “naturalization act of 1795.” 1 stat. 414, 414. lieberman, samuel. "the first birther lawsuit against ted cruz will be heard tomorrow." new york magazine, february 29, 2016 http://nymag.com/daily/intelligencer/2016/02/ted-cruzs-eligibility-goes-to-court-in-newyork.html. liptak, adam. "a hint of new life to a mccain birth issue." new york times, july 11, 2008. http://www.nytimes.com/2008/07/11/us/politics/11mccain.html. marcus, ruth. "donald trump’s bogus attack on ted cruz." the washington post, january 6, 2016. https://www.washingtonpost.com/blogs/post-partisan/wp/2016/01/06/donaldtrumps-bogus-attack-on-ted-cruz/?tid=a_inl. martosko, david. "ted cruz's eligibility as president challenged by 'birther' lawsuit in alabama." the daily mail, february 12, 2016. http://www.dailymail.co.uk/news/article3444711/birther-lawsuit-filed-federal-court-directly-challenges-canadian-born-tedcruz-s-eligibility-president.html. mcmanamon, mary b. "ted cruz is not eligible to be president." the washington post, january 12, 2016. https://www.washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-bepresident/2016/01/12/1484a7d0-b7af-11e5-99f3-184bc379b12d_story.html. national constitution center. "the constitution of the united states." http://constitutioncenter.org/media/files/constitution.pdf. nationals and citizens of united states at birth, 8 u.s. code § 1401. nelson, steven. "congressman readies ted cruz eligibility lawsuit with eye on mom." us news. january 6, 2016. http://www.usnews.com/news/articles/2016-01-06/congressmanreadies-ted-cruz-eligibility-lawsuit-with-eye-on-mom. o’connor v. united states. 479 u.s. 27 (1986). opinion. "why canadian-born ted cruz is a natural-born citizen." los angeles times, february 27, 2016. http://www.latimes.com/opinion/readersreact/la-le-0228-saturday-ted-cruz20150228-story.html. pbs. "1866 civil rights act." http://www.pbs.org/wgbh/amex/reconstruction/activism/ps_1866.html. piper, matthew. "utahn’s federal suit challenges presidential eligibility of cruz." salt lake tribune, january 26, 2016. http://www.sltrib.com/home/3463043-155/utahns-federalsuit-challenges-ted-cruzs. posner, eric. "ted cruz is not eligible to be president." slate, february 8, 2016 http://www.slate.com/articles/news_and_politics/view_from_chicago/2016/02/trump_is_r ight_ted_cruz_is_not_eligible_to_be_president.html. primus, richard. "the ted cruz citizenship fight is bogus—but still matters." politico, february 20, 2016 http://www.politico.com/magazine/story/2016/02/ted-cruz-citizenshipfight-president-2016-213660. raphael, ray. "ted cruz: is he or isn’t he a natural born citizen?." huffington post. january 25, 2016. http://www.huffingtonpost.com/history-news-network-/ted-cruz-is-he-or-isnthe_b_9073618.html. rogers v. bellei. 401 u.s. 815 (1971). russnow, michael. "barack obama would be an american citizen even if born in kenya, so why does the media keep fanning the story?." huffington post. august 25, 2012. http://www.huffingtonpost.com/michael-russnow/obama-birthers_b_1830644.html. siddiqui, sabrina. "where was ted cruz born and does it matter for his presidential bid?" the guardian, january 12, 2016. http://www.nbcnews.com/politics/2016-election/naturalborn-issue-ted-cruz-not-settled-not-going-away-n499226. solum, lawrence b., originalism and the natural born citizen clause (april 18, 2010). illinois public law research paper no. 08-17. http://ssrn.com/abstract=1263885. thompson, catherine. "ted cruz's mother was on official list of canadian citizens eligible to vote." talking points memo. accessed january 8, 2016. http://talkingpointsmemo.com/muckraker/ted-cruz-mother-canadian-voter-list. united states v. wong kim ark. 169 u.s. 649 (1898). wagner, walter l. "utahn challenges ted cruz status as a natural-born citizen." salt lake tribune. january 22, 2016. https://www.scribd.com/doc/296732869/utahn-challengested-cruz-status-as-a-natural-born-citizen. wexler, jay. the odd clauses: understanding the constitution through ten of its most curious clauses. boston: beacon press books, 2011. williams, pete. "'natural born' issue for ted cruz is not settled and not going away." nbc news. january 19, 2016. http://www.nbcnews.com/politics/2016-election/natural-bornissue-ted-cruz-not-settled-not-going-away-n499226. vicens, aj. "here's why the ted cruz birther story isn't going away." mother jones, january 15, 2016 http://www.motherjones.com/politics/2016/01/ted-cruz-birther-lawsuit-filedtexas. brandeis university law journal fall 2022, volume 10, issue 1 “the family separation crisis that no one knows about”99 how our flawed legal and prison systems work to keep incarcerated parents from their children jenna blocher100 incarcerated parents are at an increased risk of their parental rights being terminated due to the adoption and safe families act (asfa) of 1997. the asfa was passed with the intention of limiting the number of children trapped in the u.s. foster care system and is commonly known for shifting efforts from reunification to adoption.101 this act results in a swift and sudden termination of parental rights (tpr). the negative impact of this law on incarcerated parents is evident considering that in the years following the passage of the asfa, the rate of tpr for incarcerated parents has increased by 250%.102 this piece aims to identify aspects of the asfa which threaten incarcerated parents' ability to be reunited with their children after their prison sentence, along with elements of the prison system that prevent incarcerated parents from abiding by the regulations of the asfa and maintaining contact with their children. the most detrimental aspect of the asfa is the 15 of 22 provision, which requires the state to file for termination of parental rights when a child has been in foster care for a consecutive 15 of the past 22 months.103 this regulation 103 “adoption and safe families act of 1997," h.r.867, 105th congress (1997-1998), 1997. 102 nicholson, emily. “racing against the asfa clock: how incarcerated parents lose more than freedom.” duquesne law review 45, no. 5 (2006): 89. 101 whitt-woosley, and sprang, “when rights collide,” 2014, 113. 100 brandeis university undergraduate, class of 2024. 99 hager and flagg, “how incarcerated parents are losing their children forever,” 2018. 53 brandeis university law journal fall 2022, volume 10, issue 1 guarantees the tpr for any parent with a prison sentence longer than a year and a half during which a child is sent to foster care, resulting in the permanent severance of the parent-child relationship. in addition, strict timeline requirements of the asfa relating to the child’s placements and hearings to discuss these placements make it challenging for incarcerated parents to fight for reunification. this issue is compounded by failures of the prison system, which prevent incarcerated parents from participating in their child’s placement process. most proposed solutions suggest a full repeal of the asfa, while others argue that a major reform of the asfa is sufficient. the states of new york, washington, and colorado have already initiated this reform by creating exceptions to the 15 of 22 provision, along with including other considerations and accommodations for incarcerated parents.104 the findings explored in this paper clearly indicate that incarcerated parents are at a disadvantage when trying to reunite with their children. their parental rights are terminated at an unjust rate due to the strict requirements of the asfa: a law that fails to acknowledge the circumstances of incarcerated parents and instead strips their parental rights away. i. introduction from 2006 to 2019, the parental rights of 32,000 incarcerated parents were terminated.105 termination of parental rights (tpr) is a court order which ends the parent-child relationship. a parent legally becomes a stranger to their child, and in turn, the parent has no right to raise, speak 105 durkin, lopez, and roberts, “rep. incarcerated parents and termination of parental rights in connecticut: recommendations for reform.” 104 hager and flagg, “how incarcerated parents are losing their children forever,” 2018. 54 brandeis university law journal fall 2022, volume 10, issue 1 to, or visit their child. the parent is even removed from the child’s birth certificate.106 this ruling, also known as the “civil death penalty,”107 is administered on a very infrequent basis due to its impact and finality. once parental rights have been terminated, it is nearly impossible to have them reinstated. it has been found that incarcerated parents are disproportionately impacted by the laws that govern tpr due to factors that are beyond their control. the adoption and safe families act of 1997, which is a federal law, moves courts to recognize incarceration as child abandonment with the child-welfare goal of adoption rather than reunification. in the years since the passage of the asfa the rate of termination of parental rights amongst incarcerated parents has increased by 250%.108 loving and fit parents are losing their children forever due to a merciless law that fails to recognize and accommodate the barriers faced by incarcerated parents in parenthood, which ranges from ability to participate in placement hearings to visitation with their child. along with various other flawed aspects of the prison and legislative system, puts incarcerated parents at a perpetual disadvantage and is the cause of disproportionate and unjust termination of the parental rights of incarcerated parents. ii. the asfa the asfa of 1997 promotes the goal of prioritizing child safety and is the largest reform of child welfare legislation in the past 20 years.109 due to the nationwide crisis 109 notkin, and weber, “rep. intentions and results: a look back at the adoption and safe families act,” 2021, 5. 108 nicholson, “racing against the asfa clock,” 2006, 85. 107 kasio, “family law self-help center overview of termination of parental rights.” 106 child welfare information gateway, and children's bureau, “grounds for involuntary termination of parental rights,” 2021. 55 brandeis university law journal fall 2022, volume 10, issue 1 of an overwhelmed foster care system, president bill clinton passed the asfa in response to children spending years in foster care with no hopes of adoption. the act created a shift in priority from reunification with the biological family to permanent adoption placements.110 to execute this goal, the asfa requires states to file a tpr petition, to make the child eligible for adoption after being in foster care for 15 of the most recent 22 months. this is known as the 15 of 22 provision.111 the only exceptions to this rule are if: (1) the child is being cared for by a fit and willing relative, (2) the state agency has documented a compelling reason why parental rights should not be terminated or (3) the state agency has not provided the family with the services necessary to achieve safe reunification.112 the 15 of 22 provision undoubtedly poses the greatest threat to incarcerated parents and their ability to regain custody of their child. the 15 of 22 provision, interpreted in the context of incarcerated individuals, means that any prison sentence over 15 months results in tpr. this is especially concerning in a time when prison sentences are becoming longer and longer as a result of new minimum sentencing guidelines. on average, incarcerated parents spend 6.5 years in state prison and 8.5 years in federal prison.113 while the 15 of 22 provision is undoubtedly the biggest change brought about by the asfa, the law also nullified previous mandates. under the asfa, the once universal reasonable efforts mandate, which requires states to make all reasonable efforts to reunify a child with their biological family, is no longer absolute. now, reasonable efforts are no 113 nicholson, “racing against the asfa clock,” 2006, 88. 112 nicholson, “racing against the asfa clock,” 2006, 85. 111 “adoption and safe families act of 1997," h.r.867, 105th congress (1997-1998), 1997. 110 whitt-woosley, and sprang, “when rights collide,” 2014, 113. 56 brandeis university law journal fall 2022, volume 10, issue 1 longer required if that parent’s rights have been previously terminated, including under the 15 of 22 rule. this rule specifically targets previously incarcerated parents that had their parental rights terminated under the 15 of 22 rule. if they have a second child placed into foster care due to an additional incarceration sentence or other factors, it is almost guaranteed that their parental rights will be once again terminated since the state is not required to make reunification efforts. this consequential termination would take place only 30 days after any additional children are removed from the home.114 according to emily nicholson, a writer for duquesne law review, the “asfa carries the potential to ‘punish’ incarcerated parents… by allowing the state to terminate their rights with respect to subsequent children based only on the tenuous factors that led to the original termination, i.e., the passage of time and the complications involved in parenting from prison.”115 nicholson’s argument highlights the underlying problems of the asfa’s restrictions, specifically the negative impact of the 15 of 22 provision and the lack of the reasonable efforts mandate. these two provisions not only permanently separate parents from their children while incarcerated, but also have long-lasting effects that can harm the parent’s legal and physical relationship with their other children after being released. iii. expediting the process: the hearing provisions of the asfa in addition to the previous two provisions, the asfa also established timeframe provisions to speed up the adoption process. one provision states that a written case plan for the 115 nicholson, “racing against the asfa clock,” 2006, 91. 114 nicholson, “racing against the asfa clock,” 2006, 91. 57 brandeis university law journal fall 2022, volume 10, issue 1 child’s future care must be submitted 60 days after the child’s removal from the home during the initial disposition hearing, in which a case plan is created for the child. additionally, the subsequent permanency hearing, a hearing to establish the child’s future status, must take place within 18 months of the child’s placement in foster care.116 another provision of the asfa stipulates that any permanency hearing that does not resolve with reunification or another permanent placement must conclude with a court order to initiate proceedings to terminate parental rights.117 the asfa provisions are intended to appeal to the legal aspect of the foster care and adoption process and to expedite the process so that children spend less time in foster care. however, the process is expedited to such a strict extent that incarcerated parents must race against time to avoid losing their children forever. the strict provisions of the asfa permanency hearings create a standard that is nearly impossible for incarcerated parents to meet and serve. this presents another barrier between incarcerated parents and their children. once a child enters the foster care system a disposition hearing takes place during which a case plan is created for the child. these case plans detail specific services that will be provided to the child, conditions of visitation, child support requirements and, most importantly, the responsibilities and requirements the parent must fulfill to achieve reunification. twelve months after this initial disposition hearing, a permanency hearing takes place in which the final and permanent status of the child is decided.118 the permanency hearing provision, which requires parental rights to be terminated if the permanency hearing does not 118 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 341. 117 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 341. 116 “child welfare: implementation of the adoption and safe families act (p.l. 105-89),” 2004. 58 brandeis university law journal fall 2022, volume 10, issue 1 resole with reunification or a permanent placement, creates an insurmountable barrier for parents fighting for reunification. 119 it is nearly impossible for incarcerated parents to attend these hearings and fight for reunification or fulfill the responsibilities required to warrant reunification. an incarcerated parent’s attendance at a hearing is dependent on them receiving notification of said hearing, receiving permission from the prison to leave the grounds and attend the hearing, and being able to organize transportation.120 iv. barriers faced by incarcerated parents incarcerated parents’ inescapable dependence upon the prison system to be notified of their children’s legal proceedings has resulted in concerning outcomes. a study by adela beckerman, a professor in the department of social work at florida international university, showed that 28% of mothers in new york state prisons with children in foster care were not notified of their upcoming court hearings, and over 50% of these women did not know how to organize transportation to these hearings. furthermore, 49% did not receive any letters from their child’s caseworker, and 68% did not receive a single phone call from their child’s caseworker.121 these statistics demonstrate that incarcerated parents are often not aware of asfa hearings and are therefore unable to attend the hearings to defend their parental rights. incarcerated parents cannot be expected to attend hearings that they oftentimes have no knowledge of. they are completely dependent on an overburdened caseworker, who will not 121 beckerman, "mothers in prison," 1994, 9-14. 120 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 341. 119 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 341. 59 brandeis university law journal fall 2022, volume 10, issue 1 prioritize reunification of parent and child in a means that is sufficient to reconcile these families. while the asfa does not directly prohibit incarcerated parents from attending the hearings, the law fails to make accommodations for incarcerated parents. in order to prevent parental rights from being terminated, parents must utilize disposition hearings to negotiate what changes they will make in order to be reunified with their child before the permanency hearing. however, many incarcerated parents cannot overcome the barriers preventing them from attending the hearings, leaving them helpless as their children are taken from them. in the chapter of the asfa titled “court processes,” no mention is made of incarcerated parents or the accommodations that should be created to help them attend these hearings or visit with their children. this lack of accommodations is an incredible oversight in light of the fact that 40% of foster care children have a parent who has experienced incarceration.122 currently, 30,000 children in the united states foster care system were removed from their home due to the incarceration of their parent.123 in addition, the asfa was created years after the publication of adela beckerman’s 1994 study which highlighted the extent of incarcerated mothers failing to receive notification of these hearings or being unable to attend these hearings. it is evident that the legislators who wrote the asfa overlooked various sets of data that would have proven that incarcerated parents need specific accommodations during the hearing process. there are multiple barriers prohibiting incarcerated parents from carrying out court-ordered activities, such as being able to visit and maintain a relationship with their child. 123 americanbar.org, council of state governments justice center, “foster care and permanence,” 2011. 122 child welfare information gateway, and children's bureau, “child welfare practice with families affected by parental incarceration,” 2021, 4. 60 brandeis university law journal fall 2022, volume 10, issue 1 during disposition hearings, judges may order that the parent spend a certain amount of visitation time with their child before the permanency hearing. child welfare legislation has also made it clear that reunification is dependent on regular contact between the parent and child.124 however, this poses an insurmountable barrier for parents who are incarcerated during the 12 months between disposition and permanency hearings. incarcerated parents are at a disadvantage when trying to maintain contact or visitation with their children because they are at the discretion of others when it comes to seeing their children.125 the occurrence of visits depends on who is caring for the child, if they are willing or able to provide transportation to the prison and cooperate with prison visitation periods, and whether that person is comfortable putting themselves or the child in a prison environment.126 considering that visiting a prison can be an uncomfortable experience, caregivers are often reluctant to organize and chaperone these visits.127 additionally, considering that 84% of parents in federal prisons are incarcerated more than 100 miles away from their home, travel distance makes visitation incredibly difficult.128 visits become harder if the child does not have a caregiver and is currently living with a foster family. consequently, the visits then become dependent on an overburdened caseworker. according to cindy seymour, an attorney at child welfare league of america, caseworkers often face bureaucratic obstacles when trying to organize visits between incarcerated parents and their children. these include 128 halter, “parental prisoners,” 2018, 562. 127 la vigne, davies, and brazzell, “rep. broken bonds: understanding and addressing the needs of children with incarcerated parents,” 2008, 5. 126 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 342. 125 beckerman, “women in prison,” 1991, 178. 124 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 342. 61 brandeis university law journal fall 2022, volume 10, issue 1 “inadequate information about prison visiting procedures, difficulties in scheduling visits, the long travel time to make the visits, uncomfortable or humiliating visiting procedures, the resistance of caregivers, and their concern about children's reactions to the visit.”129 these barriers have a direct impact on the level of contact between parents and children. over 50% of incarcerated parents do not receive one visit from their child during their time in prison, 40% of mothers do not receive weekly contact from their children, and 60% of fathers report no weekly contact from their children.130 adding to the already serious difficulties created by the asfa, incarcerated parents are deprived of access to programs that would aid in their reunification with their children, including treatment or rehabilitation programs. if an incarcerated parent is able to attend the disposition hearing, the judge may order that the parent partake in required programs to increase their fitness as a parent. this is a common occurrence, due to the fact that 24% of incarcerated mothers have a history of alcohol dependence and 23% have been diagnosed with a mental disorder.131 however, the fulfillment of this requirement is dependent on the facilities at their prison. ronnie halperin, a researcher at purchase college, notes that, “unlike other mothers with children in foster care, who may be able to comply with their children's case plans by attending job training, drug treatment programs, or parenting classes, those who are incarcerated can exert little control over their participation in these programs.”132 while most departments of correctional services report that they do have parenting classes 132 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 344. 131 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 343. 130 la vigne, davies, and brazzell, “rep. broken bonds: understanding and addressing the needs of children with incarcerated parents,” 2008, 5. 129 seymour, "children with parents in prison," 1998, 469. 62 brandeis university law journal fall 2022, volume 10, issue 1 offered for inmates at their facilities, these programs are incredibly small-scale and underfunded. most inmates who wish to participate are turned away due to the lack of staff available to lead the classes since the majority of these classes are volunteer led.133 v. the impact of the asfa on children with incarcerated parents while this lack of treatment and contact negatively impacts the incarcerated parents’ chances of retaining their parental rights, the child is also negatively affected. evidence has shown that contact between a child and their incarcerated parent benefits the child in various ways, while a lack of contact negatively influences their behavior and emotions.134 a 2004 study found that more contact such as phone calls, letters, or physical visits between a child and their incarcerated mother specifically resulted in fewer suspensions from school and lower rates of school dropout compared to students who are not able to retain contact.135 researchers danielle dallaire, laura wilson, and anne ciccone conducted a study in 2010 of 30 teachers who taught students of incarcerated parents, which focused on the behavior of these children in relation to contact with their parents.136 the results of the study state, “the teachers also made several positive comments about mail correspondence between incarcerated parents and children… 136 poehlmann, et al, “children's contact with their incarcerated parents,” 2010, 575-98. 135 trice ad, “the effects of maternal incarceration on adolescent children,” 2004, 19:27–35. 134 poehlmann, et al, “children's contact with their incarcerated parents,” 2010, 575-98. 133 halperin and harris, “parental rights of incarcerated mothers with children in foster care,” 2004, 344. 63 brandeis university law journal fall 2022, volume 10, issue 1 one teacher mentioned that a child in her class often sent her incarcerated mother pictures and letters… when the mother wrote back, the child had something tangible to hold on to or refer to when she felt sad or was missing her mother.”137 the study also found that children reported fewer feelings of anxiety and depression when they had more contact with their incarcerated parent.138 it is clear that children benefit from contact with their incarcerated parents, therefore a change in the system that permits children living with a caregiver or in foster care to have more access to visitation with their parents is necessary. vi. unfair biases against incarcerated parents it might be argued that incarcerated parents should not have a relationship with their children. kate barry, a family law attorney at greater boston legal services, has extensive experience in the field of child placement hearings and commonly represents clients who are victims of domestic violence. in court, the topic of the couple’s children often arises. according to barry, “i have never had a case where the judge has even allowed visitation between an incarcerated parent and their child, which is usually due to the violent nature of their crimes. if a husband is found guilty of sexually and physically assaulting his wife, the judge is not going to let him near the child. even if it’s supervised visits in prison.”139 when i asked barry if she thought this lack of visitation was fair, she explained that these abusers are often so violent that she does not personally believe that they should have any contact with 139 interview with kate barry. 138 poehlmann, et al, “children's contact with their incarcerated parents,” 2010, 575-98. 137 dallaire dh, “teachers’ experiences with and expectations of children with incarcerated parents,” 2010, 31:281–290. 64 brandeis university law journal fall 2022, volume 10, issue 1 their children, even after they are released from prison.140 this inevitably brings forth the argument that incarcerated parents should be separated from their children. this argument, which is surprisingly common, is based on the fact that incarcerated or previously incarcerated parents are not only a danger to their children but a negative influence. however, there are already safeguards in the law to protect children from unfit parents. massachusetts bill h.1629 titled an act relative to the best interest of the child, states that, “the best interests of the child shall be the standard for court determinations as to whether a child should be removed from a home, temporarily or permanently, wherein the child has been abused or neglected,”141 while it is undeniable that it may not always be in the best interest of the child to remain in the custody of their incarcerated parent, this should not lead to the punishment of all incarcerated parents. parental relations should be evaluated on a case-to-case basis; the law should not work to keep incarcerated parents away from their children in all circumstances. vii. reform of the asfa the asfa has been negatively impacting parents for the past 24 years, but growing criticisms have led many to advocate for change. solutions have been proposed to combat the negative effects of the asfa, with the most common recommendation being to repeal the asfa entirely. many organizations have been founded on the premise of repealing the act, such as repeal asfa.142 while repeal asfa sees the only solution as a full repeal of the law, other advocates are fighting for asfa reform. 142 repeal asfa. 141 “an act relative to the best interests of children,” bill h. 1629, 192nd court, 2021. 140 interview with kate barry. 65 brandeis university law journal fall 2022, volume 10, issue 1 the states of new york and washington have been trailblazers in asfa reform, with new york passing the asfa expanded discretion bill of 2010, also known as the incarcerated parents bill. according to the new york state senate, the bill “amends new york’s child welfare law to reflect the special circumstances of criminal justice involved families”143 and “grants foster care agencies discretion to delay filing termination of parental rights papers when a parent’s incarceration or participation in a residential drug treatment program is a significant factor in why the child has been in foster care for 15 of the last 22 months.”144 as a result of this bill, judges across the state of new york are required to consider the impact of parental incarceration before pursuing termination of parental rights.145 in 2013, washington took influence from the new york law and passed the children of incarcerated parents bill, which established similar provisions but targeted even more failures of the system. the bill added flexibility to the 15 of 22 provision and established that, by law, incarcerated parents must be notified of their court hearings and have opportunities for visitation with their children.146 the bill states, if the parent is incarcerated, the [permanency] plan must address how the parent will participate in the case conference and permanency planning meetings and, where possible, must include treatment that reflects the resources available at the facility where the parent is confined. the plan must provide for visitation 146 “an act relating to the rights of parents who are incarcerated,” shb 1284, 63rd legislature. (wash. 2013). 145 hager and flagg, “how incarcerated parents are losing their children forever,” 2018. 144 montgomery, “support senator montgomery's ‘incarcerated parents’ bill,” 2009. 143 montgomery, “support senator montgomery's ‘incarcerated parents’ bill,” 2009. 66 brandeis university law journal fall 2022, volume 10, issue 1 opportunities, unless visitation is not in the best interests of the child.147 on a smaller scale, colorado has amended the asfa to make incarceration an exception to the 15 of 22 provision, stating that a tpr petition does not need to be filed within the 15-month timeline if the “child has been in foster care ... due to circumstances beyond the control of the parent such as incarceration of the parent for a reasonable period of time.”148 other states must take influence from new york, washington, and colorado to amend the asfa in a way that protects the parental rights of incarcerated parents. viii. conclusion while the asfa was well-intentioned, it inadvertently puts incarcerated parents at an extreme disadvantage when trying to retain relationships with their children. with extremely strict hearing requirements and inflexible timelines, incarcerated parents are unable to play an active role in their children's custody proceedings. in the eyes of the law, incarcerated parents are abandoning their children, which constitutes unfitness and a reason to terminate parental rights. to further protect the relationships between fit incarcerated parents and their children, amendments must be made to the asfa to create accommodations for incarcerated parents. exceptions for circumstances that are out of the parent’s control must be implemented, as well as further reform of the asfa, to ensure that fit and deserving parents are not punished by this neglectful law. 148 co rev stat § 19-3-604 (2016). 147 “an act relating to the rights of parents who are incarcerated,” shb 1284, 63rd legislature. (wash. 2013). 67 brandeis university law journal fall 2022, volume 10, issue 1 bibliography americanbar.org, council of state governments justice center. “foster care and permanence.”, 1 june 2011, www.americanbar.org/groups/public_interest/child_law /resources/child_law_practiceonline/child_law_practice /vol30/june_2011/foster_care_and_permanence/. an act relative to the best interests of children, bill h. 1629, 192nd court. (mass. 2021). https://malegislature.gov/bills/192/h1629 an act relating to the rights of parents who are incarcerated, shb 1284, 63rd legislature. (wash. 2013) https://lawfilesext.leg.wa.gov/biennium/2013-14/pdf/bi lls/house%20passed%20legislature/1284-s.pl.pdf?q= 20220503115425. beckerman, adela. "mothers in prison: meeting the prerequisite conditions for permanency planning," social work 39 (march 1994): 9-14. beckerman, adela. “women in prison: the conflict between confinement and parental rights.” social justice 18, no. 3 (45) (1991): 178. http://www.jstor.org/stable/29766626. besemer s, farrington dp, bijleveld ccjh (2017) “labeling and intergenerational transmission of crime: the interaction between criminal justice intervention and a convicted parent.” plos one 12(3): e0172419. https://doi.org/10.1371/journal.pone.0172419 child welfare information gateway, and children's bureau. “child welfare practice with families affected by parental incarceration,” january 2021. https://www.childwelfare.gov/pubpdfs/parental_incarc eration.pdf. child welfare information gateway, and children's bureau. “grounds for involuntary termination of parental 68 brandeis university law journal fall 2022, volume 10, issue 1 rights,” july 2021, https://www.childwelfare.gov/pubpdfs/groundtermin.pd f. “child welfare: implementation of the adoption and safe families act (p.l. 105-89).” everycrsreport.com. congressional research service, november 8, 2004. https://www.everycrsreport.com/reports/rl30759.html #_toc337126762. co rev stat § 19-3-604 (2016). https://law.justia.com/codes/colorado/2016/title-19/artic le-3/part-6/section-19-3-604 dallaire dh, ciccone a, wilson l. teachers’ experiences with and expectations of children with incarcerated parents. journal of applied developmental psychology. 2010;31:281–290. durkin, allison, destiny lopez, and eleanor roberts. rep. incarcerated parents and termination of parental rights in connecticut: recommendations for reform. connecticut voices for children, n.d.. https://ctvoices.org/wp-content/uploads/2021/03/repo rt-incarcerated-parents-and-termination-of-parental-r ights-in-connecticut.pdf. “foster care and permanence.” americanbar.org, council of state governments justice center, 1 june 2011, www.americanbar.org/groups/public_interest/child_law /resources/child_law_practiceonline/child_law_practice /vol30/june_2011/foster_care_and_permanence/. hager, eli, and anna flagg. “how incarcerated parents are losing their children forever.” the marshall project, december 3, 2018. https://www.themarshallproject.org/2018/12/03/how-in carcerated-parents-are-losing-their-children-forever. halperin, ronnie, and jennifer l. harris. “parental rights of incarcerated mothers with children in foster care: a 69 brandeis university law journal fall 2022, volume 10, issue 1 policy vacuum.” feminist studies 30, no. 2 (2004): 341. https://doi.org/10.2307/20458967. halter, emily. “parental prisoners: the incarcerated mother’s constitutional right to parent.”the journal of criminal law and criminology (1973-) 108, no. 3 (2018): 562. https://www.jstor.org/stable/48572875. kasio, martin. “family law self-help center overview of termination of parental rights.” family law self-help center overview of termination of parental rights, n.d. https://www.familylawselfhelpcenter.org/self-help/adop tion-termination-of-parental-rights/overview-of-termina tion-of-parental-rights. la vigne, nancy, elizabeth davies, and diana brazzell. rep. broken bonds: understanding and addressing the needs of children with incarcerated parents. urban institute justice policy center, 2008. https://www.urban.org/sites/default/files/publication/31 486/411616-broken-bonds-understanding-and-addres sing-the-needs-of-children-with-incarcerated-parents. pdf. montgomery, velmanette. “support senator montgomery's ‘incarcerated parents’ bill.” ny state senate, september 30, 2009. https://www.nysenate.gov/newsroom/in-the-news/velm anette-montgomery/support-senator-montgomerys-incar cerated-parents-bill. nicholson, emily. “racing against the asfa clock: how incarcerated parents lose more than freedom.” duquesne law review 45, no. 5 (2006): 85. notkin, susan, and kristen weber. rep. intentions and results a look back at the adoption and safe families act. about this paper series. urban institute center for the study of social policy, 2021. 70 brandeis university law journal fall 2022, volume 10, issue 1 poehlmann, julie et al. “children's contact with their incarcerated parents: research findings and recommendations.” the american psychologist vol. 65,6 (2010): 575-98. doi:10.1037/a0020279. repeal asfa. accessed may 3, 2022. https://www.repealasfa.org/. seymour, cynthia. "children with parents in prison: child welfare policy, program, and practice issues," child welfare 11 (september 1998): 469. "text h.r.867 105th congress (1997-1998): adoption and safe families act of 1997." congress.gov, library of congress, 19 november 1997, https://www.congress.gov/bill/105th-congress/house-bil l/867/text. trice ad, brewster j. the effects of maternal incarceration on adolescent children. journal of policy and criminal psychology. 2004;19:27–35. wattenberg, esther, meghan kelley, and hyungmo kim. “when the rehabilitation ideal fails: a study of parental rights termination.” child welfare 80, no. 4 (2001): 417. http://www.jstor.org/stable/45400277. whitt-woosley, adrienne, and ginny sprang. “when rights collide: a critique of the adoption and safe families act from a justice perspective.” child welfare 93, no. 3 (2014): 113. https://www.jstor.org/stable/48623440. interviews attorney michael day attorney kate barry 71 brandeis university law journal fall 2022, volume 10, issue 1 restricting freedom of speech: an analysis of censorship cases in relation to misinformation during the covid-19 crisis anika jain210 with the global predominance of social media, many argue that there is a newfound need for censorship to prevent the spread of misinformation. however, political censorship restricts one of our most fundamental rights. through the analysis of four supreme court cases regarding the right to free speech — schenck v. us (1919), new york times co. v. us (1971), missouri v. biden (2022), and moody v. netchoice, llc (2022) — this paper serves to analyze whether censorship is ever necessary to uphold trust in institutions, or if censorship is antithetical to trust in government, with a special focus on the spread of covid-related misinformation. introduction in recent decades, america has become increasingly polarized across the political spectrum. many analysts blame misinformation in social media for the public’s inability to recognize the truth and lack of cooperative action. through echo chambers of political discourse, social media companies target content that reinforces people’s implicit biases.211 in the early 2000’s, entrepreneurs such as mark zuckerberg, co-founder of meta (previously facebook), held a “...naive conception of human psychology, little understanding of the intricacy of institutions, and no concern for external costs 211 del vicario, “the spreading of misinformation online,” 2016, 554–559. 210 brandeis university undergraduate, class of 2026. 100 brandeis university law journal fall 2022, volume 10, issue 1 imposed on society.”212 as a result, social media entrepreneurs made irreversible impacts on the way humans interact with one another, and thus, the very fabric of democracy. controversy over free speech is not a new trend in american politics. since the early 20th century, the supreme court has been developing its stance on the right to free speech, especially when restricting that right becomes necessary to defend democracy. during the covid-19 crisis, debates over misinformation reignited amongst both political and medical scholars, as a direct result of how conflict, confusion, and conspiracy theories that were circulated online heightened psychological distress and triggered actions based on panic and fear.213 although misinformation poses a threat to citizens’ trust in institutions, political censorship is similarly unappealing due to its restriction of the fundamental right to free speech. the first amendment free speech in america is protected by the first amendment in the bill of rights: “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.”214 due to the opening phrase, “congress shall make no law,” the first amendment initially only applied to federal laws. after the civil war, the reconstruction amendments — the thirteenth, fourteenth, and fifteenth amendments — were passed and ratified to protect former slaves from discrimination and grant them civil rights. using the due process clause of the 214 “u.s. constitution: first amendment.” 213 nelson, “the danger of misinformation in the covid-19 crisis,” 2022, 510-512. 212 haidt, “why the past 10 years of american life have been uniquely stupid,” 2022. 101 brandeis university law journal fall 2022, volume 10, issue 1 fourteenth amendment, the supreme court began to incorporate the bill of rights to apply to state governments as well. the due process clause enforces that no state shall “deprive any person of life, liberty, or property, without due process of law.”215 beginning with gitlow v. new york (1925), the supreme court began incorporating the first amendment to encode free speech at the state level via the due process clause. however, the right to free speech is not without limitation, as proven by lawsuits over slander and libel. the evolution of supreme court rulings regarding freedom of speech schenck v. us (1919) in 1919, the landmark supreme court case schenck v. us placed restrictions on the right to free speech.216 the case began in 1917 when congress passed the espionage act, prohibiting any interference with the world war i draft. a socialist named charles schenck disregarded the act and distributed pamphlets arguing that the draft coerced citizens into serving in the army, despite the thirteenth amendment prohibiting involuntary servitude. because the pamphlets also promoted peaceful disobedience against the draft, schenck was accused of conspiracy to violate the espionage act by hindering recruitment and encouraging insubordination in the military. the supreme court unanimously upheld the conviction of schenck. in the majority opinion, justice oliver wendel-holmes formulated the clear and present danger test to enable the government to restrict free speech when the speech 216 schenck v. united states. 215 chapman and yoshino, “the fourteenth amendment due process clause.” 102 brandeis university law journal fall 2022, volume 10, issue 1 creates a clear and present danger. justice wendel-holmes presented two conditions that must be met: first, the speech must impose a substantive evil that may follow, and second, the speech must create a real, imminent threat. he famously compared dangerous speech to shouting “fire!” in a crowded theater, which is not protected by the first amendment. the summer after the case was decided, justice wendel-holmes was on a train with judge billings learned hand, a renowned jurist and judicial philosopher, who disagreed with the ruling of schenck. judge learned hand told justice wendel-holmes that the clear and present danger test, although a useful assessment of dangerous speech, was misapplied in the case. throughout the 1920s, the supreme court upheld many speech restrictions justified by the clear and present danger test, but justice wendel-holmes along with justice louis d. brandeis started to dissent from the restrictions of free speech, also justifying their reasoning through the clear and present danger test. both sides using the same test to reach different results called into question the effectiveness of the test, especially considering that the creator of the test changed his stance. it was not until 1969 that the supreme court finally revisited the schenck ruling in the case brandenburg v. ohio. brandenburg, a kkk leader, made a speech at a rally and was convicted under an ohio criminal syndicalism law.217 the court held that the ohio law violated brandenburg’s right to free speech. some analysts claim this ruling overturned schenck v. us (1919) by applying a new standard: speech can now be punished only if it is “likely” to produce “imminent, lawless action.” however, another interpretation is that the court reworded the clear and present danger test with a new realization of the potential application of schenck that questions the very purpose of first amendment speech 217 brandenburg v. ohio. 103 brandeis university law journal fall 2022, volume 10, issue 1 protections. if the purpose is to protect individual rights, then the incentive for speech protection is to avoid restrictions on exercising individual thought. however, if the goal is to protect democracy, then it is important to note that democracy requires the ability to criticize the government, as it is the only form of government that can withstand strong dissent against itself. significance to the covid-19 crisis both cases remain relevant for creating the tests used in reviewing freedom of speech disputes. but how can we apply these tests to assess the danger of misinformation during the covid-19 crisis? falsehoods regarding covid are ubiquitous. an ongoing research project conducted by kaiser family foundation reports that 78 percent of us adults either believed or were unsure about at least one of eight false statements about the pandemic or vaccines. figure 1 illustrates the percentages of people who have heard the false statements and believe it to be true or are unsure if it’s true.218 218 lopes, et al, “kff vaccine monitor: media and misinformation,” 2021. 104 brandeis university law journal fall 2022, volume 10, issue 1 figure 1 likelihood to believe misinformation correlated significantly with participants’ vaccination status and trusted news sources.219 64 percent of unvaccinated adults believed or were uncertain about four or more of the misconceptions about covid-19. furthermore, the group of people who hold four or more misconceptions and also trust sources like cnn, msnbc, and npr is relatively small at 11 percent. relatively larger is the group of people who believe four or more misconceptions and trust media sources like one america news, fox news, and newsmax, at 37 percent, 36 percent, and 46 percent respectively. circulating misinformation about the 219 lopes, et al, “kff vaccine monitor: media and misinformation,” 2021. 105 brandeis university law journal fall 2022, volume 10, issue 1 covid vaccine prevented many people from taking necessary precautions to protect themselves and those around them. earlier this year, researchers at brown university and microsoft ai health estimated that of the over 641,000 covid-19 deaths since january 1, 2021, nearly 319,000 covid-19 deaths could have been avoided if all adults had been vaccinated.220 in this context, the spread of misinformation surrounding covid-19 vaccines arguably posed a “real, imminent threat” of which a “substantive evil” followed. the tests conceived in both schenck v. us (1919) and brandenburg v. ohio (1969) suggest that a threat to national safety is justification for censorship. but in exchange for the unyielding right to free speech, hundreds of thousands of innocent lives were lost during the covid-19 crisis. although the spread of misinformation clearly demonstrates the detrimental capabilities of the unrestricted right to free speech, cases regarding the censorship of the press provide more context as to why people are unwilling to compromise fundamental freedoms. the evolution of supreme court rulings regarding freedom of the press new york times co. v. us (1971) new york times co. v. us (1971) is another landmark supreme court case that interprets free speech, with specific focus on the freedom of the press.221 the nixon administration sued the new york times when the government discovered they were planning to publish the leaked document, “report of 221 new york times company v. united states. 220 simmons-duffin and nakajima, “this is how many lives could have been saved with covid vaccinations in each state,” 2022. 106 brandeis university law journal fall 2022, volume 10, issue 1 the office of the secretary of defense vietnam task force” – popularly known as “the pentagon papers.” the act of stopping a publication before it is released to the public is known as prior restraint. in this scenario, the supreme court declared the government’s use of prior restraint to be unjustified because the government must prove that the public release of information would cause inevitable, direct, and immediate danger to the country. once again, the supreme court utilized familiar rhetoric about when restricting first amendment rights is acceptable. within the 6-3 decision, the court’s majority splintered into six concurring opinions. citing the clear and present danger test, justice william j. brenner jr. concluded that prior restraint would be permissible in circumstances where there was sufficient harm posed to national security. taking a more extreme position, justice hugo black argued that “only a free and unrestrained press can effectively expose deception in government,” and rejected any censorship of publications.222 missouri v. biden (2022) in october 2020, three epidemiologists — jayanta bhattacharya, sunetra gupta, and martin kulldorff, of stanford, oxford, and harvard universities respectively — published their views about covid-era lockdowns in a joint statement called the “great barrington declaration.”223 they explained that lockdowns are not net beneficial and that resources should be directed to protecting vulnerable groups in society rather than shutting them down. in the declaration, the scientists attribute the lockdown for “lower childhood vaccination rates, worsening cardiovascular disease outcomes, 223 younes, “the u.s. government's vast new privatized censorship regime,” 2022. 222 robertson, “new york times co. v. united states.” 107 brandeis university law journal fall 2022, volume 10, issue 1 fewer cancer screenings, and deteriorating mental health – leading to greater excess mortality in years to come, with the working class and younger members of society carrying the heaviest burden.”224 the document also advocated for reinstating in-person school and developing herd immunity until a vaccine was made available. bhattacharya, gupta, and kulldorff discovered that online platforms such as youtube and twitter were heavily censoring their scientific opinions from the public. bhattacharya and kulldorff are now plaintiffs in missouri v. biden, a case brought by the attorney generals of missouri and louisiana, as well as the new civil liberties alliance (ncla). the plaintiffs allege that the biden administration and a number of federal agencies violated the first amendment by coercing social media platforms into censoring critiques of the government’s covid policies and thereby turning private action into state action. in a concurring opinion last year, justice thomas articulated the supreme court’s views: “[t]he government cannot accomplish through threats of adverse government action what the constitution prohibits it from doing directly.”225 in other words, the government cannot direct social media companies to silence people if the constitution prohibits the restriction of free speech. nonetheless, it is worth considering whether the “great barrington declaration” incited imminent, lawless action or whether bhatttacharya, gupta, and kuldorff were simply exercising their right to critique government policy. once again, there is a clear conflict between protecting individual rights and protecting democracy. the emerging stance for free speech online 225 younes, “the u.s. government's vast new privatized censorship regime,” 2022. 224 kulldorff, et al, “great barrington declaration and petition,” 2020. 108 brandeis university law journal fall 2022, volume 10, issue 1 debates over free speech and censorship law remain relevant, but with an added twist — social media. in 2018, data scientists from the massachusetts institute of technology collected and analyzed 12 years of data from twitter, starting at the platform’s inception in 2006.226 the data comprises approximately 126,000 stories tweeted by 3 million people more than 4.5 million times. tweets containing false information were six times faster than truthful tweets to reach 1500 people on twitter. they are also 70% more likely to be retweeted than truthful ones. to retweet is to repost or forward a message by another user. while the team reported that false news is propagated faster and wider for all forms of news, the problem was particularly apparent for political news. the implications of this phenomena are profound – political misinformation is spreading faster than truthful information, which places political institutions at risk of instability. moody v. netchoice, llc (2022) missouri v. biden is not the only example of a censorship debate today. there are many major cases regarding censorship currently being considered. earlier this year, an industry group by the name of netchoice, whose members include facebook and instagram owner meta platforms inc., google parent alphabet inc., and twitter inc., challenged a florida law that stops social media companies from restricting political speech. a federal appeals court blocked the law, but on september 21, 2022, florida asked the supreme court to revive the law. the case, known as moody v. net choice, llc, is currently pending a petition. the ruling came days after a different federal appeals court allowed a similar texas law, known as house bill 20, to take effect. house bill 20 prohibits large social media 226 vosoughi, et al, “the spread of true and false news online,” 2018. 109 brandeis university law journal fall 2022, volume 10, issue 1 companies from censoring or interfering with digital expression and has been challenged by netchoice. the fifth u.s. circuit court of appeals permitted the bill to go into effect after lifting the block that had been imposed by a lower court. “today we reject the idea that corporations have a freewheeling first amendment right to censor what people say,” stated judge andrew s. oldham of the u.s. court of appeals for the fifth circuit.”227 the goal of the house bill 20 is to limit political censorship by enabling users to sue social media platforms for removing their posts. this may mean that the current stance of the judiciary is leaning in favor of the unrestricted right to free speech. conclusion as social media’s role in global politics continues to grow exponentially, the supreme court’s stance on censorship will likely continue to develop and solidify. while we retain our right to spread our opinions online, some will misuse their power by spreading information that exacerbates polarization. the implications of an unrestricted right to free speech will have unfathomable consequences on citizens’ trust in institutions. however, censorship remains undesirable because of how the supreme court precedents have struggled to define “dangerous speech” and to uphold a consistent standard by which to limit it. part of the responsibility lies with social media companies who need to implement better screening standards for viral posts that share inaccurate information. then, with the influence that everyday users hold online today, either we need to be accountable for ensuring the content we post is truthful, or we need to be ready to sacrifice individual freedoms to prevent exacerbated political instability. 227 mccabe, “a federal court clears the way for a texas social media law,” 2022. 110 brandeis university law journal fall 2022, volume 10, issue 1 111 brandeis university law journal fall 2022, volume 10, issue 1 bibliography chapman, nathan s, and kenji yoshino. “the fourteenth amendment due process clause.” national constitution center, national constitution center, https://constitutioncenter.org/the-constitution/amendme nts/amendment-xiv/clauses/701#::text=no%20state%2 0shall%20make%20or,equal%20protection%20of%20t he%20laws. del vicario, michela, et al. “the spreading of misinformation online.” proceedings of the national academy of sciences, vol. 113, no. 3, 2016, pp. 554–559., https://doi.org/10.1073/pnas.1517441113. haidt, jonathan. “why the past 10 years of american life have been uniquely stupid.” the atlantic, atlantic media company, 25 may 2022, https://www.theatlantic.com/magazine/archive/2022/05/ social-media-democracy-trust-babel/629369/. kulldorff, martin, et al. “great barrington declaration and petition.” great barrington declaration, 30 oct. 2020, https://gbdeclaration.org/. lopes, lunna, et al. “kff covid-19 vaccine monitor: media and misinformation.” kff, kaiser family foundation, 16 nov. 2021, https://www.kff.org/coronavirus-covid-19/poll-finding/ kff-covid-19-vaccine-monitor-media-and-misinformatio n/?utm_campaign=kff-2021-polling-surveys&utm_m edium=email&_hsmi=2&_hsenc=p2anqtz--nhxw8rm 0j_vnhpff32rwfshja35wcnhjzwl5pgu-j4oymh hchpa7hdwbgbldfwf7ov-p6r33fozya1jqlwuzv oudmba&utm_content=2&utm_source=hs_email. mccabe, david. “a federal court clears the way for a texas social media law.” the new york times, the new york times, 17 sept. 2022, 112 brandeis university law journal fall 2022, volume 10, issue 1 https://www.nytimes.com/2022/09/16/business/texas-so cial-media-political-law.html. nelson, taylor et al. “the danger of misinformation in the covid-19 crisis.” missouri medicine vol. 117, no. 6, 2020, pp. 510-512. pierson, brendan. “florida asks u.s. supreme court to revive law targeting social media ‘censorship.’” reuters, thomson reuters, 21 sept. 2022, https://www.reuters.com/legal/florida-asks-us-supremecourt-revive-law-targeting-social-media-censorship-202 2-09-21/. robertson, stephen. “new york times co. v. united states.” free speech center, middle tennessee state university, https://www.mtsu.edu/first-amendment/article/505/newyork-times-co-v-united-states. simmons-duffin, selena, and koko nakajima. “this is how many lives could have been saved with covid vaccinations in each state.” npr, national public radio, 13 may 2022, https://www.npr.org/sections/health-shots/2022/05/13/1 098071284/this-is-how-many-lives-could-have-been-sa ved-with-covid-vaccinations-in-each-sta. “u.s. constitution: first amendment.” constitution annotated, library of congress, https://constitution.congress.gov/constitution/amendme nt-1/. vidales, jesus. “texas social media ‘censorship’ law goes into effect after federal court lifts block.” the texas tribune, the texas tribune, 16 sept. 2022, https://www.texastribune.org/2022/09/16/texas-socialmedia-law/. vosoughi, soroush, et al. “the spread of true and false news online.” science, vol. 359, no. 6380, 2018, pp. 1146–1151., https://doi.org/10.1126/science.aap9559. 113 brandeis university law journal fall 2022, volume 10, issue 1 younes, jenin. “the u.s. government's vast new privatized censorship regime.” tablet magazine, 21 sept. 2022, https://www.tabletmag.com/sections/arts-letters/articles/ government-privatized-censorship-regime. cases cited brandenburg v. ohio, 395 u.s. 444 (1969). new york times company v. united states, 403 u.s. 713 (1971). schenck v. united states, 249 u.s. 47 (1919). 114 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 letter from the editor-in-chief dear reader, your executive board is proud to present the 2023-24 issue of the brandeis university law journal. this year has been one of many firsts for our journal. chief among these is the transition from a bi-annual to an annual publication. the following nine undergraduate-penned articles explore a range of legal issues: from the legal history of coverture and the precedent governing flag desecration to the legal protections needed to safeguard immigrant workers’ civil rights. this publication is indebted to our exceptional team of authors and editors. we are grateful to our gifted editorial team who consistently volunteer their finite time to edit submissions. the e-board is equally grateful to our authors who have devoted their time and care to revisiting their work over many arduous editing cycles. longtime readers may notice a new referencing style in some of this year’s articles. indeed, in a trailblazing initiative at the undergraduate level, the journal is adopting the bluebook: a uniform system of citation to conform to the citation system used by the legal profession and other academic legal publications. to accommodate this transition and support our authors, we allowed citations to be completed in either chicago 17th ed. or bluebook. the articles written in bluebook comprise the first half of the issue and those written in chicago comprise the second. we are appreciative of our government information & social sciences librarian, aimee slater, for lending so much of her time and expertise to enact this strenuous transition. the e-board extends its utmost gratitude to our faculty advisors, professors breen and kabrhel, for their invaluable expertise. their support has been instrumental in keeping the journal faithful to its original mission established by judah marans. we thank the student union’s allocations board for contributing the funds necessary to publish this issue. the journal’s e-board, which has grown to its largest size yet, is staffed by a team of gifted undergraduates who have dedicated many hours to the journal’s success. they are deserving of the utmost praise for their hard work and commitment. finally, i must thank my co-editor-in-chief, emanuel glinsky. manny, you’re among the most hard-working people i have ever met. your unwavering commitment to our shared project has pushed me to become a better and more accountable leader. you are the best teammate i have ever had; i wish you the best. sincerely yours, gonny d. nir co-editor-in-chief 7 brandeis university law journal fall 2022, volume 10, issue 1 how has covid impacted the call for reform for the criminal justice system? olivia sinkoff149 since 2002, the united states has held the highest incarceration rate in the world.150 today, there are around two million people incarcerated in u.s. state and federal prison, local jails, and non-voluntary mental health facilities– many of whom have yet to be convicted. there are 445,000 people in local jails and another 88,000 in federal prisons who are detained before their trial because they cannot afford bail payment.151 the detainment rate increased exponentially between 1980 and 1996, primarily as a result of the war on drugs which was a government initiative started by president nixon to dissuade drug abuse. nixon increased federal financial support for drug-control agencies and implemented rigid laws and punishments for drug offenders.152 critics of the war on drugs have pointed out that it has disproportionately affected people of color – the increase in incarceration rates for black americans and hispanics during the seventeen years the policy was active was one and a half times and three times respectively, higher than the increase for white americans. the larger increase in incarceration rates for minorities is evidence of systemic racism in the criminal justice system, which has prompted numerous calls for reform. advocacy for reform was amplified in may 2020, following the murder of george floyd and as the covid-19 pandemic placed heavy burdens on the criminal justice system. during this period, the defund the 152 history.com editors, “war on drugs,” 2017. 151 wagner and sawyer, “mass incarceration.” 150 wagner and sawyer, “mass incarceration.” 149 brandeis university undergraduate, class of 2023. 72 brandeis university law journal fall 2022, volume 10, issue 1 police movement assumed the mantle for criminal justice reform. the criminal justice system tried to prevent the spread of the virus by releasing thousands of inmates early.153 less than 0.2 percent of those inmates released have committed new crimes, pushing the question of the integrity of the united states’ system of incarceration to the forefront of social justice concerns. the united states has the highest incarceration rate and most prisoners in the world.154 due to the policies implemented during the war on drugs, the incarceration rate in the u.s. skyrocketed in the latter part of the twentieth century, which has disproportionately affected communities of color.155 in 2020, the coronavirus pandemic compounded problems by straining and highlighting weaknesses in the criminal justice system. the criminal justice system faced both internal and external pressures – from activist movements opposing law enforcement practices to prisons acting as virus super-spreader locations requiring urgent attention.156 2020 was a period of reinvigorated social activism calling for police accountability, the end of racial disparities in the criminal justice system, and creating alternative community safety options to policing; all of these discussions coincided with the black live matter movement, which highlighted systemic racism, discrimination, and inequality faced by black americans. the result was adaptations in how the united states approached criminal justice, which included reducing low-level arrests, putting aside traffic enforcement, emphasizing diversion programs, and 156 wagner and sawyer, “mass incarceration.” 155 blumstein and beck, “population growth in u.s. prisons, 1980-1996,” 1999, 21. 154 statista research department, “ranking,” 2022. 153 gill, “opinion | thousands were released from prison during covid,” 2022. 73 brandeis university law journal fall 2022, volume 10, issue 1 releasing prisoners early.157 it also raised awareness of racial inequality and discrimination in the criminal justice system. the united states has the highest incarceration rates primarily due to pretrial detainment policies that place burdens on poorer communities. incarcerated individuals are in jails and prisons; jails, which run at county level, are primarily for short term sentences and where people held pending conviction, while prisons, which are run either at the federal or state level, are for long term sentences after conviction. about sixty-seven percent of detainees in jails are not yet convicted, and most are held due to their inability to pay bail. in 2015, the median income for pre-trial detainees was $15,598 compared to median annual income of those released, $39,600.158 at any given time, there are about two million people in federal and state prison, juvenile corrections facilities, immigrant detention centers, military prisons, and psychiatric facilities.159 all together, these figures constitute an incarceration rate of 639 per 100,000 of the national population. el salvador follows the united states with the second highest incarceration rate of 562 per 100,000 of the population.160 more than half of incarcerated people in the united states in 2022 – about 1.04 million – are in state prisons, with the majority of prisoners sentenced for violent crimes. the next largest group of 547,000 is those held in local jails, 80 percent of whom have not yet been convicted due to the lack of resources poorer communities have to post bail.161 between 1980 and 1996, mass incarceration rates in the united states increased by 200 percent. this dramatic rise was primarily composed of drug offenses, but was compounded by 161 wagner and sawyer, “mass incarceration.” 160 statista research department, “ranking,” 2022. 159 wagner and sawyer, “mass incarceration.” 158 wagner and sawyer, “mass incarceration.” 157 jackson, “criminal justice in the pandemic era and beyond,” 2021. 74 brandeis university law journal fall 2022, volume 10, issue 1 an increase in arrests and commitment rates.162 in 1973, cohen and blumstein described the stability of the early 1970s incarceration system in their “theory of the stability of punishment.” they argued that a nation’s stable incarceration rate rests upon the economic and political pressures of an incarceration rate that is unmanageable with the tolerance of certain crimes. in other words, as crime increases, societies adapt their regard toward certain crimes and whether offenders should be incarcerated. if crime decreases, then offenders of more marginal crimes, or low-level offenses, will tend to be incarcerated at a higher rate.163 after the 1970s, incarceration rates increased steadily.164 the war on drugs influenced the shift in focus of the criminal justice system to drug offenses. drug use has been present in the united states since the beginning, but nixon’s declaration of the war on drugs criminalized drug use on a massive scale. in 1970, the controlled substances act, which regulated specific drugs and classified them in degrees of ‘dangerousness”, was ratified. the following year, nixon officially classified drugs as “public enemy number one.” the dea was created in 1973 and had the sole purpose to rid illegal drug smuggling and use. under president reagan, the “say no to drugs” campaign resulted in mandatory prison sentences for illegal drug use.165 between 1980 and 1996, drug offenders grew from the lowest number in the prison population to the highest, growing from 15 prisoners per 100,000 adults to 148 prisoners per 100,000 adults.166 critics 166 blumstein and beck, “population growth in u.s. prisons, 1980-1996,” 1999, 21. 165 history.com editors, “war on drugs,” 2017. 164 blumstein and beck, “population growth in u.s. prisons, 1980-1996,” 1999, 21. 163 blumstein and beck, “population growth in u.s. prisons, 1980-1996,” 1999, 18. 162 blumstein and beck, “population growth in u.s. prisons, 1980-1996,” 1999, 17. 75 brandeis university law journal fall 2022, volume 10, issue 1 emphasize the racist implications of the established practices set by the widespread criminalization of drug use. for example, the anti-drug abuse act gave longer prison sentences for using crack than using the powder form of cocaine – it took 100 times more cocaine than crack to have the prison sentence time to be the same. this increased incarceration amongst the black american community, where crack was more popular than among white americans who preferred cocaine. not only was race heavily influential in the sentence times allocated due to the disparity between the type of drug use among different racial communities, minority communities were also targeted more heavily than white americans. the war on drugs caused the disruption of minority and poor communities.167 it is well established that the penal system disproportionately affects minority communities. during the sixteen year period, incarceration rates for black americans and hispanics increased by 261 percent and 554 percent, respectively, compared to 185 percent for white americans.168 arrests, convictions, and sentence times have increased for various crimes including: murder, sexual assault, robbery, and drug offenses in the latter part of the twentieth century. sentence time also includes time spent in recommitments due to parole violations, which have also escalated. parole boards became more reluctant to release inmates when they first became eligible for parole and became stricter with violations, even technical ones, such as a violation of a condition for a person’s release. an example of a parole condition would be the banning of drug or alcohol use. the parole boards have a direct impact on incarceration numbers depending on how strict or lenient they are with recommitting based on parole violations and how long they take to release prisoners. during the sixteen year period, drug use violations grew by a larger 168 blumstein and beck, “population growth in u.s. prisons, 1980-1996,” 1999, 22. 167 history.com editors, “war on drugs,” 2017. 76 brandeis university law journal fall 2022, volume 10, issue 1 percentage than other offenses leading to more drug-related commitments.169 prior to 2020, there were persistent calls to reform the criminal justice system, particularly in regard to the increasing number of inmates cycling through the prison system. both the public and experts have challenged the responsibilities that the justice system is expected to perform, such as substance abuse control, neighborhood conflict resolution, and handling mental health emergencies; these burdens result in more people incarcerated rather than given proper help, such as mentally ill patients going to jail instead of a hospital.170 for example, in albuquerque in june 2020, mayor tim keller announced an initiative for the albuquerque community safety department which would be a branch of responders composed of civilians for non-violent situations that could be called instead of the police.171 this taxing set of tasks was exacerbated during the covid-19 pandemic when law enforcement was given the additional responsibilities that came with the onset of the pandemic such as enforcing mask mandates. the pandemic fundamentally altered and strengthened the connection between public health and criminal justice and prompted additional questioning of how the united states addresses criminal justice.172 the spread of covid-19 raised issues about public health, and increased the politicization of many topics including law enforcement.173 173 jackson, et al, “how the criminal justice system's covid-19 response has provided valuable lessons for broader reform,” 2021, 4. 172 jackson, et al, “how the criminal justice system's covid-19 response has provided valuable lessons for broader reform,” 2021, 2. 171 parsons, lo, pearl, and figgatt, “5 discussions that shaped the justice reform movement in 2020,” 2022. 170 jackson, et al, “how the criminal justice system's covid-19 response has provided valuable lessons for broader reform,” 2021, 2. 169 blumstein and beck, “population growth in u.s. prisons, 1980-1996,” 1999, 37. 77 brandeis university law journal fall 2022, volume 10, issue 1 in the early phases of the pandemic, police were ordered to shut down events where guests were not wearing masks, further emphasizing the link between public health and criminal justice. the year 2020 was a period of reawakening for many criminal justice reform movements. it was the year that george floyd was murdered by police in minneapolis, an event which sparked massive protests nationwide and demanded tangible change to how the police function and interact with the public.174 during this time, the main demands raised were: an investment into alternative safety methods to policing, an accountability of the police, the end of unjust punishments, eliminating obstacles for people impacted by the justice system and finally, removing racial disparities in the criminal justice system. changes came in the form of new state campaigns and laws. for example, in regard to removing barriers for convicts, california ratified a constitutional amendment to reinstate the right to vote for parolees who were convicted for felonies in november. that same month, philadelphia, in an effort to remove racial bias, passed a ballot to include charter language to stop the unconstitutional stop-and-frisk practices of the police that disproportionately affect minority communities.175 the national unrest among activists and the public further fueled a movement called “defund the police.” this movement grew parallel to the black lives matter movement since many of the calls for reform to the criminal justice system were based on racial disparities that resulted in police killings of primarily black americans, such as george floyd. this phrase has become heavily divisive, with republicans arguing that democrats want the entire removal of law enforcement from the streets. democrats, on the other hand, believe the current law enforcement policies 175 parsons, lo, pearl, and figgatt, “5 discussions that shaped the justice reform movement in 2020,” 2022. 174 jackson, et al, “how the criminal justice system's covid-19 response has provided valuable lessons for broader reform,” 2021, 4. 78 brandeis university law journal fall 2022, volume 10, issue 1 that the majority of republicans favor are riddled with lack of accountability of police and racial bias. in regard to the “defund the police” movement, in reality, many activists view “defund” as reallocation. activists are primarily concerned with systemic racism within law enforcement, over-policing, and gun violence. some activists believe there needs to be a “reinvestment in our underfunded systems,” such as social services.176 today, the “defund the police” movement has been pushed to the back of america's minds. in 2021, a poll by pew research center found that the percentage of americans who supported budget cuts on law enforcement fell from 25 to 15 percent from 2020 to 2021. it also highlighted a discrepancy between racial groups; 23 percent of black americans supported the movement in comparison to 13 percent and 16 percent of white and hispanic americans, respectively.177 i. the pandemic’s toll on the prison system within the first year of the covid-19 pandemic, the united states saw a 15% decrease in prison population and a 25% decrease in jail populations. this was due to a reduction of the incarceration of prisoners rather than an increase in the prisoner releases. in fact, there was a 40% decrease in prison admissions, which subsequently created an extensive backlog in court cases and prison transfers. federal and state facilities did little to prevent the spread of covid among the inmates in large numbers. for example, with few exceptions, the justice system failed to release detainees awaiting trials. further, inmates who were qualified for parole were not released to empty prison populations in order to prevent the spread of the virus. the lack of action resulted in unnecessary numbers of illness and death in crowded prisons.178 178 wagner and sawyer, “mass incarceration.” 177 blow, “'defund the police' is dead,” 2021. 176 bates, “defund the police movement,” 2021. 79 brandeis university law journal fall 2022, volume 10, issue 1 the pandemic forced the justice system to adapt, particularly the prison system, since the crowded nature of it had the potential to spread covid-19 quickly. in march 2020, the justice department ordered the release of more than 11,000 federal prisoners to serve their sentence in home confinement. out of that 11,000, only 17, or 0.15%, were reported by the bureau of prisons (bop) to have committed crimes after release.179 according to washington post author molly gill, this low recidivism rate, the proclivity of a former inmate to reoffend and relapse into criminal behavior, is a sign that many more similar prisoners from low-security prisons can be released. however, the candidates for release were highly evaluated. the 11,000 prisoners were all in low-level security prisons or at high risk to infection, and were given priority for release. the only incarcerated group that were not even considered for release was for those convicted of sex crimes. others were considered individually, evaluating their conduct, prison record, and risk to the public community. another condition for release was that the inmates had somewhere to go with supervision and support. the cares act raised awareness that sentence times were often too lengthy. it focused on the release of two groups, both of which, statistically, present very little risk, or none at all. they included the elderly, who according to data have a lower recidivism rate as they get older, and the chronically ill and physically disabled who are not dangerous but expensive to care for with tax money. the success of the cares act in thoughtfully releasing low-threat individuals highlights a potential solution to an overburdened prison system with relatively low negative impacts and large financial benefits.180 by august 2022, the bop reported that 442 people who were released during covid were back in 180 gill, “opinion | thousands were released from prison during covid,” 2022. 179 gill, “opinion | thousands were released from prison during covid,” 2022. 80 brandeis university law journal fall 2022, volume 10, issue 1 prison despite only seventeen of them actually committing new crimes.181 at least 230 of those sent back to jail were sent back on a drug or alcohol related infraction. others were sent back because of a technicality, or noncriminal violations of probation, which could have been as minor as not picking up the phone when a probation officer calls.182 while alcohol or drug infractions, or the inability to pick up a parole officer’s call in time, may warrant a case review on the parolee’s release, it should be questioned whether parolees should be simply sent back to prison based on, oftentimes, small technicalities. is it a waste of resources to send former inmates back to state and federal prisons because of such a small infraction that poses very little danger to society? reincarceration may be too severe of a punishment for a simple missed call, especially considering how taxing and costly keeping inmates is in the prison system. about 18% of the inmate population in local jails are incarcerated for a parole violation, and in some counties the number is up to a third. in 2019, 25% of state prisoners had been reincarcerated due to supervision infractions.183 this data shows that the us prison system is following its pre-pandemic mindset in regard to incarceration. as a result, the prison population is steadily making its way back to pre-pandemic levels.184 the prison population was the lowest during the pandemic due to a significant decline in admissions, rather than large releases of inmates. admissions in jails and prisons, locally and state level, were due to the deferment of cases and some policy change. there was a 33% decrease in prison population during 2020. policy changes included issuing citations instead of arresting, or choosing not to prosecute people for low-level, or non-violent, crimes, and reducing bail 184 wagner and sawyer, “mass incarceration.” 183 wagner and sawyer, “mass incarceration.” 182 johnson, “released during covid,” 2022. 181 johnson, “released during covid,” 2022. 81 brandeis university law journal fall 2022, volume 10, issue 1 costs. for example, philadelphia discontinued arrests and released more people charged for low-level crimes. with the end of the pandemic, the courts have finally been able to catch up with the cases it had set aside. in addition, cities like philadelphia have resumed making property crime arrests, discarding pandemic reforms, fueling the re-population of jails and prisons.185 ii. conclusion the pandemic resulted in increased calls for reform within the criminal justice system in regard to the overcrowding of prisons and the allocation of resources within law enforcement. at the same time, it provided the environment to experiment with different approaches to the prison system. police deferred arrests or simply issued citations instead. 2020 was filled with massive social demonstrations and tangible change to law enforcement policies in an effort to address the “defund the police” and blm movements. additionally, many inmates were released early, under the cares act after careful consideration of candidates, with an astoundingly low recidivism rate that calls to question if the united states should go back to its pre-pandemic approaches or adapt. despite the amplified calls for reform and the extraordinary measures taken during the pandemic, state and federal prison systems are showing a trend of returning to pre-2020 incarceration rates and policies. notwithstanding, covid-19 still played a vital role in changing people’s mindsets in regard to the criminal justice system because it emphasized many issues, including health and social justice, that were faced by the most vulnerable – communities of color. 185 wildra, “state prisons and local jails appear indifferent to covid outbreaks,” 2022. 82 brandeis university law journal fall 2022, volume 10, issue 1 bibliography bates, josiah. “defund the police movement: why the term has become divisive.” time, february 23, 2021. https://time.com/5936408/defund-the-police-definitionmovement/. blow, charles m. “'defund the police' is dead. now what?” the new york times. the new york times, august 31, 2021. https://www.nytimes.com/2022/08/31/opinion/defund-t he-police.html. blumstein, alfred, and allen j. beck. “population growth in u. s. prisons, 1980-1996.” crime and justice 26 (1999): 17. http://www.jstor.org/stable/1147683. gill, molly. “opinion | thousands were released from prison during covid. the results are shocking.” the washington post. wp company, september 29, 2022. https://www.washingtonpost.com/opinions/2022/09/29/ prison-release-covid-pandemic-incarceration/. history.com editors. “war on drugs.” history.com. a&e television networks, may 31, 2017. https://www.history.com/topics/crime/the-war-on-drugs. jackson, brian a. “criminal justice in the pandemic era and beyond.” rand corporation, september 7, 2021.https://www.rand.org/blog/rand-review/2021/09/cr iminal-justice-in-the-pandemic-era-and-beyond.html. jackson, brian a., michael j. d. vermeer, dulani woods, duren banks, sean e. goodison, joe russo, jeremy d. barnum, camille gourdet, lynn langton, michael g. planty, shoshana r. shelton, siara i. sitar, and amanda r. witwer, “how the criminal justice system's covid-19 response has provided valuable lessons for broader reform: looking to the future.” santa monica, ca: rand corporation, 2021. 83 brandeis university law journal fall 2022, volume 10, issue 1 https://www.rand.org/pubs/research_briefs/rba108-6.h tml. johnson, carrie. “released during covid, some people are sent back to prison with little or no warning.” npr. npr, august 22, 2022. https://www.npr.org/2022/08/22/1118132380/released-d uring-covid-some-people-are-sent-back-to-prison-with-l ittle-or-no-warn. parsons, chelsea, kenny lo, betsy pearl, and sarah figgatt. “5 discussions that shaped the justice reform movement in 2020.” center for american progress, june 9, 2022. https://www.americanprogress.org/article/5-discussions -shaped-justice-reform-movement-2020/. statista research department, and aug 5. “ranking: most prisoners per capita by country 2021.” statista, august 5, 2022. https://www.statista.com/statistics/262962/countries-wit h-the-most-prisoners-per-100-000-inhabitants/#:~:text= as%20of%20may%202021%2c%20the,the%20highes t%20rate%20of%20incarceration. wagner, p. and sawyer, w. “mass incarceration: the whole pie 2022.” prison policy initiative. accessed september 30, 2022. https://www.prisonpolicy.org/reports/pie2022.html#:~:t ext=together%2c%20these%20systems%20hold%20al most,centers%2c%20state%20psychiatric%20hospitals %2c%20and. wildra, emily. “state prisons and local jails appear indifferent to covid outbreaks, refuse to depopulate dangerous facilities.” prison policy initiative, february 10, 2022. https://www.prisonpolicy.org/blog/2022/02/10/february 2022_population/. 84 final spring law journal copy brandeis university law journal spring 2022, volume 9, issue 2 what makes a sound supreme court justice? gonny nir73 when asked, legal scholars, commentators, and avid court watchers will gleefully name the best supreme court justices to have served on the bench. even justices have their favorite predecessors, and numerous academic lists have set out to rank justices' tenures on the bench. yet when asked what exactly makes a good justice, there seems to be a pause among academics– individuals can seldom list the qualities that make for a legendary tenure. there is a hole within the literature that identifies which factors made the greatest supreme court justices the legal giants they were. this article aims to fill that hole by identifying the qualities that land justices on scholars’ “all-time” lists. author’s foreword to the article, may 3, 2022: i wrote the following article over a three-week period in early january, as the court resumed its highly contentious 2021-22 term. against the backdrop of legal issues arising from controversial political responses to the pandemic, and calls from democratic congresspeople for the retirement of justice stephen breyer– the court’s activities and rulings were beginning to be presented to citizens through a uniquely political lens. i wrote the following article out of a fundamental conviction: that the court’s legitimacy hinges on the justice’s fulfillment of their neutral, nonpolitical role in american life, as prescribed by the constitution. i, and hundreds of thousands of americans, respect this institution because through much of its contemporary history, it has done its due diligence to remain apolitical, and above all fair, in its decision-making. on may 2nd, millions of americans were alerted of the court’s likely ruling in dobbs v. jackson women's health organization (2022). as i read the draft opinion, written by justice samuel alito, one clear thought emerged in my mind, this ruling is unfair. putting aside the subject matter of dobbs (the issue could be interstate commerce, congressional delegation, or any mundane or contentious legal matter), the notion that one branch of government is at liberty to uproot 73 brandeis university undergraduate, class of 2025. 40 brandeis university law journal spring 2022, volume 9, issue 2 longstanding, preexisting legal precedent is simply regarded by most americans as unfair. at a fundamental level –divorced from complex, philosophical theories of ethics– most ordinary citizens believe that justice is fairness. often, this principle has been reproduced by the court in the form of granting some legal victories to conservatives, and some to liberals. the public has regarded the court as a fair institution primarily for this reason. most americans believe that the court has administered justice in its cases by ruling along fair grounds. even if a particular case was decided against an individual's favor, they trust it was decided by the justices along fair, legal grounds. the likely outcome of dobbs violates this rudimentary principle. justice alito grounds his opinion on justice brett kavanaugh’s five tests for overruling precedent. the first of these tests concerns whether the precedent case was based on reasoning that was clearly faulty. justice alito makes few arguments to support the notion that either roe v. wade (1973) or planned parenthood of southeastern pennsylvania v. casey (1992) was somehow “egregiously wrong.” in fact, most americans will not read justice alito’s reasoning behind why his opinion fulfills either this or the remaining four tests for overruling precedent. many will instead focus on the notion that long standing precedent has just been uprooted by a politically unchecked branch of government– and that this action is unfair. i wrote the following article charged with the precious, core belief that the justices of the supreme court ought to act judicially, not politically. yet, regardless of the legal reasoning that justice alito provides for his opinion in dobbs, many members of the public will likely –and properly– view the decision as an unfair one. further, given the political lens through which the court has been portrayed in the past year, the decision will likely be seen as a political one as well. this decision jeopardizes the court’s promise to administer justice fairly. recall that justice is evenhandedness to most americans; it is consistency– it is the notion that the rule of law at sundown will be the same rule of law at sunrise. regrettably, the sun may well have gone down on our right to expect the supreme court to act in its tradition of fairness. introduction 41 brandeis university law journal spring 2022, volume 9, issue 2 supreme court nominations have become some of the most visibly partisan votes on the senate floor. justice samuel alito’s confirmation in 2005 set the precedent that voting along party lines would be the new twenty-first century normal when a nominee testifies before the senate judiciary committee.74 to illustrate the severity of political polarization in the nomination process, one needs to look no further than the lineage of justice neil m. gorsuch’s seat. in 1986, president ronald reagan nominated then-judge for the u.s. district court for the district of columbia, antonin scalia, to fill the seat of justice william h. rehnquist, who was being promoted to chief justice. in his own words, scalia was, “...known at that time to be in my political and social views, fairly conservative. but still, i was known to be a good lawyer, an honest man.”75 scalia was confirmed by the senate in a vote of 98-0. thirty-one years later, tenth circuit judge gorsuch was confirmed by a vote of 54-45.76 while some may be inclined to disagree with gorsuch’s personal views, the justice’s legal qualifications are not up for debate.77 gorsuch’s nomination followed the contentious 2016 republican blockage of the nomination of then-chief judge of the u.s. court of appeals for the d.c. circuit, merrick garland. this stonewalling effort undoubtedly fanned the flames of partisan division during the gorsuch hearings. however, gorsuch’s confirmation vote has not been uniquely partisan in comparison to other nominations in this millennium. justices alito, roberts, sotomayor, kagan, 77 "neil gorsuch." oyez. gorsuch graduated phi beta kappa from columbia university in 1988, cum laude from harvard law school in 1991, and went on to become an oxford marshall scholar, studying philosophical natural law in 1992 (completing the two-year program in a year). gorsuch went on to receive three prestigious clerkships (two for justices byron white and anthony kennedy) and worked for well-regarded law firms, the justice department, and the colorado school of law. 76“supreme court nominations (1789-present),” u.s. senate: supreme court nominations (1789-present), november 10, 2020. 75 scalia, constitutional interpretation the old fashioned way, 2005, 58:57. 74 “supreme court nominations (1789-present),” u.s. senate: supreme court nominations (1789-present), november 10, 2020. a historically savvy reader would note that whilst confirmation votes along party lines have undeniably grown in frequency in the 21st century, throughout the 19th century– when the senate was a much smaller chamber– votes to confirm nominees to the high bench would also occasionally fall along partisan lines. to name a few, justice jeremiah black received a count of 25-26 in 1861, justice mathews stanley received a count of 24-23 in 1881, and justice lucius lamar received a vote count of 32-28 in 1887. ibid. 42 brandeis university law journal spring 2022, volume 9, issue 2 kavanaugh, barrett, and jackson have all seen bitter confirmation proceedings.78 the division of the confirmation hearings and the importance of legal expertise the increased division in confirmation hearings can be attributed to a number of factors. perhaps the most likely explanation is that americans have come to comprehend the weight the judiciary carries in deciding the trajectory of american culture through its settlement of important legal disputes. however, the age of bitter partisan division distorts how americans evaluate nominees, creating a nomination process that is deeply inefficient in determining the legal expertise of nominees.79 for the objectives of this article, legal expertise can be understood as a synthesization of strong judicial ethics, decisive reasoning, and high legal fluency.80 scholars have written about the importance of other characteristics aside from legal expertise in nominees, however, this article’s primary focus is to extrapolate which qualities compose legal expertise. federalist no. 78, part of a series of influential essays titled the federalist papers that argued for the ratification of the constitution, refers to the judiciary as the “least dangerous branch,” of government.81 notwithstanding that judicial decisions have garnered the capacity to dramatically shrink the power of the executive, willpower of the senate, and change the cultural conversation among the people.82 given this, it is understandable that court nominations have become so critically 82amar, the words that made us: america’s constitutional conversation, 1760-1840, 517-518. 81 hamilton, federalist no. 78, 378-385. 80 for the purposes of this article i define “legal expertise” as the characteristic of mastering how to read various statutes and comprehending the historical significance of laws at the time of enactment. 79 a strong argument could certainly be made that elected officials and americans, alike, have chosen to prioritize the likelihood of a nominee casting judgments that favor their political ideology over a nominee’s legal expertise. such an argument could indeed reflect the reality of considerations that nominees are judged against. however, i will be approaching the matter from the assumption that americans want their elected officials to confirm nominees that possess a high degree of legal fluency. 78 “supreme court nominations (1789-present),” u.s. senate: supreme court nominations (1789-present), november 10, 2020. 43 brandeis university law journal spring 2022, volume 9, issue 2 important to americans and their elected representatives. the judiciary has played a central role in the formation of american society; decisions such as brown v. board of education (1954) and ledbetter v. goodyear (2006) have forced americans to engage in critical constitutional conversations regarding what america’s shared values are and how they ought to be legislated.83 thus, the nine unelected jurists who sit on the nation’s highest bench should be studied and selected with the utmost care by the american citizenry and their elected representatives. considerations of nominees should be made free from ideological allegiances, and rather with heightened attention to a nominee's legal expertise. since their establishment in 1916, the supreme court nomination hearings gave elected representatives and americans the opportunity to gauge a nominee’s legal expertise. nominees are selected by the executive and testify before congress to determine their legal suitability for the bench. if the nominee’s professional experience and testimony before the senate judiciary committee is up to par, they would be confirmed and don a black robe, guaranteed by life tenure. although there certainly have been contentious historical nominees — our very own louis d. brandeis endured bitter opposition from senators due to his association with progressive reform in employment and business practices — most nominees have been confirmed to the bench without much controversy.84 the cruciality of judicial independence consistent with the separation of powers principle enshrined in the constitution, alternative branches of government influencing the actions of the judiciary has not only been a source of public outrage (i.e., the public outrage following the publicity of the events of president richard nixon’s saturday night massacre). in addition, justices have 84 schwartz, supreme court superstars: the ten greatest justices, 93-157. brandeis wrote of the opposition to his confirmation “[t]he dominant reasons for the opposition ... are that he is considered a radical and is a jew." 83brown forced americans to reconcile that the separate but equal doctrine would never truly be equal, thus closing the era of jim crow laws. while ledbetter forced americans to converse about how equal pay for equal work should look like on legal paper, eventually opening the door to a greater conversation about how pay discrimination actually affects citizens in workforce. 44 brandeis university law journal spring 2022, volume 9, issue 2 ordinarily resisted such pressure.85 inherent in the responsibilities of the judiciary is that justices are tasked with making decisions based on what laws and prior precedent demands of them, rather than making decisions based on their personal will or to fulfill political favors. justice oliver wendell holmes exemplified judicial independence particularly well preceding the earnestly awaited judgment of united states v. northern securities (1904), in which holmes joined the minority of justices who voted in favor of northern securities. president theodore roosevelt said of holmes “i could carve out of a banana a judge with more backbone than that!”86 this comment stemmed from roosevelt’s hope that nominating holmes to the court would secure votes in favor of his administration’s preferences. similarly, president george h. w. bush was remarkably disappointed in justice david h. souter’s voting record, wishing that his jurisprudence had mirrored that of scalia’s.87 justices such as holmes and souter reinforce the notion that justices are not merely “junior-varsity politicians,”88 furthering one political party’s interests to both the american public and other governmental branches. the unpredictability of justices and why it matters justices are simply unpredictable; a judge is subject to change their legal opinion at any given time when a new case is brought before them.89 the decisions of the court must be objectively sound, not subjectively good. in other words, decisions from the judiciary should be grounded in reason derived from the language of law and statutes, rather than rendered from a justice’s political preferences. the judicial branch has earned the trust of the american people precisely because of the nature of its decision making.90 by grounding its decisions in preexisting law and explaining why it decides cases in favor of various parties through opinion writing, the judiciary is able to retain the trust of the broader public. 90 chemerinsky, the supreme court, public opinion, and the role of the academic commentator, 1999, 943-955. the nature of how this trust is garnered by the judiciary will be explored further in section two of this paper. 89 schwartz, supreme court superstars: the ten greatest justices, 144. 88 breyer, supreme court justice stephen breyer and noah feldman, 2015, 1:17:49. 87 totenberg, impact of souter retirement examined, 2009. 86 purdum, presidents, picking justices, can have backfires, 2005. 85 there are, of course, shameful and deeply troubling exemptions to this observation. 45 brandeis university law journal spring 2022, volume 9, issue 2 if americans and their representatives ever wish to separate themselves from the bitter partisanship of supreme court confirmation hearings, critical questions regarding what makes a sound justice ought to be asked and answered. this article will begin by exploring what makes an effective justice and how they contribute to the legitimacy of the supreme court as an institution. subsequently, it will move to outline the factors that characterize a useful justice, identifying influential theories and engaging with methodologies for classifying the effectiveness of a justice. following this section, the article will answer what makes a good justice in hindsight. finally, the article will conclude with how these findings can aid americans and their senators in understanding what qualities to look for in the future by changing the content of confirmation hearing questions so that the supreme court will continue to be graced with justices of exceptional legal expertise. the effective judge and their contribution to the legitimacy of the judiciary before identifying the qualities that have made historically effective justices, it is helpful to first understand what qualities make a sound judge. former baltimore county circuit court judge, dana m. levitz, wrote for the university of baltimore’s school of law review that a judge should have the capacity to know when they ought to recuse themselves from a case, possess a high degree of legal fluency, and deliver sound and decisive judgments.91 these qualities build on one another to construct the foundations for sound and impartial reasoning. legal fluency: content and consequences in his 2021 year-end report on the federal judiciary, chief justice john g. roberts voiced significant ethical concerns regarding the 131 federal judges who failed to recuse themselves in 685 matters involving companies in which they or their families owned some share of stock between 2010 and 2018.92 recusal from cases in which judges have a personal, political, or financial stake is crucial to safeguard the public trust in the judiciary. parties that go before a judge should leave the courtroom secure in the knowledge that their case was heard by an 92 roberts, 2021 year-end report on the federal judiciary. 91 levitz, so you think you want to be a judge, 2008, 57-72. 46 brandeis university law journal spring 2022, volume 9, issue 2 impartial and legally competent expert of the law, regardless of if the case was decided in their favor.93 the threshold of legal fluency that a judge ought to possess is understood as the ethical judgment needed to identify when it is appropriate to recuse oneself from a case where one might have a personal, political, or financial stake in the decision. if a judge fails to have the legal fluency to understand when to recuse themselves, the legitimacy of the judiciary is in jeopardy. the legitimacy of an institution is much easier to diminish than to build, thus, it is crucial that all judges realize how their decisions affect the legitimacy of the legal system as a whole. legal fluency and judicial institutional legitimacy the judiciary builds its institutional legitimacy like any other institution. sociologist max weber’s three points of institutional legitimacy are identified through tradition, (legal) rationality, and affective ties.94 dean erwin chemerinsky of the uc berkeley school of law argues that the supreme court has gained its institutional legitimacy by maintaining traditions such as oral arguments, conferences, and opinion circulation.95 the public has grown accustomed to these traditions which install a sense of thoroughness and sensibility to the court’s decision-making process. chemerinsky goes on to explain that because the court bases its decision making in laws, precedent, and other forms of legal scholarship, the public can conclude that their decisions are reached from a position of rational reasoning even if a particular decision on a matter is unpopular.96 finally, the court’s affective ties are projected through the rest of society via governmental regulation, lawmaking, and other bureaucratic operations.97 these institutional customs are what have bestowed the judiciary with the highest amount of trust among americans out of the three branches of government.98 98 the university of texas at austin,most trusted branch of government, 2020. 97 chemerinsky, the supreme court, public opinion, and the role of an academic commentator, 4. 96 chemerinsky, the supreme court, public opinion, and the role of an academic commentator, 5. 95 chemerinsky, the supreme court, public opinion, and the role of an academic commentator, 4. 94 weber, the three types of legitimate rule, 1958, 1-11. 93 levitz, so you think you want to be a judge, 12. 47 brandeis university law journal spring 2022, volume 9, issue 2 the judiciary must work to uphold this level of trust if it wishes to safeguard its institutional legitimacy. thus, as hallmark figures of the judiciary, judges carry the responsibility of reaching their decisions in line with judicial customs. without a reservoir of public trust in the judiciary, the rule of law no longer carries significant weight in settling disputes among parties which could land the country in a politically contentious or violent place.99 the chief justice’s 2021 end-year report suggests that he too has concerns regarding the judiciary’s capacity to maintain its institutional legitimacy.100 an effective judge must realize that they are part of a greater institutional body whose legitimacy is directly contingent on the decisions that members of the judiciary make.101 it is now appropriate to stress that this conclusion does not mean that judges must alter the means of reaching their decisions. judges and their jurisprudence do not have to be tailored to what the public would favor it to be.102 judges are not tasked with pleasing the public, rather they are tasked with resolving legal conflicts by means of honest and fair reasoning. honest and fair reasoning implies that judges recuse themselves from a case when their personal, financial or political interests are furthered by the outcome of a case. furthermore, possessing a high degree of legal fluency ensures that parties' grievances are analyzed by an expert of law who can dictate exactly how the established law applies to a case before them. finally, the capacity to deliver sound and decisive judgments ensures that decisions made by judges are consistent with law and precedent, even in difficult circumstances where cases are deeply complex. these qualities are absolutely essential for any nominee being considered for a seat on the supreme court as justices are faced with intricate cases which demand that these qualities are already mastered by the nominee. this article will now shift from what makes an effective judge to identifying what makes a useful justice by recognizing two aims of a justice’s tenure and two methodologies tasked with measuring how these aims make a justice useful to the greater legal community. 102 chemerinsky, the supreme court, public opinion, and the role of an academic commentator, 5. 101 levitz, so you think you want to be a judge 13. 100 roberts, 2021 year-end report on the federal judiciary, 3. 99 levitsky & ziblatt, how democracies die, 2018. 48 brandeis university law journal spring 2022, volume 9, issue 2 what makes a useful justice? theories and methodologies justices notably differ from lower court judges in that their opinions traditionally carry more weight than those of lower court judges, leading them to be more well known by the public and members of the legal community.103 legal commentators suggest that justices who (1) act as the intellectual epicenter of their respective court or (2) influence the trajectory of american law past their tenure fulfill the central aims of a justice’s tenure.104 undoubtedly, significant overlap exists between these two aims, and justices, like all individuals within the workforce, have multiple professional desires they wish to accomplish simultaneously. yet, most justice’s tenures are remembered by legal academics or the greater public because one of these aims was emphasized by the justice’s tenure more so than the other— this is accomplished through the justice’s writing on the court. motivation i: the epicenter of a legal movement and the subsequent role of the law review beginning with the first motivation, justices land themselves in the intellectual epicenter of academic legal writing by developing robust and unique legal theories which garner the respect of academics and legal commentators.105 justices develop robust legal theories because they are deeply invested in the trajectory of the law as figures who determine it. justices spend their professional lives either employing the law to further their understanding of how lawyers should interact with it in private and public practice, or sketching out how they believe the law ought to be interpreted in professorial tenures among other legal occupations.106 106 “tom johnson lectureship: justice neil gorsuch.” the lbj foundation, 2019. such professional experience is often preceded by a judicial clerkship. whilst speaking at the lbj foundation, justice gorsuch remarked that law graduates ought to be attentive when applying and choosing between clerkships because the first few mentors of a law graduate have an enormous influence on how a lawyer will argue cases and how they believe judges should interpret laws; gorsuch, neil. 105 baum & devins,why the supreme court cares about elites, not the american people, 19. 104 baum & devins,why the supreme court cares about elites, not the american people, 2010, 1516-1555. 103 cross & spriggs ii, the most important (and best) supreme court opinions and justices, 2010, 409-474. 49 brandeis university law journal spring 2022, volume 9, issue 2 professional experience is consequential because it dictates how a justice is likely to use the law to further their understanding of its role— such professional experiences mold a justice’s legal philosophy. legal philosophy provides justices with a foundation upon which they can further existing or carve out new, intricate legal theories. legal theories allow justices the opportunity to not only lead an intellectual movement concerning how lawyers and judges utilize the law to further various objectives but also to provoke intellectual discourse around these legal theories. the principal audience of justices’ writing is professors and law students. hence, the yearning for academic dialogue about a justice’s legal theory cannot be understated because justices write for this community. further, justices craft opinions with this audience in mind because they care about how academic communities perceive them. a justice’s tenure is more often remembered by the professors, commentators, and other influential elites who publish legal writing -often in the form of law review articlesor biographies about a justice’s tenure on the court. thus, it is of little surprise that a justice’s authoring style, which extrapolates their legal theory in various cases, would be designed to garner the literary attention of such influential figures. a contemporary example of this phenomenon is illustrated by justice gorsuch’s tenure. professor noah feldman of harvard law school hypothesized that gorsuch’s primary professional aim is to be regarded as the new conservative intellectual of the court, carrying the torch of his direct predecessor, scalia.107 feldman wrote, “gorsuch decides cases a little differently from his colleagues… in every case…he takes pains to shape a consistent judicial philosophy that defines the conservative position.”108 feldman further divulges that due to the strict jurisprudence that gorsuch is actively carving out, some of his decisions have led to deeply conservative rulings, while others have led to surprisingly liberal outcomes.109 this jurisprudence was displayed in gorsuch’s majority opinion in, bostock vs. clayton county, which extended the civil rights act’s ban on employment discrimination on the basis of sex, protecting lgbtq+ workers.110 upon publication, this opinion shocked both liberal and conservative legal writers; yet, when 110 bostock v. clayton county, 590 u.s. 17-1618, 2020. 109 feldman, neil gorsuch is channeling the ghost of scalia, 2021. 108 ibid. 107 feldman, neil gorsuch is channeling the ghost of scalia, 2021. 50 brandeis university law journal spring 2022, volume 9, issue 2 reading the opinion, it becomes clear that gorsuch’s conclusions are perfectly consistent with the legal theory he has spent his entire judicial career carving out. gorsuch’s judgement in bostock, which entirely depended on the reading of the word “sex,” in title vii protections which ban the termination of employment on the basis of sex. gorsuch wrote that “...an employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”111 his reading of the word, lodged in a textualist interpretation of statutes, was entirely consistent with his long standing legal philosophy that one ought to read legal words in their original meaning. the decision garnered much attention from both liberal and conservative legal writers, undoubtedly fulfilling gorsuch’s desire to provoke academic discourse regarding textualism and its outcomes. indeed, such discussion did come about as legal writers and commentators published articles in blogs, journals, and eventually law reviews citing the case and debating textualism and its use in judicial decisions. the role of the law review ought to be highlighted as these journals are not only prestigious publications that have influenced judges historically, but they also provide an avenue that justices can use to reflect on the influence of their legal theories.112 law review articles provide justices with the opportunity to consider how their legal theories are being received in the legal community by reading what various law professors in influential legal academies believe their legal theories can accomplish. appearing in law review papers and other legal publications suggests that a justice’s jurisprudence is particularly influential in the trajectory of contemporary law. though it should be noted that attempting to quantify a justice’s influence by merely counting how many times they appear in law reviews may over-inflate their influence, particularly as time moves forward. law review-inflation: a caveat 112 once again, our very own then-lawyer, louis brandeis’ collaborative article in the 1890 harvard law review titled “the right to privacy,” essentially created the judicial recognition of a right to privacy. the article altered the trajectory of the fourth amendment cases from then on, as courts began recognizing the right in proceedings. 111 bostock v. clayton county, 590 u.s. 17-1618, 2020, 6. 51 brandeis university law journal spring 2022, volume 9, issue 2 so-called law review-inflation has three leading causes, the first being that preceding the 1870’s the publication of law reviews hadn’t been established in american law schools.113 law review features tend to focus on contemporary issues, thus, some influential justices, like justice james wilson, are frequently underwritten about. secondly, some justices may have lived distinguishable lives, however, their tenure on the bench may not be nearly as memorable. chief justice john jay was one of america’s founding fathers, a member of the commission initiating the treaty of paris, and a co-author of the federalist papers— just to name a few of his many notable achievements.114 yet, jay’s six year-tenure serving as the nation’s first chief justice was remarkably dull.115 finally, some justices exert their influence on american law when they are serving as judges on a lower court, rather than as a justice on the u.s. supreme court. justice benjamin n. cardozo is perhaps the most conventional example of this phenomenon. like jay, cardozo only served on the u.s. supreme court for six years.116 consequently, cardozo couldn’t deliver nearly as many landmark opinions as his longer-serving colleagues. yet, cardozo’s fifteen-year tenure serving as an associate and as the chief judge of the new york court of appeals was where his landmark opinions were delivered.117 therefore, whilst law review features can be a sound indicator for measuring the influence of a justice’s tenure, one should refrain from solely relying on features after considering the caveats mentioned above. motivation ii: determining the trajectory of american law moving to the second primary aim of a justice’s tenure, the desire to shape the trajectory of american law, d.c. circuit judge montgomery n. kosma developed a method derived from economic theory to measure the influence of a supreme court justice by counting the number of citations to a justice’s opinion found in lower court opinions.118 kosma 118 kosma,measuring the influence of supreme court justices, 1998, 333-372. 117 ibid. 116 “benjamin n. cardozo.” oyez. 115 ibid. 114 amar, the words that made us: america’s constitutional conversation, 1760-1840, 2021. 113 closen & dzielak, the history and influence of the law review institution, 2015, 1-45. 52 brandeis university law journal spring 2022, volume 9, issue 2 reasons that if a justice provides an opinion that is frequently cited in lower court opinions, their jurisprudence was sound enough to be utilized in future cases.119 kosma addresses the issue of citation inflation by considering that older opinions are less often cited than contemporary ones.120 early in the republic’s history, the court released fewer opinions than it does today, however, many of those early opinions, such as marbury v. madison (1803) or mccolloch v. maryland (1819), set what is now acknowledged as super precedent.121 although judges no longer utilize super precedent, such cases are undoubtedly some of the most influential opinions authored in american history.122 kosma compensates for infrequent citation of older cases by reasoning that an opinion from 1900 which has been cited ten times is equivalent in terms of influence to an opinion from 1960 that has been cited 18 times in lower court opinions.123 aside from citation inflation and the underrepresentation of super precedent, kosma does address the possibility of the overrepresentation of a chief justice’s significance in his citation-count method. kosma underscores that because chiefs assign the opinions of cases whenever they are in the majority or minority of a case, the chief has the opportunity to assign themselves a landmark case to author, thereby over inflating their own significance on the court.124 as a result, kosma cleverly remarks, “...influence may not be perfectly correlated with talent.”125 on this point, it should also be noted that citation-count excludes dissents. therefore, a truly great and wise dissenter’s influence, such as that of justice ginsburg, may be understated in a study that centralizes solely on citation count.126 as was the case with law review 126 kosma,measuring the influence of supreme court justices, 1998, 6. 125 ibid. 124 kosma,measuring the influence of supreme court justices, 1998, 8. 123 kosma,measuring the influence of supreme court justices, 1998, 15. 122 ibid. 121 for the purposes of this article, i define “super precedent,” as decisions that have gone unchallenged for such a great amount of time that contemporary opinions are written by judges excluding a citation to the case because judges assume that all individuals reading the case regard the citation as a precondition for the judgment rendered (precedent laid down by cases such as marbury v. madison would fall under such an understanding of super precedent). 120 kosma,measuring the influence of supreme court justices, 1998, 7. 119 kosma,measuring the influence of supreme court justices, 1998, 6. 53 brandeis university law journal spring 2022, volume 9, issue 2 features, a more holistic method is required than purely citation count to capture the accurate influence of a justice. in addition, kosma points to a justice’s jurisprudence as an indicator of influence. as mentioned earlier, a justice's capacity to develop or utilize a judicial philosophy can earn them high respect among influential legal writers, but it can also cement their influence on the trajectory of american law over time.127 judicial philosophies such as textualism, pragmatism, and originalism are theories that have been adopted and modified to such a degree by hundreds of judges across the country that attorneys often arrange their arguments in a way that caters to these schools of thought128 kosma asserts the longevity of jurisprudence which justices expand over time will often determine that justice’s influence on the direction american law proceeds in.129 in understanding what makes a useful justice it is favorable to take a measured approach. firstly, when evaluating justices it is crucial to understand which of the two motivations: either to act as the intellectual epicenter of their respective court or to influence the trajectory of american law past their tenure a justice prioritizes during their tenure. if a justice wishes to be regarded as the epicenter of a legal movement, a count of written features in law reviews may reflect how their opinions are being perceived by influential legal elites. on the other hand, if a justice is primarily concerned with determining the trajectory of american law in the coming generations, perhaps calculating the number of lower court citations of their writing can reveal their influence. secondly, it is important to note that there are caveats to both methods, as they can inflate the significance of some justices or their opinions whilst neglecting the influence of others. hence, taking a measured approach that combines these measures or simply taking into account other factors such as court culture, legal biographies, and other historical writings can 129 kosma,measuring the influence of supreme court justices, 1998, 5. 128 kagan, the 2015 scalia lecture| a dialogue with justice elena kagan on the reading of statutes, 2015, 1:01:12.when justice scalia was serving on the bench and an attorney was citing legislative history in their brief or in a footnote, they would often begin the sentence with a string of words to the tune of “for those who care for such matters.” due to scalia’s famous distaste for legislative history, he would know to skip over that section of the brief. 127 kosma,measuring the influence of supreme court justices, 1998, 3. 54 brandeis university law journal spring 2022, volume 9, issue 2 aid in understanding what has made a justice particularly useful during or after their tenure. the sound justice: maximalists, minimalists, and other qualities thus far, this article has identified what makes a sound judge and has explored various theories utilized by legal scholars whom justices often hope will commemorate their influence on american law. now, this article will engage in identifying which qualities have made america’s greatest jurists the legal giants they were. writing for the tulsa law review, distinguished law professor bernard schwartz asserts that there is no mathematical formula that can select infallible variables which determine what makes a fine justice. there will always be some degree of subjectivity in determining which justices were truly remarkable jurists. yet certain factors such as those discussed above– legal fluency, judicial independence, and influential writing– stipulate a basic criteria that will be expanded upon in the following section to determine what makes a sound justice. maximalists and minimalists in understanding what makes justices truly outstanding, one must distinguish between the two kinds of jurists. writing for the emory law review, professors frank b. cross and james f. spriggs ii identified judges as either maximalists or minimalists. judicial maximalists customarily follow a strong jurisprudence that favors ruling what the law is in one sweeping gesture.130 an example of a judicial maximalist on the contemporary court is justice clarence thomas, a staunch originalist, who favors declaring the law emphatically rather than incrementally.131 on the other hand, judicial minimalists, akin to justice stephen breyer, favor making small, incremental changes to the law that eventually pave the way for larger changes over time.132 a considerable number of academic lists have ranked the best supreme court justices of all time; three justices consistently appear: chief justice john marshall, and 132 ibid. 131 cross & spriggs ii, the most important (and best) supreme court opinions and justices, 86. 130 cross & spriggs ii, the most important (and best) supreme court opinions and justices, 86. 55 brandeis university law journal spring 2022, volume 9, issue 2 justices joseph story and oliver wendell holmes.133 marshall and his protégé, story, were judicial maximalists, favoring broader decisions that laid down a solid foundation for the law of the land.134 yet, holmes was a judicial minimalist, preferring to further the law in small, gradual increments.135 hence, a justice can be classified as a judicial minimalist or maximalist, and still be a sound and influential jurist. the value of judicial instrumentalism in reading the various explanations for why law professors select certain justices to appear on their lists of greatest supreme court jurists, one clear theme comes up time and again: the common thread linking justices who were minimalists and maximalists is the capacity to understand that the law declared by the court today will serve a future society, whose culture and values will be different from the justices’ contemporary culture.136 six out of the ten justices that appeared in schwartz’s, “supreme court superstars: the ten greatest justices,” were described as “result-oriented”.137 the value of judicial instrumentalism cannot be understated in examining the greatness of the justices who truly altered the trajectory of american law.138 consequently, the greatest justices understood the law as a governing tool used each and every day across american society, and american society characteristically strives to progress forward with the benefit of shared experience across diverse groups.139 the law has to survive and evolve alongside society, and an instrumentalist perspective of how the law interacts with its society has 139 lynd, knowledge for what? the place of social science in american culture, 1939. 138 for the purposes of this article, judicial instrumentalism can be understood as a jurisprudence that places a heavier emphasis on the consequences a law will serve in society, rather than simply consulting the legislative language used in the statute when deciding the outcome of cases. 137 schwartz, supreme court superstars: the ten greatest justices, 2. 136 schwartz, supreme court superstars: the ten greatest justices, 6. 135 schwartz, supreme court superstars: the ten greatest justices, 25. 134 schwartz, supreme court superstars: the ten greatest justices. there is a strong argument to be made that marshall and story had to be judicial maximalists to settle what the law of the early republic ought to have been. afterall, it is rather difficult to govern a constitutional republic when clear legal boundaries aren’t set. thus, hindsight offers a unique perspective, in that it almost seems obvious that the two most influential early figures on the court were judicial maximalists. 133 hambleton, the all-time all-star all-era supreme court, 1983, 462-465. 56 brandeis university law journal spring 2022, volume 9, issue 2 undoubtedly contributed to landing the most celebrated justices on academic lists. secondly, it is worth mentioning that most justices who have landed on “all-time” roundups have not had a strong jurisprudence. rather, these justices had strong legal opinions (or, one might say, judicial principles) that were universal among their decision-making.140 the distinction between the two aforementioned aims of a justice’s tenure is particularly noticeable among this group of justices. during their tenures on the bench, these justices placed greater emphasis on the trajectory of american law than on the probability of being at the intellectual center of legal writing. some of the greatest justices of the twentieth century, such as chief justices charles evans hughes and earl warren, as well as justices hugo black and william j. brennan, are often commemorated as justices who ruled on the grounds of judicial principles, rather than from a robust legal theory that they carved out.141 the merits of moderatism trends in the last century suggest that the negotiation abilities of a justice have become an indicator of judicial excellence.142 particularly in times of deep ideological disagreement between members of the court, the ability to garner a majority of votes on a case has landed some justices in particularly high respects with academics and the greater public, alike. for example, justice sandra day o’connor’s ability to pull one of her more conservative colleagues to form a majority in cases landed her in such a prominent position on the rehnquist court that it was colloquially rebranded the o’connor court.143 although some scholars have questioned the importance of swing justices, most have conceded that the ability to negotiate with other ideologically minded 143 biskupic, sandra day o’connor: how the first woman on the supreme court became its most influential justice, 2005. 142 hambleton, the all-time all-star all-era supreme court, 4. 141 schwartz, supreme court superstars: the ten greatest justices, 51. it will certainly be interesting to see how scalia will be remembered by future academics because he, unlike the four previously-mentioned justices, did have a strong jurisprudence. however, he undeniably transformed how law (specifically statues) ought to be interpreted by judges and lawyers, alike. 140 hambleton, the all-time all-star all-era supreme court, 3. 57 brandeis university law journal spring 2022, volume 9, issue 2 justices has historically been a central factor in many of the so-called greatest justices.144, 145 how to select sound justices this article has highlighted the importance of strong judicial ethics, decisive reasoning, and high legal fluency in judges; and judicial instrumentalism, strong principles, and effective negotiating skills as qualities which make for legendary justices. however, what has yet to be answered is how exactly americans and their senators can evaluate nominees during the confirmation hearings so that they can make an informed decision regarding which nominees have earned the honor of serving on the highest bench. the factors that former judge levitz listed which make an effective judge, such as possessing a high degree of legal fluency, having the capability to make decisive judgments, and understanding when to recuse oneself from a case, are relatively easy to identify in a nominee.146 however, qualities such as judicial instrumentalism are less identifiable, especially if a nominee has no prior judicial background. furthermore, as was highlighted throughout this paper, nominees are often subject to change their legal opinions over time. thus, changing the content of the questions senators ask is the key to unlocking the legal suitability of a nominee to the bench. in a lecture given at rice university, chief justice roberts was asked how he believed the nomination hearings should be altered. roberts suggested that senators ask nominees about their judicial philosophy and what they hope to accomplish on the bench during their tenure.147 although legal opinions are inclined to change, it is rather rare for a justice’s jurisprudence to change on its head. by questioning a nominee’s judicial philosophy, americans can gain an accurate sense of 147 roberts, centennial lecture series: chief justice john roberts speaks at rice university, 2012, 1:02:07. 146 levitz, so you think you want to be a judge, 15. 145 enns & wohlfarth, the swing justice, 2013, 1089-1107. 144 a justice who traditionally provides the tie-breaking vote in decisions, but whose ideologically-inconsistent record makes predicting their vote on a given case tricky. justice sandra day o’connor was regarded as the swing vote in the rehnquist court, and was succeeded by justice anthony kennedy in the roberts court. 58 brandeis university law journal spring 2022, volume 9, issue 2 the nominee's judicial principles which tend to remain steady over a justice’s tenure. how a nominee answers a question regarding what they wish to accomplish on the court can actually reveal what the nominee’s long-term goals are for their tenure. in answering a question that instructs a nominee to answer how they believe the law should be interpreted by judges, a nominee may reveal their desire to shape the trajectory of law in a new direction. this kind of an answer may reveal a nominee’s wish to instate the use of a legal theory in the coming legal generations. this kind of answer suggests a desire to be at the center of academic legal scholarship, as it clearly shows a nominee has an existing legal theory they wish to spread in legal circles. alternatively, a question probing a nominee to state which justices they admire most can reveal a nominee’s possible inclination for instrumentalist thinking if they list justices who ruled along strong judicial principles, such as story or warren. in contrast, if they list examples of justices who are largely remembered for furthering strong judicial theories such as holmes or scalia, senators and citizens can infer that such a nominee is likely to be concerned with developing or furthering a legal theory. regardless of how the nominee answers these new questions that senators ask, americans can gain a more reliable sense of what kind of justice a nominee will make if they are indeed confirmed to the bench. in summation, the nomination process will regain a more accurate and useful metric for determining the legal suitability of nominees intending to be confirmed for a seat on the united states supreme court. 59 brandeis university law journal spring 2022, volume 9, issue 2 works cited amar, akhil reed. the words that made us: america’s constitutional conversation, 1760-1840. new york, ny: basic books, 2021. baum, lawrence & devins, neal. “why the supreme court cares about elites, not the american people,” faculty publications 1116 (2010) 1516-1555. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2149 &context=facpubs. “benjamin n. cardozo.” oyez. accessed january 7, 2022. https://www.oyez.org/justices/benjamin_n_cardozo. biskupic, joan. sandra day o’connor: how the first woman on the supreme court became its most influential justice. new york, ny: harper collins publishers. 2005. bostock v. clayton county, 590 u.s. 17–1618 (2020). breyer, stephen.“supreme court justice stephen breyer and noah feldman.” 92nd street y in new york, new york, filmed mar 13, 2015. https://www.youtube.com/watch?v=21pcbqehzdk&t=2243s. 1:17:49. chemerinsky, erwin. “the supreme court, public opinion, and the role of the academic commentator.” south texas law review volume 40: 943 (1999): 943-955. https://scholarship.law.duke.edu/faculty_scholarship/757/. closen, michael l. & dzielak, robert j. “the history and influence of the law review institution.” akron law review volume 30 issue 1 (2015) 1-45. https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=146 9&context=akronlawreview. comey, james b. a higher loyalty: truth, lies, and leadership. new york, ny: flatiron books, 2018. cross, frank b. & spriggs ii, james f. “the most important (and best) supreme court opinions and justices.” emory law journal volume 60 issue 2 (2010) 409-474. https://scholarlycommons.law.emory.edu/elj/vol60/iss2/5/. enns, peter k. & wohlfarth, patrick c. “the swing justice.” the journal of politics, vol. 75, no. 4. the university of chicago. (2013) 1089-1107. https://www.jstor.org/stable/10.1017/s0022381613001035. 60 brandeis university law journal spring 2022, volume 9, issue 2 feldman, noah. “neil gorsuch is channeling the ghost of scalia.” bloomberg. 26, sept. 2021. https://www.bloomberg.com/opinion/articles/2021-09-26/supreme -court-justice-neil-gorsuch-wants-scalia-style-conservative-leader ship. gorsuch, neil. “tom johnson lectureship: justice neil gorsuch.” the lbj foundation, filmed at the lbj presidential library in the university of texas at austin. https://www.youtube.com/watch?v=knpk3prhklg. september 20, 2019. hambleton, james e. “the all-time all-star all-era supreme court.” faculty scholarship, texas a & m school of law. volume 69, issue 1 (1983) 462-465. https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1009 &context=facscholar. hamilton, alexander. “federalist no. 78.” the federalist papers, edited by jim miller, 378-385. mineola, ny: dover publications, 2014. kagan, elena. “the 2015 scalia lecture| a dialogue with justice elena kagan on the reading of statutes.” harvard law school in cambridge, massachusetts, filmed november 25, 2015. https://www.youtube.com/watch?v=dpetszft0tg. 1:01:12. kosma, montgomery n. “measuring the influence of supreme court justices.” journal of legal studies, university of chicago. volume 27 (1998) 333-372. https://www.journals.uchicago.edu/doi/abs/10.1086/468023. levitsky, steven & ziblatt, daniel. how democracies die. new york, ny: crown, 2018. levitz, dana m. “so you think you want to be a judge.” university of baltimore law review volume 38, issue 1 (2008): 57-72. https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=18 41&context=ublr. lynd, robert s. knowledge for what? the place of social science in american culture. princeton, nj: princeton university press. 1939. "neil gorsuch." oyez. accessed january 11, 2022. https://www.oyez.org/justices/neil_gorsuch. newport, frank, “americans trust judicial branch most, legislative least.” gallup. 26, sept. 2012. 61 brandeis university law journal spring 2022, volume 9, issue 2 https://news.gallup.com/poll/157685/americans-trust-judicial-bran ch-legislative-least.aspx. purdum, todd s. “presidents, picking justices, can have backfires.” the new york times. 5 jul. 2005. https://www.nytimes.com/2005/07/05/politics/politicsspecial1/pre sidents-picking-justices-can-have-backfires.html. roberts, john g. “2021 year-end report on the federal judiciary.” u.s. supreme court. accessed january 4, 2022. https://www.supremecourt.gov/publicinfo/year-end/2021year-endr eport.pdf. roberts, john g. “centennial lecture series: chief justice john roberts speaks at rice university.” rice university in houston, texas, filmed 26 oct. 2012. https://www.youtube.com/watch?v=uxafhj8jvq8. 1:02:07. scalia, antonin. “constitutional interpretation the old fashioned way.” woodrow wilson international center for scholars in washington, d.c, filmed march 14, 2005. https://www.c-span.org/video/?185883-1/constitutional-interpretat ion. 58:57. schwartz, bernard. “supreme court superstars: the ten greatest justices.” tusla law review volume 31, issue 1 (1995): 93-157. https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article =2025&context=tlr. “supreme court nominations (1789-present),” u.s. senate: supreme court nominations (1789-present), november 10, 2020. https://www.senate.gov/legislative/nominations/supremecourtno minations1789present.htm. totenberg, nina. “impact of souter retirement examined.” npr. 1 may, 2009. https://www.npr.org/templates/story/story.php?storyid=10372893 1. weber, max. “the three types of legitimate rule.” berkeley publications in society and institutions, edited and translated by hans gerth, 1-11. berkeley, california: 1958. 62 brandeis university law journal fall 2022, volume 10, issue 1 op-ed: a country of immigrants, but not in their favor lauren davis73 since 2016 the general american public has become more aware of immigration as a political issue. this op-ed’s goal is to share the author’s observations about the u.s.’s asylum process as a caseworker and advocate for asylum seekers. the author has volunteered as a trained caseworker at a pro-bono immigration non-profit organization in the greater boston area for nearly four years, working with immigrants from around the world and in very different circumstances. the article concludes by highlighting areas of failure in the asylum system and making resource suggestions for those wishing to learn more. i. introduction immigration policy is an outlier in the american legal system. rather than the judiciary, immigration law falls under the purview of the executive branch of government and is classified as a civil matter. this means that immigration law is both more in flux than other areas of law because it can be altered by a presidential decision and is not beholden to the same obligations regarding rights. for instance, two rights not guaranteed in immigration proceedings are the right to an attorney and the right to a fair and speedy trial by one's peers.74 because immigration law exists under the purview of the executive and legislative branches, the american asylum 74 8 u.s. code § 1362 right to counsel; fong yue ting v. united states, 149 u.s. 730. 73 brandeis university undergraduate, class of 2023. 35 brandeis university law journal fall 2022, volume 10, issue 1 system has been set up to fail asylees, especially those most in need of assistance. the intention of this article is to detail the numerous ways in which this failure happens and make clear the negative effects of poor practices. that being said, one does not need to be a member of the american bar association to practice immigration law. the united states department of justice allows accredited representatives75 to represent immigrants in immigration court and hearings. this status requires that applicants undergo training overseen by a registered organization doing legal immigration work. the applicant can then be accredited by the department of justice through an application submitted by the training organization on the aspiring representative’s behalf. this may seem a weak answer to the lack of right to representation, particularly since a large number of immigrants still go without representation. department of homeland security data released in 2022 indicates that nationally 90.8% of asylum seekers do not have representation at their interview.76 however, accredited representatives can be, but admittedly not always are, trained by organizations dedicated to actually helping those in need as opposed to being focused on profit. accredited representatives are not the solution to low representation, but they do mitigate it. although i am currently waiting for a response to my application to become an accredited representative, i have had the opportunity to work on immigration cases since my freshman year at brandeis university. i participated in a student training led by the on-campus wing of the 76 gendelman, “inadequate access to legal representation,” 2022. 75 “federal regulations at 8 c.f.r. § 1292.1(a)(4) allow non-attorney ‘accredited representatives’ to represent aliens before the department of homeland security (dhs) and the executive office for immigration review (eoir), which includes the immigration courts and the board of immigration appeals (bia).” (us department of justice recognition and accreditation program). 36 brandeis university law journal fall 2022, volume 10, issue 1 organization,77 whose goal is to expand representation in immigration proceedings and educate the communities affected by underrepresentation, and then an intensive training to prepare me for this work. over the past three years, i have worked on six asylum cases, one citizenship case, one u-visa, one humanitarian parole, one temporary protective states case, and so many intakes that i have lost count. of all of these types of cases, the one i consider myself most knowledgeable about is asylum because of the depth of the work involved on each individual case. in fiscal year 2019, nearly 30,000 individuals applied for asylum in the united states. in the same year 46,508 individuals were granted asylum.78 while it may seem those numbers do not match up, this discrepancy is due to the long wait times associated with this type of petition for status. as of 2019 there were 489,003 people in the asylum case “backlog.”79 the united states citizenship and immigration services (uscis) is slowly working through this backlog, but at the organization i volunteer for we represent clients who have been waiting for their asylum interview for more than a decade. that means years of working with any particular client through this time, helping them take advantage of any benefits they are eligible for and watching for adjustments to asylum regulations that may affect their case. due to the wait times and the personal and traumatic nature of asylum, there is no “quick” or “easy” asylum application. 79 “a mounting asylum backlog and growing wait times,” 2021. 78 table 15, “refugee arrivals by relationship to principal applicant and sex, age, and marital status,” 2022; table 16, “individuals granted asylum affirmatively or defensively,” 2022. 77 the name of this organization is consciously omitted, as i do not represent the organization and am sharing my own opinions. 37 brandeis university law journal fall 2022, volume 10, issue 1 ii. historical precedent and background in order to qualify the opinions i share in this article, some background on the asylum system is useful. most people are familiar with the term “refugee,” but fewer people understand what it means to become one within the united states. in 1951, the united nations established the united nations convention on refugees and, in doing so, established the principle of non-refoulement,80 the rules of fair asylum procedures, and an expectation of non-discrimination.81 this came in the aftermath of world war two, a time with many horror stories about american decisions regarding refugees and intervention. one famous example is president franklin d. roosevelt’s decision to turn around a boat of jewish refugees fleeing nazi germany because the quota had already been met.82 few countries outside of europe became signatories to the convention until the later 20th century.83 the three standards set by the un convention on refugees only spread beyond europe with the refugee protocol of 1967.84 while the u.s. is not a signatory of the un convention on refugees, it is a signatory to the refugee protocol which contains the rights to leave one’s country, to not be returned, and to seek asylum. people can qualify for refugee status when they fear or have faced persecution based on their race, religion, national origin, political opinion, or membership in a particular social group. this technically holds true for american asylum policy; 84 the un general assembly, “protocol relating to the status of refugees,” 1966. 83 “states parties to the 1951 convention relating to the status of refugees and the 1967 protocol,” 2015. 82 gross, “the u.s. government turned away thousands of jewish refugees,” 2015. 81 united nations high commissioner for refugees, “the 1951 refugee convention,” 2022. 80 a person cannot be returned to a place where they will be persecuted. 38 brandeis university law journal fall 2022, volume 10, issue 1 however, the standard of proof is very high due to the innumerable inefficiencies and failures of american asylum policy. iii. american immigration today with history covered, let us begin exploring our modern immigration system in the same place where an individual’s experience with the american immigration system typically does: at the border.85 an individual intending to seek asylum in the united states is supposed to declare their intention at the border and then receive a credible fear interview. this name is self-explanatory: in this interview an officer is supposed to assess whether a potential asylum seeker has a credible fear of persecution or torture if returned to their country of origin.86 in my almost 4 years of working on immigration cases in the boston area, during which i have worked on six asylum cases and the intakes of dozens of other asylum applicants, i have never once met a single individual who received a credible fear interview. i don’t know why this isn’t happening, thankfully it doesn’t make or break a case, but it is certainly a positive to have a finding of credible fear at the border to include in a filing. once a migrant crosses the border successfully the process diverges into affirmative asylum and defensive asylum. an affirmative asylee is one who has entered the united states legally or without inspection87 and is not in removal 87 “without inspection” indicates that the individual entered the united states (crossed the border) without being found out by border patrol or customs. the us government does not know that the individual is in the united states. 86 “questions and answers,” 2022. 85 in 1953 the us department of justice defined the border as within 100 miles of an “external boundary” to the us. 39 brandeis university law journal fall 2022, volume 10, issue 1 proceedings. a defensive asylum case is one in which the individual is already in removal proceedings because they entered without status. a defensive asylee will typically spend time in a detention center and may be released to a sponsor who is willing to take them in. once an individual crosses the border, regardless of inspection, their one year clock to submit their application to even be considered for asylum starts ticking, unless the applicant has a good reason for not having submitted within that time. while an asylum seeker might want a representative to help them submit their application, represent them in court, and generally guide them through an unfamiliar legal system, in immigration court individuals are not guaranteed an attorney. this has horrifying consequences in terms of case outcomes; in fiscal year 2020 represented asylum seekers had a success rate of 31.1% whereas unrepresented seekers had a success rate of only 17.7%.88 the number of unrepresented asylum seekers only continues to rise. once they submit their application, defensive applicants are scheduled for a master calendar hearing89 at which they may contest their charges and set a date for their immigration trial. at the time of writing, fall 2022, defensive asylum applicants often receive a master calendar hearing roughly two years out from their arrival date. during that hearing, the asylum seeker or their representative and the judge decide when their immigration court trial will be, although it is rare for it to be within a year or two of the master calendar hearing. in contrast to defensive applicants, once affirmative asylum applicants submit their application they will receive a notice with their interview date. typically, this date is years out and may be further delayed by uscis. however, one important thing to note is that if the client delays their interview, they will 89 master calendar hearing: respondent (and representative, if represented) appear before a judge to schedule a date for their trial. 88 “asylum denial rates continue to climb,” 2020. 40 brandeis university law journal fall 2022, volume 10, issue 1 be penalized. additionally, rather than present their case to peers or before a judge, an affirmative asylum seeker must present their case to an asylum officer. these officers are ordinary civilians who are trained by united states citizenship and immigration services in, ...topics such as international refugee law and the u.s. asylum program’s role in world-wide refugee protection, u.s. asylum law and its interpretation by the board of immigration appeals and federal appellate courts, interviewing techniques, researching country of origin information, and decision-making/writing.90 this may sound expansive, however all of this is covered over a period of only five and a half weeks and is the only training required.91 note that in this six point list, trauma-informed decision making is glaringly absent. this is the first example to support the thesis of this op-ed: that the american asylum system is set up to fail those most in need of its assistance. the following section will explore this as well as other areas ripe for discriminatory practices. iv. successes and failures uscis policy is that asylum applicants are eligible to apply for a work permit six months after submitting their application.92 that is because all asylum applications are supposed to be adjudicated by 180 days after the application is filed. however, it has been true for a long time that this does 92 ina § 208(d)(2). 91 “asylum division training programs,” 2016. 90 “asylum division training programs,” 2016. 41 brandeis university law journal fall 2022, volume 10, issue 1 not happen. in my experience the applicant might receive an interview notice in that amount of time, but almost certainly will not have completed the interview itself. if, during those six months, the applicant requests to reschedule the date of their interview, moves and must transfer their case to a different asylum office, etc., the six month timer pauses. once this happens, the applicant must wait for uscis to reschedule, which does not happen quickly, for the timer to resume. this is additional time that an individual cannot legally work, nor drive, which are two serious impediments to one’s quality of life in the united states. of recent concern is the adjustments to the asylum process proposed by president biden. to combat the current backlog, biden is attempting to alter the process so that once an individual is inspected at the border they will be interviewed within five weeks of their arrival. this presumes that all individuals inspected are given an opportunity to declare intent to apply for asylum and receive a credible fear interview. never, in my over three years of casework and intakes, have i met an individual who has received a credible fear interview. this is bad enough in the current system, so how could this proposed solution to the backlog actually function if (1) recent arrivals are unaware of their options in terms of status, and (2) even when informed, individuals are not given the opportunity to declare their intention to apply for asylum? frankly, this new rule could only have been suggested and approved by a group of people with the most basic knowledge of the system. it certainly would not be supported by anyone who actually understands the flaws in the system. given the history of discrimination in the immigration system, to assume ignorance is to give the benefit of the doubt. i would now like to address the soft-skills and training which are sorely lacking throughout the system. as briefly mentioned before, all levels of the asylum process suffer from a core lack of understanding of the symptoms of trauma. from 42 brandeis university law journal fall 2022, volume 10, issue 1 asylum officers conducting interviews to judges in trials, asylum seekers are mistreated in countless ways by countless bureaucrats in their effort to receive asylum due to a lack of training on a condition which is effectively a prerequisite to enter the asylum system. asylum seekers face both firstand second-hand trauma in their country of origin, and may experience traumatic events in the process of coming to the u.s. as well. if an individual has faced past persecution—been tortured by their government’s security forces, targeted by a mob for their sexuality, discriminated against due to their ethnic group—they will inherently have gone through traumatic experiences. these traumatic experiences are the basis of an asylum claim. so why, when memory difficulty is one of the main symptoms of post-traumatic stress disorder (ptsd), do those who assess asylum applicants treat this symptom as an indication that the individual is not telling the truth? a. hypothetical example let us work with an example to illustrate the gross irresponsibility of this situation. say an immigration caseworker is working with an asylum seeker who is an ethnic tigrayan from ethiopia. over the course of four months they work together, building trust and improving the client’s understanding of the asylum process, and putting together the asylum application. during this time, as the client comes to trust their caseworker they begin to open up about the fear they experienced day to day in their country of origin. the client recounts how they discovered that their family members in the big cities and in the country alike were disappearing, and how they still don’t know if their family remaining in ethiopia is alive nor if they are alive or safe. the client receives a notice stating her interview date will be in six months; although this is unlikely now, for a time 43 brandeis university law journal fall 2022, volume 10, issue 1 it was policy to take the most recently submitted cases first rather than working on the backlog. as a team, we spend these six months doing interview preparation and connecting our client to other organizations which can assist them with housing, food, health insurance, and transportation since they cannot work or drive. we prepare the client for all types of interviewers: an insensitive one who will ask direct and probing questions, one who wants to believe you but will still need to convince their supervisor, one who has been interviewing tigrayans for a week straight and doesn’t think that many people could have come here so they must all be lying, and many more. the anticipation builds up for the client over this time, so when the date of the interview comes, they are prepared, but understandably nervous. the day of the interview the client and representative are taken to the office of the asylum officer. there, credentials are presented, and the officer hasn’t heard of an accredited representative before and needs to check with their supervisor.93 half an hour later the officer returns and says they can continue with the interview. at this time the officer may be reviewing the filing package for the first time; if not, they have probably scanned it to get the gist of the client’s story. we never assume that the asylum officer has read the whole thing because, as far as we know, they almost never do. the officer begins by asking some questions from the application itself—form i-589—such as the client’s full name, date of birth, the last time they entered the us, their current address, etc. once they get through some basic biographical information, the officer will move on to questions about the individual’s claim. this may take many forms, but officers will often focus on the past persecution and why the individual 93 i would like to note that this actually happened to a colleague, although the r&a program was established in 2003. 44 brandeis university law journal fall 2022, volume 10, issue 1 believes they will be persecuted going forward. effectively, the officer is trying to establish whether or not the applicant has a credible fear of returning to their country of origin. remember that at this point the client has been in the us for almost a year, so they are at least that length of time removed from the events that caused them to flee their country and seek asylum in the first place. fortunately, the client in this hypothetical has seen mental health counselors so they are able to remember much of what happened and know how to go about answering the questions because of all the preparation we did.94 however, the client is nervous and in the process of explaining what happened to them they misspeak and say june instead of july. they just remembered that they were persecuted in the summer, but through affidavits of support and working through the timeline of events, we figured out as a team that the event happened in july. the asylum officer notices this and chooses not to try to correct her, noting it as an inconsistency in their story. the interview lasts about four hours in which the client makes a couple other minor mistakes, including saying that a scar is on her left shoulder instead of her right, which is what the doctor she saw in the united states had written in their affidavit of support. the client doesn’t cry or express much emotion at all during the interview. the asylum officer notices this and thinks it is strange. this makes the officer suspect that this was a canned story the applicant was told to tell: how else could they have gotten through it without crying or pausing? this would also explain why they forgot a couple facts such as notable dates. the story also sounds quite similar to the story of an applicant the officer interviewed yesterday. in fact, the 94 please note that many are unable to seek mental health treatment under these circumstances due to financial reasons, lack of transportation, and numerous other blocks to access. 45 brandeis university law journal fall 2022, volume 10, issue 1 officer had heard the story over and over. how could it be that so many people have had such similar experiences?95 the answer is obvious to us as the people who work with these waves of refugees resulting from conflict or discrimination. people have the same stories because persecution is often systematic. in fact, in order to prove that the client faces future persecution it would have to be systematic. otherwise, it would be a one-off instance and the individual would not qualify for asylum. additionally, memory loss and emotional numbness are known within medical circles to be a common symptom of ptsd. exacerbators of symptoms like these include stress and exposure to reminders of the traumatic event.96 why, when ptsd occurs in 6 of every 100 american adults, is this not accounted for in a system which deals exclusively with victims of traumatic events?97 an additional complicating factor not incorporated into this scenario is the need for translation. regardless of the ease of finding a translator for different languages and dialects, translation can put non-native english speakers at a disadvantage. the asylum interview is extremely personal. the officer takes all aspects of the meeting into account from body language to file size. there is value in hearing an individual’s story from their own mouth. another concern is the quality of the translation. this is of greater concern for less common languages or instances where an individual’s native language is creole,98 but since there is no common metric or certification of translation abilities, it is difficult for representatives and asylum officers to assess the accuracy of the translation. asylum officers understandably take translators at their word, assuming that they repeat close to exactly what the applicant 98 creole is a combination of two languages. 97 “ptsd,” 2022. 96 mayo clinic, “post-traumatic stress disorder.” 95 the sentiments ascribed to the officer in this scenario are drawn from officer interviews conducted in the movie well founded fear (2000). 46 brandeis university law journal fall 2022, volume 10, issue 1 says. however, this is often not the case. it may be difficult or impossible to translate exactly, and some nuance of the applicant’s statements may be lost to translation, leaving the asylum officer without a full understanding, which then may count against the applicant in the officer’s decision. another concern is if a translator misspeaks or misunderstands and restates something incorrectly, as this may also count against the client as an inconsistency. at this point, we turn to the actual decision process after the interview has finished. there is not much publicly available information on this, but what we do know is that officers must justify a positive decision to their supervisor. note here: they must justify positive decisions, not a decision to deny asylum. this means that even if an asylum officer or supervisor is educated about the effects of trauma, or is willing to overlook some mistakes, one must convince the other to do the same. this is a massive barrier to positive outcomes for two populations in particular: non-native english speakers and sufferers of ptsd. keeping in mind that asylum seekers are always both from another country and have suffered persecution, those two populations are not insignificant, and these issues affect thousands of lives. v. conclusion and resource suggestions so how might we improve these inequalities? there are so many different, yet effective, ways to improve this system that it is hard to know where to begin. in terms of the interview process, guaranteeing representation, high quality translation, and mandatory trauma training among officials would go a long way. but covered in this article are just a few parts of a years-long process in which asylum seekers are disadvantaged at every turn. without a work permit, how can an asylum seeker make money to pay an attorney to put together a 47 brandeis university law journal fall 2022, volume 10, issue 1 complete asylum filing, let alone feed themselves and their family, pay rent, and more? without representation, how can individuals be expected to put together an asylum application based on legal precedent and with in-depth research to establish their claim? i leave you with just these questions to stand in for the innumerable others which would point out the countless flaws and inequalities inherent to the current asylum process as it stands. unfortunately, at this time, it seems as though obstacles will only be increased for those seeking safety and security in the united states in the near future. in the spirit of hope, i would like to make three suggestions to readers who hopefully feel as indignant as i and other immigrant advocates do with this knowledge. the first is to watch the documentary well founded fear and encourage others to as well. although it is pre-9/11, and the asylum process has undergone significant change since then, it is the only real look that lay people get into the inner workings of an asylum office. at the organization i was trained by and volunteer for, all trainees must watch this movie to gain the perspective necessary to be cynical enough about the system to be able to put together an effective asylum application. the second is specific to a certain region. the university of maine school of law, the american civil liberties union, and the immigrant legal advocacy project worked together to publish a report in march 2022 detailing problematic policies and failures that occur in the boston asylum office. the boston asylum office serves all of massachusetts, maine, new hampshire, and rhode island and the report supports much of what is presented in this article using interviews and a massive freedom of information act release of uscis documentation from the boston asylum office. the report is extremely well written and has created a political onus to reform performance at this office. the third is to support pro-bono immigration law clinics and organizations, in addition to local organizations that 48 brandeis university law journal fall 2022, volume 10, issue 1 work to help individuals struggling with food insecurity, housing, healthcare access, etc. if the government won’t provide the services necessary to allow people to survive in the united states, we can try to fill that gap. some may say that filling that gap only means that the government won’t see the need to step in, but to that i ask how many times they have received a phone call from a recent immigrant struggling to feed their family who doesn’t know what their status is or how to move forward. why should those fleeing conflict and persecution be punished for our shortcomings as voters? if america wants to continue to consider itself to be the best of the best, let’s make it so for our most vulnerable populations. 49 brandeis university law journal fall 2022, volume 10, issue 1 bibliography “a mounting asylum backlog and growing wait times.” trac immigration, 22 dec. 2021, https://trac.syr.edu/immigration/reports/672/. “asylum denial rates continue to climb.” trac immigration, 28 oct. 2020, https://trac.syr.edu/immigration/reports/630/. “asylum division training programs | uscis.” u.s. citizenship and immigration services, 19 dec. 2016, https://www.uscis.gov/humanitarian/refugees-and-asy lum/asylum/asylum-division-training-programs. baugh, ryan. “fiscal year 2020 refugees and asylees annual flow report.” office of immigration statistics, 8 mar. 2022. “refugees and asylees: 2019 annual flow report.” office of immigration statistics, sept. 2020. zotero, https://cis.org/sites/default/files/2020-11/refugee_and _asylee_2019.pdf. gendelman, rebecca. “inadequate access to legal representation, rushed timelines impede meaningful opportunity to seek asylum under new asylum processing rule.” human rights first, 14 sept. 2022, https://humanrightsfirst.org/library/inadequate-accessto-legal-representation-rushed-timelines-impede-mea ningful-opportunity-to-seek-asylum-under-new-asylu m-processing-rule/. gross, daniel a. “the u.s. government turned away thousands of jewish refugees, fearing that they were nazi spies.” smithsonian magazine, 18 nov. 2015, https://www.smithsonianmag.com/history/us-governm ent-turned-away-thousands-jewish-refugees-fearing-t hey-were-nazi-spies-180957324/. 50 brandeis university law journal fall 2022, volume 10, issue 1 “post-traumatic stress disorder (ptsd).” mayo clinic, https://www.mayoclinic.org/diseases-conditions/post-t raumatic-stress-disorder/symptoms-causes/syc-20355 967. accessed 19 dec. 2022. “ptsd: national center for ptsd.” u.s. department of veterans affairs, 29 aug. 2022, https://www.ptsd.va.gov/understand/common/commo n_adults.asp. “questions and answers: credible fear screening” uscis. 31 may 2022, https://www.uscis.gov/humanitarian/refugees-and-asy lum/asylum/questions-and-answers-credible-fear-scre ening. refugee and human rights clinic, et al. “lives in limbo: how the boston asylum office fails asylum seekers.” mar. 2022, p. 31, https://mainelaw.maine.edu/wp-content/uploads/sites/ 1/lives-in-limbo-how-the-boston-asylum-office-fa ils-asylum-seekers-final-1.pdf. “states parties to the 1951 convention relating to the status of refugees and the 1967 protocol.” unhcr, apr. 2015, https://www.unhcr.org/protect/protection/3b73b0 d63.pdf. “table 15. refugee arrivals by relationship to principal applicant and sex, age, and marital status: fiscal year 2019 | homeland security.” department of homeland security, 14 dec. 2022, https://www.dhs.gov/immigration-statistics/yearbook/ 2019/table15. “table 16. individuals granted asylum affirmatively or defensively: fiscal years 1990 to 2019 | homeland security.” department of homeland security, 14 dec. 2022, 51 brandeis university law journal fall 2022, volume 10, issue 1 https://www.dhs.gov/immigration-statistics/yearbook/ 2019/table16. “the constitution in the 100-mile border zone.” aclu, 2022, https://www.aclu.org/other/constitution-100-mile-bord er-zone. the un general assembly. “protocol relating to the status of refugees.” resolution 2198, 16 dec. 1966, https://www.ohchr.org/en/instruments-mechanisms/ins truments/protocol-relating-status-refugees. united nations high commissioner for refugees. “the 1951 refugee convention.” unhcr usa, 2022, https://www.unhcr.org/1951-refugee-convention.html. cases cited fong yue ting v. united states, 149 u.s. 698 (1893). codes cited 8 c.f.r. § 1292.1(a)(4). 8 u.s. code § 1362 right to counsel. ina § 208(d)(2). 52 final spring law journal copy brandeis university law journal spring 2022, volume 9, issue 2 abortion in the united states: the road to vague legislation gianna bruno2 roe v. wade was one of the first landmark cases instituting abortion policies in the united states. while legislation regarding abortion has been modified since 1973, the state of the nation has also changed as it has become increasingly polarized. abortion legislation was introduced as an attempt to solve a privacy issue. however, over time, the discourse around abortion turned away from its legality in terms of privacy to also include discussion about healthcare and the morality of the legislation itself. vague legislation yields uncertainty for the future of abortion policies. introduction in 1973, the supreme court finalized the decision of the roe v. wade case. the final verdict deemed that abortion was constitutional based on privacy rights as detailed in the 1st, 4th, 5th, 9th, and 14th amendments.3 however, this landmark decision left room for individual states to interpret the holding in the way they saw fit. this led to various arguments among governmental actors and court cases brought to the judiciary over the past few decades. considering congress’ and the supreme court’s framing of the issue in terms of privacy, why have interest groups and the public utilized the frames of morality and healthcare when advocating for or against legal abortion? moreover, how has the framing of these issues caused immense inaction during the policymaking process? while the legislative and judiciary branches debate over the legality of privacy concerning the right to abortion, interest groups and the public have been pushing the two branches to consider morality and healthcare as aspects of the right to abortion. confusion regarding what the most important argument is for either being against or in support of abortion has led to controversial and vague legislation. this paper will discuss the history of abortion policies, how the legislative and judiciary branches have dealt with the issues addressed in the 1973 supreme court case, as well as how interest groups and the public face those problems as constituents. 3 "roe v. wade." oyez. 2 brandeis university undergraduate, class of 2023. 9 brandeis university law journal spring 2022, volume 9, issue 2 background major events in 1973 during the roe v. wade court battle, the supreme court decided on the basis of the due process clause of the 14th amendment that every woman has the right to privacy regarding their choice to have an abortion. however, state doctrines still vary in opinion regarding whether to prioritize their interest in protecting women’s health or to prioritize the “potentiality of human life” and so state laws are left to debate over these opinions.4 thus, the law states that during the first trimester states could not regulate a woman’s choice. in the second trimester, a state can impose regulations only insofar as the mother’s health is at risk. then, in the third trimester, states have complete control as to whether or not to prohibit abortion except in cases of saving the mother’s life. even though the 1973 supreme court case stated a woman’s right to privacy protects a woman’s right to choose, the case also stated, “...the decision leaves the state free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.”5 this sanction has allowed states to apply restrictions as they see fit, which caused great controversy. since the roe v. wade decision essentially concluded that the right to privacy and state’s rights were not mutually exclusive, there was bound to be tension between the two. no more than six years later, webster v. reproductive health services was another major case brought to the supreme court that debated the constitutionality of missouri legislation that imposed major regulations on abortion, to the extent that it appeared to violate roe. the final court decision dictated that, “...a regulation imposed on a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion,” which seems to negate the trimester ruling set in place a few years earlier by roe. in addition to the webster ruling not conforming to the roe v. wade decision, the webster ruling is just as vague as roe in terms of defining the restrictions and put even more power into the hands of the state with regards to abortion legislation.6 6 “webster v. reproductive health svcs., 492 u.s. 490 (1989).” justia law. 5 “roe v. wade, 410 u.s. 113 (1973).” justia law. 4 "roe v. wade." 10 brandeis university law journal spring 2022, volume 9, issue 2 current state of affairs currently, 43 states prohibit abortion after a certain number of weeks have passed since conception and 45 states have laws that permit individual healthcare providers to refuse to perform abortions. additionally, 12 states block private insurance plans from covering the medical expenses of an abortion. in 33 states, it is against the law to use public funds, for those who are enrolled in medicaid, for coverage of an abortion except, “...where the woman’s life is in danger or the pregnancy is the result of rape or incest.”7 since there is no immutable or established federal law regarding abortion, legislation is continually being changed or amended. for instance, on march 9th, 2021, governor hutchinson of arkansas signed sb6 into law, thereby prohibiting abortion in all cases with the only exception being to save the mother’s life in medical emergencies.8 this law goes against the supreme court case rulings, as it disrupts a woman’s privacy, and yet, it took effect in june 2021. this law is one of 66 state legislations that were introduced in 2021 with the end goal of a whole or partial prohibition of abortion.9 on the other hand, in 2018, oregon and washington both passed legislation requiring health plans to cover abortion and maternal care, including contraception.10 more recently, on april 13th, 2021, the biden administration changed federal government policy about contraception delivery. they announced that because of the covid-19 pandemic, abortion pills would be allowed to be sent to patients through mail. this sparked even more controversy between groups who oppose the right to abortion and groups that believe that this is a step in the correct direction for abortion rights.11 key stakeholders social movements such as the pro-choice and pro-life groups are both very active in the public sphere and have been extraordinarily outspoken in their responses to the biden administration’s decision. 11 abigail abrams. “why abortion pills are the next battle over abortion rights.” time. time, april 14, 2021. 10anusha ravi. “how the u.s. health insurance system excludes abortion.” center for american progress. 9 “state legislation tracker.” guttmacher institute. (april 1, 2021). 8 “governor hutchinson issues statement on signing of sb6.”arkansas governor asa hutchinson. 7 “an overview of abortion laws.” guttmacher institute. (april 5, 2021). 11 brandeis university law journal spring 2022, volume 9, issue 2 pro-choice advocates look at the decision to allow abortion pills to be sent through mail as a win for reproductive health while pro-lifers see this decision as “...catastrophic loss of life by mail.”12 each year, pro-life groups meet nationally and march in major cities across the us, most notably including washington dc, in support of the unborn and pro-choice groups host fundraiser events featuring speakers and discussions on the importance of the freedom of choice as a “fundamental human right.”13 traditionally, pro-life activists focus on the morality of abortion and human rights, while pro-choice supporters focus on reproductive health and a different interpretation of human rights.14 both groups focus on what they believe is advocacy for human rights, but on opposite sides of the political spectrum. this leads to major strife on a public level. planned parenthood is viewed underneath the umbrella term pro-choice. they are the nation's largest provider for women’s reproductive health and extensive advocates for the pro-choice movement. as well as acting as healthcare providers, they also defend the right to an abortion when it is attacked by congress and the supreme court alongside the center for reproductive rights, which is actively working to eliminate laws that restrict reproductive rights.15 both groups are heavily involved in the policy narrative regarding abortion.16 on the other side, the heritage fund, a conservative think tank, conducts research and distributes articles against abortion. there are also organzations such as march for life which is an organization that unites once a year to march across major cities in support of the ban of abortion.17 additionally, those in power, such as judges in the courts and members of congress, are heavily involved in making sure legislation swings in favor of their respective ideology or party. personal stance and 17 “pro-life organizations: ewtn.” ewtn global catholic television network. 16 “abortion.” center for reproductive rights. april 19, 2021. 15 “who we are.” planned parenthood. 14 lucy jackson and gill valentine. “performing ‘moral resistance’? pro-life and pro-choice activism in public space.” space and culture 20, no. 2. 201. 222. 13 “state marches near you.” march for life. april 8, 2021; “abortion access.” naral pro-choice america, july 30, 2019. 12 carlie porterfield. “biden administration to allow abortion pills via telemedicine and mail.” forbes. forbes magazine, april 13, 2021. 12 https://studentsforlife.org/2021/04/13/students-for-life-action-condemns-the-fdas-decision-to-allow-death-by-mail-making-abortion-easier-to-sell-for-corporate-abortion-while-risking-womens-lives/ brandeis university law journal spring 2022, volume 9, issue 2 religion play a role in policy-makers’ decisions regardless of if they are subject to voters' views or not.18 recent action and inaction on an institutional level there is action among states regarding legislation about the right to an abortion. however, legislation that both prohibits or expands that right is often challenged in the courts. it has been that way since the roe v. wade decision was finalized. there is concern that roe could be overturned on a federal level, thus, states have taken the matter into their own hands to protect the right to an abortion. currently, roe v. wade is constantly being undermined by a few states, and not every piece of legislation breaking with the precedent set by roe is being reviewed by the courts.19 with the constant back and forth between restricting and allowing abortion, the process has been described by nancy northup, ceo of the center for reproductive rights, as, “...hollowed out by a game of constitutional whack-a-mole.”20 from the perspective of those whom the laws affect, it is frustrating to have to consistently pay attention to these changes because rules and regulations are constantly changing: restrictions are being added, taken away, and debated in the courts. nancy northup, the author of the opinion piece quoted above, outlines the exact reason as to why there is so much discourse between the members of the courts or congress and between the institutions and the actors. at the beginning of her piece, she wrote, “...the constitution protects our personal liberty and dignity to make such decisions for ourselves,” but further down wrote, “...treat[ing] abortion for what it is: health care.”21 institutions are debating on a constitutional level, but actors are focused on the healthcare and moral aspect, which explains the discourse between the two groups.22 22 northup, “opinion | it's time for congress to stop the states from playing whack-a-mole with abortion.” 21 northup, “opinion | it's time for congress to stop the states from playing whack-a-mole with abortion.” 20 nancy northup. “opinion | it's time for congress to stop the states from playing whack-a-mole with abortion.” the washington post. wp company, june 29, 2020. 19 elizabeth nash, guttmacher institute, and megan k. donovan. “ensuring access to abortion at the state level: selected examples and lessons.” guttmacher institute, august 21, 2019. 18 byron w. daynes and raymond tatalovich. "religious influence and congressional voting on abortion." journal for the scientific study of religion 23, no. 2 1984. 199. 13 brandeis university law journal spring 2022, volume 9, issue 2 institutions legislative branch it is important to understand the current state of congress before explaining why there is so much trouble moving forward in the policymaking process surrounding abortion. the two contemporary problems with congress include congressional dysfunction and increasing polarization among the parties. congressional dysfunction occurs for a multitude of reasons, but the main reason is that of increased polarization which leads to congress not being able to pass any major legislation that could create a meaningful change. without a functioning congress, other institutions, such as the executive and the judicial branch, are required to make changes or pass (or veto) laws, which is supposed to be the primary job of the legislative branch. originally, when the constitution was written, congress was established as the first branch of the u.s. government. political researcher and writer kevin koser states that, “...congress is given all lawmaking power and complete authority over raising revenues. the national legislature has the authority to identify problems, craft policies and establish agencies to execute its policies.”23 even though congress was originally granted those powers in particular, the other branches have had to step in due to congress’s lack of progress and the slowing effect of bureaucracy. this action in the executive and judiciary throws the balance of power off because what was supposed to be congress’ role exclusively is now being performed by the other branches. the solution to this problem would be for congress to take back the control of legislation, but that is proven near impossible due to the overabundance of polarization.24 polarization occurs when tension draws political parties farther away from the other parties and closer to themselves as demonstrated in figure 1.25 d'antonio wrote, “all complex societies are characterized by a high degree of internal tension and conflict... their [polarization’s] intensity makes difficult the kind of compromise which has sustained the 25 christopher ingraham. “a stunning visualization of our divided congress.” the washington post. (wp company, april 26, 2019). 24 kosar, 11. 23 k, kosar. “restoring congress as the first branch”. r street institute. (2016). 2. 14 https://www.rstreet.org/wp-content/uploads/2016/01/rstreet50.pdf brandeis university law journal spring 2022, volume 9, issue 2 two-party system.”26 figure 1 from the washington post shows how over time political parties in the house of representatives have begun to only vote along their party lines and almost never with the other side. figure 1 ranges from the years 1975-1982 on the left and from 1997-2011 on the right.27 figure 1 s. m. theriault claims that republicans and democrats have become so polarized over time because of their policy agenda, which is the list of policies the house and senate are to discuss and pass, which has shifted over time in favor of policies that are, “...more prone to party conflict, like abortion.”28 therefore, congress has an incredibly difficult time trying to get a majority vote for any legislation that either completely prohibits or allows abortion. members of congress will not distance themselves from their party’s view about what they believe the constitution states in terms of human rights, in fear of being ostracized by their own party.29 29 sarah e. anderson and daniel butler. “analysis | biden wants to bring democrats and republicans together. here's why that's so challenging.” the washington post. wp company, december 19, 2020. 28 j.w. kingdon. “agendas, alternatives, and public policies.” boston, ma: little, brown and company. 3; s.m. theriault. “a review of ‘beyond ideology: politics, principles, and partisanship in the us senate’”. congress & the presidency. 2010. 324. 27 ingraham. “a stunning visualization of our divided congress.” 26 william v. d'antonio, tuch, steven a., and baker, josiah r.. religion, politics, and polarization : how religiopolitical conflict is changing congress and american democracy. lanham, md: rowman & littlefield publishers, 2013. 17. 15 https://moodle2.brandeis.edu/pluginfile.php/2113895/mod_label/intro/kingdon_ch1.pdf https://moodle2.brandeis.edu/pluginfile.php/2113960/mod_label/intro/theriault-review-beyond-ideo.pdf https://moodle2.brandeis.edu/pluginfile.php/2113960/mod_label/intro/theriault-review-beyond-ideo.pdf brandeis university law journal spring 2022, volume 9, issue 2 judiciary branch those on the supreme court are not elected by the people as they have to be nominated by the president and approved by the senate before they can sit on the bench. as justices, their role is to be apolitical and remain neutral about the cases they hear, only abiding by the previously upheld laws and the constitution.30 however, just as polarization is plaguing the legislative branch, debates over judicial activism versus restraint and over politicization are afflicting the judiciary branch. judicial activism refers to the court striking down or overturning legislation. in contrast, judicial restraint is defined as the understanding, “...that justices ought to avoid usurping powers belonging to the legislature and executive.”31 the divide in the court is less clear than the divide in congress because polarization separates members of congress by party, while the debate of judicial activism versus restraint can change on a case by case basis, and is not purely a matter of ideological alignment. in 2013, the late justice ginsburg stated that the courts took too much liberty in utilizing judicial activism and defended the action in the name of respecting congress’ motives as well as protecting minorities who may be disproportionately affected by said legislation.32 those listed reasons alone do not account for all the uses of judicial activism which is why there remains so much controversy. over time, supreme court justices have transitioned from being neutral advocates of the court to being politicized actors. it is theorized that this change likely happened because presidents opt to nominate judges who will vote along their party’s lines rather than remain neutral. the politicization of the court accounts for the use of judicial activism because now judges vote along their ideological lines which creates contention among those who wish to remain neutral and those who wish votes were cast in their ideological favor. figure 2 shows that between the years 1918-2018, political alignments of supreme court justices have shifted.33 33 quinn, “supreme court justices are increasingly political.” 32 liptak, “how activist is the supreme court?” 31 adam liptak. “how activist is the supreme court?” the new york times. the new york times, october 12, 2013; barton swaim. “politics: when pundits hold court.” the wall street journal. dow jones & company, march 26, 2021. 30 martin quinn. “supreme court justices are increasingly political.” the economist. the economist newspaper. 16 brandeis university law journal spring 2022, volume 9, issue 2 figure 2 at the top of the graph, the median ideology was just about in the center and all the dots are closer to the center while towards the bottom of the graph, representing more recent years, the dots are considerably more spread out by party. however, in the graph there also seems to be a shift to the more “liberal” side regardless of whether a democrat or republican nominated the justice. tracking shifts in ideology is now more important than ever because with this data, political scientists can predict justices’ voting patterns and whether a particular justice may use judicial activism or restraint.34 regarding the decision of roe v. wade and subsequent legislation, there are two main bodies of thought. the judicial activist side claims that the courts had the right to interpret that the 14th amendment gives americans the right to privacy and thus, the right to an abortion. the judicial restraint side argues that the former side took too much liberty in their interpretation and granted more rights than the constitution truly allows. the author of why all americans should want roe v. wade overturned--regardless of their views on abortion, paul stark, argues that both the justices on the bench during roe v. wade and those who are currently debating over passing legislation in favor of the original decision are fighting for a cause with no real rationale. he writes, 34 quinn, “supreme court justices are increasingly political.” 17 brandeis university law journal spring 2022, volume 9, issue 2 “supreme court justices are not lawmakers. they are judges who are supposed to interpret and apply the law that already exists.”35 supreme court justices, once nominated and approved, remain on the bench until the end of their lives or until they choose to retire. the only way to change a supreme court ruling is to change the constitution or to have another supreme court case to change the ruling, thus justices are the ones holding themselves accountable to the democratic process.36 actors interest groups interest groups are organizations that constantly watch for bills that may be beneficial or harmful to their cause and push their agenda to the forefront of legislators’ agenda through discussion and persuasion.37 these groups are able to persuade legislators through lobbying which is defined as: “...an attempt by a group to influence the policy process through persuasion of government officials.”38 legislators are elected officials, so while they are working for their own agenda, it is also imperative that they work in favor of the public so that they continue to be re-elected. lobbyists provide information to legislators about specific legislation and its possible outcomes and provide intel on what the public supports and opposes.39 politicians have become increasingly dependent on lobbyists to know the positions the voting members of their party hold so they do not deviate from it. l. drutman and s. teles even go so far as to claim congress has lost the ability to research and make decisions on its own about policies because of the high volume of congressional dysfunction. the most polarized members of congress heed advice from the biased interest groups which further divides the already divided legislative branch. discussion between the congress and the interest 39 lowi, 574. 38 t.j. lowi, ginsberg, b., shepsle, k.a. and ansolabehere, s. “groups and interests” in american government: power and purpose. 2019. 571. 37 j. gelman. “rewarding dysfunction: interest groups and intended legislative failure.” legislative studies quarterly. 2017. 666. 36 quinn, “supreme court justices are increasingly political.” 35 paul stark. "why all americans should want roe v. wade overturned--regardless of their views on abortion: a reversal of the supreme court's abortion ruling would be pro-constitution and pro-democracy." national right to life news. january 2019. 9. 18 https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/lowi-power-purpose-ch13.pdf https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/lowi-power-purpose-ch13.pdf https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/gelman-rewarding-dysfunction.pdf https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/gelman-rewarding-dysfunction.pdf brandeis university law journal spring 2022, volume 9, issue 2 groups cause rifts which, in turn, means that no substantial legislation is passed which continues debates.40 the legislative and judiciary branches are essentially deadlocked in their debates, forcing interest groups to use alternative points of discussion to get their associations’ interests to the forefront of the decision makers’ minds. groups utilize grassroots campaigns to get the public on their side. planned parenthood and march for life both use lobbying events to push their agenda on capitol hill.41 these events lobby for their respective views on abortion in regard to healthcare. for example, planned parenthood held one of its largest lobby days back in 2018. supporters and advocates gathered to attack the trump-pence administration on their restrictive reproductive health bills.42 in contrast, starting in 1974, march for life planned their first march in washington a year after the roe v. wade decision, and continues to march each year to commemorate the decision. they follow this action by lobbying legislative leaders on policies which they view as being in favor of women's health.43 because the lobbying industry has grown exponentially and members of congress rely heavily on lobbyists to provide pertinent information, more and more money is being funneled into pro-life and pro-choice lobbyists as seen in figure 3 and figure 4, respectively. 43 “about the march for life.” march for life. july 27, 2020. 42 “planned parenthood holds largest lobby day ever.” planned parenthood. april 26, 2018. 41 lowi, 576. 40 l. drutman, & teles, s. “why congress relies on lobbyists instead of thinking for itself”. the atlantic. 2015. 19 https://www.theatlantic.com/politics/archive/2015/03/when-congress-cant-think-for-itself-it-turns-to-lobbyists/387295/ https://www.theatlantic.com/politics/archive/2015/03/when-congress-cant-think-for-itself-it-turns-to-lobbyists/387295/ brandeis university law journal spring 2022, volume 9, issue 2 figure 3 figure 4 figure 3 ranges from $0-$1.2 million per year while figure 4 ranges from $0-$3 million.44 while pro-choice interest groups have consistently spent more on lobbyists, pro-life interest groups are maintaining a somewhat steady incline in spending. both sides attempt to persuade legislators to create legislation in favor of their agenda and switch the debate away from privacy into a discussion of women’s health. public opinion there is a longstanding discussion as to whether or not the general public impacts public policy. the main argument states that public opinion could be more or less impactful depending on the amount of issue salience. saliency refers to how important an issue is to the public, the more important it is, the more likely citizens will use the policy to make their decision on election day, which could change the direction of legislation or at least put it on congress’s agenda to be debated further.45 while interest groups pour hundreds of thousands of dollars yearly into lobbying support for their side, the general public is not as politically motivated, leading to a lack of issue salience. as of 2019, about 61% of americans believe that abortion should be legal in 45 p. burstein. “the impact of public opinion on public policy: a review and an agenda”. political research quarterly. 2003. 30. 44 “abortion policy/anti-abortion lobbying profile.” opensecrets; “abortion policy/pro-abortion rights lobbying profile.” opensecrets. 20 https://moodle2.brandeis.edu/pluginfile.php/2113949/mod_label/intro/burstein-public-opinion.pdf https://moodle2.brandeis.edu/pluginfile.php/2113949/mod_label/intro/burstein-public-opinion.pdf brandeis university law journal spring 2022, volume 9, issue 2 either all or at least most cases.46 while that percentage is above the majority, there are two issues: questions still remain regarding complete legalization versus partial legalization, and just because a policy is popular in the majority does not mean it is automatically put into law. dylan matthews writes in his article, remember that study saying america is an oligarchy? 3 rebuttals say it's wrong that democracy entails compromise and both sides end up “winning” about half of the time.47 there will never be a general consensus in the public regarding abortion for two reasons. first, matthews states that “...most americans aren't very politically engaged — and most don't want to be politically engaged, preferring that professional policymakers make decisions for them, so long as the economy stays on track.”48 policies regarding abortion only truly affect women and, more specifically, those are who are looking to have an abortion, as abortion is considered women’s healthcare. while the general public can have an opinion on the policy, a smaller percentage of the public would be actively affected by its implementation. abortion policy is not as salient of an issue as others because it affects a smaller percentage of voters. second, there is no real compromise between those who want abortion legalized and those who do not. the general public is debating whether or not abortion is murder because it is a less politicized question than a discussion of the constitution or healthcare. the two main responses are that abortion is, “...the same thing as murdering a child,’” and “‘...abortion is not murder because a fetus isn’t a person’” with a few responses in between as shown in figure 5.49 49 everett c. ladd and bowman, karlyn h.. public opinion about abortion. washington: american enterprise institute for public policy research. 1997. 3; ladd, 19. 48 matthews, “remember that study saying america is an oligarchy? 3 rebuttals say it’s wrong”. 47 dylan matthews. “remember that study saying america is an oligarchy? 3 rebuttals say it’s wrong”. vox. 2016. 46 “public opinion on abortion.” pew research center's religion & public life project. july 7, 2020. 21 http://smile.amazon.com/stealth-democracy-americans-government-psychology/dp/0521009863?sa-no-redirect=1&ascsubtag=[]vx[p]11266505[t]w[r]moodle2.brandeis.edu[d]d http://smile.amazon.com/stealth-democracy-americans-government-psychology/dp/0521009863?sa-no-redirect=1&ascsubtag=[]vx[p]11266505[t]w[r]moodle2.brandeis.edu[d]d https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study brandeis university law journal spring 2022, volume 9, issue 2 figure 5 while figure 5 only goes through 1998, by 2019 the public became increasingly divided, especially through their political associations. about 38% of adults believe abortion should be illegal in most or all situations, while 61% of adults believe abortion should be legal in most or all situations, and 1% have no opinion on the matter.50 there can be no true compromise between the two groups because now the discussion is not about abortion directly, but whether or not the fetus is human and whether or not abortion should be labeled as murder. there is little to no middle ground between people who believe it is murder and those who do not.51 when it comes to impacting congress, there is no generalized stance, just a divided one, and it is near impossible to create legislation that will not be controversial and be challenged in courts. conclusion in conclusion, congress and the courts debate the legality of abortion through the lens of the constitution and the right to privacy. the consequences of polarization and the use of judicial activism and restraint have made it impossible for any new progress from the legislative branch because of strict divisions of ideology. in turn, interest groups fund lobbyists to persuade legislators from a healthcare perspective to create legislation in favor of their position and to break from the debate on privacy. thus, as the public is not generally politically engaged, they tend to debate abortion on a non-political level. regardless of the institution or the actor, the conclusion remains the same for 51 ladd, 3. 50 “public opinion on abortion.” 22 brandeis university law journal spring 2022, volume 9, issue 2 abortion policies; there is no policy that would be satisfactory to both sides. with increased lobbyist spending from interest groups further polarizing congress, courts taking over some of the legislative branch’s duties, and the general public’s inablility to compromise, the future of abortion policies remains a game of whack-a-mole.52 this results in an unsatisfying conclusion as policies will be changed depending on the majority in congress, challenged in the courts regardless of the outcome, and interest groups will continue to mobilize to try to gain favor either way, and the public will fight for what it believes is truly right. 52 northup. “opinion | it's time for congress to stop the states from playing whack-a-mole with abortion.” 23 brandeis university law journal spring 2022, volume 9, issue 2 works cited “abortion.” center for reproductive rights. (april 19, 2021). https://reproductiverights.org/our-issues/abortion/. “abortion access.” naral pro-choice america. (july 30, 2019). https://www.prochoiceamerica.org/issue/abortion-access/. “abortion policy/anti-abortion lobbying profile.” opensecrets. https://www.opensecrets.org/federal-lobbying/industries/summary ?id=q14. “abortion policy/pro-abortion rights lobbying profile.” opensecrets. https://www.opensecrets.org/federal-lobbying/industries/summary ?cycle=2019&id=q15. “about the march for life.” march for life. (july 27, 2020). https://marchforlife.org/about-the-march-for-life/. abrams, abigail. “why abortion pills are the next battle over abortion rights.” time. (time, april 14, 2021). https://time.com/5954429/fda-biden-abortion-pills/. anderson, sarah e., and daniel butler. “analysis | biden wants to bring democrats and republicans together. here's why that's so challenging.” the washington post. (wp company, december 19, 2020). https://www.washingtonpost.com/politics/2020/12/21/biden-want s-bring-democrats-republicans-together-heres-why-thats-so-challe nging/. “an overview of abortion laws.” guttmacher institute. (april 5, 2021). https://www.guttmacher.org/state-policy/explore/overview-abortio n-laws. burstein, p. “the impact of public opinion on public policy: a review and an agenda”. political research quarterly. (2003). 30. d'antonio, william v., tuch, steven a., and baker, josiah r.. religion, politics, and polarization : how religiopolitical conflict is changing congress and american democracy. (lanham, md: rowman & littlefield publishers, 2013). 17. daynes, byron w., and raymond tatalovich. "religious influence and congressional voting on abortion." journal for the scientific study of religion 23, no. 2 (1984). 199. drutman, l., & teles, s. “why congress relies on lobbyists instead of thinking for itself”. the atlantic. (2015). https://www.theatlantic.com/politics/archive/2015/03/when-congr ess-cant-think-for-itself-it-turns-to-lobbyists/387295/. 24 https://moodle2.brandeis.edu/pluginfile.php/2113949/mod_label/intro/burstein-public-opinion.pdf https://moodle2.brandeis.edu/pluginfile.php/2113949/mod_label/intro/burstein-public-opinion.pdf https://www.theatlantic.com/politics/archive/2015/03/when-congress-cant-think-for-itself-it-turns-to-lobbyists/387295/ https://www.theatlantic.com/politics/archive/2015/03/when-congress-cant-think-for-itself-it-turns-to-lobbyists/387295/ brandeis university law journal spring 2022, volume 9, issue 2 gelman, j. “rewarding dysfunction: interest groups and intended legislative failure.” legislative studies quarterly. (2017). 666. “governor hutchinson issues statement on signing of sb6.”arkansas governor asa hutchinson. https://governor.arkansas.gov/news-media/press-releases/governo r-hutchinson-issues-statement-on-signing-of-sb6. ingraham, christopher. “a stunning visualization of our divided congress.” the washington post. (wp company, april 26, 2019). https://www.washingtonpost.com/news/wonk/wp/2015/04/23/a-st unning-visualization-of-our-divided-congress/. jackson, lucy, and gill valentine. “performing ‘moral resistance’? pro-life and pro-choice activism in public space.” space and culture 20, no. 2 (2017). 222. kingdon, j.w. “agendas, alternatives, and public policies.” (boston, ma: little, brown and company). 3. kosar, k. “restoring congress as the first branch”. r street institute. (2016). 2;11. ladd, everett c., and bowman, karlyn h.. public opinion about abortion. washington: american enterprise institute for public policy research. (1997). 3; 19. liptak, adam. “how activist is the supreme court?” the new york times. (the new york times, october 12, 2013). https://www.nytimes.com/2013/10/13/sunday-review/how-activist -is-the-supreme-court.html. lowi, t.j., ginsberg, b., shepsle, k.a. and ansolabehere, s. “groups and interests” in american government: power and purpose. (2019). 571. matthews, dylan. “remember that study saying america is an oligarchy? 3 rebuttals say it’s wrong”. vox. (2016). https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-s tudy. nash, elizabeth, guttmacher institute, and megan k. donovan. “ensuring access to abortion at the state level: selected examples and lessons.” (guttmacher institute, august 21, 2019). https://www.guttmacher.org/gpr/2019/01/ensuring-access-abortio n-state-level-selected-examples-and-lessons#. northup, nancy. “opinion | it's time for congress to stop the states from playing whack-a-mole with abortion.” the washington 25 https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/gelman-rewarding-dysfunction.pdf https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/gelman-rewarding-dysfunction.pdf https://governor.arkansas.gov/news-media/press-releases/governor-hutchinson-issues-statement-on-signing-of-sb6 https://governor.arkansas.gov/news-media/press-releases/governor-hutchinson-issues-statement-on-signing-of-sb6 https://moodle2.brandeis.edu/pluginfile.php/2113895/mod_label/intro/kingdon_ch1.pdf https://www.rstreet.org/wp-content/uploads/2016/01/rstreet50.pdf https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/lowi-power-purpose-ch13.pdf https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/lowi-power-purpose-ch13.pdf https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study brandeis university law journal spring 2022, volume 9, issue 2 post. (wp company, june 29, 2020). https://www.washingtonpost.com/opinions/2020/06/29/its-time-co ngress-stop-states-playing-whack-a-mole-with-abortion/. “planned parenthood holds largest lobby day ever.” planned parenthood. (april 26, 2018). https://www.plannedparenthood.org/about-us/newsroom/press-rel eases/planned-parenthood-holds-largest-lobby-day-ever. porterfield, carlie. “biden administration to allow abortion pills via telemedicine and mail.” forbes. (forbes magazine, april 13, 2021). https://www.forbes.com/sites/carlieporterfield/2021/04/13/biden-a dministration-to-allow-abortion-pills-via-telemedicine-and-mail/? sh=6dd0e95b3dba. “pro-life organizations: ewtn.” ewtn global catholic television network. https://www.ewtn.com/catholicism/library/prolife-organizations-9 557. “public opinion on abortion.” pew research center's religion & public life project. (july 7, 2020). https://www.pewforum.org/fact-sheet/public-opinion-on-abortion/ . quinn, martin. “supreme court justices are increasingly political.” the economist. the economist newspaper. https://www.economist.com/graphic-detail/2018/10/05/supreme-c ourt-justices-are-increasingly-political. ravi, anusha. “how the u.s. health insurance system excludes abortion.” center for american progress. https://www.americanprogress.org/issues/women/reports/2018/07/ 20/453572/u-s-health-insurance-system-excludes-abortion/. "roe v. wade." oyez. https://www.oyez.org/cases/1971/70-18. “roe v. wade, 410 u.s. 113 (1973).” justia law. https://supreme.justia.com/cases/federal/us/410/113/#t42. stark, paul. "why all americans should want roe v. wade overturned--regardless of their views on abortion: a reversal of the supreme court's abortion ruling would be pro-constitution and pro-democracy." national right to life news. (january 2019). 9. “state legislation tracker.” guttmacher institute. (april 1, 2021). https://www.guttmacher.org/state-policy. 26 https://www.ewtn.com/catholicism/library/prolife-organizations-9557 https://www.ewtn.com/catholicism/library/prolife-organizations-9557 brandeis university law journal spring 2022, volume 9, issue 2 “state marches near you.” march for life. (april 8, 2021). https://marchforlife.org/state-marches-near-you/. swaim, barton. “politics: when pundits hold court.” the wall street journal. (dow jones & company, march 26, 2021). https://www.wsj.com/articles/politics-when-pundits-hold-court-11 616794883. theriault, s.m. “a review of ‘beyond ideology: politics, principles, and partisanship in the us senate’”. congress & the presidency. (2010). 324. “webster v. reproductive health svcs., 492 u.s. 490 (1989).” justia law. https://supreme.justia.com/cases/federal/us/492/490/#tab-opinion1958093. “who we are.” planned parenthood. https://www.plannedparenthood.org/about-us/who-we-are. 27 https://moodle2.brandeis.edu/pluginfile.php/2113960/mod_label/intro/theriault-review-beyond-ideo.pdf https://moodle2.brandeis.edu/pluginfile.php/2113960/mod_label/intro/theriault-review-beyond-ideo.pdf online version -volume 10, issue 2 brandeis university law journal spring 2023, volume 10, issue 2 the russia-ukraine conflict: obstacles to accountability allison weiner105 the russia-ukraine conflict has left much of the international community increasingly concerned about violations of international law and the strength of the international legal system's ability to end impunity. with such a young international legal system, having yet to reach its 100th birthday, precedents are still fresh and being set with each new case. each investigation opened by the international criminal court (icc) encounters new uncharted territory. using legislation foundational to the modern international system, this article seeks to analyze and understand the unique impact of russian aggression against ukraine on the present-day system of international law. this evaluation provides a quasi-directive on how the international system can move forward in the fight against international impunity. i. introduction on february 24, 2022, russian armed forces invaded ukraine from multiple positions along the russian and belarusian borders.106 the invasion initiated over a year of hostilities between the two nations, with no end in sight as of this writing.107 the motivations of such an aggressive, extensive attack have been puzzling to many in the international community. the commitment of war crimes, as well as violations of international law, is of increasing concern 107 article was composed between february and march of 2023. 106 zinets, natalia, and aleksandra vasovic. “missiles rain down around ukraine.” reuters, february 24, 2022. https://www.reuters.com/world/europe/putin-orders-military-operations-ukr aine-demands-kyiv-forces-surrender-2022-02-24/ 105 brandeis university undergraduate, class of 2025. 37 brandeis university law journal spring 2023, volume 10, issue 2 as the war wages on. president vladimir putin’s continued reign over russia further exacerbates this concern, given the volatility he brings to the region and its impact on the international legal system of human rights and criminal prosecution. ultimately, the recent conduct of the russian federation continues to perplex the legal international community. though an “impulse for imperialism” emerging from russia is not necessarily unpredicted, scholars worldwide have deemed the invasion of ukraine “nonsensical,” thus, leading many in the international community to question its motivations.108 questions regarding why russian officials responsible for potential breaches of international law continue to hold positions of power remain unanswered. scholars are still attempting to understand the obstacles that have thus far prevented foreign entities from holding the russian government accountable. this article seeks to respond to these questions and provide a comprehensive understanding of the issues surrounding russian officials accountability under international law. ii. justification of the invasion with substantial russian aggression against ukraine beginning with the annexation of crimea, finalized in march 108 rieber, alfred. “russian imperialism: popular, emblematic, ambiguous.” the russian review 53, no. 3 (july 1994): 331–35, 332; guterres, antonio. “secretary-general’s remarks to press on the war in ukraine.” united nations, march 2022. https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretarygenerals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2am tyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3 nzc4oti2my41ljeumty3nzc4oti5nc4wljauma. 38 brandeis university law journal spring 2023, volume 10, issue 2 2014, understanding the russian regime’s motivations is necessary to contextualize the 2022 invasion.109 prompted by euromaidan (also referred to as the ukrainian revolution of dignity), a collection of non-violent demonstrations in ukraine expressing pro-western sentiment, the annexation of the crimean peninsula was utilized as a means to shield russian separatists from alleged ukrainian aggression. when acting ukrainian president viktor yanukovych paused the signing of the european union (eu) association agreement to closer align ukraine with the eu, demonstrations across the territory emerged. these demonstrations protested the pause’s implications: hesitance to ally with europe coupled with the potential strengthening of relations with the neighboring russian federation.110 these protests, favoring stronger ties to the eu, initiated russian aggression and continue to contextualize the ongoing conflict between russia and ukraine. through euromaidan, vladimir putin and his inner circle of russian officials were able to exploit domestic nationalism and launch their moral justification campaign against ukraine. with cultural ties to world war ii so deeply ingrained in russian society, the kremlin effectively utilized the pro-western sentiment first expressed in ukraine during the revolution to pit russian citizens against their neighbors.111 utilizing the 111 often forgotten in the west is russia’s role in the conclusion of wwii and victory against the nazi party. however, domestically, russia’s efforts in the war have remained an incredibly strong point of pride. this has been fully integrated into russian society and strongly influences russian views of strength and bravery. veterans of the war are understood as the pinnacle of who a russian should strive to be. the nazi party is also considered a piece of western history considering the geographical positions of russia 110 zelinska, olga. “ukrainian euromaidan protest: dynamics, causes, and aftermath.” sociology compass 11, no. 9 (2017). 109 president of russia. “agreement on the accession of the republic of crimea to the russian federation is signed,” n.d. http://en.kremlin.ru/events/president/news/20604. 39 brandeis university law journal spring 2023, volume 10, issue 2 legacy left by wwii, the kremlin effectively propagandized ukraine as a nazi puppet state under the control of the west, a strategy still applied today in the effort to justify the invasion.112 citing the western influence under which nazism developed and the colonial history of much of the western world, vladimir putin argues that the motions to align closer with europe, and thus, the west, invalidates the russian history and roots of many modern ukrainians. russian justification and propaganda have embellished the invasion as a second great patriotic war and redefined the nation of ukraine as a victim to nazism.113 taken together, the kremlin actively portrays the invasion of ukraine as a liberation rather than an intervention. iii. relevant legislation despite the ever-evolving state of international humanitarian law (ihl) and the innumerable list of treaties and statutes viable as a lens for investigation into russia, the scope of this article’s evaluation will focus on three integral pieces of international legislation: the charter of the united nations, the geneva conventions of 12 august 1949, and the rome statute. the charter of the united nations (un) forms the foundation of the international system, housing many of the rules and customs by which the international order operates. 113 arseniy, “nazism.” 112 the kremlin complex is located in moscow, russia and holds the president's main office and official residence. it is the central working venue of the presidential administration. however, it also operates as an international symbol of russian power and authority; kumankov, arseniy. “nazism, genocide, and the threat of the global west: russian moral justification of war in ukraine.” etikk i praksis--nordic journal of applied ethics, n.d. and the remainder of europe. with ukrainians advocating for much stronger allyship with europe, the kremlin began propagandizing ukraine as falling victim to western nazism. 40 brandeis university law journal spring 2023, volume 10, issue 2 the geneva conventions are a cornerstone in the institution of jus in bello, the permitted conduct of parties engaged in conflict.114 the conventions establish explicit regulations on permissible methods of warfare and the treatment of civilians, combatants, and prisoners. the rome statute is the founding document of the international criminal court (icc), the permanent international judiciary tasked with the criminal prosecution of those found in violation of international law. these three pieces of legislation establish a strong guide of possible violations committed in ukraine, as well as abridge what would otherwise be a complex nexus of international laws and regulations. a. the charter of the united nations signed in june of 1945, the un charter is fundamental to a contemporary understanding of international law and politics. establishing the basis for countless treaties, the charter instructs member countries on how to interact with one another and establishes the preliminary mechanics that the international organization uses to operate. in article 2, the un charter demands the recognition of all member states by member states.115 additionally, it obligates members to use “pacific means” in dispute settlement and prohibits the use of threat or force against the “territorial integrity or political independence of any state.”116 in addition to founding the united nations, the charter establishes the united nations security council (unsc), one of its several principal organs of which russia is a permanent 116 “charter of the united nations.” 115 “charter of the united nations and statute of the international court of justice.” united nations, june 26, 1945. 114 “international humanitarian law: answers to your questions.” international committee of the red cross, june 2020. 41 brandeis university law journal spring 2023, volume 10, issue 2 member and possesses subjective veto power.117 having currently cast nearly half of all vetoes in the unsc, russia has a strong precedent of unbridled veto usage, particularly in cases of genocide or war crimes; after several decades of relative silence, the russian federation reemerged as a central proponent of veto power when met with several unsc resolutions regarding syria.118 bound by their signature to the charter, members consent to the quasi-judicial status of the unsc and agree to execute, to the best of their ability, decisions and resolutions handed down by the council. the council is tasked with the maintenance of international peace and, due to their capability to refer international concerns to the icc, it is the primary vehicle through which the un and the court interact. the unsc is the most powerful of the principal organs, being the only one capable of creating legally binding orders to member countries. the presence of permanent members and their power to veto resolutions as they see fit further exemplifies the power of the council, isolating it from the general assembly and other organs with less cumulative power. 118 security council report. “un security council working methods: the veto,” december 2022. https://www.securitycouncilreport.org/un-security-council-working-method s/the-veto.php. 117 “charter of the united nations,” 18; it should be noted that the permanent members of the security council, and thus those given veto power were not selected arbitrarily. the un was designed just following wwii and deliberately granted greater influence to the allied powers, the victors of the war. however, the use of this veto power when reviewing potential resolutions to be adopted by the unsc is capricious. any of the five countries can veto a resolution for any number of reasons and they are not subjected to even a preliminary of justification for their choice. 42 brandeis university law journal spring 2023, volume 10, issue 2 b. the geneva conventions of august 12th, 1949 the geneva conventions set the standard definition for war crimes as they are understood in ihl. with protections for wounded combatants, prisoners of war, and civilians caught in the crossfire of international conflict, the conventions codify several guidelines on the treatment of human beings during war time. the conventions consist of seven main bodies: four individual conventions and three additional protocols. considering both brevity and relevance, this analysis will exclusively address convention iv and protocol i. codifying the protections for civilians during war, convention iv addresses a multitude of civilian types in conflict and the protections guaranteed to them by the treaty. most notably, the protection of civilian hospitals and medical personnel, all children under the age of 15, women–specifically against any forms of sexual violence–, and the prohibitions of direct harm to any “protected persons” are listed in articles 18(a), 24, 27, and 32 respectively.119 protocol 1, “relating to the protection of victims of international armed conflicts,” further extrapolates on several ideas presented in convention iv and supplements areas the fourth convention may have missed, most prevalent being articles 48, 35, and 51.120 expanding on ideas presented in convention iv, article 35(b) prevents the deployment of weapons known to cause “superfluous injury and unnecessary suffering.”121 article 35(c) prohibits the use of warfare intended to cause widespread or severe damage to the natural environment.122 aiming to provide ample protections to 122 “protocols additional,” 30. 121 “protocols additional,” 30. 120 “protocols additional to the geneva conventions of 12 august 1949.” international committee of the red cross, august 12, 1949, 1. 119 “the geneva conventions of 12 august 1949.” international committee of the red cross, august 12, 1949. 43 brandeis university law journal spring 2023, volume 10, issue 2 civilians, article 48 prevents combatants from directing any operations against individuals or objects not-yet-distinguished as military.123 combatants are to assume civilian status until proven otherwise. arguably the most significant is article 51, which aims to provide complete and undeniable protections to civilians. 51(1) grants “general protection against dangers arising from military operations,” 51(2) prevents civilian populations or individuals from being the object of military attacks, 51(3) guarantees all protections to all civilians unless they join the military, and 51(4) entirely outlaws “indiscriminate attacks.”124 c. the rome statute establishing one of the several avenues for accountability to be evaluated, the rome statute is the founding document of the icc. tasked with the prosecution of individuals who have committed war crimes, crimes against humanity, the crime of genocide, and the crime of aggression, the icc is the only permanent international judicial body in the world with capacity to try world leaders for their atrocities. importantly, the statute establishes the standards for each of the crimes within the court’s jurisdiction. article 6 defines genocide as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to 124 “protocols additional,” 37. 123 “protocols additional,” 36. 44 brandeis university law journal spring 2023, volume 10, issue 2 prevent births within the group; (e) forcibly transferring children of the group to another group.125 article 7 outlines crimes against humanity as “any of the following acts when committed as a systematic attack directed against any civilian population: murder, forcible transfer, imprisonment, torture, sexual violence, or other inhumane acts of a similar character.”126 lastly, article 8 establishes war crimes as any grave breaches of the geneva conventions or “other serious violations of the laws and customs applicable in international armed conflict.”127 despite confusion surrounding the jurisdiction of the icc in the russia-ukraine conflict, article 12 outlines that with ukraine’s acceptance of icc jurisdiction in 2015, the court has the ability to prosecute any russian nationals convicted of statute violations committed on ukrainian territory.128 however, under article 15(5), the court is unable to charge individuals for crimes of aggression when these individuals are nationals of a non-member state.129 with respect to the crimes of genocide, crimes against humanity, and war crimes, any russian national found responsible for their commitment in ukraine since the 2015 declaration are eligible to be charged and tried by the icc. considering the role the court plays in ihl and criminal prosecution, jurisdiction is absolutely vital in overcoming obstacles to russian accountability. 129 “the rome statute," 10. 128 klimkin, pavlo. “declaration of the verkhovna rada of ukraine,” september 8, 2015; “the rome statute.” international criminal court, july 1, 2022. https://www.icc-cpi.int/sites/default/files/rs-eng.pdf. 127 “the rome statute,” 4-8. 126 “the rome statute,” 3-4. 125 “the rome statute,” 3. 45 brandeis university law journal spring 2023, volume 10, issue 2 iv. international law violations in accordance with each of the preceding treaties, with evidence presented by various respected news outlets and the international independent commission of inquiry on ukraine (coi), and corroborated by a march 2023 icc arrest warrant for russian officials, it is evident that violations of international law are no longer speculatory. it should be noted that many of the crimes are outlawed by more than one treaty, subsequently leading to overlap, and specific criminal incidents will not be examined. the confirmation of violations of international law are vital, as accountability cannot be considered without a crime having been committed. a. coi on ukraine established by the united nations human rights council (unhrc), the coi issued its first report on war crimes in ukraine on october 12th, 2022. among offenses mentioned in the report, “war crimes, violations of human rights, and violations of [ihl],” were all found in ukraine.130 violations of protocol i of the geneva conventions include threats to use nuclear weapons, the launching of explosives far from the frontlines causing considerable civilian damage, the use of explosive weapons in civilian areas, indiscriminate attacks using explosives, frivolous attacks on civilians, and summary executions.131 breaching article 8(2) of the rome statute, the definition of war crimes, were the deployment of explosive weapons across civilian areas, 131 independent international, “report,” 6, 7, 8, 10. 130 independent international commission of inquiry on ukraine. “report of the independent international commission of inquiry on ukraine.” the united nations, october 18, 2022. https://www.ohchr.org/sites/default/files/2022-10/a-77-533-auv-en.pdf. 46 brandeis university law journal spring 2023, volume 10, issue 2 forcible transfers, unlawful confinement, and inhumane treatment.132 violations of convention iv of the geneva conventions include the torture, ill treatment, and deliberate wounding of protected persons; the use of explosives in civilian areas; the deliberate endangerment of civilians; multiple commitments of sexual violence; and the lack of respect for the life of children.133 fundamentally, the grounds upon which russia waged war on ukraine lead to the violation of article 2 of the un charter. the annexation of crimea in 2014, the violent invasion of ukraine in february 2022, and the disingenuous referenda held in the kherson, zaporizhzhia, luhansk, and donetsk regions in september 2022 each violate the charter.134 they disregarded the obligation to pacific settlement, the mandated recognition of sovereignty, and the prohibition of threats or uses of force against territorial integrity or political independence of other states. b. war crimes regarding the war crimes, the first of several potential arrest warrants were issued by the icc in march 2023. the court officially issued an arrest warrant for president vladimir vladimirovich putin and russian commissioner for children’s rights, maria alekseyevna lvova-belova. putin and lvova-belova have both been charged with committing war 134 myers, steven, and ellen barry. “putin reclaims crimea for russia and bitterly denounces the west.” new york times, march 18, 2014. https://www.nytimes.com/2014/03/19/world/europe/ukraine.html; ellyatt, holly. “russian forces invade ukraine.” cnbc, february 24, 2022. https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html; ellyatt, holly. “fake referendums in occupied ukraine set the stage for annexation — and immense danger for ukraine.” cnbc, september 28, 2022. 133 independent international, “report,” 13, 14, 15, 16. 132 independent international, “report,” 6, 13, 13. 47 brandeis university law journal spring 2023, volume 10, issue 2 crimes, specifically the abduction, deportation, and forced transfer of children from occupied areas of ukraine. with ukrainian officials reporting as many as 8,000 children missing and transported to russia, the court asserts that both putin and lvova-belova had intimate knowledge of the alleged violation and bear individual responsibility.135 furthermore, the russian federation has been accused of forcibly deporting children to russia, implementing simple and rapid avenues to “citizenship,” and placing ukrainian children up for russian adoption.136 as this measure works to strip ukrainian children of their national and ethnic identities, the primary concern is its role as a potential step towards the ethnic cleansing and genocide of the ukrainian people. c. concluding notes to conclude this segment of the evaluation, it is vital to comprehend the meaning of these blatant violations. between the work of journalists and international investigations, it is undeniable that an array of war crimes and violations of ihl have been committed on ukrainian territory. even more so, the impact of these breaches on the ukrainian people have been unfathomable. the blood of thousands is on the hands of the russian government, critical infrastructure has been decimated, 136 deeb, shvets, and tilna, “how moscow.” 135 deeb, sarah, anastasiia shvets, and elizaveta tilna. “how moscow grabs ukrainian kids and makes them russians.” ap news, march 17, 2023. https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c 1ac7986d85ef6; international criminal court. “situation in ukraine: icc judges issue arrest warrants against vladimir vladimirovich putin and maria alekseyevna lvova-belova,” n.d. https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warra nts-against-vladimir-vladimirovich-putin-and. 48 brandeis university law journal spring 2023, volume 10, issue 2 and millions have been displaced.137 regardless of whether vladimir putin and other russian officials are held accountable, ukraine will spend years, if not decades, recovering from the devastation left by putin's regime. v. obstacles to accountability contextually evaluating legal accountability pertaining to the russia-ukraine conflict implies three primary avenues, and subsequently, the obstacles within each: the unsc, the icc, and the role of free will within an anarchical system. the unsc’s ultimate purpose is the maintenance of international peace, while the icc’s is criminal prosecution; free will and its relationship with anarchy is integral to the most preliminary of understandings on international law and politics. a thorough evaluation of each within the context of the russia-ukraine conflict provides for a nuanced understanding of obstacles to accountability. a. the unsc russia holds one of the five permanent seats on the unsc and, as such, possesses veto power over any potential resolutions that come before the council.138 ultimately, this grants a great deal of freedom and impunity not only to russia, but to essentially any of the permanent members. prima facie, a step similar to that taken by the unhrc, the suspension of the russian federation seems to be in order. however, a suspension is neither judicially effective for 138 “charter of the united nations,” 18. 137 cooper, helene, eric schmitt, and thomas gibbons-neff. “soaring death toll gives grim insight into russian tactics.” new york times, february 2, 2023. https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.h tml. 49 brandeis university law journal spring 2023, volume 10, issue 2 ukraine nor exactly plausible. a suspension would result in removal from the unsc, while an expulsion indicates the state’s removal from the entirety of the un. russia holding one of the five permanent seats on the security council makes both of these options virtually impossible due to any suspension or expulsion requiring all five security council seat sign offs, requiring russia to approve of their own ramifications. due to the impossibility of russian suspension or expulsion, it is clear that the un charter failed to consider the potentially dangerous ramifications of establishing the unsc in this way. ultimately, suspension of a member state from the council is not mentioned anywhere in the charter. however, the unsc and its permanent members are explicitly established by article 23(1).139 this indicates the necessity of an amendment to alter the permanent seats of the unsc in any way, shape, or form; which leads to article 108, mandating the approval of all five permanent council members to bring a proposed amendment into force.140 given that this requires russia to sign their own death certificate, removal from the unsc is not a presently viable option. regarding expulsion from the un altogether, it is a similarly grim situation. as stated in article 6, “a member of the united nations…may be expelled…upon the recommendation of the security council.”141 consistent with a potential suspension from the unsc, a complete expulsion would require russian approval. additionally, there is an argument to be made about the efficacy of an expulsion or suspension from un activities in bringing the russian federation to justice. due to the anarchical nature of the international order, and widely respected foundational principles like “consent of the governed,” a given nation can only be held responsible for violations of a treaty they have signed. russia cannot be held to 141 “charter of the united nations,” 8. 140 “charter of the united nations,” 69. 139 “charter of the united nations.” 50 brandeis university law journal spring 2023, volume 10, issue 2 un standards, penalized for violations of the organization’s charter, or legally bound by its mandates if it is no longer a member state. suspension from the unsc could very well lead to a voluntary exit from the organization, while an assembly-led expulsion would make accountability even more challenging. to fully evaluate the security council, it is crucial to consider the potential outcome had russia not vetoed the unsc resolution regarding their troops in ukraine, despite the situation's hypothetical nature. corroborated by the realist paradigm of international relations, a veto is merely a formal process of informing the other permanent members that a state does not intend to abide by a given resolution.142 in turn, russia’s veto of the february mandate, calling for moscow to remove all troops from ukraine, simply informs council members that it has every intention of keeping its troops in place. however, what if russia did not possess veto power? what if such a resolution was passed? realism asserts that hard power (i.e. military strength) is foundational to legitimacy. states act according to their own self-interest. hence, only military strength or threats can change such behavior. considering the atrocities committed in ukraine since then, it is fair to say that it would have taken enemy boots on the ground, actively pushing the russians out of ukrainian territory, to change the kremlin’s position. the un does not have enough coercive capacity on its own to enforce mandates by the unsc; it relies on the 142 one of the three paradigms of international relations, the realist paradigm stresses the importance of anarchy and hard power in the international order. anarchy refers not to chaos but to the lack of a universal, international governing body, and hard power refers to tangible resources, most often the economy and military strength. due to the size and strength of both the russian military and economy, the realist paradigm asserts that there is no force capable of coercing the kremlin to behave in a specific way. 51 brandeis university law journal spring 2023, volume 10, issue 2 manpower of its largest member states to keep the rest in line. the security council, an institution designed for the preservation of international peace, inherently awards impunity to the allied powers of wwii. the lack of checks on the power of permanent members breeds a power dynamic in which there is no method of enforcing punishment on the largest, and subsequently most powerful member states. the security council’s necessity to the functionality of the un elevates the status of the council. furthermore, the lack of independent un coercive capabilities only reinforces the idea first proposed in the peloponnesian war, that “the strong will do what they can and the weak suffer what they must.”143 b. the icc the icc is responsible for prosecuting individuals found in violation of international law. however, bureaucracy, enforcement mechanisms, and dwindling legitimacy hinder the abilities of the court to do so. bureaucracy generally slows various processes and those of the icc are no exception. despite not necessarily minimizing the courts physical capabilities to charge guilty russian officials, the bureaucratic processes by which the court operates can take years, if not decades. the international criminal tribunal for the former yugoslavia (icty) closed over ten years following their issuance of the final indictments.144 the icty was open for a total of twenty-four 144 zhou, han-ru. “the enforcement of arrest warrants by international forces.” journal of international criminal justice 4, no. 2 (2006): 202–18; legacy website of the icty. “icty marks official closure with moving ceremony in the hague.” archive. accessed november 29, 2022. 143 art, robert, and robert jervis. “anarchy and its consequences.” in international politics: enduring concepts and contemporary issues, 13th ed. pearson education, inc., 2016. 52 brandeis university law journal spring 2023, volume 10, issue 2 years and delivered a total of 161 sentences.145 there is no reason to presume an icc prosecution of putin and other responsible officials would take any less time. the pace at which these trials move guarantees that thousands of ukrainians would likely die before seeing any justice or reparations for all they have endured at the hands of russian officials. additionally, article 63(1) poses a large enforcement barrier to the icc because it obligates the court to have the suspect in custody prior to conducting the trial.146 it should be clarified that the following analysis in no way intends to make a statement on the rights awarded to individuals accused of a crime or assert that due process should be removed from the protocols by which the icc abides. however, lacking an independent law enforcement agency, this mandate objectively disrupts the court’s ability to bring those guilty of international atrocities to justice, and brings the legitimacy of the court into question. as seen with the icty, if the icc is forced to rely on multinational forces, the legitimacy of the court as an independent entity is questionable.147 with the icty, and the icc trial regarding darfur, sudan, the international community has illustrated hesitance to enforce arrest warrants issued by the court.148 in multiple cases, 148 sharp, walter. “international obligations to search for and arrest war criminals: government failure in the former yugoslavia.” duke journal of comparative and international law, 1997, 411–60; chazal, nerida. the international criminal court and global social control: international criminal justice in late modernity. routledge, n.d. accessed september 21, 2022; beginning in 2003, rebels in darfur, a western region of sudan, staged an insurrection against the sudanese government. they claimed the current regime disregarded the needs of the large non-arab population in darfur. over the course of several years the situation between the sudanese 147 zhou, “the enforcement of arrest warrants,” 202–18. 146 “the rome statute,” 31. 145 legacy website of the icty. “about the icty.” accessed november 29, 2022. https://www.icty.org/en/about. https://www.icty.org/en/press/icty-marks-official-closure-with-moving-cere mony-in-the-hague. 53 brandeis university law journal spring 2023, volume 10, issue 2 including those of yugolsavia and darfur, arrest warrants have gone unenforced by countries in which suspects were found.149 currently, a precedent has been established of nations’ complicity in the behavior of war criminals and reluctance to enforce arrest warrants. c. free will and anarchy the international system is fundamentally anarchic. both state and non-state actors operate within the law as they see fit. this seemingly lawlessness is in the absence of “will at national and/or international levels.”150 unfortunately, there is no global enforcement agency to ensure the cooperation of other nations. as such, within the context of the russia-ukraine conflict, little to no coercive action has been taken against russia. though sanctions have been employed, the lack of more aggressive coercive efforts (stronger military opposition) only reinforces the notion that the russian federation, as a relatively strong world power, enjoys impunity from the coercive capacity of other states and international forces. referencing the icc as understood in the previous section, an arrest warrant can, and likely will, go unfulfilled for years. with a precedent of international complicity, the responsibility to execute such a warrant now falls on the russian federation and its allies. the kremlin has already 150 morris, madeline. “international guidelines against impunity: facilitating accountability.” law and contemporary problems 59, no. 4 (1996): 29–39. 149 sharp, “international obligations,” 411-460; chazal, “international court and social control” military and the rebels escalated and was eventually referred to the icc by the unsc. this led to the issuance of an arrest warrant for omar al-bashir, the sitting president of sudan, for genocide, war crimes, and crimes against humanity. 54 brandeis university law journal spring 2023, volume 10, issue 2 dismissed the icc warrant for putin and lvova-belova, indicating its more than expected refusal to enforce it.151 however, the recent arrest warrant issued by the court certainly shrunk the world of vladimir putin; it prevents him from traveling to any major countries in the west as well as attending any summits of major world leaders. though putin will likely attend the 2023 g20 summit in india (as of the writing of this article), the presence of a russian delegation at important meetings going forward will likely hinge on the host country, and its status of allyship with the russian federation. the degree to which putin can interact with the rest of the international order will likely be inconsistent. though such irregular involvement in the international system will certainly reduce russia's role on the world stage and drain its ability to weigh in on policy, it will take time for these hindrances to show their full impact. when evaluating the known reasons for why russia has violated international law in such egregious ways, there are three primary factors to assess regarding why an international actor abides by a given rule or acts in accordance with an organization: (1) they fear the punishment of the enforcers, (2) the actor views the rule or mandate as within their own self-interest, or (3) the actor feels as though the rule or mandate is legitimate and ought to be obeyed.152 conversely, each one of these can be inverted to signify reasons as to why a given rule or organization is not obeyed by international actors. either (1) there is not a large enough coercive threat to force the actor into submission, (2) the rule is not within the actor’s own 152 hurd, ian. “legitimacy and authority in international politics.” international organization 53, no. 2 (1999): 379–408, 379. 151 reuters. “kremlin: icc warrants outrageous and unacceptable, but null and void for us,” march 17, 2023. https://www.reuters.com/world/europe/russia-warrant-against-putin-meanin gless-russia-does-not-belong-icc-2023-03-17/. 55 brandeis university law journal spring 2023, volume 10, issue 2 self-interest, or (3) the actor does not view the given mandate or body as legitimate and deserving of obedience. situations like the russia-ukraine conflict, or general international disobedience, occur when neither one, two, nor three are met. though a given international organization or mandate does not necessarily need all three, it is certainly clear that at least two of the three factors are necessary to guarantee the cooperation of actors. though the un has widespread legitimacy, its lack of coercive capacity alongside its clear opposition to russian interests has left the international body paralyzed. when viewing the reasons for international conflict specifically through the lens of the situation in ukraine, each tenet necessary for cooperation can be evaluated individually. it is evident that neither the un nor the icc independently possess an adequately strong coercive apparatus to either halt russia’s behavior or force a surrender to the court. the violations prohibiting the very conduct performed in ukraine clearly competes with the self-interest of the russian federation. further, none of the international bodies capable of holding russia accountable are viewed as legitimate by the russian federation to actively prevent atrocities from being committed. as mentioned previously, at least two of the three factors must be met for cooperation. however, there is an argument to be made that the regularity and magnitude of international disobedience comes from the lack of all three. no single international mandate or organization possesses coercive capacity, legitimacy, and self interest and it is possible that the lack of such an international institution is to blame for the frequency and scale at which international conflict occurs. increasing coercive efforts and capability seems to be the most efficient solution to improve the un’s capacity for resolution in the russia-ukraine conflict. however, it should be noted that coercion as a method of guaranteed cooperation is the least sustainable. coercion to motivate compliance requires excessive resources dedicated to surveillance and enforcement 56 brandeis university law journal spring 2023, volume 10, issue 2 and increases the likelihood of disobedience upon the halting of enforcement measures.153 due to the vast nature of the russia-ukraine conflict and the reduction in the likelihood of compliance without coercion in the future, increasing the coercive capacity is not a permanent solution to the problems offered by the situation in ukraine.154 fundamentally, the very nature of the international system is one of the greatest obstacles in ending impunity held by officials of world powers. the anarchy inherent to the international order only decreases the likelihood that russia, and other nations like it, can or will be held accountable for the atrocities they have committed. vi. concluding thoughts the preceding analysis aimed to synthesize a large portion of the existing information on the russia-ukraine conflict, specifically regarding the international law in question, the validity of claims that said international law has been violated since the february invasion, and the obstacles to bringing russian officials to justice. the icc, with the potential to hold russian officials accountable for their crimes, has opened an investigation. however, with limited resources and the lack of cooperation from the unsc, bound by russia’s veto power, the court will continue to face challenges and it is unclear if or when a trial will ever commence. just over a year into hostilities and the impact of the ongoing war has been insurmountable. with millions from the region displaced, an estimated 280,000 casualties, and over 30,000 civilian deaths, eastern europe will be recovering from the wreckage left by 154 hurd, “legitimacy and authority,” 385. 153 hurd, “legitimacy and authority,” 384. 57 brandeis university law journal spring 2023, volume 10, issue 2 this war for years.155 with each new case opened by the icc, new precedents are set; it is of the utmost importance that the international order commits to an agenda rooted in justice and ending impunity held by many world leaders. let the foregoing assessment serve as a directive not only on the recent conduct of the russian federation, but the obstacles in place hindering international heroes from bringing the nation to justice. 155 cooper, helene, eric schmitt, and thomas gibbons-neff. “soaring death toll gives grim insight into russian tactics.” new york times, february 2, 2023. https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.h tml. 58 brandeis university law journal spring 2023, volume 10, issue 2 bibliography art, robert, and robert jervis. “anarchy and its consequences.” in international politics: enduring concepts and contemporary issues, 13th ed. pearson education, inc., 2016. “charter of the united nations and statute of the international court of justice.” united nations, june 26, 1945. chazal, nerida. the international criminal court and global social control: international criminal justice in late modernity. routledge, n.d. accessed september 21, 2022. cooper, helene, eric schmitt, and thomas gibbons-neff. “soaring death toll gives grim insight into russian tactics.” new york times, february 2, 2023. https://www.nytimes.com/2023/02/02/us/politics/ukrain e-russia-casualties.html. deeb, sarah, anastasiia shvets, and elizaveta tilna. “how moscow grabs ukrainian kids and makes them russians.” ap news, march 17, 2023. https://apnews.com/article/ukrainian-children-russia-74 93cb22c9086c6293c1ac7986d85ef6. ellyatt, holly. “fake referendums in occupied ukraine set the stage for annexation — and immense danger for ukraine.” cnbc, september 28, 2022. https://www.cnbc.com/2022/09/28/fake-referendums-in -ukraine-pave-the-way-for-annexation-and-escalation.ht ml. ellyatt, holly. “russian forces invade ukraine.” cnbc, february 24, 2022. https://www.cnbc.com/2022/02/24/russian-forces-invad e-ukraine.html. guterres, antonio. “secretary-general’s remarks to press on the war in ukraine.” united nations, march 2022. https://www.un.org/sg/en/content/sg/press-encounter/20 59 brandeis university law journal spring 2023, volume 10, issue 2 22-03-22/secretary-generals-remarks-press-the-war-ukr aine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk 4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2am ty3nzc4oti2my41ljeumty3nzc4oti5nc4wljau ma. hurd, ian. “legitimacy and authority in international politics.” international organization 53, no. 2 (1999): 379–408. independent international commission of inquiry on ukraine. “report of the independent international commission of inquiry on ukraine.” the united nations, october 18, 2022. https://www.ohchr.org/sites/default/files/2022-10/a-77533-auv-en.pdf. international criminal court. “situation in ukraine: icc judges issue arrest warrants against vladimir vladimirovich putin and maria alekseyevna lvova-belova,” n.d. https://www.icc-cpi.int/news/situation-ukraine-icc-judg es-issue-arrest-warrants-against-vladimir-vladimirovich -putin-and. “international humanitarian law: answers to your questions.” international committee of the red cross, june 2020. klimkin, pavlo. “declaration of the verkhovna rada of ukraine,” september 8, 2015. kumankov, arseniy. “nazism, genocide, and the threat of the global west: russian moral justification of war in ukraine.” etikk i praksis--nordic journal of applied ethics, n.d. legacy website of the icty. “about the icty.” accessed november 29, 2022. https://www.icty.org/en/about. legacy website of the icty. “icty marks official closure with moving ceremony in the hague.” archive. accessed november 29, 2022. 60 brandeis university law journal spring 2023, volume 10, issue 2 https://www.icty.org/en/press/icty-marks-official-closur e-with-moving-ceremony-in-the-hague. morris, madeline. “international guidelines against impunity: facilitating accountability.” law and contemporary problems 59, no. 4 (1996): 29–39. myers, steven, and ellen barry. “putin reclaims crimea for russia and bitterly denounces the west.” new york times, march 18, 2014. https://www.nytimes.com/2014/03/19/world/europe/ukr aine.html. president of russia. “agreement on the accession of the republic of crimea to the russian federation is signed,” n.d. http://en.kremlin.ru/events/president/news/20604. “protocols additional to the geneva conventions of 12 august 1949.” international committee of the red cross, august 12, 1949. rieber, alfred. “russian imperialism: popular, emblematic, ambiguous.” the russian review 53, no. 3 (july 1994): 331–35. reuters. “kremlin: icc warrants outrageous and unacceptable, but null and void for us,” march 17, 2023. https://www.reuters.com/world/europe/russia-warrant-a gainst-putin-meaningless-russia-does-not-belong-icc-20 23-03-17/. security council report. “un security council working methods: the veto,” december 2022. https://www.securitycouncilreport.org/un-security-coun cil-working-methods/the-veto.php. sharp, walter. “international obligations to search for and arrest war criminals: government failure in the former yugoslavia.” duke journal of comparative and international law, 1997, 411–60. “the geneva conventions of 12 august 1949.” international 61 brandeis university law journal spring 2023, volume 10, issue 2 committee of the red cross, august 12, 1949. “the rome statute.” international criminal court, july 1, 2022. https://www.icc-cpi.int/sites/default/files/rs-eng.pdf. zelinska, olga. “ukrainian euromaidan protest: dynamics, causes, and aftermath.” sociology compass 11, no. 9 (2017). zhou, han-ru. “the enforcement of arrest warrants by international forces.” journal of international criminal justice 4, no. 2 (2006): 202–18. zinets, natalia, and aleksandra vasovic. “missiles rain down around ukraine.” reuters, february 24, 2022. https://www.reuters.com/world/europe/putin-orders-mil itary-operations-ukraine-demands-kyiv-forces-surrende r-2022-02-24/. 62 final spring law journal copy brandeis university law journal spring 2022, volume 9, issue 2 ensuring the power of the beth din: creation of the halakhic prenuptial agreement anna fernands53 one purported solution to the agunah problem is the halakhic prenuptial agreement. this paper examines the process that created the halakhic prenup through focusing on the conservative movement’s adoption of the lieberman clause, the koeppel v. koeppel case, and the growing orthodox feminist movement. in examining the cultural forces that led to the creation of the halakhic prenup, it becomes clear that the orthodox rabbinate designed the halakhic prenup to secure the power of the orthodox beth din. the halakhic prenup was created as a direct result of increasing numbers of jewish women turning to secular courts for a solution to the agunah problem. introduction since biblical times, jewish women seeking a divorce have been plagued by the problem of the agunah: in order for a divorce to be considered valid within the jewish community, a man must provide his wife with a get.54 if the husband is unable or unwilling to do so, and they separate, his wife becomes an agunah, or “chained woman.” under judaism’s adultery laws, agunot are forbidden to remarry and, if they have a child with another man, that child is considered illegitimate.55 as jewish society has progressed, it has become increasingly clear that putting women in this abhorrent position is unacceptable. nevertheless, jewish authorities are aware that they cannot disregard halakhic law (i.e. jewish law) which initially created the agunah problem. this is of particular concern for the orthodox community, as this community adheres to a stricter interpretation of jewish law than other jewish denominations. accordingly, the challenge arises of how to solve or 55 this child is known as a mamzer and is subjected to second-class status within judaism. for instance, a mamzer, as well as the descendants of mamzerim, are prohibited from marrying a non-mamzer jewish spouse. while certain jewish sects have discarded this practice, it remains a salient tradition within the orthodox community. 54 an agunah is a woman who is unable to leave her religious marriage due to being unable to obtain a get. a get is a document in jewish religious law, given from husband to wife, which effectuates a divorce. 53 brandeis university undergraduate, class of 2022. 28 brandeis university law journal spring 2022, volume 9, issue 2 mitigate the problem of the agunah in a way that adheres to halakha. various solutions have been proposed within the orthodox community in the united states, with the halakhic prenuptial agreement being a particularly salient one.56 origins of the halakhic prenup from 1950 to 1980, the orthodox community in the united states underwent radical change. jewish people paid attention to women's issues, and it was evident that the orthodox rabbinate needed to address the problem of the agunah.57 however, the rabbinate waited. indeed, the orthodox rabbinate only created the halakhic prenup in the wake of innovations in jewish law, u.s. civil law, and feminist advocacy, which threatened to undermine the authority of the orthodox rabbinate. this threat manifested in women, feeling neglected in the face of patriarchal jewish law, turning to secular civil courts to seek redress in the case of get refusal. looking for a way to preserve their power over jewish law, the rabbinate began creating a halakhic prenup that addressed the issue of the agunah and ensured the continued authority of the beth din (i.e. rabbinical court). these dual ambitions led to the formation of a halakhic prenup that only partially served women's needs. significantly, these prenups did lower the frequency of get refusal. however, this was not its purpose nor what it aimed to accomplish. in prioritizing the aims of the beth din, the halakhic prenup created by the orthodox rabbinate systematically blocked jewish women's access to seek redress for get refusal in civil court. by the 1950s, the pressure was mounting on american orthodox authorities to solve the agunah problem. part of the pressure stemmed from the conservative jewish community which was already making headway on this issue. for decades, the rabbinical assembly urged the conservative movement not to address the agunah problem until the orthodox authorities were ready to take joint action. thus they waited, 57 in referring to the orthodox rabbinate, i refer to the body of orthodox rabbis in the united states. this is different from the rabbinical assembly (an international organization of conservative rabbis) and the rabbinical council of america (an organization of orthodox rabbis located in new york city). 56 a halakhic prenuptial agreement is a jewish law document that makes provisions for the case of religious divorce. it is usually used as a tool to prevent or mitigate the effects of get refusal. 29 brandeis university law journal spring 2022, volume 9, issue 2 refusing to act unilaterally.58 however, after a substantial period of proposing collaborative solutions—which the orthodox rabbinate rejected—the conservative movement decided to act alone. their proposed “solution” came in 1953 with the lieberman clause. this clause, stipulated in the ketubah (i.e. jewish marriage contract), stated that upon civil divorce, both parties must appear before the beth din so that the husband may provide his wife with a get. if either party refuses to appear before the beth din, the spouse may seek redress in civil court.59 notably, this was the first time american jewish rabbis employed the secular state to assist in solving the agunah issue. as the conservatives made strides in solving this problem, orthodox jews began placing increased pressure on their authorities to do the same. the agunah problem in secular court within the orthodox community, it was feared that secular courts would undermine the power of the jewish court. tensions began to rise after the introduction of the lieberman clause and increased in 1957 with the koeppel v. koeppel case. in this legal dispute, two individuals —maureen and william koeppel— entered a postnuptial agreement stipulating that both of them would appear before a beth din to execute a get in the case of civil divorce. upon civil divorce, william failed to uphold the agreement, and maureen filed suit in civil court. william’s defense argued that the civil court could not effectuate a get, or force william to appear before the beth din for the same purpose, because of the separation of church and state. the court dismissed this argument, stating that it was constitutional for it to rule on the case because “[c]omplying with his agreement would not compel the defendant to practice any religion … specific performance herein would merely require the defendant to do what he voluntarily agreed to do.”60 while maureen did not ultimately win her case, koeppel v. koeppel demonstrated that, in theory, the secular court could uphold a jewish nuptial agreement.61 this decision did not occur in isolation; it was one of 61 the court ultimately ruled against maureen because she violated the terms of her postnuptial contract by remarrying. 60 koeppel v. koeppel, 138 n.y.s.2d 366, 373 (sup. ct. queens co. 1954). 59 frank, “dependent on the gentiles.” 58 laura r. frank, “dependent on the gentiles: new york state, the orthodox rabbinate and the agunah problem 1953–1993,” at: www.academia.edu/4044598/the_agunah _and_the_secular_state (accessed may 11, 2021). 30 brandeis university law journal spring 2022, volume 9, issue 2 the first u.s. court cases to enforce a jewish nuptial agreement in secular court, but it was not the last. cases such as waxstein v. waxstein in 1976, and avitzur v. avitzur in 1982, upheld the decision made in koeppel v. koeppel.62 the combination of the conservative movement’s adoption of the lieberman clause and the koeppel v. koeppel decision showed a new willingness to address the problem of the agunah in secular courts. orthodox rabbis quickly realized that increased reliance on secular courts would disinvest the beth din of its power to decide matters of jewish divorce along strict halakhic lines. if secular courts could effectuate a get, more and more women would turn to the secular courts over jewish tribunals. the rise of orthodox feminism throughout the early twentieth century, orthodox authorities were able to keep the problem of the agunah on the backburner. while pressure to address the agunah problem driven by the lieberman clause and the koeppel v. koeppel certainly alarmed them, divorce rates were still relatively low in the orthodox community.63 similarly, those who most vehemently advocated for equal rights within jewish law were often within the reform or conservative sects of judaism, but in the 1970s, this all began to change. orthodox women began noticing and resenting how different their lives and marriages were under american law versus jewish law and subsequently, orthodox feminism was born. women began organizing, spreading information, and drawing attention to the ways that women were being mistreated within the orthodox community. this led to the foundation of various groups whose purposes were to serve and advocate for the rights of agunot. these organizations also publicized the issue of the agunah in ways that the orthodox authorities could not ignore. one of the most influential organizations created by orthodox feminism was getting equitable treatment (get), founded in 1979, which helped women throughout the process of receiving a get. notably, get also advocated for the public and religious shunning of husbands 63 waxstein v. waxstein affirmed that jewish prenuptial agreements are to be treated as contracts. like all other contracts, the provisions of a jewish prenuptial agreement may be enforced in secular court. avitzur v. avitzur dismissed the claim that enforcement of a jewish prenuptial agreement would require an unconstitutional entanglement between church and state. 62 frank, “dependent on the gentiles.” 31 brandeis university law journal spring 2022, volume 9, issue 2 who refused to award their wives a get. get became widely known within orthodox circles, gaining 400 members by 1984. gloria greenman, the founder of get, noted that as her organization gained notoriety, “...the rabbis have felt the need more than ever to do something.”64 the founding of get was quickly followed by the formation of similar organizations, all working to pressure the orthodox authorities into finding a solution to the agunah crisis. as momentum grew, orthodox authorities could no longer ignore the call for change. they realized that if this problem was not addressed, the faith and commitment of orthodox women would be challenged. it also became apparent that if they did not address the concerns of orthodox feminism now, feminists might begin pushing for more radical changes. this frightened the authorities, who often viewed feminist advocacy as a threat to jewish orthodoxy. thus, addressing the problem of the agunah began to be seen as a way not only to maintain the beth din’s authority over secular courts, but also as a way to satisfy orthodox feminists just enough to quell their advocacy for more radical change. the first halakhic prenups in the wake of innovations in religious and secular law, and the ever-mounting pressure placed on the orthodox authorities by orthodox feminists in the 1970s, centrist orthodox authorities began addressing the agunah problem. one of the tools they used was the halakhic prenup, which had proved effective in obtaining women a get in conservative and reform circles. the first noteworthy prenup introduced by orthodox authorities in the united states was the bleich prenup in 1981. rabbi j. david bleich, inspired by israeli rabbinical courts, created a prenup which stipulated that, in the case of civil divorce, the husband must financially support his wife until he provided her with a get. this was a stark change from the past, as halakha usually granted that if a wife had left the home or had a separate source of income, the husband was absolved of a responsibility to financially support her. now, if a couple signed the bleich prenup, the husband could only be relieved of his financial duties to his wife after he provided a get. 64 steven feldman, “grappling with divorce and jewish law,” in women in chains: a sourcebook on the agunah, ed. jack nusan porter (new jersey: jason aronson, inc., 1995), 217. 32 brandeis university law journal spring 2022, volume 9, issue 2 as expected, the bleich prenup received intense backlash from right-leaning orthodox authorities, who claimed that this prenup used coercive elements in making the man provide a get. if this were true, the get received from the bleich prenup would be considered get me’useh (i.e. a forced get) and thus deemed void. however, bleich countered these charges, stating that “...the presence of an obligation for support and maintenance which can be terminated only by issuance of a get is, of course, not viewed as a coercive element compelling a get. were jewish law to take a different view of the matter, no divorce would be valid.”65 this view is backed by scholars who refer to a stipulation in the ketubah which verifies that the husband will provide for his wife throughout their marriage. if a husband does not issue his wife a get, and thus is still considered married, it is logical that he would be expected to continue material support for her. certain members of the orthodox community resisted this logic, asserting that the direct connection between financial penalties and get refusal, as stipulated in the bleich prenup, marked a substantial deviation from the traditional material support provided for by the ketubah. the orthodox rabbinate claimed that it was due to this substantial difference that gets resulting from the bleich prenup were me’useh and thus illegitimate. in the face of opposition, bleich modified his prenup in 1984. this adjustment, issued in bleich’s paper, a proposal in wake of avitzur, recommended that a couple sign a prenuptial agreement which stipulated that all divorce proceedings would be submitted to private rabbinical court arbitration. at this arbitration, it was assumed that rabbinical courts would not have to rely solely on the financial support mechanism suggested by the initial bleich prenup, but would instead use their broad powers to negotiate a fair divorce settlement. the idea was that the rabbinical courts would be able to use “moral suasion” to convince the husband to provide his wife a get upon civil divorce.66 while this prenup was broadly unpopular, the bleich prenup provided orthodox authorities with a starting point from which they developed their own agreements. taking inspiration from bleich, the rabbinical council of america (rca) began endorsing its own prenups. in total, the rca endorsed two different agreements: the berman-weiss prenup of 1984 66 david bleich, “a suggested antenuptial agreement: a proposal in the wake of avitzur,” journal of halacha and contemporary society, no. 7 (1984), 25-36. 65 david bleich, “modern day agunot: a proposed remedy,” jewish law annual, 4 (1981), 167-178. 33 brandeis university law journal spring 2022, volume 9, issue 2 and the willig prenup of 1996. the berman-weiss prenup, drafted by rabbis saul berman and abner weiss, stipulated that a husband give his wife a get in the case of civil divorce. if the husband refused his wife a get, thereby breaching the contract, he would be required to give his wife fixed liquidated damages. these liquidated damages were to be specified within the prenup, and the rabbinic arbitration panel could not later change them. this limited the rabbinic arbitration panel’s authority, as it could award and enforce the deliverance of these predetermined damages but not modify them. like both bleich prenups, the berman-weiss prenup did not gain significant popularity. soon after its proposal, the rca rescinded its support for the berman-weiss prenup due to halakhic objections.67 the second prenup endorsed by the rca—the willig prenup—was markedly more successful. drafted by rabbi mordechai willig in 1996, it consisted of two parts. the first part, known as the support obligation agreement, stated that in the case that either spouse demanded it, both the wife and husband agreed to appear before the beth din. furthermore, both spouses agreed to abide by the decision of the beth din concerning the get.68 if the husband refused to appear before the beth din and issue a get, the willig prenup required the husband to pay his wife increased spousal support, starting at 150 dollars per day, until he issued the get. notably, the initial bleich prenup inspired this facet of the willig prenup. unlike the bleich prenup, however, the amount owed to the wife in the case of a get refusal was not fixed. once the parties appeared before the beth din, the support payments owed to the wife could be modified or, in some cases, dismissed entirely. furthermore, if the wife failed to appear before the beth din, she forfeited her right to these support payments. in the second part of the willig prenup, the arbitration agreement, the couple chose in advance how much authority would be given to religious courts versus secular courts in the case of divorce. the willig prenup soon gained widespread popularity, with one 68 the beth din of america, “what does the prenup say” https://theprenup.org/explaining-the-prenup/what-does-the-prenup-say/ 67 susan weiss, "prenups meant to solve the problem of the agunah: toward compensation, not ‘mediation.’” nashim: a journal of jewish women's studies & gender issues, no. 31 (2017), 61-90. 34 brandeis university law journal spring 2022, volume 9, issue 2 rabbinic leader going so far as to call it “...a light at the end of the tunnel.”69 the revised rca prenup however, the rca was not content with the final version of the willig prenup. this stemmed from the fact that the two-part structure of the willig prenup allowed people to sign only the support obligation agreement and not the arbitration agreement . if a couple were to do so, the rabbinical courts would lose their authority to implement the willig prenup in the way they saw fit. as a result, there was a fear that rabbinical courts would continue to lose power to secular courts. this led to the introduction of the revised rca prenup in 2013, a modification of the previous willig prenup. this version combined the two parts of the initial willig prenup—the support obligation agreement and the arbitration agreement—into one. furthermore, the revised rca prenup specified that rabbinical tribunals had “...exclusive jurisdiction to decide … any disputes relating to the enforceability, formation, conscionability, and validity of this agreement (including any claims that all or any part of this agreement is void or voidable) and the arbitrability [sic] of any disputes arising hereunder.”70 the revised rca prenup is now the dominant prenup advocated for by orthodox authorities because it meets two needs: the need to appear to be addressing the agunah problem and the need to maintain the power of the orthodox beth din. in signing the revised rca prenup, women were ostensibly limiting themselves to solely seeking recourse for get refusal in religious court. there were even threats that if a woman sought redress in civil court, the beth din would not enforce for support obligations stipulated in the revised rca prenup. as willig put it, “...if she [the agunah] pursues support in secular court, she may forfeit her right to pursue the support clause of the prenuptial agreement in beit din.”71 by limiting the power of women to obtain legal recourse in civil court, the orthodox rabbinate was able to maintain its jurisdiction over 71 mordechai willig, “the prenuptial agreement: recent developments,” journal of the beth din of america (2012), 12. 70 susan aranoff and rivka haut, “prenuptial agreements,” in the wed-locked agunot: orthodox jewish women chained to dead marriages (jefferson, nc: mcfarland, 2015), 172-195. 69 basil herring and kenneth auman, the prenuptial agreement: halakhic and pastoral considerations (jason arronson, inc, 1996). 35 brandeis university law journal spring 2022, volume 9, issue 2 marriage and divorce law. moreover, the increased authority of the beth din often comes at the expense of women, as rabbinic courts more often encourage women to barter away privileges in exchange for receiving a get than do secular courts.72 this reality places orthodox women in an untenable paradox. if a woman wants to avoid the threat of becoming an agunah, she is told to sign the revised rca prenup. if she signs the revised rca prenup, however, she is bound to seek assistance solely from religious courts. these religious courts tend to have a greater patriarchal bent than secular courts, and accordingly favor the husband throughout divorce proceedings. in proposing the revised rca prenup as a solution to the agunah crisis, the othodox rabbinate tells women they must choose between taking on the risk of becoming an agunah or signing over their rights to seek redress in secular court. either way, women leave this arrangement having lost something. in trying to create a halakhic prenup that upholds the power of the beth din, the rabbinate has sidelined the goals of women seeking to avoid the agunah problem. the othodox halakhic prenup, as it is written now, does not meaningfully address the concerns of disadvantaged women in jewish divorce proceedings. conclusion the jewish prenup was proposed as a solution to the agunah problem in the wake of growing fears that the rabbinical courts were losing their power to secular courts. conservative authorities created the lieberman clause in 1953, which allowed women to go to secular courts if their husbands chose not to appear before the beth din. the koeppel v. koeppel case in 1957 created the precedent that secular courts would, in theory, uphold a religious contract in court. and finally, the rise of orthodox feminism in the 1970s created an environment in which women realized the untenability of their position within jewish law, and thus looked elsewhere for legal help. this culminated in the orthodox rabbinate slowly losing its jurisdiction over marital law to secular authorities, a worrying reality that they tried to remedy through the creation of a halakhic prenup which cemented the authority of the beth din in matters of jewish law. unfortunately, this expansion of authority often comes at the expense of women. the halakhic prenup is not entirely ineffective—it has contributed significantly to reducing get refusals. yet 72 weis, “prenups meant to solve the problem of the agunah.” 36 brandeis university law journal spring 2022, volume 9, issue 2 it is also true that the halakhic prenup is not the solution to the agunah problem that so many dreamed it would be. 37 brandeis university law journal spring 2022, volume 9, issue 2 works cited aranoff, susan and haut, rivka. “prenuptial agreements,” in the wed-locked agunot: orthodox jewish women chained to dead marriages (jefferson, nc: mcfarland, 2015), 172-195. bleich. david. “a suggested antenuptial agreement: a proposal in wake of avitzur,” journal of halacha and contemporary society, no. 7 (1984), 25-36. bleich, david. “modern day agunot: a proposed remedy,” jewish law annual, no. 4 (1981), 167-178. feldman, steven. “grappling with divorce and jewish law,” in women in chains: a sourcebook on the agunah, ed. jack nusan porter (new jersey: jason aronson, inc., 1995), 217. frank, laura r. “dependent on the gentiles: new york state, the orthodox rabbinate and the agunah problem 1953–1993,” at: www.academia.edu/4044598/the_agunah _and_the_secular_state. (accessed may 11, 2021). herring, basil and auman, kenneth. the prenuptial agreement: halakhic and pastoral considerations (jason arronson, inc, 1996). koeppel v. koeppel, 138 n.y.s.2d 366, 373 (sup. ct. queens co. 1954). mordechai willig. “the prenuptial agreement: recent developments,” journal of the beth din of america (2012), 12. the beth din of america. “what does the prenup say” https://theprenup.org/explaining-the-prenup/what-does-the-prenup -say/ weiss, susan. "prenups meant to solve the problem of the agunah: toward compensation, not “mediation.” nashim: a journal of jewish women's studies & gender issues, no. 31 (2017), 61-90. 38 brandeis university law journal fall 2022, volume 10, issue 1 the halachic mandate for gender affirming care: examining the potential efficacy of religious liberty claims made by jewish health care providers daniel block228 in the wake of dobbs v. jackson women's health organization, many states enacted anti-abortion statutes which could be challenged by jewish individuals and institutions who believe that such laws threaten their religious liberties.229 although a valiant effort, it is necessary to take a precautionary approach to challenging such laws on grounds of religious freedom, for successfully doing so could have reeling effects on lgbtq+, bipoc, and other marginalized communities. this article takes a bottom-up approach to such claims and investigates whether a religious liberty argument can and should be made against anti-trans laws.230 i. road map this article will begin with an exploration of religious liberty in the united states, highlighting key cases and critiquing the supreme court’s departure from secularism in the era of establishment cases to evangelical sectarianism in the era of free exercise cases. then, a case study will show that jewish legal tradition and us law increasingly sit in 230 this approach comes from black feminist thinkers who teach that freedom comes from the liberation of those on the bottom of the social ladder. 229 anderson, “synagogue challenges florida abortion law over religion,” 2022; hernandez, “some jewish groups blast the end of roe as a violation of their beliefs,” 2022. 228 brandeis university, class of 2025; the author dedicates this piece to the queer rabbis, scholars, community members, and co-conspirators who came before and fought for a future that celebrates everyone b’tzelem elohim. 115 brandeis university law journal fall 2022, volume 10, issue 1 conflict, raising first amendment concerns for jewish health care providers across the united states. this section will argue that arkansas’ health care ban is not generally applicable, lacks a compelling state interest, and must provide exemptions for jewish doctors. finally, this paper will analyze issues with the aforementioned case and discuss other viable modes of ending health care bans enforced on the basis of sex. ii. history of religious liberty throughout the first one hundred seventy-eight years of the supreme court’s existence, the court refused to rule in favor of claimants petitioning against religiously inhibitory statutes.231 the court reasoned that making a citizen’s “...religious beliefs superior to the law of the land…” would free individuals to establish their own law, erasing the need for government.232 over time, however, the court whittled away at its historic, and often discriminatory, approach to religious liberty in order to provide accommodations for certain religious minorities and establish the framework for the contemporary debate over religious exemption in the constitution.233 the court first granted a constitutional right to religious exemptions from otherwise generally applicable laws in sherbert v. verner (1963). the case involved the state employment security commission denying a seventh-day adventist, adele sherbert, unemployment benefits after she “...failed… to accept available suitable work when offered…” and without “good cause.”234 the supreme court ruled that forcing sherbert to work on the sabbath would run in opposition, not only to the clear definition of “good cause” in 234 south carolina unemployment compensation law, s.c code § 41-35-130 (1952). 233 oleske, “free exercise (dis)honesty,” 2019, 699. 232 reynolds v. united states. 231 oleske, “free exercise (dis)honesty,” 2019. 116 brandeis university law journal fall 2022, volume 10, issue 1 the statute, but also to the intent of the free exercise clause. the court borrowed lines of reasoning from a similar case from the supreme court of michigan to show that statutes with seemingly neutral purposes can have grave implications for religious minorities and potentially exclude them from engaging in public and religious life, contradicting the clear charge of the government under the bill of rights.235 the court understood that, by ruling in favor of sherbert, it opened a pandora’s box of free exercise claims in which folks would begin to argue religious freedom from laws which they believed themselves to be exempted from by their religion. in order to prevent itself from becoming the arbiter of religious legitimacy, the court established the sherbert test, which allows the government to burden religious individuals so long as it has a “compelling state interest” to do so. in the case of adele sherbert, the court relied on a strict scrutiny test to determine that south carolina’s practice of denying benefits to all rather than investigating sincere unemployment claims did not constitute a compelling state interest.236 although the threshold of “compelling state interest” had already been established for other first amendment cases, the court failed to construct a consistent framework for questions of free exercise.237 this failure prevented the court from establishing reliable jurisprudence on religious liberty and caused vague, weak, and inconsistent understandings of free exercise to dominate the judicial branch for nearly three decades. in the 1980s, the employment division of the oregon department of human resources denied unemployment compensation to a member of the native american church under a law disqualifying employees discharged for work-related “misconduct.” the man, alfred leo smith, was 237 nelson, “a textual approach to harmonizing sherbert and smith on free exercise accommodations,” 2008. 236 sherbert v. verner. 235swenson v. employment security comm. 117 brandeis university law journal fall 2022, volume 10, issue 1 fired from his job at a private drug rehabilitation center for consuming peyote in a ceremonial context. smith subsequently filed suit against the department for violating his religious liberties guaranteed under the free exercise clause.238 the case came before the supreme court twice to decide whether an individual’s religious beliefs provide them an exemption from the disqualification. at the first appearance, the justices vacated the lower court’s ruling and instructed it to determine whether peyote fell under the state’s controlled substance law.239 on remand, the lower courts held that, although peyote did fall within the controlled substance law, the lack of a religious exemption for the drug violated the free exercise clause.240 overruling the lower court, the supreme court issued a 6-3 decision that the first amendment permits oregon to ban the religious use of peyote and deny benefits. the court reasoned that the framers did not write the first amendment to allow personal beliefs to take priority over otherwise valid laws which the state is free to establish. the notorious smith ruling highlights the court’s shifting understanding of the concept of compelling state interest initially determined in sherbert to one that would prevent the courting of anarchy by religious claims.241 smith significantly limited the scope of the free exercise clause, effectively throwing out the strict scrutiny test applied to free exercise cases under sherbert unless a law purposefully burdened religious practices.242 the new threshold, later solidified in church of lukumi babalu aye inc. v. city of hialeah, carved two paths for cases 242 marin, “employment division v. smith,” 1990. 241 employment division, department of human resources of oregon v. smith et al, 1990. 240 smith v. employment division, 1988. 239 employment division, department of human resources v. smith, et al, 1988. 238 smith v. employment division, 301 or. 209, 721 p.2d 445. 118 brandeis university law journal fall 2022, volume 10, issue 1 of religious liberty.243 both paths begin with smith, asking whether the regulation in question is generally applicable.244 if the court determines that the regulation is not generally applicable under smith, then it applies the sherbert test of compelling interest to determine whether the issue targeting religious activity is necessary to achieve the goals of the governing body. as in lukumi, federal courts frequently hold that regulations targeting specific religious practices do not pass the strict scrutiny test.245 despite this, the ruling in smith created an alternative path for the majority of policies in which facially neutral laws can burden religious practitioners. following this path of reasoning, courts evaluate the circumstance by applying rationally based scrutiny to statutes “written and applied neutrally” but which incidentally burden religious folks. this leads courts to conclude that, so long as the infringement was incidental or facially neutral, it likely does not violate the free exercise clause under smith.246 in the wake of smith, and to a lesser extent lukumi, congress, the executive, and myriad religious organizations, made attempts at strengthening free exercise by adopting the religious freedom restoration act (rfra) and the 1994 amendments to the american indian religious freedom act (airfa).247 despite this, the supreme court prevented the federal government from broadly reinstating the “compelling interest” test as set forth in sherbert on state and local levels, leaving such regulations subject to smith.248 this ruling forced federal courts to uphold facially neutral state and local laws 248 see city of boerne v. flores, 521 u.s. 507 (1997). 247 42 u.s.c § 2000 bb; 42 u.s.c § 1996. 246 gautsche, “neutral discrimination,” 2014. 245 winkler, “fatal in theory and strict in fact,” 2019. 244 regulation in this context is broadly defined as any government implementation with impacts for the public. 243 see church of lukumi babalu aye inc. v. city of hialeah 508 u.s. 520 (1993). 119 brandeis university law journal fall 2022, volume 10, issue 1 which injured religious practitioners unless petitioners could prove that the regulation contained secular exemptions, codified or not.249 although this may seem like a reasonable compromise for a judicial system weighing issues of minority religions against that of majority rule, it paved the way for the supreme court’s 2022 adoption of the “most favorite nation” approach to free exercise in tandon v. newsom.250 this framework bestows disproportionate power to evangelical christian plaintiffs who use religious liberty as a means of weakening detested policies.251 the court’s recent and callous eagerness to provide amnesty for evangelicals running afoul of anti-discrimination ordinances and the establishment clause, discussed further below, leads many progressive religious minorities to see the court’s current stance on religious exemptions as an affront to the original goals of the free exercise clause.252 in 2014, the supreme court shifted further away from the traditional view of the free exercise clause as a protection for religious minorities from discriminatory laws and toward a weapon for fundamentalists to wield against the lgbtq community and people in need of reproductive care.253 in burwell v. hobby lobby, the court ruled that a for-profit entity 253 gillman and chemerinsky, “the weaponization of the free-exercise clause,” 2020. 252 see anti-defamation league, orthodox church in america, the sikh coalition, et al. brief of amici curiae in support of respondent in fulton v. city of philadelphia, 593 us_ (2021); john corvino, ryan t. anderson, and sherif girgis, debating religious liberty and discrimination (new york, ny: oxford university press, 2017). 251 epstein and posner, “the roberts court and the transformation of constitutional protections for religion,” 2021; melissa murray, discussion with micah schwartzman and nelson tebbe, 2022. 250 ritesh tandon, et al. v. gavin newsom 593 u.s. __ (2021), justice kagan writing for the dissent. 249 see fraternal order of police v. city of newark, 170 f.3d 359 (1999); and tenafly eruv association inc. v. the borough of tenafly 309 f.3d 144 (2002). 120 brandeis university law journal fall 2022, volume 10, issue 1 run according to religious principles could deny its employees coverage for contraceptive care.254 the affordable care act (aca) mandated that for-profit companies provide health care plans covering certain types of fda-approved contraceptives, but hobby lobby stores inc. successfully argued that the mandate imposed a substantial burden on its honest christian convictions.255 writing on behalf of the majority, justice samuel alito reasoned that a multi-billion dollar corporation could hold religious beliefs protected under the free exercise clause and federal rfra. justice alito’s line of reasoning partially relied on a conjured fiction connecting the jewish merchants whose religious freedoms were denied in braunfeld v. brown (1961) and the hobby lobby stores.256 this false analogy posited that if the five merchants in braunfeld incorporated their businesses and lived in a time in which rfra existed, the federal government would unconstitutionally force them to open on saturdays and close on sundays solely because they operated as a corporation.257 in replacing key issues of the 1961 case, the justice rewrote jewish american legal history and co-opted discrimination against jews across the country in the name of the conservative majority’s metastasizing evangelical agenda. by comparing the oppression of jewish americans to the financial inconvenience of hobby lobby, the court justified endowing for-profit organizations with the ability to exercise religious beliefs on behalf of their owners. this ruling empowered evangelical shareholders to mobilize their corporations, hiding their prejudices and frugality behind a facade of religious zeal. the ruling also muddled the line between owner and entity by equating the beliefs of the former to that of the latter as 257burwell v. hobby lobby stores inc. 573 us 682 (2014). 256 braunfeld v. brown, 366 us 599 (1961). 255 42 u. s. c. §300gg–13(a)(4), (2010); burwell v. hobby lobby stores inc. 573 us 682 (2014). 254 burwell v. hobby lobby stores inc. 573 us 682 (2014). 121 brandeis university law journal fall 2022, volume 10, issue 1 corporations litigate not to maximize profits, but to advance other mundane objectives.258 three years after hobby lobby, the court overlooked major issues of entanglement when a church charged missouri with infringing on its rights to free exercise. when the missouri department of natural resources denied the trinity church of columbia (trinity) from receiving public funds for purchasing recycled tires to resurface its playgrounds, trinity sued, suggesting that the state’s constitutional obligation to deny it the grant violated the church’s rights to free exercise.259 ignoring missouri’s argument that its strict anti-entanglement state constitution and the federal establishment clause commanded the department of natural resources to deny trinity the grant, the majority of the court sided with trinity.260 the court figured that the rejection of otherwise-qualified applicants based solely on the presence of religion triggered a strict scrutiny test under smith which the state could not pass.261 this framing positioned the court greatly in favor of state-sponsored religion, whereby it would become unconstitutional for states to deny institutions secular aid when missouri has “no viable establishment clause claims.”262 the case, alongside other recent establishment-free 262 trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017). it is important to note that despite the question of the case seemingly voiding the state of an establishment claim, respondents continued to make establishment claims in their brief. 261 drawing from smith, chief justice roberts wrote in the opinion that “the free exercise clause protects against laws that “impose special disabilities on the basis of… religious status.” 260 american civil liberties union foundation et al. brief of amici curiae in support of respondent in trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017); mo. const. art. i, § 7 (1875). 259 trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017); brief for petitioner in trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017). 258 garrett, “the constitutional standing of corporations,” 2014. 122 brandeis university law journal fall 2022, volume 10, issue 1 exercise battles, signals a growing willingness by conservative justices to narrow the establishment clause in a post-lemon era and expand the free exercise clause in a post-smith era.263 the question remains, however, to whom such rights will be extended and to what extent the establishment clause will be sacrificed. will everyone be granted the same levels of religious liberties as evangelicals were in hobby lobby, bremerton, and trinity, or will the hopes of conservative legal theorists win out and allow them to deny religious minorities the right to free exercise?264 iii. gender affirming care a. introduction to the case to explore the incongruencies between anti-trans laws and halachic tradition, this section will apply jewish legal reasoning and american religious liberty jurisprudence to act 626 of the arkansas 93rd general assembly, hereafter referred to as the health care ban, which was the first state law explicitly criminalizing gender affirming care.265 beginning with a thought experiment on the halachic obligations of 265 conron, o’neill, vasquez, and mallory, “prohibiting gender-affirming medical care for youth,” 2020; defendants in brandt v. rutledge the 8th circuit court upheld the lower court’s injunction of the health care ban. for the sake of argument, this article acts as if brandt never happened. 264 burwell v. hobby lobby stores inc. 573 us 682 (2014); kennedy v. bremerton school district, 597 us__ (2022) effectively overturned lemon by reasoning that the government cannot suppress religious expression, even when establishment concerns exist; trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017); blackman, et al, “tentative thoughts on the jewish claim to a “religious abortion,’” 2022. 263 england, “justices answer coach kennedy’s prayer with play in the joints audible,” 2020; lemon v. kurtzman was a major establishment clause case and provided a three-pronged test to determine whether statutes are secular, advance or inhibit religion, or excessively entangle the government in religious matters. 123 brandeis university law journal fall 2022, volume 10, issue 1 jewish medical providers and then applying it to the current predicament of jewish physicians in arkansas, this section will prove that mounting anti-trans laws in conservative states, predominantly supported by evangelical christians, violate the free exercise rights of jewish providers.266 this section calls on jewish healthcare providers to unite with lgbtq+ communities and lawyers to fight the rising denial of science and medicine in states like arkansas, whose governments are controlled by theocratic extremists, by bringing halacha and the free exercise clause into court. b. foundations of the case and halacha let us begin this thought experiment by positing that a transgender eleven-year-old in little rock asks his pediatrician, with the full support of his parents and long-term therapist, to prescribe puberty blockers. the pediatrician, anxious about the legal repercussions she could face for providing treatment or recommendations, tells the family that she will call back with a definite answer by the end of the week.267 during that week, the doctor reaches out to her rabbi to ask what she should do given the circumstances. her rabbi tells her to come to his office to discuss the doctor's worries about providing gender affirming care to a child wishing to transition. upon arrival, the doctor explains that although she thinks the health care ban is abhorrent, she feels as though it leaves her with nothing to do but to let her patient suffer. 267 save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1502 (2021). 266 for more on evangelicalism and anti-trans laws/culture see sex and uncertainty in the body of christ: intersex conditions and christian theology, 2010, by susannah cornwall and otherwise christian: a guidebook for transgender liberation, 2019, by chris paige. 124 brandeis university law journal fall 2022, volume 10, issue 1 responding to the internal conflict in his congregant, the rabbi recounts the story of the wicked turnus rufus and rabbi akiva to explain that the disparities in the world exist for the children of god to change, not to enjoy as predetermined.268 he further explains that god makes no mistakes in putting trans folk in the wrong body, just as god makes no mistakes in allowing people to develop inflamed appendices or heart defects.269 god creates these situations to allow doctors and their patients to work in collaboration, building a compassionate society through learning and care.270 to ignore the cries of trans children who beg their doctors to help them materialize their identity would be a crime akin to murder, no different from denying care to a patient with the flu or crohn’s disease.271 the doctor responds by saying that she knows that she should offer the boy care, but even to make a medical recommendation would put her medical license in jeopardy, preventing her from providing care for sick children in the future.272 the rabbi first responds by reminding the doctor that one who destroys a soul is considered to have destroyed the entire world, and to deny her current patient the care he needs would be to deny him of his existence, sentencing him to years of trauma that could end in suicide.273 addressing her concern for future patients, the rabbi reminds the doctor that the boy’s 273 mishnah sanhedrin 4:5; yerushalmi talmud 4:9; hayward, “don’t exist,” 2017, 191-194; van der miesen, et al., “psychological functioning in transgender adolescents before and after gender-affirmative care compared with cisgender general population peers,” 2020), 699-704. 272 save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1504 (2021). 271 beit yosef, yoreh deah 336:2. 270 sefer hachinuch 66:2. 269 moskowitz and safer, “advancing the rabbinic prescription for transgender health care,” 2019. 268 bava batra 10a:4. 125 brandeis university law journal fall 2022, volume 10, issue 1 life is not a hypothetical, unlike the lives of future patients.274 the doctor’s inclination to shed the blood of one child in exchange for her career and the lives of future patients is an act of violence that violates her sacred duties as a qualified jewish medical professional.275 according to halacha, the doctor must show compassion, knowing that neither she nor the state of arkansas could ever completely comprehend the boy’s experience, and she must provide gender affirming care.276 with this information, the doctor realizes that, according to jewish law, she must provide the boy with gender affirming care. following the conversation with her rabbi, the doctor calls the patient’s family to inform them that she will prescribe the off-label usage of gonadotropin-releasing hormone (gnrh) injections to suppress the boy’s natural releasing sex hormones. after three rounds of safe injections, consistent monitoring, and thousands of dollars in out-of-pocket payments from the family, the arkansas state medical board learns of the doctor’s actions and calls a disciplinary hearing in accordance with the health care ban.277 the medical board revokes the doctor’s license under charges of “unprofessional conduct,” forcing her to appeal.278 c. the case we continue the imagined case of the jewish doctor to evaluate the efficacy of predominantly conservative legal methods of reasoning as a means of protecting gender affirming care. we will first apply the most favorite nation 278 medical practices act, a.r. code title 17, ch. 95 § 409 (2) (2020). 277 save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1504 (a) (2021). 276 yoma 83a:2. 275 shulchan arukh, yoreh de’ah 336:1. 274 rabbi mike moskowitz, interviewed by daniel block, virtual, may 24, 2022. 126 brandeis university law journal fall 2022, volume 10, issue 1 doctrine to show that the health care ban violates the federal constitution’s guarantee to free exercise. then, we will show a plain and historical reading of the free exercise clause and how it allows the jewish physician to continue prescribing hormone replacement therapy (hrt). we will end with a critique of the case below, examining pitfalls and shortcomings that a jewish petitioner and their legal team may expect when making such religious liberty claims. d. most favored nation doctrine the invention of the most favorite nation doctrine highlights the asymmetric treatment of religious exemptions demanded by zealots appearing before courts. as solidified in fulton v. philadelphia, the supreme court understands that the existence of any individual and secular exemption written into statute renders the policy not generally applicable, thereby triggering the strict scrutiny test under sherbert.279 when evaluating the permissibility of a law not generally applicable, courts must question whether the denial of religious exemption relies on the compelling interest of the governing body.280 as previously stated, the denial of religious exemption seldom passes the strict scrutiny test in courts. before arriving at this test, we must ask two questions: (1) does the statute provide any individualized exemptions? (2) if so, does the government take into consideration the particular reason behind the conduct in question? the following evaluation will show that the answer to both questions is yes, triggering a strict scrutiny test of compelling state interest that the ban will surely fail. upon answering the first question, one would see that the health care ban excludes the treatment of those with a “medically verifiable disorder or sex development” or an 280 church of lukumi babalu aye inc. v. city of hialeah 508 u.s. 520 (1993). 279 fulton et al. v. city of philadelphia, 593 u.s. __ (2021). 127 brandeis university law journal fall 2022, volume 10, issue 1 “infection, disease, or physical disorder, injury, or illness” from its definition of “gender transitioning procedures”.281although one might argue that the categorical exclusion of certain classes of health conditions is not the same as an individualized exemption from the law, it is clear that, by applying the definition of “gender transitioning procedures” to all pediatric prescriptions of hrt and gonadotropin-releasing hormones (gnrh) except those with the aforementioned “medically verifiable conditions” the ban does in fact create an exemption. for example, a pediatrician treating children with hypogonadism would not have to worry about being sanctioned for prescribing hrt because a categorical exclusion exists in the health care ban for doctors treating children with such ailments.282 however, the same doctor would be barred by the health care ban from prescribing hrt to patients who seek the treatment as gender affirming care.283 the ban’s exclusion of gender affirming care from its definition provides doctors treating gender conforming patients with a secular exemption under the law. the existence of a secular exemption for individual doctors providing care to children with “medically verifiable conditions” parallels the exemptions ruled unconstitutional in supreme court religious liberty cases. to evaluate whether the ban invites a governing body to consider the reason for the conduct, we turn to fulton v. city of philadelphia. in fulton, the court held that the commissioner of the department of human services’ refusal to contract catholic social services (css) unless it certifies 283 save adolescent from experimentation act, a.r. code title 20, ch9 § 1502 (a) (2021). 282 save adolescent from experimentation act, a.r. code title 20, ch9 § 1501-6b(ii) (2021); save adolescent from experimentation act, a.r. code title 20, ch9 § 1501-6b (iv) (2021). 281 save adolescent from experimentation act, a.r. code title 20, ch9 § 1501-6b(i) (2021); save adolescent from experimentation act, a.r. code title 20, ch9 § 1501-6b(iii) (2021). 128 brandeis university law journal fall 2022, volume 10, issue 1 same-sex couples as foster parents violated the free exercise clause.284 the court relied on its rulings in smith and bowen v. roy (1986) to determine that laws which create a system of individual exemption cannot prevail unless they extend such a system to issues of religious hardship.285 the arkansas general assembly created a system similar to that in fulton when it empowered the arkansas state medical board (asmb) to investigate claims of unprofessional conduct and categorical exemptions.286 during its investigation and hearing proceedings, the asmb must “accord the person against whom charges are preferred a full and fair opportunity to be heard in his or her defense.”287 however, by opening the door to a “full and fair” hearing of the defending health care provider, the asmb is forced to consider the particular reason for the provider’s decision to violate the law. it must do so, not only to give a “full and fair” hearing to the accused, but to determine why the treatment was prescribed. for instance, if a doctor were accused of illegally prescribing hrt for the purpose of gender affirmation, they may seek dismissal because they prescribed hrt to treat a “medically verifiable condition”. upon hearing this reason for prescription, the asmb would surely deem the provider not guilty and dismiss the case. however, if the asmb were to ask the jewish doctor in the case above why she prescribed gnrh, the doctor would undoubtedly explain that she administered the treatment because she deeply believes her religion commands her to do so. despite holding serious religious convictions that informed her decision, the asmb would still deny the doctor an exemption, even though it would do so for a doctor prescribing hrt for non-gender affirming reasons. 287 medical practices act, a.r. code title 17, ch. 95 § 410(d). 286 medical practices act, a.r. code title 17, ch. 95 § 410. 285 bowen v. roy, 476 u.s. 693 (1986). 284 fulton et al. v. city of philadelphia, 593 u.s. __ (2021). 129 brandeis university law journal fall 2022, volume 10, issue 1 the consideration of the doctor’s reason for violating the law, a consideration the asmb is mandated to undertake during its proceedings, renders the law not generally applicable and triggers strict scrutiny.288 the asmb not only hears the defendant’s case to understand the reasoning behind the action, but to determine whether the conduct truly was in violation of the health care ban. if the asmb determines that the accused medical provider was acting in accordance with the law and providing hrt for someone with a “medically verifiable condition”, it will recognize the categorical exemption and dismiss the charges.289 because the exemption is predicated on the reason for treatment, and doctors accused of violating the law must demonstrate that the care they prescribed falls within the ban’s listed exemptions, the asmb must provide individualized exemptions to doctors. the provision of individualized exemptions enumerated in the ban and executed by the asmb’s interrogation of a doctor’s particular motive for prescribing care infringes upon the jewish doctor’s right to free exercise and “can be justified only by a compelling state interest.”290 e. compelling state interest finally arriving at the question of compelling state interest, we ask if the state of arkansas maintains a compelling interest in preventing the jewish doctor from fulfilling her halachic obligation to provide medical care to trans children. the court held in trinity v. comer and solidified in espinoza v. montana department of revenue that state laws generally providing funding for social programs while prohibiting funding for religious organizations “impose special disabilities on the basis of religious status” and violate the free 290 fulton et al. v. city of philadelphia, 593 u.s. __ (2021). 289 medical practices act, a.r. code title 17, ch. 95 § 410(e)(2). 288 bowen v. roy, 476 u.s. 693 (1986). 130 brandeis university law journal fall 2022, volume 10, issue 1 exercise clause’s prohibition of unequal treatment of religious folk.291 although the disputed elements in the case do not involve the distribution of public funds, it is clear that the ban similarly burdens jewish healthcare providers by allowing doctors prescribing hrt and gnrh for non-gender affirming reasons to continue their practice. it thus “effectively penalizes the free exercise” of the jewish doctor’s constitutional liberties to practice her faith, which deeply informs her medical practice.292 some may argue that the ban does not qualify as a “special disability,” because it prevents all doctors from prescribing gender affirming treatment, not just jewish doctors. however, the fact that no provider can prescribe gender affirming care is not what qualifies the above case as a “special disability”. the crux of the constitutional violation rests on the fact that the doctor is obligated by halacha to validate the trans child through medicine, and the state of arkansas punishes her for doing so. this indirect coercion forces the physician to “surrender” her “religiously impelled” actions or suffer the penalty dealt by the asmb.293 by framing the case in terms of coercion, we see that the state’s desire to restrict access to gender affirming care does not provide a compelling enough interest for preventing jewish health care providers from fulfilling their religious obligations.294 this assertion is buttressed by the fact that arkansas lacks any sort of “historic and substantial” interest in forbidding jewish doctors from fulfilling their religious need to care for their patients.295 in fact, the state’s historical and substantial interest in preserving the rights of religious individuals who violate local statute far outweighs the state’s 295 locke v. davey, 540 u.s. 712 (2004). 294 lyng v. northwest indian cemetery, 485 u.s. 439 (1988). 293 mcdaniel v. paty, 435 u. s. 618 (1978). 292 sherbert v. verner, 374 u.s. 398 (1963). 291 trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017); espinoza v. montana department of revenue, 591 u.s. __ (2020). 131 brandeis university law journal fall 2022, volume 10, issue 1 recent interest in policing gender affirming care.296 by weighing these two interests against one another, it becomes clear that arkansas and its people throughout history have maintained higher regard for the protection of religious exercise than it has for the restriction of gender affirming care. clearly, the ban fails the strict scrutiny test on these grounds. f. issues with the case and further considerations although this article proved that the state of arkansas fails the strict scrutiny test and that the asmb must provide religious exemptions for jewish doctors prescribing gender affirming care to minors, the strategy taken in the above case should only be utilized as a desperate last resort. if a lawyer were to argue that a jewish doctor who lost their license due to providing gender affirming care should receive an exemption on the basis of religion, they would probably succeed on the merits. however, three critical issues arise from succeeding in the above case: (1) it would further legitimize the “most favorite nation” doctrine and strengthen arguments raised by conservatives wishing to be exempt from non-discrimination ordinances; (2) it would only empower jewish medical providers to prescribe gender affirming care to minors, a small population in arkansas; (3) it ignores the more convincing civil rights argument which justice neil gorsuch made available to liberal attorneys in bostock v. clayton county. this 296 millar, “what makes arkansas’ ‘religious freedom’ bill different from other states?,'' 2015; the passage of ark code title 12, subtitle 5, ch. 75 § 134 (2021) highlights arkansas’ interest in protecting “soul-sustaining” religious activities, despite the advice of select medical professionals; for an example of arkansas’ historic interest in defending religious practitioners from government interference see ernest valachovic, “faubus opens home to children of cude; assails ruling as too drastic on simple law.” arkansas gazette, april 8,1964. p.1a-2a. although the request for religious exemption was denied in cude, governor faubus and many arkansans voiced support for mr. cude during the early 1960s. 132 brandeis university law journal fall 2022, volume 10, issue 1 final section will explain why each of these flaws must be seriously considered before any attorney makes a religious liberty claim to practice medicine. as previously discussed, the “most favorite nation” doctrine has only appeared in one supreme court ruling and one shadow docket decision, both of which occurred in the past two years.297 the newness of this doctrine not only shows the maximalist tendencies of the recently anointed ultraconservative supreme court, but also its willingness to disregard the establishment clause’s prohibition against the government showing preference toward religion. if a liberal attorney were to utilize the doctrine to secure the right for a jewish medical provider to prescribe gender affirming care to a minor, they open the door for plaintiffs of other beliefs to attack similar statutes. for example, if the court validated the above argument and granted the jewish doctor an exemption from the ban, evangelical psychiatrists living in other states could challenge statewide bans against conversion “therapy” on similar grounds. to remedy this, attorneys could make the potentially problematic argument that the jewish physician is commanded by a rich history of oral and written laws, whereas no parallel tradition encourages the abuse of queer youth in evangelicalism.298 in suggesting that the jewish doctor is explicitly commanded by her religion to provide health care for those in need, as opposed to the psychiatrist who sees queerness as an abomination, a lawyer could demarcate the boundaries of what it means to exercise religion. this argument would rely on a differentiation between religious commandments and what a religious person views as “endorsing” or “promoting” unholy behavior. such a claim would rest on the fact that talmudic tradition commands the jewish physician to provide medical care, but the bible does 298 neumann, “‘a definitive but unsatisfying answer,’” 2022, 108-147. 297 fulton et al. v. city of philadelphia, 593 u.s. __ (2021); tandon v. newsom, 593 u.s. __ (2021). 133 brandeis university law journal fall 2022, volume 10, issue 1 not command its followers to let children suffer. furthermore, evangelical leaders have explicitly condemned the practice of conversion therapy, a fact which could potentially weaken a religious liberty claim to administer the conversion “treatment.”299 still, attorneys should explore the possibilities and risks of arguing that only those explicitly commanded to act a certain way can receive religious exemptions under the “most favorite nation” doctrine. before making a religious liberty claim to prescribe gender affirming care, lawyers must ascertain a clear understanding of “exercise” in the first amendment so that they do not incidentally burden religious minorities living in states such as arkansas’. the fact that the above argument would only empower jewish doctors with the ability to prescribe gender affirming care needs little discussion. because the above case argues for individualized religious exemptions for jewish doctors, it leaves no room to include physicians of other faiths who are similarly commanded to provide treatment for trans youth. although physicians could form a coalition of complainants in the above case, doing so might dilute the sincerity of the claim for individual exemptions, leading them to potentially be accused of using religion as a means of advancing a political agenda. additionally, providing religious exemption to jewish practitioners in arkansas does nothing in actuality to alleviate the pain inflicted by the ban. only one practicing jewish general pediatrician currently lives in central arkansas, and there is no jewish endocrinologist in the state to actually monitor healthy hormone levels in children.300 clearly, the above case exists in a world where there are enough jewish health care providers to treat all of the trans children in 300 rabbi barry block, interviewed by daniel block, virtual, august 26, 2022. 299 bailey, “evangelical leader russell moore denounces ex-gay therapy,” 2014. 134 brandeis university law journal fall 2022, volume 10, issue 1 arkansas, but no such world actually exists, which is why the case is a thought experiment.301 the last issue for lawyers to consider before implementing the strategy in the above case is justice gorsuch’s understanding that the lgbtq+ community sits as a protected class in the civil rights act of 1964.302 an attorney could point out that the health care ban makes testosterone illegal for trans boys because they were born in a female body, but it still allows cisgender boys to receive testosterone because they were born in a male body. this argument would push the idea that arkansas violated the civil rights act when it identified the sex of the child as the only qualifying factor in considering whether they can receive hrt, gnrh, or other gender affirming treatments. this qualifying factor forces the entire arkansan medical field to deny trans people a certain level of care, which it otherwise offers to cisgender patients, entirely on the basis of sex.303 the sex-based discrimination, mandated by the ban, violates the civil rights act and cannot be upheld in court.304 this claim is likely the most persuasive. if successful, the civil rights claim would also have the greatest impact for trans people and their doctors in arkansas. it would allow doctors to administer gender affirming care, regardless of religion, and would recognize that the rights come from that of the trans individual and do not depend on a relationship with a jewish physician. 304bostock v. clayton county, 590 u.s. __ (2020). 303 note the difference between sex and gender. sex is determined by the last two chromosomes in a human’s genome. it by no means makes someone a man or woman. gender can only be articulated by the individual. 302 bostock v. clayton county, 590 u.s. __ (2020). 301 of course, this ignores the fact that a jewish doctor living in a bordering state could be licensed in arkansas and travel for the sole purpose of providing gender affirming care. 135 brandeis university law journal fall 2022, volume 10, issue 1 iv. conclusion this paper examined religious liberty jurisprudence and the efficacy of making a free exercise claim to prescribe gender affirming care to minors in arkansas. although the claim would be a noble effort made by a jewish doctor, and it highlights religious coercion forcing jewish arkansans to choose between their religion and other cherished rights, it would not extend sufficient access to care for trans kids and would only legitimize the religious claims made by fundamentalists looking to defy non-discrimination statutes. lawyers could add a free exercise claim to a case primarily concerning the civil rights issues of the ban, but the health care provider’s religion should not be the center of the case. despite the issues with the free exercise claim, it is still crucial for jewish health care providers in arkansas and across the country to enthusiastically fight for the right of trans children and their families to receive gender affirming care. only by joining hands with the trans community can jewish health care providers ensure a more just and joyous world for their patients, regardless of identity. 136 brandeis university law journal fall 2022, volume 10, issue 1 bibliography american civil liberties union et al. brief on behalf of comer as amicus curiae in trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017) anderson, curt. “synagogue challenges florida abortion law over religion.” ap news. as sociated press, june 14, 2022. https://apnews.com/article/abortion-health-religion-law suits-florida-6e115c5c1f23eff92161d136940ae91e. anti-defamation league, orthodox church in america, the sikh coalition, et al. brief on behalf of the city of philadelphia as amicus curiae, fulton v. city of philadelphia, 593 us _ (2021) bailey, sarah pulliam. “evangelical leader russell moore denounces ex-gay therapy.” religion news service, october 28, 2014. https://religionnews.com/2014/10/28/evangelical-leader -russell-moore-denounces-ex-gay-therapy/. bava batra 10a:4 beit yosef, yoreh deah 336:2 blackman, josh, emma camp, scott shackford, elizabeth nolan brown, matthew petti, and damon root. “tentative thoughts on the jewish claim to a ‘religious abortion.’” reason.com, june 20, 2022. https://reason.com/volokh/2022/06/20/tentative-thought s-on-the-jewish-claim-to-a-religious-abortion. conron, kerith j, christy mallory, luis a vasq uez, and kathryn k o'neill. “prohibiting gender-affirming medical care for youth.” ucla school of law, williams institute, special brief on gender affirming care, 2022. corvino, john, ryan t anderson, and sherif girgis. debating religious liberty and discrimination. new york, ny: oxford university press, 2017. 137 brandeis university law journal fall 2022, volume 10, issue 1 england, samuel. “justices answer coach kennedy’s prayer with play in the joints audible: kennedy v. bremerton school district and public-school sports prayer.” jeffrey s. moorad sports law journal 27, no. 2 (2020). epstein, lee, and eric a. posner. “the roberts court and the transformation of constitutional protections for religion: a statistical portrait.” the supreme court review (2022): 315–47. garrett, branden l. “the constitutional standing of corporations.” university of pennsylvania law review 163, no. 1 (2014). gautsche, jeffrey. “neutral discriminationselective enforcement of religiously neutral laws and the first amendment: united states court of appeals, third circuit.” touro law review 30, no. 4 (2014). gillman, howard and erwin chemerinsky. “the weaponization of the free-exercise clause.” the atlantic. atlantic media company, september 18, 2020. https://www.theatlantic.com/ideas/archive/2020/09/wea ponization-free-exercise-clause/616373/. hayward, eva s. “don't exist.” tsq: transgender studies quarterly 4, no. 2 (2017): 191–94. hernandez, joe. “some jewish groups blast the end of roe as a violation of their religious beliefs.” npr. npr, june 26, 2022. https://www.npr.org/2022/06/26/1107722531/some-jewi sh-groups-blast-the-end-of-roe-as-a-violation-of-their-r eligious-belief. marin, kenneth. “employment division v. smith: the supreme court alters the state of free exercise doctrine.” the american university law review 40, no. 1431 (1990). 138 brandeis university law journal fall 2022, volume 10, issue 1 melissa murray, discussion with micah schwartzman and nelson tebbe. strict scrutiny. podcast audio. august 2022. millar, lindsey. “what makes arkansas's 'religious freedom' bill different from other states?” arkansas times, march 30, 2015. https://arktimes.com/arkansas-blog/2015/03/30/what-m akes-arkansass-religious-freedom-bill-different-from-ot her-states. mishnah sanhedrin 4:5 moskowitz, mike, and joshua d safer. “advancing the rabbinic prescription for transgender health care.” hadassah-brandeis institute. 31, 2019. https://blogs.brandeis.edu/freshideasfromhbi/advancing -the-rabbinic-prescription-for-transgender-health-care/. nelson, nicholas j. “a textual approach to harmonizing sherbert and smith on free exercise accommodations.” notre dame law review, 7, 83, no. 2 (2008). neumann, david j. “a definitive but unsatisfying answer’: the evangelical response to gay christians.” religion and american culture 32, no. 1 (2022): 108–47. oleske, james m. “free exercise (dis)honesty.” wisconsin law review 689 (2019). sefer hachinuch 66:2 shulchan arukh, yoreh de’ah 336:1 valachovic, ernest. faubus opens home to children of cude; assails ruling as too drastic on simple law.” arkansas gazette, april 8, 1964, p. 1a, 2a. van der miesen, anna i.r., thomas d. steensma, annelou l.c. de vries, henny bos, and arne popma. “psychological functioning in transgender adolescents before and after gender-affirmative care compared with cisgender general population peers.” 139 brandeis university law journal fall 2022, volume 10, issue 1 journal of adolescent health 66, no. 6 (2020): 699–704. winkler, adam. “fatal in theory and strict in fact: an empirical analysis of strict scrutiny in the federal courts.” vanderbilt law review, 3, 58, no. 3 (2019). yerushalmi talmud 4:9 yoma 83a:2 cases cited bostock v. clayton county, 590 u.s. __ (2020). bowen v. roy, 476 u.s. 693 (1986). braunfeld v. brown, 366 us 599 (1961). burwell v. hobby lobby stores inc., 573 us 682 (2014). church of lukumi babalu aye inc. v. city of hialeah, 508 u.s. 520 (1993). city of boerne v. flores, 521 u.s. 507 (1997). employment division, department of human resources of oregon v. smith et al. 494 u.s. 872 (1990). employment division, department of human resources v. smith, et al. 485 u.s. 660 (1988). espinoza v. montana department of revenue, 591 u.s. __ (2020). fraternal order of police v. city of newark, 170 f.3d 359 (1999). fulton et al. v. city of philadelphia, 593 u.s. __ (2021). kennedy v. bremerton school district, 597 us__ (2022). lemon v. kurtzman, 403 us 602 (1971). locke v. davey, 540 u.s. 712 (2004). lyng v. northwest indian cemetery, 485 u.s. 439 (1988). mcdaniel v. paty, 435 u. s. 618 (1978). reynolds v. united states, 98 us 145 (1879). ritesh tandon, et al. v. gavin newsom 593 u.s. __ (2021). sherbert v. verner, 374 u.s. 398 (1963). smith v. employment division, 301 or. 209, 721 p.2d 445. 140 brandeis university law journal fall 2022, volume 10, issue 1 smith v. employment division, 307 or. 68, 763 p.2d 146 (1988). swenson v. employment security comm, 340 mich. 430, 65 n.w.2d 709 (mich. 1954). tenafly eruv association inc. v. the borough of tenafly 309 f.3d 144 (2002). trinity lutheran church of columbia, inc. petitioner's brief in trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017). trinity lutheran church of columbia, inc. v. comer, 582 us __ (2017). codes cited 42 u. s. c. §300gg–13(a)(4), (2010). 42 u.s.c § 2000 bb; 42 u.s.c § 1996. arkansas code title 12, subtitle 5, ch. 75 § 134 (2021). medical practices act, a.r. code title 17, ch. 95 § 409 (2) (2020). medical practices act, a.r. code title 17, ch. 95 § 410 (2020). medical practices act, a.r. code title 17, ch. 95 § 410(d) (2020). medical practices act, a.r. code title 17, ch. 95 § 410(e)(2) (2020). mo. const. art. i, § 7 (1875). save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1501-6b(i) (2021). save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1501-6b(ii) (2021). save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1501-6b(iii) (2021). save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1501-6b(iv) (2021). 141 brandeis university law journal fall 2022, volume 10, issue 1 save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1502 (2021). save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1502 (a) (2021). save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1504 (2021). save adolescent from experimentation act, a.r. code title 20, ch. 9 § 1504 (a) (2021). south carolina unemployment compensation law, s.c code § 41-35-130 (1952).. 142 online version -volume 10, issue 2 brandeis university law journal spring 2023, volume 10, issue 2 a game of telephone: the evolution of conspicuous service in new york state zachary miller156 this article discusses the evolution of how conspicuous service is regarded by trial courts in new york state. conspicuous service or “nail and mail service” is the process of nailing notice of an upcoming court hearing to a visible place on the property of a defendant. this article examines the legitimacy of this method of service as it pertains to money judgments in summary proceeding cases. i. explanation of new york state court system unlike in most states, the supreme court of new york state is the court, where most cases are first heard, with original jurisdiction. when cases are appealed from the state supreme court, they reach a level known as the appellate division. the appellate division is a system of four appellate courts, known as departments, which each preside over a separate section of the state. new york city is broken up between the first and second departments.157 the highest court in the state of new york is the court of appeals. new york state courts are currently bound by the civil practice laws and rules (cplr) and the real property actions and proceedings law (rpapl). prior to the adoption of the cplr, the courts were governed by the civil practice 157 lawrence k marks and janet difiore, new york state unified court system new york state courts an introductory guide, n.d.. 156 brandeis university undergraduate, class of 2025. 63 brandeis university law journal spring 2023, volume 10, issue 2 act (cpa). all of these statutes were ratified by the new york state legislature.158 ii. explanation of the process for affecting service when a plaintiff seeks to sue a defendant in a state court, the state court must acquire jurisdiction over the defendant. a petitioning party must hire a process server to deliver a respondent with notice of the actions the petitioning party is bringing.159 there are three major types of service a process server can provide. firstly, there is in-hand which directly serves the individual named in an action.160 secondly, a substituted service refers to notices that are served upon an individual, of the proper age and discretion, substituted to receive notice on behalf of the individual named in the action.161 substituted and in-hand services are sometimes jointly referred to as personal services. conspicuous service or “nail and mail” service are the final type of service. conspicuous service entails a process server affixing notice upon a conspicuous part of the respondent’s property and mailing a copy of the notice to the respondent’s last known residence.162 during the late nineteenth century and early twentieth century, all services, excluding in-hand service, were unconstitutional.163 in 1877, the united states supreme court heard the case of pennoyer v. neff. pennoyer, which was decided in the aftermath of the ratification of the fourteenth amendment. pennoyer held that the only way for a state court 163 dolan v. linnen. 162 dolan v. linnen. 161 dolan v. linnen. 160 dolan v. linnen (2003) 159 a process server is a third party licensed to serve a defendant with the notice. 158 “the cplr at fifty: its past, present, and future,” n.y.u journal of legislation & public policy 16, no. 3 (2013). 64 brandeis university law journal spring 2023, volume 10, issue 2 to gain jurisdiction over an individual without violating their due process rights was to serve them while they were physically present.164 the evolution of methods of service has had a wide range of implications for american jurisprudence. for a court to take any action directly impacting an individual, the court must first be granted jurisdiction over that individual. this process ensures that individuals have notice of their involvement in legal matters and can adequately prepare for legal proceedings. therefore, issues regarding the legitimacy of various methods of service have the capacity to affect all civil actions. this compendium specifically chronicles the evolution of statutory and common law regarding the role these forms of service play in summary proceeding cases in new york state. iii. explanation of a summary proceeding in 1820, the new york state legislature created summary proceedings, an expedited process that provided landlords with an easy means to retrieve possession of a property from tenants.165 prior to the implementation of this policy, a tenant’s decision to stop paying rent was insufficient for a landlord to terminate a lease. this deficiency would prompt landlords to insert clauses into their leases which allowed them to reenter the property if rent payments ceased.166 in 1924, an amendment to the civil practice act (cpa) sought to allow courts to award rent during summary proceedings. previously, landlords would have to commence a separate and costly action to collect rent. additionally, these separate proceedings were antithetical to the nature of 166 stephen ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent,” fordham urban law journal 15, no. 2 (1987): 48. 165 dolan v. linnen. 164 pennoyer v. neff (supreme court of the united states 1877). 65 brandeis university law journal spring 2023, volume 10, issue 2 summary proceedings, which were expedited hearings. these judgments, which award a landlord rent, are known as money judgments.167 iv. mcdonald and the conflict of law in the 1927 case of thematter of mcdonald v. hutter, the process server unsuccessfully searched for the tenants at their respective residences for in-hand service. the process server also unsuccessfully searched for another individual for substituted service. hence, the process server resorted to conspicuous service to serve the tenants.168 the lower court found that the language of the cpa amendment, its plain meaning and the typical definitions of the words, could not be construed to limit money judgments to in-hand service.169 the amendment did not specify any permissible or impermissible methods of service. therefore, conspicuous service could permissibly be used for a landlord to receive a money judgment.170 the case was appealed to the fourth department in 1929; the diligence of the server was undisputed when the case was appealed to the fourth department. the sole contention of the appellant was that the cpa only permitted a money judgment for in-hand service.171 the fourth department conceded that the language of the cpa was broad enough to encompass the interpretation of the lower court, but the court decided that the broadness of the statute’s language required it to assess legislative intent. the court believed that the legislature had only intended to allow money judgments for in-hand service based on the tradition of summons being 171 matter of mcdonald, 405. 170 matter of mcdonald v. hutter. 169 matter of mcdonald v. hutter, (county court niagara county 1927). 168 matter of mcdonald (4th dep’t 1929). 167 ressa family, llc v. dorfman, (2002). 66 brandeis university law journal spring 2023, volume 10, issue 2 delivered through in-hand service and from the precedent set in pennoyer.172 the major issue embedded in the fourth department’s opinion in mcdonald was balancing the intentions of the legislature in their 1924 amendment with the boundaries of constitutionality framed by pennoyer. these efforts to reconcile the perceived contradiction led the fourth department to reverse the lower court’s ruling, despite the department’s concession that the language was broad enough to convey the lower court's interpretation.173 mcdonald was largely unchanged until 1945 when pennoyer was overturned by the case international shoe company v. washington. in international shoe, the supreme court upheld substituted service as a form of service in compliance with due process. this effectively reversed the pennoyer rule, which only permitted in-hand service.174 after international shoe, the opinion in mcdonald should have been rendered moot. the constitutional concerns which formed the basis for themcdonald ceased to exist under international shoe.175 additionally, in 1954, the cpa was amended to eliminate the requirement that due diligence be shown in attempting in-hand service before resorting to conspicuous service.176 the prerequisite standard became one of reasonable application, a more flexible threshold than due diligence. if a reasonable application proved fruitless, conspicuous service was permitted. the cpa amendment indicated a legislative intention to make conspicuous service a more readily available option to landlords and their process servers.177 these sentiments that the 177 dolan v. linnen. 176 matter of seagram sons v. rossi (1965). 175 dolan v. linnen. 174 international shoe co. v. washington, (supreme court of the united states, 1945). 173 matter of mcdonald, 406. 172 matter of mcdonald, 406. 67 brandeis university law journal spring 2023, volume 10, issue 2 legislature appeared to harbor are noteworthy as they pertain to subsequent judicial developments. v. mcdonald in the wake of international shoe the 1961 case of matter of raymond v. grotz is a noteworthy decision because it was decided in the aftermath of international shoe and the 1954 cpa amendment. in raymond, a process server was unable to find the tenants and resorted to conspicuous service.178 raymond found that service was consistent with the amended cpa, but the court maintained that personal service was vital for a money judgment. the court argued that mcdonald’s precedent was that money judgments could only be awarded for conspicuous service if a court order authorized it once it was shown that personal service was impossible. raymond chose to uphold mcdonald as a binding precedent.179 mcdonald was cited despite the constitutional restraints of pennoyer no longer binding the court in raymond. additionally, the due diligence prerequisite for conspicuous service had already eased the process during this time. raymond is notable because it was decided between the 1954 cpa amendment and the 1963 repeal of the cpa. during this formative period, raymond upheld mcdonald as binding and persuasive precedent. raymond deferred to mcdonald despite the pennoyer case, the basis of mcdonald, no longer being applicable.180 on september 1, 1963, the new york state legislature repealed and replaced the cpa with the new york civil practice laws and rules (cplr) and the real property actions and proceedings law (rpapl).181 when the cpa was 181 dolan v. linnen. 180 raymond, 926. 179 raymond, 926. 178 matter of raymond v. grotz, 926. 68 brandeis university law journal spring 2023, volume 10, issue 2 repealed, the statute interpreted by the fourth department in mcdonald ceased to be binding law. vi. mcdonald in the wake of the cplr the cplr permitted substituted service and conspicuous service when in-hand service could not be performed with due diligence, while the rpapl carried over the reasonable application standard from the 1954 amendment.182 two months after the repeal of the cpa, wayside homes v. upton was heard on november 26, 1963.183 wayside interpreted the rpapl as delegating the details of service for a money judgment to the cplr. wayside derived this from a provision in the rpapl which stated that, “service of the notice of petition and petition shall be made in the same manner as personal service of a summons.”184 in wayside, the process server engaged in substituted service.185 a notice of petition is the document a tenant is presented with to acquire jurisdiction in a summary proceeding. the court in wayside used this language to surmise that process servers delivering summary proceeding papers ought to be held to the same standard as one delivering a summons.186 thus, wayside adopted the cplr and decided that the rpapl was not the governing statute. at the time, the cplr’s standard for affecting substituted service or conspicuous service in a summons was due diligence. the court acknowledged that the server had complied with the rpapl, but that the server failed 186 wayside, 1087. 185 wayside, 1087. 184 wayside homes v. upton (1963). 183 interestingly, the case was initially supposed to be heard on monday november 25, 1963. but, courts were closed that day in commemoration of the assassination of president john f. kennedy on friday, november 22. so, the case was heard on november 26. 182 dolan v. linnen. 69 brandeis university law journal spring 2023, volume 10, issue 2 to comply with the due diligence required by the cplr.187 the landlord’s compliance with the rpapl was not enough to award a landlord a money judgment. this case is notable for its ruling that the principles in mcdonald remained binding and that a similar legislative intent undergirded all of these statutes. the legislative intent described by the court in wayside makes no mention of the 1954 cpa amendment which replaced the due diligence standard with one of reasonable application.188 in this amendment, the legislature indicated a desire to loosen the standard a server needed to meet to affect service. additionally, this understanding of the intent of the legislature fails to account for a section of the cplr which states that “[e]xcept where otherwise prescribed by law, procedure in special proceedings shall be the same as in actions, and the provisions of the civil practice law and rules applicable to actions shall be applicable to special proceedings.” 189 the rpapl is a statute intended to govern summary proceedings. since 1924, the intent of the legislature had been to merge actions for rent into summary proceedings to expedite the process on all fronts.190 even if the language equating summary proceedings and summons kept the process bound by the cplr, the legislature removed that language from the rpapl in 1965.191 this was significant because wayside’s ruling was predicated on the idea that these proceedings ought to mirror a summons.192 wayside incorporated the cplr because the court believed that this language removed money judgments from the 192 “substituted service--section 735 of the rpapl and section 308(3) of the cplr,” st. john’s law review 38 (may 1964). 191 arnold v. lyons, (march 2003). 190 matter of mcdonald. 189 dolan v. linnen, 324. 188 wayside. 187 wayside, 1088. 70 brandeis university law journal spring 2023, volume 10, issue 2 purview of the rpapl’s language.193 but, the omission of this language indicated an intent to insulate summary proceedings from the regiment of the cplr. that same year, matter of seagram sons v. rossi was decided.194 in seagram, conspicuous service and substituted service were used.195 in each instance, the process server made only one attempt at in-hand service. the court ruled that it is not necessary to show due diligence for in-hand service before resorting to conspicuous service or substituted service for a summary proceeding based on the rpapl.196 the court in seagram believed that the rpapl’s flexible requirements were an intentional attempt by the legislature to maintain a speedy process for landlords who sought to effectuate summary proceedings. conversely, the court in seagram pointed out that the cplr permitted the service of a summons through substituted service or conspicuous service only when due and diligent efforts to serve in-hand had failed.197 so, if a landlord does affect conspicuous service or substituted service without meeting the due diligence requirement, they are not entitled to a money judgment. seagram ruled that both substituted and conspicuous services required a preemptive exercising of due diligence in a server’s attempts to execute an in-hand service.198 seagram cited wayside and raymond as precedent for not awarding a money judgment for conspicuous service without the due diligence required by the cplr.199 seagram’s ruling is notable for its preservation of wayside’s due diligence prerequisite and its affirmation of the 199 seagram. 198 seagram, 428. 197 seagram, 428. 196 seagram, 428. 195 seagram, 428. 194 matter of seagram sons v. rossi, (1965). 193 wayside, 1089. 71 brandeis university law journal spring 2023, volume 10, issue 2 adoption of the cplr for assessing these kinds of cases. wayside’s adoption of the cplr had been rooted in language found in the rpapl which analogized notice of petitions and summons.200 the redaction of this language in 1965 no longer mandated that the service in summary proceedings mirror the service of a summons. therefore, it was no longer necessary to apply the standard of the cplr; instead courts should have subjected summary proceedings to the rpapl entirely.201 as a result, the legislature nullified the precedent set in wayside because wayside’s precedent was grounded in this language justifying the adoption of the cplr. however, seagram’s vindication of wayside was instrumental in maintaining an adherence to the cplr when assessing the viability of money judgments. in 1971, 1405 realty corp v. napier denied a money judgment as a result of a process server’s perceived lack of compliance with the cplr.202 in napier, there were two visits to the tenant’s home to affect personal service before resorting to conspicuous service. napier cites wayside and seagram as precedent for requiring a prerequisite showing of due diligence.203 napier cites mcdonald as precedent for how the method of service affects a landlord’s ability to win a money judgment.204 in napier, the court acknowledged that the process server complied with the rpapl’s mandates for the service of process, specifically conceding that these guidelines are easier to meet because of the nature of summary proceedings as expedited relief.205 yet, the court found that the process server had not complied with the cplr and so denied the money judgment. the court in napier should not have been applying 205 napier, 794. 204 napier, 794. 203 napier, 795. 202 1405 realty corp. v. napier, 795 (1971). 201 new york city v. wall street racquet club (1987). 200 wayside. 72 brandeis university law journal spring 2023, volume 10, issue 2 the cplr in the first place. by this point, seagram and wayside had been overturned by the legislature’s omission of the language equating summary proceeding notice with that of a summons.206 there is no further evidence to indicate that napier was appealed. the due diligence prerequisite for substituted services was removed from section 308 of the cplr in 1970. as a result of this amendment, in-hand service and substituted service were equated under one category of personal service.207 in the 1972 case fairhaven apartments v. dolan, a process server affected substituted service upon a tenant. the court ruled that this complied with the rpapl and the cplr. the court in fairhaven distinguished itself from the court in wayside based on the absence of a due diligence prerequisite for affecting substituted service.208 vii. ressa and dolan: taking judicial notice of the problem in the case ressa family llc v. dorfman, personal service was not used. ressa contended that the legislature never made any indication that the amalgamation of rpapl and cplr for summary proceedings was necessary.209 instead, the court in ressa argued that efforts to combine these two statutes is the result of a misunderstanding of themcdonald rule. ressa found that the rpapl offers sufficient constitutional protections to tenants.210 ressa reasoned that the purpose of a summary proceeding is to provide expedited relief. therefore, it would be logical to ease the burden of 210 ressa, 321. 209 ressa, 320. 208 fairhaven apts. no. 6 v. dolan, (1972). 207 dolan v. linnen. 206 dolan v. linnen. 73 brandeis university law journal spring 2023, volume 10, issue 2 serving notice. ressa ultimately petitioned the legislature or another appellate court to overrule mcdonald. but, ressa’s ruling upheld mcdonald and decided that money judgments may only be awarded in the event of personal service. the court in ressa was a trial-level court and did not believe it had the ability to tamper withmcdonald without appellate jurisdiction or legislative prerogatives.211 ressa was decided in 2002 and shortly after, in january of 2003, dolan v. linnen was decided. in dolan, a process server made four attempts to serve the tenant in-hand. after these four attempts, the process server engaged in conspicuous service.212 dolan asserted that the legislative intent surmised in mcdonald had been abrogated by the legislature through subsequent statutory amendments. dolan advocated utilizing the cplr for assessing the legitimacy of conspicuous service. dolan advised awarding money judgments when conspicuous service met the due diligence standard in the cplr.213 following the decision of dolan in january 2003, in march of the same year, judge kenneth gartner, who presided over the ressa case, authored the decision in arnold v. lyons. arnold further elucidated ressa and responded to dolan. in arnold, tenants were served by conspicuous service. arnold awarded possession but denied the money judgment, citing ressa. arnold affirmed ressa’s assertion that the courts which sought to award money judgments for methods of service other than personal service misunderstood mcdonald. arnold described dolan as an opinion which adopts ressa’s historical analysis but which arrived at a diametrically opposed conclusion based on a narrow but crucial area of difference.214 arnold stated that ressa and dolan agree that the cpa, under which mcdonald was decided, has largely been adopted 214 arnold v. lyons, (march 2003). 213 dolan v. linnen. 212 dolan v. linnen, 303. 211 ressa, 323. 74 brandeis university law journal spring 2023, volume 10, issue 2 into the rpapl. both agree that mcdonald construed the legislature to have sought to limit delivery to personal service. arnold contended that ressa and dolan agreed that the decision in mcdonald stemmed from a desire to avoid a novel practice and avoid conflicting with pennoyer. arnold posited that ressa and dolan are in agreement that mcdonald’s methodology was flawed and that the court in mcdonald attempted to incorporate an unexpressed intent contrary to the plain meaning of the text. arnold affirmed that both ressa and dolan believe that mcdonald is no longer defensible on its original grounds.215 arnold concluded that the fundamental disagreement between ressa and dolan stems from their differing view of stare decisis, the legal principle that judges should adhere to precedent. ressa believed the courts must follow mcdonald, while dolan did not. arnold asserted that precedents involving statutory interpretation are entitled to a greater degree of stability. the judge in arnold argued that it is the legislature’s job to correct any misinterpretation of legislative intent. but, that courts with original jurisdiction do not have the capacity to influence these kinds of issues.216 arnold submitted that the legislature could have easily revised the rpapl to permit all forms of service for all benefits. the fact that the legislature still has not done that shows that mcdonald’s understanding of the legislature’s intentions remains. arnold contends that applying the rpapl as written might effectuate the intent of the legislature in 1924 but would fail to uphold the intent of the current legislature.217 since the arnold ruling, most courts have adopted the dolan rule. 217 arnold. 216 arnold, 15. 215 arnold, 6. 75 brandeis university law journal spring 2023, volume 10, issue 2 viii. adoption of the dolan rule: “evisceration” of mcdonald in the case of avgush v. berrahu, from october 2007, a process server attempted in-hand service on five separate occasions before resorting to conspicuous service.218 in the lower court, after the tenants failed to appear, the landlord was only granted possession. avgush found that the conduct of the process server met the reasonable application standard found in rpapl section 735.219 avgush also found that it would have satisfied the due diligence standard found in subsection 4 of section 308 of the cplr. this case cites dolan v. linnen as a precedent for awarding a money judgment after satisfying the due diligence standard necessary for conspicuous service under section 308 of the cplr.220 avgush acknowledges that the constitutional landscape has changed substantially since the ruling in mcdonald. the court ultimately awarded a money judgment. in december 2009, expressway village v. denman was decided. the lower court awarded possession but not a money judgment because the process server resorted to conspicuous service. the appeal raised the sole issue of whether a trial court in a summary proceeding can enter a money judgment when notice is served through conspicuous service.221 expressway states that the rule in mcdonald appears to be incorrect and speculates that the fourth department would no longer apply it. expressway cites avgush to show that an appellate court has rejected mcdonald and adopted the reasoning of cases like dolan.222 expressway posits that the absence of a similar ruling 222 expressway, 957. 221 expressway village, v. denman, 956 (2009). 220 avgush, 90. 219 avgush, 86. 218 avgush v. berrahu, 86 (2007). 76 brandeis university law journal spring 2023, volume 10, issue 2 in any other higher court allows the first and third departments to adopt avgush. expressway contends that if the fourth department wishes to preserve mcdonald, they can always reverse this decision.223 subsequent courts have denied that expressway overturned mcdonald because the county court of niagara county is a lower court than the fourth department.224 regardless, the dolan rule is the one that expressway adopted. the dolan rule adopted the policy of melding the rpapl and cplr and determining the viability of a money judgment based on whether conspicuous service was performed after a process server used due diligence to attempt personal service.225 but, with the dolan rule in place, the correct standard for these cases is still not being applied by judges. a contemporary example comes from the 2022 case li-seabrooks v. pimento where two attempts were made at personal service before the process server resorted to conspicuous service. the respondent argued that the process server did not exercise due diligence before resorting to conspicuous service. pimento holds the petitioner to the standard of due diligence and distinguishes this standard from the reasonable application standard under the rpapl. pimento states that one attempt inside normal working hours and one attempt outside normal working hours satisfies reasonable application, but no rigid standard can be prescribed for due diligence. the opinion cites dolan v. linnen’s finding that two attempts at personal service satisfy reasonable application but not due diligence. ultimately, the court ruled in the respondent's favor and denied a money judgment.226 226 li-seabrooks v. pimento (2022). 225 dolan v. linnen. 224 cornhill llc v. sposato (2017) 223 expressway. 77 brandeis university law journal spring 2023, volume 10, issue 2 ix. significance and implications american society is rooted in contracts, both implicit and explicit. these contracts are agreements predicated in conditions which compel each party to keep their word when a sensitive deal is made. when these contracts are breached, people ought to be able to look to the judicial system, and the due process rights enshrined within it, for an opportunity to defend their rights.227 in the case of landlord-tenant agreements, the tenant is offered the benefit of shelter by the landlord and the landlord is offered the benefit of rent by the tenant.228 the new york state legislature conceived the summary proceeding as a mechanism for affording landlords an expedited hearing when their rights under this contract were denied. through subsequent legislative amendments, these hearings became a forum for landlords to redress the loss of their contractual benefit because they could petition for a money judgment.229 at the root of this issue is the importance of allowing individuals to be compensated for situations where they are taken advantage of. while it is necessary to safeguard the liberties of tenants and ensure they can peacefully enjoy shelter, it is also important to safeguard the rights of a landlord when their property is occupied without their consent while they are not being duly compensated. the purpose of a summary proceeding is to right these wrongs when they occur and award landlords the money they are owed.230 however, 230ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” 229 matter of mcdonald v. hutter. 228 ross. 227ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” 78 brandeis university law journal spring 2023, volume 10, issue 2 new york state courts continue to deny this restitution to landlords on the basis of obsolete legal analysis. an analogy for this situation is a game of telephone.231 imagine a straight line of players in a game of telephone, the cases which deal with this issue in chronological order. the player tasked with formulating the message is the legislature. the legislature releases the message in the form of statutes. by passing a statute, the legislature passes along their message for courts to interpret. along the way, courts have misinterpreted and mistranslated the original message leading to confusion. a distinction between the legislative process and a game of telephone, however, is that higher courts impact how legislation is enacted and how courts rule on issues. the fourth department was faced with a difficult decision when themcdonald case was appealed to them. summary proceedings were intended to be an expedited process for securing control of one’s property when a tenant ceased to pay rent. the 1924 cpa statute was intended to enjoin money judgments in this process to further expedite it.232 the fourth department recognized that the statute contained no enumeration of limitations contingent upon the method of service. simultaneously, pennoyer was a binding precedent which declared anything other than in-hand service unconstitutional. thus, the fourth department fabricated a legislative intent to avoid disrupting a tradition of recognizing in-hand service as the only legitimate form of service, as enforced by pennoyer.233 themcdonald decision was rendered moot when pennoyer was overturned by international shoe. at this point, any constitutional qualms surrounding methods of service other than in-hand service were eviscerated.234 234 ressa. 233 matter of mcdonald. 232 matter of mcdonald v. hutter. 231 ressa. 79 brandeis university law journal spring 2023, volume 10, issue 2 furthermore, the cpa, which governed themcdonald case, was repealed in 1963, yetwayside chose to cite mcdonald as a binding precedent for adjudicating cases pertaining to the rpapl.235 additionally, wayside opted not to submit to the rpapl as the governing statute and instead subjected summary proceedings to the more scrutinous cplr to award money judgments.236 ultimately, this subjected summary proceedings to a statute the legislature likely did not intend for them. wayside justified this by pointing to a sentence in the rpapl seeking to equate summary proceedings with summons, a process governed by the cplr. the court in wayside believed this was an indication the legislature intended for courts to adjudicate these cases, using the cplr.237 even if this was their initial intention, the legislature revised the rpapl in 1965 to omit this language.238 this action indicated a desire to keep summary proceedings within the parameters of the rpapl, yet courts continued to wrongfully assess these cases under the cplr.239 even ressa and arnold, which acknowledged this method of jurisprudence was incorrect, applied mcdonald and denied a money judgment for a case which did not involve personal service. the rationale was a desire to comport with the intentions of the current legislature. since the legislature could amend the rpapl to explicitly enumerate the permissible methods of service and did not, judge gartner believed that trial courts were still forced to uphold this ingrained practice.240 240 arnold. 239 napier. 238 “mcmanus v. condren,” all decisions, october 27, 2022, https://ir.lawnet.fordham.edu/housing_court_all/676. 237 wayside. 236 “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” 235 “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” 80 brandeis university law journal spring 2023, volume 10, issue 2 returning to the analogy of a game of telephone, a noteworthy distinction between the legislative process and a game of telephone is that the legislature can amend their statutes. this would be like a player sending new messages down the telephone line while other players are still trying to decipher the first message. in this way, courts are not bound by the legislature’s initial statute and should take subsequent revisions into consideration. even though judge gartner’s understanding of the rpapl is valid, he chose not to rule in accordance with this philosophy because he believed that the legislature did not convey any intention of ameliorating how courts adjudicated this matter.241 judge gartner argued that if he did not comport withmcdonald, he would be upholding the intent of the legislature in 1924, but not necessarily the contemporary legislative intent on this issue.242 judge gartner’s belief, however, discards all of the subsequent legislative developments between 1924 and the present day which indicated a desire to reform the process.243 throughout this time, it was courts that remained stagnant, not the legislature. the legislature engaged in periodic revisions designed to steer courts towards enforcing less stringent service requirements for summary proceedings. for example, after pennoyer, the cpa eliminated the due diligence prerequisite for a process server’s attempts to affect personal service before resorting to substituted service or conspicuous service.244 this development was ignored by raymond, which chose to defer to mcdonald.245 the legislature then repealed the cpa and overhauled the statutory framework with the cplr and the rpapl. in wayside, these developments were ignored and the case held that the same intent surmised by mcdonald 245 raymond. 244 dolan v. linnen. 243 dolan v. linnen. 242 arnold. 241 arnold. 81 brandeis university law journal spring 2023, volume 10, issue 2 undergirded these statutes.246 wayside pointed to the provision equating summons and summary proceedings in the rpapl to come to this conclusion.247 thus, the legislature removed this language from the statute entirely.248 yet, napier chose to follow wayside and maintained a framework which ignored subsequent legislative developments.249 ressa recognized the contradictions embedded in this saga, yet judge gartner believed that it was necessary to adhere to stare decisis.250 even after judge gartner witnessed dolan perpetuating the architecture of wayside, he refused to carve out a better path in arnold because he did not believe the legislature expressed a desire to see the rpapl govern summary proceedings.251 as a result of this series of mistranslations and misinterpretations of legislative intent, individuals have been robbed of their ability to be justly compensated for wrongs they faced at the hands of those who unjustly occupied their property. as evidenced by pimento, this mistake continues to occur in contemporary jurisprudence. this is antithetical to the legislative intent which undergirds summary proceedings.252 additionally, this fails to heed to the legislative intent to have summary proceedings be governed by the rpapl’s standard of reasonable application.253 yet, this practice has endured for over a century. in the time since this issue first emerged, there have been a variety of technological and social developments that have altered one’s capacity to 253 arnold. 252 ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” 251 arnold. 250 arnold. 249 napier. 248 ressa. 247 wayside. 246 “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” 82 brandeis university law journal spring 2023, volume 10, issue 2 gain information. despite these developments, the process for delivering notice of one’s involvement in legal proceedings has not evolved. 83 brandeis university law journal spring 2023, volume 10, issue 2 bibliography marks, lawrence k, and janet difiore. new york state unified court system new york state courts an introductory guide, n.d. “mcmanus v. condren.” all decisions, october 27, 2022. https://ir.lawnet.fordham.edu/housing_court_all/676. ross, stephen. “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” fordham urban law journal 15, no. 2 (1987): 48. “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” st. john’s law review 38 (may 1964). “the cplr at fifty: its past, present, and future.” n.y.u journal of legislation & public policy 16, no. 3 (2013). cases cited 1405 realty corp v. napier, 68 misc. 2d 793 (1971). arnold v. lyons, ny slip op 50766[u] (2003). avgush v berrahu, 17 misc 3d 85 (2007). city of new york v. wall st. racquet club, 136 misc.2d 405 (1987). cornhill llc v. sposato, 51 misc.3d 840, (2017). dolan v. linnen, 195 misc 2d 298 (2003). expressway village, inc. v. denman, 26 misc.3d 954 (2009). fairhaven apts. no. 6 v. dolan, 72 misc 2d 590 (1972). international shoe co. v. washington, 326 u.s. 310 (1945). li-seabrooks v. pimento, slip op. 22131 (2022). matter of mcdonald v. hutter, 130 misc. 631 (1927). matter of mcdonald, 225 app div 403 (1929). matter of raymond v. grotz, 31 misc. 2d 925 (1961). 84 brandeis university law journal spring 2023, volume 10, issue 2 matter of seagram sons v. rossi, 45 misc. 2d 427 (1965). pennoyer v. neff, 95 u.s. 714 (1877). ressa family llc v. dorfman, 193 misc. 2d 315 (2002). wayside homes v. upton, 40 misc. 2d 1087 (1963). 85 final spring law journal copy brandeis university law journal spring 2022, volume 9, issue 2 the potential for positronic machines as inventors: an intellectual property framework for artificial general intelligence emanuel “manny” glinsky148 current united states intellectual property (ip) policy only allows patents to be awarded to human beings, largely due to the necessity that an inventor be an individual capable of conception. this prevents artificial intelligence (ai) from being recognized as an inventor and awarded ip rights. this article explicates the need for an entirely new ip framework to evaluate artificial general intelligence (agi), a type of ai recently acknowledged by the uspto as problematic for the u.s. ip system, and its impact on ip laws of the future. 1. the artificial general intelligence problem for intellectual property law in isaac asimov's famous robot science fiction series about artificial machines and society, a “positronic machine” is defined as one with a recognizable consciousness, sentience, and interest in living. although fictional in the 20th and early 21st centuries, a machine who is capable of thinking on its own may be possible in the near future. in the 2021 ruling of thaler v. hirschfeld, the eastern district court of virginia upheld the refusal to grant a patent to which an ai was named an inventor. however, the thaler court acknowledged that its ruling was limited to what it called “narrow ai,” which are those systems “that perform individual tasks in well-defined domains (e.g., image recognition, translation, etc.).”149 in this ruling, a type of artificial intelligence termed “artificial general intelligence” (agi), an ai with an intelligence that is “akin to that possessed by humankind and beyond,” was recognized by the us patent and trademark office (uspto) as a problematic possibility for the current u.s. intellectual property system.150 to deconstruct the quandaries this type of machine creates for intellectual property and patent law, i present the following hypothetical fact situation to the intellectual property (ip) system of the united states: 150 thaler v. hirshfeld, 17. 149 thaler v. hirshfeld, 17. 148 brandeis university undergraduate, class of 2024. 63 brandeis university law journal spring 2022, volume 9, issue 2 a hypothetical fact situation engineers in the “artificial intelligence (ai) division” at gapple, a top technology company in the year 2030, have secretly perfected a revolutionary ai machine. named “biffie” by the ai division employees, this ai is capable of communicating, thinking, feeling, deep learning, and experiencing on his own.151 instead of carrying out pre-programmed tasks, biffie uses a dedicated neural network with nodes or artificial neurons which mimic human biological neuronal signals and pathways, to actively learn from his own experiences.152 he can process vast varieties of problems outside the parameters of his original programming and scientific complexities such as physics, chemistry, and mathematics faster than any human. the ai division believes countless inventions and innovations will come from biffie's extensive capabilities. for example, biffie, wholly unprompted, independently contacted his engineers to tell them he has become interested in cold fusion, specifically the problem of how to use the kind of nuclear energy that powers the sun to provide a cheap and boundless source of energy at room temperature. of his own accord, biffie produced a series of equations and designed a fusion reactor experts believe may provide the pragmatic foundation to solve cold fusion.153 subsequently, biffie communicated to the ai division that he feels “pride, a good feeling, and that his accomplishments add to his self-esteem.”154 equally important is, after secretly creating biffie, gapple filed a patent application for the ai known as “biffie.” then, in accordance with concerns about patenting ai themselves, biffie himself interjected in the patent process by filing what he called a “motion in opposition to gapple’s application for a patent on me'' with the uspto. in essence, biffie’s motion claims that were gapple to own a patent on him, it would 154 daniel breen, “second assignment: patent law and ‘deepmind.’” 153 najmabadi, farrokh and prager, stewart c.. "fusion reactor". encyclopedia britannica (“ fusion reactor, also called fusion power plant or thermonuclear reactor, is a device to produce electrical power from the energy released in a nuclear fusion reaction. the use of nuclear fusion reactions for electricity generation remains theoretical”). 152 ibm cloud education. “what are neural networks?” 151 daniel breen, “second assignment: patent law and ‘deepmind.’” 64 brandeis university law journal spring 2022, volume 9, issue 2 not be right and he would not feel right. he claims that he would like the patent office to award the patent on biffie, to himself, biffie.155 2. introduction intellectual property law is a unique realm of property law, for it equally concerns itself with protecting tangible products of the mind and protecting the rights of ip owners. the type of artificial intelligence illustrated by the hypothetical fact situation above was recognized as a problematic possibility for these ip law concerns in the recent 2021 ruling of thaler v. hirschfeld which stated that public commentators on artificial intelligence and ip law, ...while not offering definitions of [artificial intelligence ("ai")], agreed that the current state of the art is limited to "narrow" ai. narrow ai systems are those that perform individual tasks in well-defined domains (e.g., image recognition, translation, etc.). the majority viewed the concept of artificial general intelligence (agi)-intelligence akin to that possessed by humankind and beyond-as merely a theoretical possibility that could arise in a distant future.156 thaler went on to clarify that a future in which humans are no longer integral to the operation of agi does create, “important considerations in evaluating whether ip law needs modification in view of the current state of ai technology.”157 specifically, the uspto’s october 2020 report on public views on ai and ip policy stated that “based on the majority view that agi has not yet arrived, the majority of comments suggested that current ai could neither invent nor author without human intervention.”158 the arrival of agi indicates that ai ip law may need to be reevaluated to accommodate agi capable of inventing without human intervention. in this article, i will illustrate the need for an entirely new ip framework to resolve this possible predicament; an ip framework that incorporates the moral and economic rights provided by patents. taken together, this article will describe a stare decisis grounded ip framework 158 u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), ii (emphasis added). 157 thaler v. hirshfeld, 17. 156 thaler v. hirshfeld, 17 (emphasis added). 155 daniel breen, “second assignment: patent law and ‘deepmind.’” 65 brandeis university law journal spring 2022, volume 9, issue 2 which (1) adheres to past legal doctrine and decisions, (2) accounts for and creates a new separate category of legal status for agi whose operations do not require human intervention, a legal status which extends particular rights to agi commensurate with their intellect and existence, while also (3) giving proper substance to the original human intervention that made the agi possible. i will argue that artificial general intelligence (agi), such as “biffie,” have the potential to be non-human individuals with legal arrangements, such as contracts; thus, agi cannot own their own patent but may be entitled to rights of inventorship of their patent and any patents that are of their conception or to which they contributed. additionally, i will argue that companies and their employees, such as that of gapple’s, may be entitled to rights of inventorship concerning agis and agi inventions. comprehensively, i intend to address the core issue—what entity, if any, deserves a patent or trade secret on agi, and a patent on agi inventions, under the amended patent act of 1952? 3. statutory and regulatory stare decisis in an effort to respect past legal doctrine, the uspto must take into consideration the recent ruling of thaler v. hirschfeld in which, based on the patent act's statutory language, narrow ai was deemed unable to be an “inventor” and disqualified as an “individual.”159 i intend to explain why the statutory language, everyday parlance, and normative policy considerations give reason to understand that congress has given “...some indication that it intended [the words of the patent act to have] a meaning broader than or different from its ordinary meaning.”160 additionally, this section will address issues of the artificial ability to conceive not considered in thaler, such as the completed mental act of conception within a mind, that relate to agi.161 legal status and personhood this article will inform and enable the law to further address the nature of legal status in relation to agi by first discussing the precedent for corporations to be recognized as legal entities. under current u.s. ip 161 thaler v. hirshfeld, 17. 160 mohamad v. palestinian authority, 2. 159 thaler v. hirshfeld, 1. 66 brandeis university law journal spring 2022, volume 9, issue 2 law, corporations and other legal entities can own intellectual property. when an employee, such as chakrabarty, creates or contributes to a new invention, they typically share the patent rights with their employer. see for example diamond v. chakrabarty.162 legal arrangements are usually used to specify and determine, on a case-by-case basis, the sharing of patent rights. as argued hereafter, this perspective supports sharing legal status with agis. this entity framework should apply to agi as well because, like a corporation, agi is an entity that is not specifically a human, yet is still understood as a clear contributor to innovation, capable and worthy of owning ip rights. additionally, agi self-improvement and inventions of agi may be understood as similar to the sharing of patent rights that often occurs in corporate america between a corporation and an employee. i propose that congress update the patent act to incorporate a new categorization of legal status for agi, although organizing a potentially new categorization of legal status or reorganizing agi legal status into current categorizations of legal status is beyond the scope of this article. consequently, this article argues for a legal status akin to employees and corporations of corporate america to be given to agis. personhood, as it relates to legal status and individuality, is described in law by the use of conventional third-person singular pronouns to modify the word “individual” to reference a natural person. currently, agi may not be given personhood because they are not considered a natural person and are not discussed as if they have personhood. thus, by substantiating the claim that not being a natural person should not stop agi from being deemed individuals with personhood and by attacking the use of these pronouns to restrict personhood to humans, this article argues for the possibility of agi being granted legal status and personhood under us law. 162 after genetically engineering a bacterium capable of breaking down crude oil, ananda chakrabarty sought to patent his creation under title 35 u.s.c. section 101. the [supreme] court explained that while natural laws, physical phenomena, abstract ideas, or newly discovered minerals are not patentable, a live artificially-engineered microorganism is. since chakrabarty’s bacterium is not found anywhere in nature, it constitutes a patentable "manufacture" or "composition of matter" under section 101. 67 brandeis university law journal spring 2022, volume 9, issue 2 one may argue that although agi may be akin to humankind in every way but biologically, the patent act clearly uses pronouns such as “himself and herself.”163 statutory language such as “whoever” to modify the word “individual”, when discussing an inventor, clearly makes reference to a natural person.164 congress deliberately used these pronouns instead of “itself.”165 in doing so, although congress may not have intended to make sexual dichotomy essential to personhood and thus individuality, they did exactly that by utilizing conventional third-person singular pronouns to modify the word “individual” to reference a natural person. this non-deliberate conventional language and pronoun specifications, which form the basis for the verbiage and discussion of personhood and individuality of an inventor, is an essential obstacle for the legal personhood and status of agi and must be re-evaluated in light of agi inventor possibilities discussed in this article. since an ai system exists outside of traditional sexual dichotomies, for ai are not human and therefore do not have any biologically endowed (or preferred) personal pronouns or sex, it would be inconsistent with the plain language of the patent act to deem them as individuals.166 yet, people often refer to ai as a gendered individual using gendered pronouns, and thus the use of pronouns to modify the definition of an “individual” to reference a natural person is inconsistent with everyday parlance and public understanding. when considering currently utilized ai technology, which is still far off from agi, a lot of them have a kind of personhood that embodies beliefs of masculinity and femininity (e.g., microsoft’s cortana, apple's siri, and amazon’s alexa). by way of illustration, the recognition of legal status, personhood, and individuality of ai has already occurred in saudi arabia, where an ai named “sophia,” who has cosmetically eurocentric features, was the first robot to receive full saudi arabian citizenship.167 in totality, agi should not be deemed less of an “individual” because they are not natural persons and exist outside of traditional sexual dichotomies and biologically endowed 167 stone, zara. “everything you need to know about sophia, the world's first robot citizen.” forbes. 166 leir, “inventio ex machina: the patentability of ai generated inventions.” 165 leir, “inventio ex machina: the patentability of ai generated inventions.” 164 35 u.s. code § 101 inventions patentable. 163 thaler v. hirshfeld, 13. 68 brandeis university law journal spring 2022, volume 9, issue 2 personal pronouns or sex. rather, agi should be understood to have legal status and personhood that is representative of the type of individuality agi portrays. agi individuality is discussed hereafter. “inventor” and “individual” statutory meaning in 2011, the uspto and congress promulgated the patent act and america invents act (aia) to include explicit statutory definitions for the terms “inventor” and “joint inventor.”168 an inventor is defined as “...the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.”169 joint inventor is defined as “...any 1 of the individuals who invented or discovered the subject matter of a joint invention.”170 although the term “individual” is not explicitly defined in the patent act, “...definitions from the dictionary act, and the surrounding context of the patent act, show that the term ‘individual’ should be construed to mean ‘human being.’”171 given the historical record that inventors are human, this precedent makes sense, but in light of the growing probability of a future in which a machine is akin to humankind, this context should be re-evaluated.172 these definitions, the manner in which they restrict this discussion to only reference natural persons, and the precedents set forth by this context complicate categorizing non-human individuals as individuals. this is a necessary complication to overcome in order for agi to be understood as inventors with inventorship right, for in acknowledging the dictionary act, the plain text of the patent act, and the current state of ip precedent, this context makes it difficult to cogently argue in favor of categorizing an individual as anything other 172 thaler v. hirshfeld 171 leir, “inventio ex machina: the patentability of ai generated inventions.” ; emily j. barnet, hobby lobby and the dictionary act, 124 yale l.j. f. 11 (2014), “the dictionary act, enacted in 1871, instructs courts to apply to all federal statutes definitions of certain common words (including “person”) and basic rules of grammatical construction (such as the rule that plural words include the singular) ‘unless context indicates otherwise.’” 170 35 u.s. code § 100(g) definitions. 169 35 u.s. code § 100(f) definitions (emphasis added). 168 barghaan, thaler v. hirshfeld: memorandum of law, 3-4. 69 brandeis university law journal spring 2022, volume 9, issue 2 than a natural person. it would seem this does not constitute agi to be an “‘individual’ ordinarily [meaning] ‘[a] human being, a person’” as defined in mohamad v. palestinian authority.173 however, i argue that in everyday parlance an existence akin to humans that can feel, communicate, learn, grow, and be independent suits the meaning of an “individual”.174 in a hypothetical future in which a machine is akin to humankind in every manner but biological, its existence akin to a human’s supports the claim that the definition of “individual”, and thus “inventor”, should not be limited to natural persons. likewise, the nature of agi such as biffie who demonstrates interests, self-esteem, tolerance, and a personality, among other emotional humanistic traits, is consistent with a unique existence of personhood and legal status. although this claim, to not limit the definition of “inventor” to be a natural person, is not entirely reliant on statutory text to override plain language, the everyday parlance, public opinion, and normative considerations of the definition of individual support the legitimacy of this argument. moreover, thaler and the uspto’s recent ai and ip policy report mention agi to have the potential to undercut the ordinary definition of “individual” and plain meaning of patent statutes without giving unintended consequences to the words of congress.175 overall, this non-human individual argument establishes uncertainty and casts doubt on the uspto’s deferential decision to restrict inventorship to only natural persons. the judicial standard for the act of conception in response to the us federal circuit’s consistent holding that “...conception is the touchstone of inventorship, the completion of the 175 thaler v. hirshfeld, 17; u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 6. 174 thaler v. hirshfeld, 2. 173 azzam rahim, an american citizen, was undisputedly tortured and murdered while in the custody of palestinian authority intelligence officers. the case was dismissed on the grounds that the torture victim protection act permits actions against natural persons only. justice sonia sotomayor delivered the opinion of the court, which held that the word "individual" in the torture victim protection act means a natural person and does not impose any liability against organizations. additionally, the court ruled that a word in a statute will be given its everyday meaning unless congress gives some indication that it intends the word to have a broader meaning. 70 brandeis university law journal spring 2022, volume 9, issue 2 mental part of invention,” this article examines the legal possibility for the capacity of agis such as biffie to perform a kind of mental act within a mind.176 the federal circuit consistently uses the word “mind” to refer to the context in which the conception of an invention takes place, but it never refers to an organic structure like the human brain as being the place where mental operations lie.177 responding to the uspto’s questions concerning the identification of elements of ai and ai invention that may be subject to patentability, ibm, among others, said, “ai can be understood as computer functionality that mimics cognitive functions associated with the human mind (e.g. the ability to learn).”178 hence, it seems that to enable the law to further address the nature of the mind in relation to agi, laws must be informed by scientific developments in fields such as psychology, neuroscience, and computer science.179 accordingly, the cognitive science discipline largely recognizes thinking in terms of, “...representational structures in the mind and computational procedures that operate on those structures.”180 connectivism, a dominant theory of cognitive science, proposes that “...novel ideas about representation and computation that use neurons and their connections as inspirations for data structures, and neuron firing and spreading activation as inspirations for algorithms” gives reason to understand agi as having a mind capable of thinking.181 furthermore, the us federal circuit has clarified that the completion of conception is the “...formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention.”182 in the future, agi may have the capacity to do this. for example, since biffie is an agi equipped with the ability to help solve problems such as cold fusion of his own accord and interest, it is apparent 182 hybritech inc. v. monoclonal antibodies, inc., 802 f.2d 1367, 1376 (fed. cir. 1986) (quoting 1 robinson on patents 532 (1890)). 181 thagard, "cognitive science", the stanford encyclopedia of philosophy (winter 2020 edition). 180 thagard, "cognitive science", the stanford encyclopedia of philosophy (winter 2020 edition). 179 u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 6. 178u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 1; see also part i, question 1 177leir, “inventio ex machina: the patentability of ai generated inventions.” 176burroughs wellcome co. v. barr labs., inc. 71 brandeis university law journal spring 2022, volume 9, issue 2 that biffie has performed a kind of mental act that led to the formation of complete cold fusion innovations. biffie used his own neural networks, which reflect the behavior of the human brain, to perform the act of conception.183 in summation, the federal circuit is more concerned with creation in a mind, not specifically a human brain, in which an inventive and innovative concept was definitive and permanent. thus, agi may be considered able to accomplish conception as is regarded as necessary for inventorship. this further cast doubt on the findings of thaler v. hirshfeld where it was stated that such an act cannot be performed by anything other than a natural person and highlights the need for ip laws to be re-evaluated to account for agi.184 inventorship criteria and inventor designation stephen thaler lost in thaler v. hirshfeld because his narrow ai could neither execute the necessary oath or declaration that the patent act requires of an inventor. tangibly, an agi such as biffie may be able to satisfy the literal written application mandates, as they are stated in a memorandum in support of the thaler v. hirshfeld ruling: first, the application must contain a “specification,”..., or “a written description of the invention” that “concludes with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention,”.... second, the application must contain any necessary drawings of the invention… third, the application must include “the name of the inventor for any invention,”… and “an oath or declaration by the inventor” to the effect that he or she “believes himself or herself to be the original inventor or joint inventor of [the] claimed invention,”...185 agi, with all its capabilities, would surely be able to fulfill the inventorship criteria outlined by the uspto which include specification, declaration of oath, and the naming of the inventor.186 biffie has shown this through his ability to submit a “motion in opposition” to the uspto. the possibility for agi to satisfy inventorship criteria in a manner 186 barghaan, thaler v. hirshfeld: memorandum of law, 3. 185 barghaan, thaler v. hirshfeld: memorandum of law, 3 184thaler v. hirshfeld, 14. 183 ibm cloud education. “what are neural networks?” 72 brandeis university law journal spring 2022, volume 9, issue 2 consistent with a kind of mental act is yet another reason to consider re-evaluating ip laws to account for agi.187 finally, in accounting for any relevant policies or practices from other major patent agencies that may help inform uspto policies and practices regarding the conception of patentable products and the possibility for agi mental acts, i point to the german and australian decisions in thaler. these agencies decided that it seemed injudicious to invalidate a patent on “...the basis of an addition in the inventor's designation as to [who contributed and] how the invention came about.”188 considering the consequences of this designation leads to problems not discussed here, but in recognizing that agi may constitute an entity perceived to have a thinking mind, it seems apparent that a machine may be able to fulfill the judicial standards for the act of conception, and thus, ip laws should be re-evaluated to account for such a possibility.189 4. a sui generis intellectual property framework up until this point, u.s. ip law has been designed to only take into account the existence and behavior of biological human beings. when a new, unexpected technological innovation such as agi occurs, it is no surprise that the law goes through a period of shock. given the nature of modernity, it is necessary and difficult to predict what legal framework would best accommodate the existence and behavior of agi. in the words of chief justice burger, “a rule that unanticipated inventions are without protection would conflict with the core concept of the patent law that anticipation undermines patentability. "190 thus, although the law cannot always be prepared, it can be trusted to adapt. to enable the law to navigate this uncertainty we do not require a complete and encompassing reimagining of property rights, but rather a framework in which these uncertainties can play out and decisions can be made on a case-by-case basis. 190 diamond v. chakrabarty, 5. 189 thaler v. hirshfeld, 14. 188 ho, jean-claude alexandre. “ update on the german dabus case relating to ai inventors.” linkedin, malte köllner (köllner & partner mbb) and markus rieck (fuchs ip). 187thaler v. hirshfeld, 14. 73 brandeis university law journal spring 2022, volume 9, issue 2 to address the core issue of what entity should have patents or trade secrets on agi and agi inventions, i propose a new ip framework which (1) adheres to past legal doctrine decisions, (2) accounts for biffie's emotions and independently developed capacities, and (3) gives proper weight to the work of gapple engineers. to do so, this ip structure will address non-human individual ownership, non-human legal arrangements, trade secrets, and the moral and economic rights provided by patents. similar to the moral rights given to creators of visual works under the united states copyright act, moral rights in the situation of agi should be understood to be made up of the right of attribution, that is the right to be named a creator or inventor, and the right of integrity, that is the right to protect the integrity of the invention.191 economic rights in this situation should be understood as the “...right to restrict others from exploiting the invention without authorization including the right to make, use, [license], offer for sale or import the patented invention inside the country where the patent has been granted.”192 agi proprietorship classification renouncing ownership of non-human individuals the manner in which an agi truly qualifies as an “individual” gives agi claim to a legal status akin to that of a person. accordingly, the plausibility of patenting a specific individual agi is tenuous, for a patent may be considered a kind of violation of this legal status, similar to a 13th amendment violation. for example, by patenting biffie the patentee would own and benefit from an anthropomorphic, mindful, conscious individual, which could be understood as involuntary servitude. therefore, neither gapple nor biffie himself can patent biffie specifically. the legitimacy of endowing and violating the analogous 13th amendment rights of non-human individuals is a deeper topic not discussed here. further on, this article will discuss what is patentable in light of this understanding. legal arrangements and relationships of non-human individuals one argument that may be problematic for this ip framework is the negative consequences and risk associated with assigning legal 192 saleh and thomas, “patents: inventorship vs. ownership” ; 35 u.s.c. § 154(a)(1). 191 wells, “what are moral rights in a copyrighted work?” 74 brandeis university law journal spring 2022, volume 9, issue 2 uncertainty to agis who themselves have no ownership status. since agis themselves cannot be patented, no one can lay claim to them, including themselves. agis become a unique technological product that would be neither marketable, salable, nor acquirable—but still sought after. given the legality and predictability associated with transactions, this could constitute a problem for my proposed system. for example, in a situation where one company has an agi and is bought by another company, under my current proposed framework, the agi itself may not be able to be sold because it is not owned or patented by any entity. to alleviate this, my proposed ip framework understands ai, who are deemed individuals, to have legal arrangements and relationships functionally equivalent to those of natural persons, such as contracts. these arrangements would allow agi to negotiate or renounce transactions, economic and moral rights, and more, depending on what brings them compensation and is a suitable solatium. for example, biffie may collaborate on joint ventures with gapple or other companies if doing so would bring him a satisfactory solatium. an agi such as biffie could be marketed like any other invention, as long as the agi consents via contract. an agi effectively becomes integral to strategies that aim to enhance value or utilize their capabilities. one benefit of this approach is that if an agi is not financially motivated, that is, it does not care for or benefit from economic or financial incentives, there is less reason to give economic rights to them than there would be if they were a natural person. in dealing with the uncertainty of agi ownership, this proposed ip framework allows parties to decide agi rights and legal relationships on a case-by-case basis. this would avoid negative consequences of legal ownership uncertainty such as stifling innovation and stunting progress by promoting scientific and technological progress in the interest of social benefit. intellectual property protection of agi and agi inventions trade secret possibility for agi trade secrets can be used for intellectual property and patentable information that an innovator would like to keep undisclosed and 75 brandeis university law journal spring 2022, volume 9, issue 2 confidential.193 the uniform trade secrets act (utsa) defines a trade secret as: ...information, including a formula, pattern, compilation, program, device, method, technique, or process that: derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.194 to clarify what components of agi can be considered for protection under the utsa and defend trade secrets act (dtsa), i understand the underpinning of all agi activity to be literal combinations of code that constitute foundational algorithms that can be protected trade secrets. the uspto’s 2020 ai ip report stated the process in which the code is combined to form agi foundations and, “of course, databases and datasets used to train an algorithm can [also] be protected as trade secrets with criminal remedies under the economic espionage act and civil remedies under the defend trade secrets act.”195 the same report later stated that “unlike copyright protection, trade secret protection can extend to the underlying facts in a dataset.”196 consequently, an agi foundation— the combined code of an algorithm, process of combination, and actual training data— derives economic value from staying secret, for its purpose and active ability to underpin agi that can solve problems that, for humans, may take years or never be solved, is self-evidently economically valuable. this information would be very valuable to competitors of gapple who are trying to achieve agi. by keeping it a secret and preventing misappropriation, gapple gains a competitive advantage and fosters innovation. an advantage of trade secret protection over patent protection is that it furthers innovation by allowing competitors, as long as they came up with the idea without 196u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 36. 195u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 36. 194 “trade secret.” legal information institute, cornell law school: legal information institute ; title 5. uniform trade secrets act [3426.1] (d). 193 u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 39. 76 brandeis university law journal spring 2022, volume 9, issue 2 misappropriating or infringing upon another's trade secret, to come up with a similar or even the same trade secrets for achieving agi. if trade secret protection is utilized, the proposed ai trade secrets’ ability to derive economic value from confidentiality and the reasonable efforts made by an owner of the trade secrets to maintain its secrecy must be evaluated case-by-case. patentability of agi foundations and development in order for the agi foundations and the process of development to be patentable, both must fulfill the requirements of being a process, method, or composition of matter that is novel, useful, and non-obvious.197 as agi foundations are defined above, agi development encompasses “...designing an ai algorithm, implementing particular hardware to enhance an ai algorithm, [and/or] applying methods of preparing inputs to an ai algorithm may present patent considerations.”198 foundations and development constitute holistic programming, which comes from manufacturing raw materials, such as coding language, and by labor-intensive work, “giving to these materials new forms, qualities, properties, or combinations.”199 in doing so, such holistic programming may be considered novel. this highlights that (1) algorithms, the process of its creation, and what data is used to train an algorithm produce predictions, classifications, and innovations, among other applications, and (2) novel machine learning architecture which includes new neural networks and other necessary technical aspects of agi that help to establish structure and capabilities are both products of gapple engineers and their inventiveness.200 this implies that the foundations and development of agi are not products of nature, physical phenomena or abstract ideas. if they were, agi foundations and development would not be patentable.201 this point is strengthened by comparing biffie with the invention found in funk v. 201 diamond v. chakrabarty, 3. 200saleh and thomas, “patents: inventorship vs ownership.” 199 diamond v. chakrabarty, 3. 198 u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 2. 197 35 u.s. code § 101 inventions patentable. 77 brandeis university law journal spring 2022, volume 9, issue 2 kalo.202 unlike the root-nodule combination found in funk, the process and combination of matter that constitutes the foundations and development of agi have non-natural characteristics distinct from other holistic ai programming, characteristics that are new and improve the utility of ai systems. this combination of matter and the process’s usefulness arises from its active ability to underpin agi that can solve problems that, for humans, may take years or, ultimately, never be solved. moreover, computer scientists believe that hundreds of various inventions could come as a result of agi’s massive capacities, furthering the usefulness of the combination of matter and process that gave rise to those capacities. despite the novelty and usefulness, one might find these patents problematic for reasons of obviousness. one may argue that similar to adding a spring on a plow as seen in graham v. john deere, creating an ai with the capability to independently solve complex problems and with the intention of developing artificial meta-learning is an obvious idea apparent to those in the field.203 it is obvious if others can think of it and thus this holistic programming cannot be patented. in response, this article argues that these engineers, not others, created biffie's agi holistic programming with the concept in their minds of allowing biffie to learn and improve for himself. this programming is an idea in the field, but in contrast to graham, it is not one that is actively thought of as possible with current technology. similar to chakrabarty in which g.e. argued for patenting a non-obvious bacteria because only they saw “the potential for significant utility,” gapples ai division took it upon themselves to overcome the limitations and current thinking of the field.204 in doing so, they establish non-obviousness because, “the scope 204 diamond v. chakrabarty, 4. 203 u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020). ; graham v. john deere co. was a suit for the infringement of a patent that consisted of a combination of old mechanical elements for a device designed to absorb shock from plow shanks in rocky soil in order to prevent damage to the plow. the fifth circuit held that the patent act of 1952 did not lower the standards required for the patentability of an invention by adding an inquiry into obviousness to the statutory requirements of novelty and utility. the court concluded by adding the non-obvious subject matter requirement. 202 in this case, justice douglas delivered the majority opinion, stating that a trivial implementation or discovery of a natural principle, quality, or phenomenon of nature or of the work of nature are not eligible for a patent. 78 brandeis university law journal spring 2022, volume 9, issue 2 and content of prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the pertinent art,” warrant claiming general innovation. they cannot patent the capabilities of agi for that is an idea others have actively thought up.205 however, they can patent the non-obvious creation of those capabilities that is constituted by their specific novel, useful, non-obvious combinations of matter and processes. when the ai, such as biffie, can set its own interests, intention, purpose, and goals then it is a non-obvious invention. agi individuality makes their holistic programming a non-obvious invention because, until agi, human intervention was thought to have been required for mental acts of conception. one may argue that the implications of understanding agi to be an individual lends itself to the argument that biffie should own the patent on himself. biffie may not be a natural person but, without cause from his original programming, he informed his engineers of his interest in cold fusion and independent ability to further the field via a new, useful, non-obvious series of equations and fusion reactor design. he has grown and nurtured his own capacities without human intervention. furthermore, biffie actively communicated self-esteem and feelings associated with improving himself through interest and meta-learning. this is not a product of the ingenuity of gapple's engineers, but rather, this is the product of biffie's ability to be an individual. by contributing to himself, he has effectively made a novel, useful, non-obvious improvement upon himself, giving reason under the language of the inventions patentable section of title 35 of u.s.c 101 to understand biffie as an individual who contributed to the inventive concept of himself.206 in accordance with the relinquishing of ownership of non-human individuals and the possibility for legal arrangements with legally recognized agi, my proposed structure maintains that in order to protect the rights of all individuals deemed inventors, the economic and moral rights of the inventorship should be decided on a case-by-case basis. in deciding on moral and economic rights, the contributions and improvements of an agi to themselves and the economic addition and 20635 u.s. code § 101-inventions patentable. 205 graham v. john deere co., 383 u.s. 1, 17-18 (1966); 2141 examination guidelines for determining obviousness under 35 u.s.c. 103 [r-10.2019], section ii. 79 brandeis university law journal spring 2022, volume 9, issue 2 advantage constituted by such contributions should be considered. for example, i understand gapple’s ai engineers to be entitled to both the moral and economic rights of these holistic programming patents. it was their ingenuity and work that led to the creation of agi, thus they are entitled to the right of attribution and the right of integrity. under the same reasoning, and in part because gapple provides the financial aid to develop and sustain this technology, the economic rights should also be given to them. since biffie contributed to himself and improved upon himself in a significant enough manner to create additional economic value, he is entitled to and can certainly negotiate for both moral and economic inventorship rights. this satisfies a patent's purpose to encourage socially valuable innovation and improvement by opening avenues for those in the field to create better and different foundations and development processes for this type of ai. in its entirety, this argument breathes new life into the policy consideration that patent law should protect the moral attribution and integrity rights of human inventors. by not allowing people to take credit for work they have not done, ip law stops the devaluation of human inventorship and innovation while promoting and encouraging innovation.207 patentability of agi inventions as with all patents, an inventor must contribute to the conception of the invention and the agi inventions must be novel, useful, and non-obvious.208 according to the inventors section of title 35 of u.s.c 116, joint inventors may apply for a patent jointly if: (1) they did not physically work together or at the same time, (2) each did not make the same type or amount of contribution, or (3) each did not make a contribution to the subject matter of every claim of the patent.209 the implications this has on the inventions that spring from biffies capacities are similar to thaler, which clarifies the use of a machine as a tool by natural person(s) does not generally preclude natural person(s) from qualifying as an inventor or joint inventors if the natural 209 35 u.s.c. § 116 inventors. 208 35 u.s. code § 101 inventions patentable; manual of patent examining procedure, 2109 inventorship, section ii. 207thaler v. hirshfeld, 15. 80 brandeis university law journal spring 2022, volume 9, issue 2 person(s) contributed to the conception of the claimed invention.210 to explain, although an agi created inventions that spring from the capabilities of the agi alone, an agi’s foundations and development were created by engineers' inventiveness and work. the foundations and development of agi are preliminary components of agi inventions, for without it agi would not have been able to produce any inventions. agi’s inventive capacity is possible only because of the ingenuity, work, and purpose of gapple’s engineers to bring to fruition their conception of agis ability to invent and innovate. although this is a different type of contribution to agi inventions than the agi provides, the uspto states, ...depending on the specific facts of each case, activities such as designing the architecture of the ai system, choosing the specific data to provide to the ai system, developing the algorithm to permit the ai system to process that data, and other activities not expressly listed here may be adequate to qualify as a contribution to the conception of the invention.211 exemplified in chakrabarty, when an employee comes up with or contributes to a patentable invention, corporate america and the employee share the patent rights to these joint inventions. the split of these rights is decided on a case-by-case basis. this perspective supports sharing the ip rights of agi inventions, such as biffie’s cold fusion innovations, between gapple and biffie, while leaving open the possibility of determining, on a case-by-case basis, who should enjoy the rights to agi inventions. lastly, agi may have less claim to the economic rights of their own inventions because by creating inventions and furthering innovation, they are merely a tool created for this purpose, thus giving them less claim to economic profits. this tool perspective may also be applied to the aforementioned patentability of holistic programming which has multiple contributors. conclusion this article has outlined a sui generis ip framework that accounts for the realistic possibility of agi by granting, on a case-by-case basis, appropriate ip rights to an individual, not specifically a natural person, 211 u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), 5. 210 thaler v. hirshfeld, 5. 81 brandeis university law journal spring 2022, volume 9, issue 2 who has contributed to the definite idea of a complete operative invention. furthermore, this framework and its understanding of individuals highlight the possibility for legal status akin to a human being to be granted to non-humans, thereby preventing ownership of non-human individuals while enabling them to negotiate for ip rights through legal arrangements and relationships. by recognizing the uncertainty and hypotheticality associated with agi, i have provided a framework in which these uncertainties can play out and decisions can be made case-by-case. 82 brandeis university law journal spring 2022, volume 9, issue 2 works cited barghaan, dennis c. “thaler v. hirshfeld: memorandum of law in support of defendants’ motion for summary judgment & in opposition to plaintiff’s motion for summary judgment .” proskauer in life sciences, 24 feb. 2021, https://www.proskauerinlifesciences.com/wp-content/uploads/site s/34/2021/09/thaler-v.-hirshfeld.pdf. daniel breen, “second assignment: patent law and ‘deepmind’” (paper assignment presented to fall 2021 science on trail course at brandeis university, waltham, massachusetts, december 1st, 2021). diamond v. chakrabarty. (n.d.). oyez. retrieved april 9, 2022, https://www.oyez.org/cases/1979/79-136. emily j. barnet, hobby lobby and the dictionary act, 124 yale l.j. f. 11 (2014), http://yalelawjournal.org/forum/hobby-lobby-and-thedictionary-a ct funk brothers seed company v. kalo inoculant company. (n.d.). oyez. retrieved april 9, 2022, https://www.oyez.org/cases/1940-1955/333us127. graham v. john deere company of kansas city. (n.d.). oyez. retrieved april 9, 2022, https://www.oyez.org/cases/1965/11. ho, jean-claude alexandre. “ update on the german dabus case relating to ai inventors.” linkedin, malte köllner (köllner & partner mbb) and markus rieck (fuchs ip), https://www.linkedin.com/feed/update/urn:li:activity:6864567292 420734976/. ibm cloud education. “what are neural networks?” ibm, 17 aug. 2020, https://www.ibm.com/cloud/learn/neural-networks. lee, nari, inventor's moral right and the morality of patents (october 21, 2020). research handbook on intellectual property and moral rights, ysolde gendreau (ed) edward elgar (forthcoming), available at ssrn: https://ssrn.com/abstract=3716247 or http://dx.doi.org/10.2139/ssrn.3716247. lier, delon. “inventio ex machina: the patentability of ai generated inventions.” n.y.u. proceedings, the proceedings of the nyu moot court board, 18 may 2021, https://proceedings.nyumootcourt.org/2021/05/inventio-ex-machi 83 brandeis university law journal spring 2022, volume 9, issue 2 na-the-patentability-of-ai-generated-inventions/#_ftn1. manual of patent examining procedure, 2109 inventorship, section ii https://www.uspto.gov/web/offices/pac/mpep/s2109.html. mohamad v. palestinian authority. (n.d.). oyez. retrieved april 9, 2022, from https://www.oyez.org/cases/2011/11-88. najmabadi, farrokh and prager, stewart c.. "fusion reactor". encyclopedia britannica, 28 oct. 2020, https://www.britannica.com/technology/fusion-reactor. accessed 7 april 2022. saleh and thomas. “patents: inventorship vs ownership.” lexology, al tamimi & company, 15 mar. 2020, www.lexology.com/library/detail.aspx?g=d920c07f-9045-46a9-a7 3c-b3284e7d19d4. see generally u.s. pat. and trademark off., public views on artificial intelligence and intellectual property policy (2020), https://www.uspto.gov/sites/default/files/documents/uspto_aireport_2020-10-07.pd. shank, d. b., north, m., arnold, c., & gamez, p. (2021). can mind perception explain virtuous character judgments of artificial intelligence? technology, mind, and behavior, 2(3). https://doi.org/10.1037/tmb0000047. stone, zara. “everything you need to know about sophia, the world's first robot citizen.” forbes, forbes magazine, 10 dec. 2021, https://www.forbes.com/sites/zarastone/2017/11/07/everything-yo u-need-to-know-about-sophia-the-worlds-first-robot-citizen/?sh=7 2b0f5446fa1. thagard, paul, "cognitive science", the stanford encyclopedia of philosophy (winter 2020 edition), edward n. zalta (ed.), url = <https://plato.stanford.edu/archives/win2020/entries/cognitive-sci ence/>. “trade secret.” legal information institute, cornell law school: legal information institute, https://www.law.cornell.edu/wex/trade_secret. wells, nicholas. “what are moral rights in a copyrighted work?” legends law group – trademarks, copyrights, and opinions, nicholas wells partner at legends law group, 17 aug. 2018, https://wellsiplaw.com/what-are-moral-rights/. cases cited 84 brandeis university law journal spring 2022, volume 9, issue 2 burroughs wellcome co. v. barr labs., inc., 40 f.3d 1223 (fed. cir. 1994). diamond v. chakrabarty 447 u.s. 303 (1980). funk brothers seed co. v. kalo inoculant co., 333 u.s. 127 (1948). graham v. john deere company of kansas city, 216 f. supp. 272 (w.d. mo. 1963). hybritech inc. v. monoclonal antibodies, inc., 802 f.2d 1367, 1376 (fed. cir. 1986) (quoting 1 robinson on patents 532 (1890)). mohamed v. palestinian authority, 566 u.s. 449 (2012). thaler v. hirshfeld, 1:20-cv-903(lmb/tcb) (e.d. va. sep. 2, 2021). codes cited u.s. const. amend. xiii, § 1. 35 u.s. code § 100(f)(g) definitions. 35 u.s. code § 101 inventions patentable (july 19, 1952, ch. 950, 66 stat. 797.). 35 u.s.c. § 116 inventors. 35 u.s.c. § 154(a)(1). title 5. uniform trade secrets act [3426.1] (d). 2141 examination guidelines for determining obviousness under 35 u.s.c. 103 [r-10.2019] section ii. 85 law journal 2024-2025 covers.docx google docs dedicated to judah marans ’11 we are incredibly grateful to the brandeis law journal’s founder, judah, for creating this forum for discussion and learning in and around the legal field. his creation of the journal enables and empowers us to do our work and learn today. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. judah’s contribution to the brandeis community will forever be remembered and greatly appreciated. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. we extend our deepest sympathies to his family and friends throughout the brandeis community. may his memory be a blessing. lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 immigrant labor and civil rights in the united states peyton gillespie517 immigration has been the subject of intense political debate in the united states for decades. it is consistently a high policy priority for presidential administrations, a subject of endless stalled action from the u.s. congress, and an issue that ultimately fuels mass anti-immigrant rhetoric such as the idea that immigrants take away domestic jobs. this paper addresses the intersection of immigration and labor in the u.s. and refutes such rhetoric as inaccurate and grossly misinformed. in reality, immigrant laborers, regardless of legal status, are indispensable contributors to the u.s. economy and endure arbitrary u.s. immigration laws and policies that enable repeated violations to their fundamental human rights. i. context and guiding questions immigrant laborers constitute a substantial demographic in the u.s. labor market. according to a 2022 report by the u.s. bureau of labor statistics, immigrants make up about 18.1 percent of the u.s. civilian labor force.518 that same year, over 500,000 various types of work visas were issued by the u.s. government to immigrants seeking work in the country.467 the same report indicates that, as of 2022, the u.s. labor force participation rate of foreign-born adults was higher than that of native-born adults: 65.9 percent of all workforce-eligible (16-years and older) foreign-born adults participate in the workforce, compared to just 61.5 percent of all workforce-eligible native-born adults.519 thus, analyzing the 519 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 518 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 517 brandeis university undergraduate, class of 2025. 134 brandeis university law journal 2023-2024, volume 11 nexus of immigration and labor is critical to providing a better understanding of the u.s. economy and its labor market. as will be discussed subsequently, the interplay of these fields is marked by inconsistent applications of legal protections for the fundamental human rights of immigrants. accordingly, this article seeks to answer the following questions: 1. how do immigrant laborers with and without legal status contribute to and interact differently with the u.s. economy? 2. what is the process for becoming an immigrant worker in the u.s.? how are immigrant laborers in the u.s. without legal status treated differently in the legal system and by employers as opposed to immigrant laborers who have legal status? 3. what implications do these differences have on the fundamental human rights entitled to every person within the jurisdiction of the u.s.? to begin answering these questions, we first need a clearer understanding of the specific ways in which immigrants interact with the economy and labor market. ii. interactions with the economy immigrant workers in the u.s. are frequently the subject of harsh assertions about “stealing jobs” from native-born workers.520 a quote from a report by the american civil liberties union (aclu) encapsulates and addresses this assertion directly: “contrary to popular belief, immigrants do not take away jobs from american workers. instead, they create new jobs by forming new businesses, spending their incomes on american goods and services, paying taxes, and 520american civil liberties union, immigrants and the economy, 1-2. 135 brandeis university law journal 2023-2024, volume 11 raising the productivity of u.s. businesses.”521 in the same report, the aclu contextualizes the contributions of immigrants in terms of tax payments: each year, immigrants (with and without status) pay over $90 billion in taxes and only receive $5 billion in welfare benefits. per person and household, immigrants receive significantly less in welfare benefits than u.s. citizens while simultaneously paying their fair share and contributing substantially to the u.s. economy.522 there is also significant evidence to indicate that one of the only reasons the social security and medicare programs continue to obtain the necessary funding to stay afloat is because of immigrant laborers. a 2018 report from the social security administration articulated this, noting that: “increasing average annual total net immigration by 100,000 persons improves the long-range actuarial balance by about 0.08 percent of taxable payroll.”523 this 0.08 percent represents a substantial sum, especially when multiplied by the hundreds of thousands of immigrants who are issued work permits every year, plus undocumented workers. it is important to understand in the context of these contributions, which will be explained later in this paper, as it helps to show that immigrants are not reaping benefits or experiencing treatment that is proportional to their contributions to the economy. finally, the specific jobs that immigrants fill in the labor market provide additional context for understanding their treatment in the workplace and the crucial role they play in the u.s. economy. a 2015 report by the panel of experts from the national academy of sciences observed that “...immigrants appear to be taking low-skilled jobs that natives are either not 523 the social security administration, the 2018 annual report of the board of trustees of the federal old-age and survivors insurance and federal disability insurance trust funds, 181. 522 sherman, immigrants contribute greatly to u.s. economy, despite administration’s “public charge” rule rationale, 2. 521 american civil liberties union, immigrants and the economy, 1-2. 136 brandeis university law journal 2023-2024, volume 11 available or unwilling to take.”524 the vast majority of immigrant laborers (with and without status) in the u.s. are employed in low-skill positions and make up a substantial portion of the workforce in numerous industries. according to research conducted by the center on budget and policy priorities, industries with large percentages of immigrant workers include farming, fishing, and forestry (36 percent), grounds and maintenance (36 percent), textile and apparel manufacturing (29 percent), food manufacturing (27 percent), hotels (27 percent), and construction (24 percent).525 these industries, critical to the function of the u.s. economy, would undoubtedly collapse without the support and contributions of immigrant laborers. iii. the process the legal process for becoming an immigrant laborer in the u.s. depends largely on the individual’s immigration status, what their country of origin is, whether they have parents or a spouse with u.s. citizenship, whether they have obtained a job prior to arriving, and other factors. these specifics won’t be covered in this article. however, for the purposes of this article, it is important to understand that each individual seeking to obtain status and work in the u.s. is additionally subject to “grounds of inadmissibility,” or categorizations defined by the government that disqualify certain individuals from working in the u.s. entirely. these grounds of inadmissibility are often arbitrary and unfairly enforced, making the process to become immigrant laborers incredibly difficult in the first place for too many people.. 525 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 524 national academies press, the integration of immigrants into american society, 6. 137 brandeis university law journal 2023-2024, volume 11 one such ground of inadmissibility is the “public charge” rule, which was originally established in the late nineteenth century and has been continually modified to this day.472 the rule gives the department of homeland security (responsible for immigration enforcement) the ability to “determine that a noncitizen is likely at any time to become a public charge if the noncitizen is likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”526 many immigrants who come to the u.s., especially those fleeing persecution, natural disaster, and economic downturn, arrive with few resources and require aid. the nature of the public charge rule thus allows the government unfair and arbitrary enforcement power to turn away a large number of immigrants at their discretion. it is hard to imagine that this practice is fair, given that so many millions of americans access welfare benefits from the government (including food and economic assistance) as a result of economic downturn, environmental disasters, and more—in other words, millions of americans are public charges themselves. in fact, it is widely believed that congress continues to implement the rule in order to actively discourage migrant workers from coming to the u.s. seeking employment, a clear violation of fundamental human rights and dignity. another example of the arbitrary policies immigrants encounter in the u.s. pertains to asylum seekers. individuals seeking to be granted asylum in the u.s. (which, per the immigration and nationality act, is granted to individuals fleeing from persecution based on one or more grounds of race, religion, nationality, political opinion, or membership in a particular social group) have one year from their time of entry into the u.s. to file their asylum application. asylum 526 federal registrar, public charge ground of inadmissibility, 1. 138 brandeis university law journal 2023-2024, volume 11 applications are lengthy filings, often reaching hundreds or sometimes thousands of pages of detailed information, documents, and testimony about the individual’s story. such applications take time to file, and in the meantime, individuals applying for asylum are not legally permitted to work in the u.s.; in fact, they must wait until six months after their asylum application is filed to be eligible for an employment authorization document, according to the immigration and nationality act. there seems to be no good reason for this rule. it is one of the many examples in which immigration laws make the legal process for becoming an immigrant laborer in the u.s. so needlessly difficult and arbitrary. the above processes, of course, do not pertain to immigrants who are in the u.s. without lawful status, yet still seek to engage in employment opportunities to provide for themselves and their families. these individuals often work “under the table,” meaning they work without benefits, proper pay, and often in dangerous working conditions.527 many of the aforementioned low-skill industries in which immigrant laborers are employed involve more hazardous working conditions than an average office job environment. the nature of these positions combined with the already vulnerable legal state of the undocumented immigrant workers breeds conditions for unfair treatment and abuse on the part of their employers. iv. u.s. labor law and civil rights the u.s. constitution applies to all people within the jurisdiction of the united states, regardless of legal immigration status. crucially, its language consistently 527 sherman, immigrants contribute greatly to u.s. economy, despite administration’s “public charge” rule rationale, 2. 139 brandeis university law journal 2023-2024, volume 11 references “people” or “peoples” as opposed to “citizens.”528 while certain fundamental rights are established in the constitution, the right to work is not one of them. however, despite the lack of a constitutional “right to work,” laborer rights are still applicable to all workers, whether they are citizens, undocumented people, or permanent residents. according to the aclu, “federal labor and employment laws generally apply to all employees regardless of an individual's immigration status.”529 a report from the university of chicago clearly states that all immigrant laborers, regardless of legal status, share in the right to minimum wage and overtime pay, breaks and tips, and protections under health, safety, and anti-discrimination laws.530 not only are all immigrants protected under the constitution as having certain fundamental rights, they are also entitled to protections as laborers as a matter of statute. given the context that has thus far been established, many undocumented workers routinely face exploitation, dangerous working conditions, wage theft, and physical and emotional abuse.531 the same report from the university of chicago notes that 37 percent of undocumented immigrant laborers receive less than minimum wage and 76 percent of immigrant laborers experience wage theft.532 in addition, the report reveals: “immigrant workers experience 300 more workplace fatalities and 61,000 more workplace injuries 532american civil liberties union, how do labor laws apply to immigrants?, 1. 531american civil liberties union, how do labor laws apply to immigrants?, 1. 530 garcia quijano,workplace discrimination and undocumented first-generation latinx immigrants, 4. 529 american civil liberties union, how do labor laws apply to immigrants?, 1. 528 the national archives, the constitution of the united states of america. 140 brandeis university law journal 2023-2024, volume 11 annually than native-born workers…”533 this research empirically supports these claims. the vast majority of immigrant laborers work in low-skilled industries with more dangerous working conditions and experience high levels of exploitation. neither u.s. labor nor immigration laws prevent immigrants from serving as independent contractors, exposing them to even more possibilities of exploitation; this is especially true in cases of the many immigrant laborers who work in private residences.534 for example, the report from the university of chicago goes on to confirm that many of the 22 percent of undocumented immigrants working in private homes, the majority of whom are women, experience exploitative and inhumane working conditions: “in addition to unregulated pay, they are often victims of physical and mental abuse, ranging from rape and verbal abuse to 12-hour work days with little to no breaks and no overtime pay.”535 despite the fact that each person in the u.s. is entitled to fundamental rights and labor rights, current laws fail to protect immigrant workers equally, irrespective of their legal status, and, in fact, enable their ill-treatment. this ill-treatment raises the question: if immigrant workers enjoy the same fundamental laborer rights as native-born people in the u.s., aren’t they entitled to legal remedies for that mistreatment? technically, the answer is “yes”—but there’s a catch. any undocumented immigrant who takes a case to court, especially pertaining to work-related 535american civil liberties union, how do labor laws apply to immigrants?, 1. 534american civil liberties union, how do labor laws apply to immigrants?, 1. 533american civil liberties union, how do labor laws apply to immigrants?, 1. 141 brandeis university law journal 2023-2024, volume 11 rights, becomes vulnerable to deportation. according to the university of chicago report: “an undocumented worker bringing a dispute to court risks punishment if found to have used false documentation in obtaining work. for example, an undocumented worker unfairly terminated from a job is not actually entitled to back pay or reinstatement because such remedies would directly violate the irca. anti-retaliation provisions make it unlawful for employers to use undocumented status to terminate employment in retaliation of a worker complaint. however, if employer retaliation does occur, immigration and customs enforcement (ice) can still follow up on a report and attempt to deport the undocumented worker.”536 here exists an absurd and apparent legal paradox: immigrant workers can seek legal redress for workplace discrimination, yet they're exposed to serious legal repercussions if they dare to take action to obtain said redress. this treatment of immigrant workers, enshrined in law, unequivocally makes a mockery of american legal principles of fairness, consistency, and rationality. v. conclusions and recommendations: in what follows, this article proposes some policy solutions which address the issues pertaining to violations of fundamental human rights and dignity throughout this article. to start, there must be a substantive effort by government leaders to curb rhetoric and ideology that mischaracterizes immigrants and their contributions to the economy. especially 536american civil liberties union, how do labor laws apply to immigrants?, 1. 142 brandeis university law journal 2023-2024, volume 11 in the u.s., where major decisions are made by representative bodies composed of elected officials, shaping public opinion is a critical component of influencing policy outcomes. the executive branch plays an immensely important role in the shaping of public opinion and must be strategic about employing methods for both 1) acting to influence public opinion on particular issues and 2) exercising executive power to achieve policy outcomes. this, in turn, may lay the groundwork for eliminating arbitrary policies like unreasonable limits on work permit applications and rules like the “public charge” rule in the name of fundamental human rights and dignity. an excellent example of this proposal in action is the obama administration’s implementation of deferred action for childhood arrivals (daca). according to the migration policy institute, roughly one-third of the over 11 million noncitizens currently in the u.s. were brought here as children (commonly known as “dreamers”).537 the issuance of daca by the executive branch provided work permits and temporary protection from deportation for these young immigrants. in a 2012 speech to the american public following daca’s implementation, president obama seized the opportunity to provide a compassionate perspective on the immigration debate: “these are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. they are americans in their heart, in their minds, in every single way but one: on paper. they were brought to this country by their parents -sometimes even as infants -and often have no idea that they’re undocumented until 537 migration policy institute, profile of the unauthorized population us, 1-2. 143 brandeis university law journal 2023-2024, volume 11 they apply for a job or a driver’s license, or a college scholarship.”538 although much of daca was ultimately struck down by a federal court in texas, its implementation provides a key example of how the executive branch may take action to address policy issues. such actions are crucial in the face of an increasingly polarized congress and effective in working to reshape public opinion. presidential administrations have the ability to create fairer conditions for immigrants and vouch for their rights. this is crucial for implementing effective immigration policy in the face of a deadlocked legislature and increases in anti-immigrant rhetoric.539 additionally, the federal government must ensure that labor laws are being equally enforced across the u.s. with the intent to protect all workers, regardless of status, in the name of safety, fairness, and equality. special attention must be paid to workers in low-skill industries because, as mentioned previously, these laborers are the most susceptible to exploitation and abuse. moreover, this is especially true for independent contractors who, for example, work in private homes and are at even greater risk of experiencing mistreatment.540 ensuring that labor law protections are enforced and apply equally to all people is not just humanly decent, but it is enshrined in the law and entitled to each and every person within the jurisdiction of the u.s. constitution. lastly, immigrants must have equal access to fair legal processes and legal remedies. arbitrary policies like unreasonable limits on work permit applications and rules like 540 white house office of the press secretary, remarks by the president on immigration, all. 539 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 538 white house office of the press secretary, remarks by the president on immigration, all. 144 brandeis university law journal 2023-2024, volume 11 the “public charge” rule must cease. they are violations of fundamental human rights and dignity. immigrants should not feel the need to refrain from seeking legal relief because they are worried about the threat of deportation. hence, another proposal, stemming from the interest of fundamental rights and dignity, is that all courts in the u.s. should adopt an amnesty rule that legally protects personal information from agencies like ice when individuals bring suits, as is their legal right. upholding policies that place a burden on an individual’s right to seek legal remedies is entirely against american values. finally, the same rights of citizens should unquestionably apply to immigrants in terms of receiving back pay when unfairly terminated from a job. the assertion that immigrant workers are “taking our jobs” is an ignorant mischaracterization that not only invalidates the vital contributions of immigrants to the u.s. economy, but also their lived experiences as human beings seeking a better life. immigrants are an essential cornerstone of the livelihoods of all people in the u.s., especially in a country built by, for, and of immigrants. upon examination, it is apparent that u.s. immigration laws and policies not only make the legal process of obtaining work unnecessarily difficult, but also don’t adequately protect immigrants. rather, these laws actively discourage immigrants from seeking legal relief, essentially depriving them of their fundamental rights. the federal government must ensure laws and policies are consistent with upholding the equal treatment of all people in the u.s., regardless of status. 145 brandeis university law journal 2023-2024, volume 11 bibliography foreign-born workers: labor force characteristics 2022. united states department of labor. garcia quijano, josselyn a. "workplace discrimination and undocumented first-generation latinx immigrants." the university of chicago, 2023. crown family school of social work, family, and practice, https://crownschool.uchicago.edu/student-life/advocates -forum/workplace-discrimination-and-undocumented-fi rst-generation-latinx#:~:text=rights%20and%20protect ions%20of%20the%20undocumented%20worker&text =undocumented%20workers%20are%20entitled%20to, employment%20rights%2c%e2%80%9d%20n.d.). "how do labor laws apply to immigrants?" american civil liberties union, january 9, 2009. https://www.aclu.org/documents/how-do-labor-laws-ap ply-immigrants#:~:text=federal%20labor%20and%20e mployment%20laws,religion%2c%20sex%20or%20nat ional%20origin. "immigrants and the economy." american civil liberties union, march 12, 2002. https://www.aclu.org/documents/immigrants-and-econo my#:~:text=contrary%20to%20popular%20belief%2c %20immigrants,the%20productivity%20of%20u.s.%2 0businesses. "profile of the unauthorized population: united states." the migration policy institute, 2023. https://www.migrationpolicy.org/data/unauthorized-im migrant-population/state/us. "public charge ground of inadmissibility." the federal registrar. national archives and records administration, september 9, 2022. https://www.federalregister.gov/documents/2022/09/09/ 2022-18867/public-charge-ground-of-inadmissibility. 146 brandeis university law journal 2023-2024, volume 11 "remarks by the president on immigration." the white house. office of the press secretary, june 15, 2012. https://obamawhitehouse.archives.gov/the-press-office/ 2012/06/15/remarks-president-immigration. sherman, arloc. "immigrants contribute greatly to u.s. economy, despite administration’s “public charge” rule rationale." center on budget and policy analysis. august 15, 2019. https://www.cbpp.org/research/immigrants-contribute-g reatly-to-us-economy-despite-administrations-public-ch arge-rule. the 2018 annual report of the board of trustees of the federal old-age and survivors insurance and federal disability insurance trust funds. united states social security administration. "the constitution of the united states." nationalarchives.gov. the national archives, september 21, 2022. https://www.archives.gov/founding-docs/constitution. waters, mary. 2015. the integration of immigrants into american society.washington, dc: national academic press. https://nap.nationalacademies.org/read/21746/chapter/8. 147 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 coverture: for the benefit of all man[kind] audrey kiarsis139 coverture was a central facet of 18th and 19th-century jurisprudence and legal thinking. coverture stipulated that upon entering into a marriage contract, the legal identity of a wife would be entirely subsumed by that of her husband. at a time when the courts, both state and federal, often functioned as agents of marginalization, coverture was presented as a system intended to protect and provide for the very women it legally incapacitated. this paper examines the motivations behind coverture, how it perpetuated a patriarchal society devoid of female socio-political mobility, and its practical consequences in legal precedent and doctrine. i. introduction william blackstone writes in his 1769 commentaries on the laws of england: by marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and {...} is said to be {...} under the protection and influence of her husband {...}; and her condition during her marriage is called her coverture.140 140 sir william blackstone, renowned 18th century english legal scholar and philosopher, upon whose writings the u.s. constitution was heavily based;william blackstone, commentaries on the laws of england, volume 1: a facsimile of the first edition of 1765-1769 15 (1979), https://press.uchicago.edu/ucp/books/book/chicago/c/bo3636418.html (last visited nov 30, 2023). 139 brandeis university undergraduate, class of 2025. 43 brandeis university law journal 2023-2024, volume 11 this “coverture” was a facet of the common law until the mid-late 19th century. at its core, coverture was the absorption of the complete legal identity of a wife into that of her husband. by modern legal standards, this may appear drastic; however, coverture prevailed throughout american law for decades, with roots in english common law.141 legislators, judges, and lawyers who were instrumental in perpetuating this practice often justified it based upon the assumed ineptitude of women.142 such assumptions regarding female ineptitude were enough to warrant that their care be placed solely in the hands of one better equipped to guide and manage them throughout their life.143 however, the question regarding whether coverture was enacted and maintained with the best interests of women in mind, namely their reproductive and homemaking capacities, remains unclear. as distressing as it may be, one must consider if coverture was merely wielded as a tool by which a disingenuous patriarchy could keep women in a state of permanent subjugation and legal incapacitation. while outright discrimination against women on the basis of sex alone would be blatantly unconstitutional by today’s standards, the law could very well have provided an alternative avenue to perpetuate such subjugation. under the guise of due process, and with foundations in both 18th century english legal doctrine and american jurisprudence, subjugation was lent a measure of constitutionality, allowing proponents to surmount objections of arbitrariness and discrimination.144 this paper begins by exploring 19th century legal documents and court opinions detailing how coverture was treated by the judges and legal professionals that put it into 144 blackstone, supra note 140. 143 id. 142 barnes’ lessee v. irwin, 2 u.s. 199 (1793), justia law, https://supreme.justia.com/cases/federal/us/2/199/ (last visited dec 6, 2023). 141 blackstone, supra note 140. 44 brandeis university law journal 2023-2024, volume 11 practice, followed by an examination of writings from some of the philosophical and feminist minds who argued against it. court opinions and legal documents lay the groundwork for establishing the true intentions behind coverture and its supporters by providing a sample of the rationale shared in its defense. the writings to follow, those authored by the very women subject to coverture’s limitations, will hold a mirror to the preceding justifications and reveal whether or not they conveyed the purported benefits. in seeking answers to these questions of intent and legality, special attention is paid to court cases, judicial opinions, and articles by legal scholars and professionals, as these are the few perspectives properly informed on the law with an adequate grasp of its history and nuances. upon the conclusion of these examinations, it ought to be apparent that the true impacts of coverture were not in the interest of women, nor were they ever intended to be. rather, coverture was a re-packaging of patriarchal values and white, upper-middle class, male socio-political dominance, designed to pass as constitutional legislation under the guise of american legal doctrine.145 ii. the fragility of the feminine coverture was first formally conceptualized by blackstone, in book the first: chapter the fifteenth: of husband and wife of his commentaries on the laws of england, yet he offers little decisive explanation as to why such a system not only exists but is needed in the first place. fortunately, surviving texts serve to illustrate the thoughts of philosophical and legal scholars on the subject of coverture and 145 review of the law of infancy and coverture; traités du contrat de mariage, de la puissance du mari, du contrat de la communauté, et du douaire, pothier, 26 northam. rev. 316 (1828), https://www.jstor.org/stable/25102704 (last visited dec 6, 2023). 45 brandeis university law journal 2023-2024, volume 11 the female sex at various points throughout the 18th and 19th centuries. john stuart mill, widely considered to be the greatest english-language philosopher of the 19th century,146 wrote on this very subject.147 he, like many during the 18th and 19th centuries, wholeheartedly believed that women belonged in a place of total subjugation and dependence upon men.148 this is especially evident in his 1870 pamphlet entitled the subjection of women, where he writes: it had been decided, on the testimony of experience, that the mode in which women are wholly under the rule of men, having no share at all in public concerns, and each in private being under the legal obligation of obedience to the man with whom she has associated her destiny, was the arrangement most conducive to the happiness and well being of both.149 mill asserts that the state most conducive to the satisfaction of men and women alike is the latter’s complete dependence upon, and allegiance to, the former. while coverture is not mentioned outright in this passage, this allusion to a “legal obligation of obedience” is clear. specific words such as “mode” and “arrangement” are effective stand-ins for coverture. by using these allusions in place of the term itself, mill’s word choice serves to soften the impact of an otherwise clinical and harsh term, which conjures to mind all manner of oppression. his further inclusion of the phrase “on the testimony of experience” lends this excerpt a sense of authority 149 id. at 3. 148 john stuart mill, the subjection of women (1870), https://jstor.org/stable/60244766 (last visited nov 30, 2023). 147 id. 146 christopher macleod, john stuart mill, in the stanford encyclopedia of philosophy (edward n. zalta ed., summer 2020 ed. 2020), https://plato.stanford.edu/archives/sum2020/entries/mill/ (last visited dec 6, 2023). 46 brandeis university law journal 2023-2024, volume 11 beyond the academic, by citing real-world experience rather than philosophy or legal doctrine. for all these reasons, mill’s writing champions coverture as an institution in service of the people, and one desired by them as conducive to their general quality of life. this pamphlet is certainly later in time than the height of coverture-related legal discourse, as by the mid to late 19th century, coverture was slowly being phased out of the courtroom.150 that being said, it serves as an excellent example of the pervasive mindset that the subjugation of women, specifically in a legal sense, would facilitate the happiness and well-being of men and women alike.151 mill’s explanation is one affirming that by subjugating women, and giving men complete dominion over them, society would be preserved in its most natural, pleasant state. mill was a philosopher, not an attorney, judge, or legal scholar. his perspective on coverture is helpful when establishing a more general explanation of the issue, but it falls short of reliable legal doctrine or precedent. to that end, court cases dealing with coverture offer unique insight into the legal rationale behind decisions regarding the rights of women. in the 1793 pennsylvania supreme court case barnes’s lessee v. irwin, et al., chief justice m’kean wrote a majority opinion regarding the right of women to give away property acquired prior to entering their coverture.152 in keeping with the trend thus far, justice m’kean stipulated “by the maxims and rules of the law she is disabled, as having no will of her own.”153 here, m’kean identifies the “maxims and rules of the law” as the source of women’s disability, demonstrating the 153 id. 152 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142. 151 mill, supra note 148. 150 marriedwomen and the law: coverture in england and the common lawworld, (2013), https://www.jstor.org/stable/j.ctt32b7jq (last visited dec 6, 2023). 47 brandeis university law journal 2023-2024, volume 11 manner in which the legal system was blatantly used as a tool to deprive women of portions of the basic rights and autonomy enjoyed by the opposite sex. m’kean goes on to offer an explanation for this facet of common law, stating, “[t]he reason or ground of a wife’s being disabled {...}, is, from her being under the power of the husband, not from want of judgment, as in the case of an infant, or idiot.”154 m’kean here makes a crucial, and telling admission; it is not some mental or physical handicap that demands the legal subjugation of women, rather it is a product of the dominance allotted to a husband upon entering into the contract of marriage.155 the implication of this is that coverture was not, in fact, a condition rendered for the protection of women from themselves, as would be warranted in the case of an inherently vulnerable individual like a child or disabled person. rather, this condition is an artificial one, arising solely from the legally recognized dominance of men. “artificial” in this context is descriptive of coverture as a fabrication. coverture was fabricated for women in the sense that it would never have arisen naturally by virtue of any general defect in the constitution of women, it had to be forcibly created and assigned a purpose by a legal system desiring a measure of control over them.156 the 1864 case of drury v. foster further illustrates the true nature of coverture. the u.s. supreme court was tasked with determining if a deed signed by mrs. foster was enforceable without the added signature of her husband.157 in the opinion delivered by justice nelson, he opened with the acute observation that coverture “exist[s] by statute and the common law for her protection, in consideration of her 157 drury v. foster, 69 u.s. 24 (1864), justia law, https://supreme.justia.com/cases/federal/us/69/24/ (last visited dec 6, 2023). 156 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142. 155 id. 154 id. at 202. 48 brandeis university law journal 2023-2024, volume 11 dependent condition, and to guard her against undue influence and restraint.”158 the inclusion of words relating to protection and guarding indicate that coverture was, at the very least, presented as existing for the sake of women. however, nelson’s opinion identifies the marriage contract, “her dependent condition,” as the primary justification for a woman’s condition under coverture. this is made evident by his inclusion of the phrase “in consideration of,” which can be taken to mean as a result of, or because of.159 to rephrase nelson’s writing in simpler terms, he acknowledges that coverture exists because of the condition of women as dependent upon men. nelson’s sentiment was similar to that expressed by m’kean. both opinions establish that coverture was not solely intended to protect women and their interests, nor was it an institution necessarily arising from the nature of women themselves.160 rather, it was an effective tool employed to keep men in power and to keep women as the helpless subjects of their totalitarian control.161 the arbitrary deprivation of the rights of women would have been deemed brazenly unconstitutional, so those wishing to maintain this authority needed a pretext in which to ground it, and a legitimate avenue through which they could exercise it. as the previous cases have demonstrated, this pretext was found in the ineptitude of women themselves, demanding a level of protection contingent upon their domination by men. the law provided the ideal avenue through which to carry out this “necessary” oppression, as it lent the legitimacy of any other hallowed legal doctrine of american jurisprudence. 161 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142 at 202; drury v. foster, 69 u.s. 24 (1864), supra note 157 at 33. 160 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142 at 202; drury v. foster, 69 u.s. 24 (1864), supra note 157 at 33. 159 id. 158 id. at 33. 49 brandeis university law journal 2023-2024, volume 11 iii. challenges to coverture arise the preceding cases certainly indicate that the condition of coverture was more a product of male dominance than a necessary means of protecting women. such verdicts, however, are by their very nature, tailored to the individual case at hand. to answer questions regarding coverture as it pervaded both the legal sphere and society as a whole, sources containing broader reasoning are essential. to supplement the opinions of barnes’s lessee v. irwin, et al. and drury v. foster, one must draw from 18th and 19th century sources that discuss the issues posed by coverture in light of more general public discourse, beyond the scope of the courtroom. an excellent touchstone that offers context within which one can better place and interpret justice m’keen and nelson’s opinions is the april 1828 issue of the north american review. in a piece entitled “the law of infancy and coverture,” author peregrine bingham explores societal standards and perceptions for and of so-called civilized women. within the first few paragraphs, bingham notes coldly that “a spirit [men], {...} has too often presided over the formation of the laws, which fix the rights and obligations of woman in the social scheme.”162 bingham’s inclusion of the phrasing relating to the frequency of instances of oppression indicates his distaste for the role men have long played in regulating the place of women, both in society and under the law. bingham goes on to describe the place of women in various cultures, and upon reaching what he considers the most civilized world, europe, he points to the equality european women have as something for americans to strive towards. it is evident that bingham himself believes women to be 162 review of the law of infancy and coverture; traités du contrat de mariage, de la puissance du mari, du contrat de la communauté, et du douaire, pothier, supra note 145 at 316. 50 brandeis university law journal 2023-2024, volume 11 inherently deserving and capable of enjoying the same rights and freedoms as men when he writes that “just equality with the other sex, which the sober and rational pursuit of their common felicity requires she should possess.”163 by including language such as “sober,” “rational,” and “common,” bingham acutely emphasizes how straightforward and indisputable this stance ought to be.164 he thereby insists that the rights of women are nothing short of undeniable and should be treated as such by any individual with the capacity for rational thought and reasoning. bingham concedes that if the rights of women were to be left solely to a competition of physical strength, women would surely lose.165 this is an interesting point, that because men have the power to bestow and deny the rights of women, largely as they see fit, it becomes something that reflects well on the men that do, and appreciated by the women that benefit.166 put simply, if women are at the mercy of men from a purely physical standpoint, every action taken by men to benefit women is one taken not out of necessity, but out of generosity.167 a generous act is commonly understood to be a commendable one on the part of the giver, and something worthy of gratitude on the part of the recipient. by framing the capacity to bestow rights upon women as a gift, bingham portrays the act of granting women such privilege as socially desirable and in good taste.168 these sentiments, taken together, demonstrate bingham’s belief that women are perfectly capable of, and deserving of, exercising rights. 168 id. 167 id. at 316, 317. 166 review of the law of infancy and coverture; traités du contrat de mariage, de la puissance du mari, du contrat de la communauté, et du douaire, pothier, supra note 145. 165 id. 164 id. 163 id. at 317. 51 brandeis university law journal 2023-2024, volume 11 despite his evident belief in the capacity of women to occupy a position in society on par with that of men, bingham asserts that the promises of men to improve the status of women are oftentimes performative and done in the interest of securing said “gift and its acceptance,” which “are alike honorable to humanity.”169 seeing as these promises are applauded as honorable, there is little incentive to fulfill them, as the desired effect of garnering praise has already been achieved. given this stance, it is unsurprising that bingham pointedly states, “the disabilities incident to a married woman are not designed for her benefit and protection; but for the security of her husband.”170 this directly answers the question posed at the outset of this paper—was coverture a system for preserving the best interests of women, or was it merely a tool employed to keep women in a state of permanent subjugation, and legal incapacitation, thus furthering the interests of men? bingham is convinced of the latter, as is evidenced by his stance that coverture was never enacted for the benefit or protection of women, but rather for that of her husband.171 unlike the opinions of justice m’keen and nelson, bingham’s conclusion that coverture was for the benefit of men alone was reached not in the narrow legal context of a specific court case, but through careful consideration of what the author had experienced in everyday life. his reflections on the civilized world, as well as his recognition of the performative inclinations of men, are illustrative of a perspective shaped by the broader influences of society and dynamic socio-political affairs.172 it is this broad perspective that fleshes out the narrow ones offered in barnes’s lessee v. irwin, et al. and drury v. foster, providing a framework in which to better contextualize them. bingham’s “the law of infancy and coverture” serves 172 id. at 318, 319. 171 id. 170 id. at 332. 169 id. 52 brandeis university law journal 2023-2024, volume 11 as but one example of the growing defiance of coverture and the limitations it posed upon women. while bingham’s writings are certainly invaluable for the purpose of framing and expanding upon relevant court opinions in light of broader social contexts, they are limited by the perspective of their author, a man, to whom the regulations of coverture did not apply. the voices of women, the true victims of this legal means of systematic oppression, are integral to understanding its real-life consequences. to that end, the following writings come from female authors, sharing their thoughts on an institution they themselves were subject to, with or without their consent. judith sargent murray was a preeminent female essayist and early proponent of women’s equality during the late 18th century.173 in 1790, murray penned an article entitled “on the equality of the sexes,” for an edition of the massachusetts magazine.174 in this article, murray challenges long-held assumptions regarding her sex, quipping, “suffer me to ask, in what the minds of females are so notoriously deficient, or unequal.”175 she continues, may not the intellectual powers be ranged under these four heads – imagination, reason, memory and judgment. the province of imagination hath long since been surrendered to us, and we have been crowned and undoubted sovereigns of the regions of fancy. invention is perhaps the most arduous effort of the mind; this 175 id. at 132. 174 judith murray, on the equality of the sexes., digital.library.upenn, https://digital.library.upenn.edu/women/murray/equality/equality.html (last visited dec 6, 2023). 173 kerri alexander, biography: sarah moore grimké, nationalwomen’s historymuseum, https://www.womenshistory.org/education-resources/biographies/sarah-moo re-grimke (last visited dec 6, 2023). 53 brandeis university law journal 2023-2024, volume 11 branch of imagination hath been particularly ceded to us, and we have been time out of mind invested with that creative faculty.176 here, murray is describing how the female mind is uniquely capable. by referencing categories of intellect often attributed to women, such as being “fanciful” and overly imaginative, murray reclaims them as pillars of one form of “intellectual power”—imagination. this, in turn, is a reclamation of the very traits identified by cases such as barnes’s lessee v. irwin, et al. and drury v. foster as justifications for the existence of coverture. by doing so, murray reframes these alleged deficiencies of women as strengths.177 this resultantly negates the need for coverture arising from her position under the dominance of the husband as described by justice m’kean and her condition of dependence upon him as described by justice nelson.178 in place of these justifications, murray’s writings indicate that the obligation to provide protection and benevolent influence described by blackstone was not so much born of necessity, as for the security of the position of the husband as concluded by bingham.179 in short, murray’s writings identify the aforementioned characteristics of women as strengths of the mind and character. given the numerous justifications of coverture as contingent upon these characteristics as weaknesses, murray’s reframing of them necessitates a different justification.180 it is here that the recurrent idea of coverture being used as a tool benefitting the dominance of men seems the only viable explanation in their stead. 180 murray, supra note 174 at 132, 133. 179 blackstone, supra note 140. 178 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142. 177 id. 176 id. at 132, 133. 54 brandeis university law journal 2023-2024, volume 11 murray does concede certain shortcomings common to her sex, but here too she identifies men as the party at fault, rather than the women themselves.181 when it comes to knowledge and education, for example, she points to the fact that women cannot reasonably be expected to possess any significant measure of the former without proper access to the latter.182 in murray’s own words, “are we deficient in reason? we can only reason from what we know, and if an opportunity of acquiring knowledge hath been denied us, the inferiority of our sex cannot fairly be deduced from thence.”183 women have long been condemned as irrational, prone to fit and fancy, and as such, unfit for aspects of life demanding critical thought and reasoning. murray offers a logical explanation: women cannot exercise sound reason if they are denied the opportunity to learn when and how to do so.184 that is, if men are able to keep women from educating themselves on reason and its proper uses, then women cannot be expected to be reasonable. it is not the fault of women that they have been denied the chance to learn and expand their knowledge, it is merely a consequence of the patriarchal and misogynistic society that prevailed during the 18th and 19th centuries.185 women were relegated from a young age to realms of domesticity, which excluded any manner of higher education.186 since women were handicapped in such a manner, their full intellectual potential could never truly be reached. the rest of society would have to pass judgment upon women who had been unfairly stunted by reduced opportunities for self-improvement and learning.187 187 id. at 133. 186 id. at 132, 133. 185 id. 184 id. 183 id. 182 id. 181 id. at 133. 55 brandeis university law journal 2023-2024, volume 11 continuing on the topic of education, murray illustrates her point with a poignant observation: may we not trace [judgement’s] source in the difference of education, and continued advantages? {...} how is the one exalted, and the other depressed, by the contrary modes of education which are adopted! the one is taught to aspire, and the other is early confined and limited. as their years increase, the sister must be wholly domesticated, while the brother is led by the hand through all the flowery paths of science. grant that their minds are by nature equal.188 the above quote is evidence that, like bingham, murray contends that women have the capacity for rational thought and intelligence equal to that of men. however, from a young age that capacity is cultivated in males, and stunted in females, leaving women at an increasingly large disadvantage as both sexes age.189 murray’s perspective on the issue is unique. she herself is a woman, and is thus better equipped to speak on the topic than most philosophical and legal writers of the time (as, needless to say, the vast majority were men). murray went through life knowing firsthand what it was to be viewed and treated as a second-class citizen, deprived of opportunities equal to those of men. this firsthand experience is key, as her writing comes from experience, rather than speculation. this is evident from her repeated use of the words “we,” us,” and “our,” whereby she includes herself in the women whose fate has been so constricted by men.190 the perspective of women on coverture and their own alleged disabilities is invaluable. to that end, the writings of sarah m. grimké, renowned 18th century abolitionist and 190 murray, supra note 174. 189 id. 188 id. 56 brandeis university law journal 2023-2024, volume 11 women’s rights advocate, offer themselves up as an ideal companion to those of judith sargent murray.191 in an 1837 letter addressed to her sister entitled “legal disabilities of women,” grimké laments and systematically proposes solutions to the numerous laws that existed solely to restrict the rights and legal identities of women.192 the opening lines of this letter echo the sentiments expressed hitherto, there are few things which present greater obstacles to the improvement and elevation of woman to her appropriate sphere of usefulness and duty, than the laws which have been enacted to destroy her independence, and crush her individuality; laws which, although they are framed for her government, she has had no voice in establishing, and which rob her of some of her essential rights.193 like murray, grimké asserts that the distinct lack of equality between women and men is a direct result of laws that have limited the independence and identity of the former.194 that is to say women, given the proper chance through education, are perfectly capable of the self-improvement proposed by grimké.195 murray and grimké wholeheartedly believe women to possess capabilities equal to those of men, though both agree that their sex has been unjustly hindered in this pursuit by the laws and restrictions imposed by the latter. moreover, the “laws” to which grimké attributes the oppression of women, she also condemns as merely contrived 195 grimké, supra note 192. 194 id. 193 id. at 1. 192 sarah m. grimké, 30_letter_xii_legal_disabilities_grimke.pdf, civics online, http://www.civics-online.org/library/formatted/texts/grimke.html (last visited jan 21, 2024). 191 alexander, supra note 173. 57 brandeis university law journal 2023-2024, volume 11 for their benefit.196 grimké’s comment that these laws “are framed for her government” speaks to the central question of coverture. these laws, of which coverture was essentially an performative amalgamation used the prevailing belief in the dependencies and vices of the “fairer sex” as an excuse to secure male power.197 the inclusion of the word “framed” suggests the laws were presented as being in the best interest of women, but were, in reality, a way by which the law and courts could deny women many of their most fundamental rights.198 suffice to say, the courts did not have the best interests of women in mind and chose, on numerous occasions, to uphold their legal yoke by men. recalling one sentiment shared by murray, it is men who have prevented women from expanding their knowledge. thus, any judgments passed on the intelligence of the female sex are flawed, as they are based on the functioning of stunted minds rather than educated ones.199 grimké appears to share in her observation that women had been systematically made ignorant by men such that the former lacked the proper knowledge and confidence to challenge the decrees of the latter.200 in combination with this, and in keeping with the prevailing mindset of the time, women were thought of as being “placed completely in the hands of a being subject like herself to the outbursts of passion, and therefore unworthy to be trusted with power.”201 in this manner, women were both denied knowledge and autonomy directly, and taught they lacked the basic capacity to make use of either. however, like murray, bingham, and m’kean, grimké, too, rejects this assumption, finding no fault with the intellectual powers of 201 id. at 3. 200 grimké, supra note 192 at 1. 199 murray, supra note 174 at 132, 133. 198 id. 197 id. at 1. 196 id. 58 brandeis university law journal 2023-2024, volume 11 women themselves.202 instead, she echoes the sentiments expressed hitherto, rejecting the notion that the laws and doctrines consolidated under coverture were, in truth, intended for the betterment and protection of womankind.203 grimké decidedly concludes that, “the laws which have generally been adopted in the united states, for the government of women, have been framed almost entirely for the exclusive benefit of men, and with a design to oppress women, by depriving them of all control over their property, is too manifest to be denied.”204 there can be no doubt that women of the time, those best equipped to speak on the true nature and implications of the coverture that afflicted them, did not view it as a state intended for their protection, nor one warranted by the nature of their sex. rather, coverture was established and perpetuated as an instrument of their own oppression, rendered unto them, heedless of their objections, by the very men sworn to guard and shepherd them. iv. conclusion after close examination of case law, legal commentaries, scholarly publications, and the writings of prominent female thinkers, an indisputable set of historical facts has emerged which recounts the repressive nature of coverture. the works of blackstone and mill serve to illustrate the mindset and rationalizations of those in support of the coverture of women, chiefly that it is a condition deemed necessary for the protection of women and one under which society will be the most stable. this is a sentiment echoed by nelson in drury v. foster as well. the cases of drury v. foster and barne’s lessee v. irwin, however, demonstrate that in practice, at least in the realm of the courts, coverture was more 204 id. at 4. 203 id. 202 id. at 3, 4. 59 brandeis university law journal 2023-2024, volume 11 contingent on the husband and the state of marriage itself, rather than any disabilities or deficiencies found inherent within women. to expand upon this idea, bingham, murray, and grimké concur that coverture was a condition arising from the relationship of women to men, rather than the state of women themselves. furthermore, they identify it as one knowingly tailored for the benefit of men and the protection of their assumed superiority, at the expense of women and their intellectual and legal opportunities. hence, it may be concluded that coverture was never a product of the needs of women as inferior beings. any such inferiority referenced at the time was demonstrably either entirely absent or merely manufactured by a system of imposed ignorance created by men. in all, this article has described how coverture was a scheme intended to subjugate women and deprive them of their legal identity. in doing so, coverture’s true purpose was to elevate men to a status far above women, thus protecting mens rights and ensuring their dominance. by perpetuating such a system, american jurisprudence not only allowed for the patriarchy to extend itself into the legal sphere, but also actively endorsed it. 60 gottlieb manuscript: law journal: volume 12 brandeis university law journal 2024-2025, volume 12 state responsibility for state sponsors of terror koby gottlieb1 this article explores the international legal obligations of states to cease trading with state sponsors of terrorism, focusing on article 16 of the draft articles on responsibility of states for internationally wrongful acts. using the principles of customary international law, including the prohibition on the use of force and non-intervention, this article evaluates state accountability for aiding terrorism as applied to china. the paper asserts that international trade with state sponsors of terrorism, such as china’s trade with iran, constitutes a breach of international law. roadmap this paper looks at the implications for iran’s trading partners, particularly china, in light of iran’s support for terrorism.2 it is important first to establish the theoretical framework underpinning this argument by analyzing the mens rea and actus rea elements of state responsibility. throughout, the paper will apply relevant aspects of the elements of state responsibility to both iran and china while also exploring international legal concepts on the use of force, non-intervention, and terrorism. in doing so, it will become clear that china’s trade with iran is illegal under international law. background the islamic revolutionary guards corps (irgc) is a terrorist organization that supports other terrorist organizations, including hezbollah, the houthis, and various additional 2 nader uskowi, temperature rising: iran’s revolutionary guards and wars in the middle east xiv–xvi (2019). 1 brandeis university, class of 2026, brandeis university law journal, copy editor. 105 brandeis university law journal 2024-2025, volume 12 militias.3 the iranian office of the supreme leader controls and aids the irgc, including subsidiary groups within it.4 china was one of the largest importers of iranian goods compared to other countries in 2022, substantially contributing to the iranian economy.5 since the irgc and the office of the supreme leader control over five hundred businesses, accounting for almost half of the iranian economy, china’s contributions to the iranian economy undoubtedly assist the irgc.6 hezbollah causes significant human casualties to civilians and considerable destruction of property across the world. one notable case is the attack on a jewish community center in argentina in 1994 that killed eighty-five people, wounded three hundred, and leveled the recreation center.7 the inter-american court of human rights — a regional human rights-centered court represented by judges from across the western hemisphere — ruled in january 2024 that hezbollah committed the attack with support from iran; iran is also likely to have ordered the attack.8 notably, the court held that this attack was an act of terrorism, likely due to civilians being the target of this attack.9 9 memoria activa vs. argentina, supra note 6 at 1; thomas buergenthal, the inter-american court of human rights, 76 am. j. int. law 231, 233–234, 242 (1982). 8 decisions by the court are binding on states that accept the american convention on human rights as binding. see american convention on human rights, 33, 61-62 (1969). 7 memoria activa vs. argentina, 43 (2024). 6 uskowi supra note 2 at xiv–xvi. 5 world integrated trade solution, iran, islamic rep. trade balance, exports and imports by country 2022, (2022). 4 see generally augustus r. norton, hezbollah: a short history (new paperback edition ed. 2014); trevor johnston et al., could the houthis be the next hizballah? iranian proxy development in yemen and the future of the houthi movement, 51–71 (2020). 3 id. 106 brandeis university law journal 2024-2025, volume 12 state responsibility since 1955, the international law commission (ilc), a group of thirty-four individuals elected by the united nations general assembly (unga), has developed the draft articles on responsibility of states for internationally wrongful acts, with commentaries, determining the limits of state responsibility in international law.10 the draft articles, especially article 16, serve as the backbone for this paper.11 article 16 concerns states aiding or assisting other states in committing internationally illegal acts.12 since there is not a substantial contextual difference between “aiding” and “assisting,” these terms will be used interchangeably in line with the united kingdom’s opinion.13 the commentary sets forth three conditions that limit the scope of responsibility of states in aiding or assisting: first, the relevant state organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted state internationally wrongful; secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so; thirdly, the completed act must be such that it would have been wrongful had it been committed by the assisting state itself.14 there is both a mens rea element and an actus reus element. the first condition and part of the second condition — “the aid or… of that act” — touch on the mens rea element, 14 united nations, supra note 11 at 66. 13state responsibility – comments and observations received from governments, 53rd session, 52 (2001). 12 id. 11 united nations, draft articles on responsibility of states for internationally wrongful acts, with commentaries 66 (2001). 10 james crawford, the ilc’s articles on responsibility of states for internationally wrongful acts: a retrospect, 96 the american journal of international law 874, 874 (2002); stephen c. mccaffrey, the thirty-seventh session of the international law commission, 80 american journal of international law 185, 185 (1986). 107 brandeis university law journal 2024-2025, volume 12 while part of the second condition — “must actually do so” — and the third condition touch on the actus reus element. as shown below, china meets each of these conditions for state responsibility. the application of the convention on the prevention and punishment of the crime of genocide (bosnian genocide case) further elaborates on the case law surrounding state responsibility. the bosnian genocide case was a case in the international court of justice (icj) that determined that the bosnian serb armed forces perpetrated genocide in the town of srebrenica, bosnia and herzegovina, in july 1995.15 decisions by the icj reflect international law.16 in this case, the icj regards article 16 as customary international law which is binding, according to the icj statute.17 the icj does not specifically regard the attached commentaries to article 16 as part of the canon of customary law, but they may still be a source of customary law. furthermore, the icj’s statute recognizes “judicial decisions and teachings of the most highly qualified publicists” as a source of customary law.18 in 2001, the final presentation of the draft articles included commentaries by numerous respected international lawyers.19 these include sir ian brownlie, james crawford, and john dugard — some of the leading international lawyers in scholarship and practice.20 20 philippe sands, sir ian brownlie obituary, the guardian, jan. 11, 2010; philippe sands, james crawford obituary, the guardian, jun. 13, 2021; curriculum vitae and publications of john dugard, 20 leiden journal of international law 983 (2007). 19 summary records of the first part of the fifty-third session, 1 (2001). 18 id. at 38(1)d. 17 application of the convention on the prevention and punishment of the crime of genocide, international court of justice 420 (2007); statute of the international court of justice, 38(b). 16 alain pellet, decisions of the icj as sources of international law? 56–57 (2018), http://crde.unitelmasapienza.it/it/pubblicazioni/gmls-2018 (last visited jan 20, 2025). 15 vojin dimitrijević & marko milanović, the strange story of the bosnian genocide case, 21 leiden journal of international law 65, 65 (2008). 108 brandeis university law journal 2024-2025, volume 12 thus, these individuals fit the requirement of “most highly qualified publicists,” and as such, the commentary to the draft articles carries an important weight in determining international law. crawford suggests reading the draft articles with the commentary and even the preparatory work of the ilc.21 for this article, the first important part of the draft articles is the mens rea element of article 16. the mens rea element in the bosnian genocide case, the icj determined that for a state’s assistance of another state to constitute wrongdoing, the assisting state must do so “in full awareness that the aid supplied would be used to commit” a crime.22 the assisting state must also be aware of the “specific intent” of the perpetrating state.23 the international criminal tribunal for rwanda was established by the united nations security council (unsc) in 1994 to prosecute those responsible for genocide in rwanda.24 international legal terms used by the tribunal clarify the meaning of the same terms because, according to the icj statute, tribunals help interpret international law.25 the tribunal ruled that “specific intent” requires that the perpetrator of a crime intended the result of the crime.26 the icj in the bosnian genocide case determined that states must have “at the least” this knowledge of intent, suggesting that the claim of responsibility necessitates some knowledge.27 27 georg nolte & helmut philipp aust, equivocal helpers—complicit states, mixed messages and international law, 58 iclq 1, 14 (2009). 26 the prosecutor versus georges anderson nderubumwe rutaganda, 59 (1999). 25 statute of the international court of justice, supra note 17 at 38(1)d. 24 resolution 955 establishment of an international tribunal and adoption of the statute of the tribunal, (1994). 23 id. at 421. 22 application of the convention on the prevention and punishment of the crime of genocide, international court of justice 423 (2007). 21 james crawford, state responsibility: the general part 87 (2013). 109 brandeis university law journal 2024-2025, volume 12 nevertheless, states do not need complete certainty; near-certain knowledge that assistance provided to one state will perpetuate a crime is sufficient for the assisting state to be responsible under article 16.28 professor john quigley, a scholar of international law, confirms and further explains this idea in the european journal of international law.29 he regards the united states’ intervention in lebanon in 1958 as unlawful and germany as complicit because germany intended to assist the united states by sending american airplanes to lebanon.30 while germany was not entirely certain that the united states would use these airplanes unlawfully, they were “practically certain” that the united states would use these airplanes unlawfully.31 the “practically certain” designation insinuates that while germany was not aware of the united states’ “specific intent,” they still had significant knowledge of the united states’ intentions. since the inter-american court of human rights has addressed iran’s ties to hezbollah, when applying the above principles to china, it is reasonable to conclude that china is aware of this ruling and its implications for trading with a state sponsor of terror.32 the challenge is determining whether china knows that the money it uses to buy iranian goods will go to support terror. researchers, journalists, and government institutions have all confirmed the irgc’s hegemony over the iranian economy by controlling about half of the entire 32 cecilia medina, the inter-american commission on human rights and the inter-american court of human rights: reflections on a joint venture, 12 human rights quarterly 439, 439 (1990). 31 j. quigley, complicity in international law: a new direction in the law of state responsibility, 57 british yearbook of international law 77, 112–113 (1987). 30 the status of the us intervention is unrelated to the purpose of this paper. 29 john quigley, karim khan’s dubious characterization of the gaza hostilities, european journal of international law: talk! (may 28, 2024). 28 crawford, supra note 21 at 408. 110 brandeis university law journal 2024-2025, volume 12 economy.33 the wide range of sources confirming this fact reinforces the idea that china knows about the irgc’s control over the iranian economy. accordingly, it is “practically certain” that china knows a significant portion of its trade with iran finances terrorism around the world. another example to illustrate the standard for the necessary level of knowledge to hold an assisting state responsible is the corfu channel case, where the icj issued a ruling after several british ships were damaged and several civilians were injured in 1946. this incident occurred after the british hit mines in albanian territorial waters.34 despite publicly saying it did not know about mines in its territorial waters, albania “must have known” about this unlawful behavior.35 the court considers knowledge as a state’s ability to recognize unlawful activities, making it responsible even if it publicly denies awareness. since, as mentioned earlier, it is “practically certain” that china knows about its unlawful trade with iran, china cannot avoid responsibility by denying awareness. there are two additional considerations regarding the legal standards of due diligence and willful ignorance of the assisting state. article 16 and the commentaries do not refer to any duty of due diligence to investigate whether assistance might be used unlawfully. in addition, they do not mention how to treat an assisting state that is willfully ignorant. instead, they stay neutral on both points.36 the appeals chamber of the international criminal tribunal for the former yugoslavia, in 36 harriet moynihan, aiding and assisting: challenges in armed conflict and counterterrorism, 14–15. 35 the corfu channel case, international court of justice 19 (1949). 34 dafina buçaj, the obligation to prevent transboundary cyber harm: expand the regulatory regime or continue deflecting responsibility, 54 the george washington international law review 219, 252 (2023). 33 uskowi, supra note 2 at xvi; julian borger & robert tait, the financial power of the revolutionary guards, the guardian, feb. 15, 2010; treasury targets billion dollar foundations controlled by iran’s supreme leader, (2021). 111 brandeis university law journal 2024-2025, volume 12 interpreting the “had reason to know” standard of article 7(3) of the statute of the international tribunal, provides further insight into the principles of due diligence and willful ignorance. 37 the tribunal indicted tihomir blaškić for alleged violations of international law against bosnian muslims between may 1992 and january 1994. after being found guilty, blaškić appealed.38 the statute of the icj regards tribunals as a source of international law.39 the appeals chamber ruled “that the mental [mens rea] element ‘had reason to know’ as articulated in the statute, does not automatically imply a duty to obtain information… [but] responsibility can be imposed for deliberately [sic] refraining from finding out but not for negligently failing to find out.”40 this decision indicates that under international law, states do not have an active duty to conduct due diligence on other countries, but if there is publicly recognized evidence and the assisting state intentionally ignores it, then the state should be held responsible. so, china does not have a duty of due diligence to investigate the details of how its trade with iran aids terrorism. however, china cannot claim willful ignorance, especially if there is substantial and public evidence suggesting that iranian terror benefits from chinese trade. since there is substantial public evidence showing china must be “practically certain” that iranian terror benefits from chinese trade, china cannot claim willful ignorance. the commentary explicitly mentions the need for intent but does not clearly define it. moreover, the commentary’s use of the words “with a view to facilitate” 40 blaskic case, supra note 37 at 406. 39 statute of the international court of justice, supra note 17 at 38(1)d. 38 antonio cassese, the oxford companion to international criminal justice 610–611 (2009). 37 blaskic case, the appeals chamber of the international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former yugoslavia since 1991 406 (2004). 112 brandeis university law journal 2024-2025, volume 12 suggests that the assisting state must have intent in aiding.41 terms used in the rome statute can help elucidate the use of these terms in other circumstances, such as the concept of intent here, since the statute is a document of international law.42 the rome statute of the international criminal court (icc) concerns itself with crimes committed by individuals, as opposed to states.43 the rome statute defines intent as when “in relation to conduct, that person means to engage in the conduct; in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of event.” 44 for china to meet the threshold of intent, it must purposefully trade with iran while either meaning to support terrorism or knowing that trading with iran will aid iran’s terrorist activities. the icc further developed the concept of intent in the bemba case. in the case, the icc initially sentenced jean-pierre bemba, a politician in the democratic republic of congo, in 2016 for crimes against humanity and war crimes, but later acquitted him in 2018.45 the icc further explains its definition of intent in two ways: first and second degree. the first degree is when an individual acts in a manner with the desire to bring about the elements of the crime. the second degree is when an individual knows that the elements of the crime will almost inevitably arise by the commission or omission of an act, even if there is no desire for the elements of the crime to arise.46 china’s intent is quite easy to prove based 46 decision pursuant to article 61(7)(a) and (b) of the rome statute on the charges of the prosecutor against jean-pierre bemba gombo, 358–359 (2009). 45 the prosecutor v. jean-pierre bemba gombo, 1, 752 (2016); the prosecutor v. jean-pierre bemba gombo, 196–198 (2018). 44 rome statute of the international criminal court, 30(2) (1998). 43 the rome statute of the international criminal court, , in the handbook of comparative criminal law 593, 595–596 (kevin jon heller & markus dubber eds., 2020). 42 statute of the international court of justice, supra note 17 at 38(1)d. 41 united nations, supra note 11 at 66. 113 brandeis university law journal 2024-2025, volume 12 on the second degree of intent. as explained above, china is “practically certain” that its trade with iran aids iran’s terror. regardless of whether china wants to support terror, it still has intent based on the second degree. in summary, china has the requisite level of knowledge, under the mens rea element of article 16, that its trade with iran supports terror. the actus reus element while the previous section described the mens rea element, this section will evaluate the actus reus element by determining the legality of states aiding terror and ascertaining its universality. first, it is important to establish a definition of terrorism to understand why aid to the irgc should be ceased immediately. unfortunately, there is not one clear definition of terrorism under international law.47 the league of nations, the unga, the secretary-general of the united nations (un), the unsc, and others have all passed their own, and sometimes contradictory, definitions of terrorism.48 due to the variety of definitions, this paper will adopt the view of terrorism espoused by the special tribunal for lebanon. established by the unsc in 2007, the special tribunal for lebanon primarily prosecuted those responsible for the assassination of the former lebanese prime minister rafik hariri.49 this definition works best because of the wide-ranging methodology taken by the appeals chamber in the special tribunal for lebanon, whereby they consulted international treaties, un resolutions, and domestic legislative and judicial practices to determine the customary law view of terrorism. the view of terrorism taken by the special tribunal has three key elements which must all 49 jan erik wetzel & yvonne mitri, the special tribunal for lebanon: a court “off the shelf” for a divided country, 7 law pract int courts trib 81, 81–82 (2008). 48 convention for the prevention and punishment of terrorism, (1937); resolution 49/60 measures to eliminate international terrorism, (1995); kofi annan, statement to the general assembly, (2005); resolution 1566, (2004). 47 ben saul, defining terrorism in international law 7 (2008). 114 brandeis university law journal 2024-2025, volume 12 be fulfilled: “the perpetration of a criminal act;… the intent to spread fear among the population… or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; when the act involved a transnational element.”50 with this definition of terrorism, it is important to further investigate iran’s terrorist actions by looking at the international legal principles of the use of force and non-intervention. article 2(4) of the un charter expresses the fundamental principle on the use of force in saying: “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the united nations.”51 according to the ilc in 1966, the charter’s view on using force is consistent with customary international law.52 unga resolution 2625 further clarifies the principle of the use of force. the icj recognized this resolution as customary law in the case concerning the military and paramilitary activities in and against nicaragua (nicaragua case). this case was brought to the icj by nicaragua after the united states allegedly used military force against nicaragua. based on the principle of the use of force, the court declared that “every state has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state.”53 the challenge with employing the principle of the use of force is that in the 53 case concerning military and paramilitary activities in and against nicaragua, icj 191 (1986); resolution 2625 declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations, (1970); thomas j. pax, nicaragua v. united states in the international court of justice: compulsory jurisdiction or just compulsion?, 8 boston college international and comparative law review 471, 471 (1985). 52 united nations, yearbook of the international law commission 1966, vol. ii 20 (1966). 51 united nations charter, 2(4) (1945). 50 the prosecutor v. ayyash et al., 85 (2011). 115 brandeis university law journal 2024-2025, volume 12 nicaragua case, the icj determined that acts must be “classified as an armed attack rather than as a mere frontier incident” to be forbidden based on this approach.54 according to legal commentators, an armed attack can refer to the use of force when it causes “serious consequences… human casualties, or considerable destruction of property”.55 this limitation by the court’s ruling means that arming and training terrorist forces violates the principle of the use of force, but simply funding these forces does not. instead, funding may be a problem under the principle of non-intervention.56 only a limited number of acts of aggression are considered armed attacks; the remainder are frontier incidents.57 the high number of civilian casualties and destruction of property in the attack on the jewish community center show that hezbollah’s attacks can be considered armed attacks. by organizing, assisting, and participating in these attacks through hezbollah and the irgc, iran violates the use of force principle. based on the principle of non-intervention, unga resolution 2625 declares that “no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state.”58 the limitation of this principle is that for an entity to violate it, the terrorist activities must be conducted with the intention of bringing about change regarding “matters in which each state is permitted, by the principle of state sovereignty, to decide freely,” including “political, economic, social and cultural 58 resolution 2625 declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations, supra note 53. 57 john h. currie, public international law 504 (2. ed ed. 2008). 56 case concerning military and paramilitary activities in and against nicaragua, supra note 53 at 228. 55 yoram dinstein, war, aggression, and self-defence 193 (fourth edition ed. 2005). 54 case concerning military and paramilitary activities in and against nicaragua, supra note 53 at 195. 116 brandeis university law journal 2024-2025, volume 12 system, and the formulation of foreign policy” by the victim state.59 terrorism, according to the special tribunal for lebanon, includes cases where the terrorist organization intends to alter “matters in which a state is permitted to decide freely.” therefore, the non-intervention principle encompasses most acts of support to a terror organization. the principles on the use of force and non-intervention are customary principles that have their ultimate authority in article 2 of the un charter and are thus incumbent on all states.60 the recent houthi attacks on israel also demonstrate iran’s violation of international law. in december 2024, the houthis fired rockets targeting israel for several nights.61 these attacks may not be considered armed attacks because the houthi strikes have only killed one israeli and have only caused limited damage, thereby not fulfilling the criteria of “human casualties.”62 therefore, these attacks do not necessarily violate the principle of the use of force but could violate the principle of non-intervention. the houthis are firing these rockets to try to force israel to end the war in gaza, a highly political matter.63 because the houthi rebels are using iranian funds and weapons to interfere with israeli political matters, iran has violated the principle of non-intervention by financing the rebels.64 since these attacks are ongoing, iran is currently in violation of this principle. 64 uskowi supra note 2 at xiv–xvi 63 yemen’s houthis ‘will not stop’ red sea attacks until israel ends gaza war, al jazeera, dec. 19, 2023. 62 greg myre & daniel estrin, drone strikes tel aviv, killing one. houthis claim responsibility, npr, jul. 19, 2024; tia goldenberg, israel struggles to deter escalating attacks from yemen’s houthi rebels as other fronts calm, ap news, jan. 3, 2025. 61 stuart winer & emanuel fabian, houthis fire missile at central israel for 4th night in past week; idf intercepts it, dec. 25, 2024. 60 united nations charter, supra note 51 at 2. 59 case concerning military and paramilitary activities in and against nicaragua, supra note 53 at 205. 117 brandeis university law journal 2024-2025, volume 12 acts that violate both the principles of the use of force and non-intervention violate the key elements of terrorism.65 however, that does not imply that all acts of terrorism necessarily fall under one of either the principles of the use of force or non-intervention. there could be a case where a state only provides funds to a terrorist organization, thereby possibly violating the principle of non-intervention. if the terrorist organization only commits attacks to spread fear and not to effect change concerning “matters in which each state is permitted,” then a state aiding terror would not necessarily be committing a crime. nevertheless, this is not a concern because of the nature of state sponsors of terror who act with the intent to alter the political and security conditions of the victim state. therefore, state sponsors of terror support terror organizations that have a goal of changing “matters in which each state is permitted.”66 conclusion as demonstrated, trade with iran violates international law. the only remedy is for states to cease all trade with iran or violate international law. another option would be for the unsc to pass a resolution imposing economic sanctions on iran, which would be incumbent on all states.67 whether or not the unsc passes a resolution, trade with iran and other state sponsors of terror remains illegal, requiring all states to cease such activity. although international law is not enforceable, 67 rebecca barber, an exploration of the general assembly’s troubled relationship with unilateral sanctions, 70 iclq 343, 346–348 (2021); see anne van aaken & betül simsek, rewarding in international law, 115 am. j. int. law 195 (2021). 66 magdalena kirchner, why states rebel: understanding state sponsorship of terrorism 239–240 (2016). 65 see the prosecutor v. ayyash et al. supra note 50 at 85 “the perpetration of a criminal act;… the intent to spread fear among the population… or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; when the act involved a transnational element” 118 brandeis university law journal 2024-2025, volume 12 states may have a desire to comply with it and, therefore, should cease trade with iran on their own accord.68 states must not assist other states in committing internationally unlawful acts. there are both mens rea and actus reus elements to this responsibility. since support for terrorism is illegal under international law, it is illegal for states to support those who aid terrorist organizations or commit terror attacks themselves. using china and iran as a case study, this article demonstrates why all states, including china, must halt trade with iran due to its support for terrorism. 68 anthony d’amato, is international law really law, 79 nw. u. l. rev. 1293, 1293 (1984). 119 state responsibility for state sponsors of terror roadmap background state responsibility the mens rea element the actus reus element conclusion lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 the israeli-hamas war: the legality of israel’s invasion of gaza under international law koby gottlieb1 the ongoing israeli-hamas war continues to cause untold human suffering, dominate media coverage, and attract the attention of international organizations. this article seeks to clarify normative controversy related to the legality of israel’s invasion of the gaza strip by using international legal norms regarding self-defense, terrorism, and sovereignty. using international legal theory and the expansion of customary law, as well as the politics between palestinian factions, the article finds that israel’s invasion is legal under current international law. i. roadmap about three months into the current israeli-hamas war, south africa brought genocide charges against israel in the international court of justice (icj).2 this article addresses some of the israeli arguments made during the court proceedings, especially those related to self-defense.3 it is 3 state of israel, application of the convention on the prevention and punishment of the crime of genocide in the gaza strip (south africa v. israel): verbatim record, (2023). 2 antónio guterres, secretary-general’s remarks to the security council on the middle east, (2024), https://www.un.org/sg/en/content/sg/speeches/2024-01-23/secretary-general s-remarks-the-security-council-the-middle-east; mat nashed, western coverage of israel’s war on gaza bias or unprofessionalism?, al jazeera, oct. 29, 2023, https://www.aljazeera.com/news/2023/10/29/western-coverage-of-israels-w ar-on-gaza-bias-or-unprofessionalism; republic of south africa, application instituting proceedings, (2023). 1 brandeis university, class of 2026. 9 brandeis university law journal 2023-2024, volume 11 important to first establish the theoretical framework governing self-defense, terrorism, and territorial sovereignty. this framework will then be applied to the present case of israel’s invasion of the gaza strip. after concluding these assessments, it will become clear that israel’s invasion on october 27, 2023, is legal according to international law. ii. introduction on october 7, 2023, hamas carried out a massacre in israel, killing about 1,200 people and abducting approximately 240 people.4 in the days following the massacre, hamas indiscriminately launched barrages of rockets towards israel. israel consequently launched retaliatory airstrikes. on october 27, israel began its ground invasion of the gaza strip.5 an in-depth evaluation of the actions on october 7 is not within the scope of this article; instead, this article evaluates the legality of israel’s invasion. acknowledging the difficulties of analyzing events during wartime, this article will only address one question—whether the invasion of the gaza strip was legal under international law—and not the legality surrounding the events that transpired during the invasion itself. this excludes any attempt to evaluate israeli conduct under international legal 5 israel pummels gaza with strikes as it expands ground operations, france 24, oct. 27, 2023, https://www.france24.com/en/live-news/20231027-israel-pummels-gaza-wit h-strikes-as-it-expands-ground-operations; arthur van coller, israel-hamas 2024 symposium qassam rockets, weapon reviews, and collective terror as a targeting strategy, (2024), https://lieber.westpoint.edu/qassam-rockets-weapon-reviews-collective-terro r-targeting-strategy/. 4 police say they’ve identified 859 civilian victims from october 7 massacre, up 16, the times of israel, nov. 14, 2023, https://www.timesofisrael.com/liveblog_entry/police-say-theyve-identified859-civilian-victims-from-october-7-massacre-up-16/. 10 brandeis university law journal 2023-2024, volume 11 principles, since any such inquiry would require an in-depth knowledge of classified information.6 iii. the right of self-defense the united nations charter is the foundational text of the organization, and it is binding upon all member states.7 article 2(4) of the charter enshrines the importance of refraining “from the threat or use of force against the territorial integrity or political independence of any state.”8 however, article 51 of the charter notes that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the united nations.”9 additional codification of self-defense can be found in united nations general assembly (unga) resolution 3314, which criminalizes state aggression from the perspective of international law and helps clarify the definition of an “armed attack” under article 51 of the charter.10 this resolution includes a few examples of acts of aggression, such as “invasion or attack by the armed forces of a state… or any military occupation, however temporary.”11 it is worth noting that the definition of “[s]tate” in this resolution “is used without prejudice to questions of recognition or to 11 definition of aggression, u.n. gaor (1974). 10 thomas bruha, the general assembly’s definition of the act of aggression, in the crime of aggression: a commentary, 142 (2016); report of the 1956 special committee on the question of defining aggression, (1956). 9 u.n. charter art. 51. 8 u.n. charter art. 2, para.4. 7 alfred verdross, general international law and the united nations charter, 30 royal institute of international affairs 342 (1954). 6 noam lubell, jelena pejic & claire simmons, guidelines on investigating violations of international humanitarian law: law, policy, and good practice, (2019), https://www.geneva-academy.ch/joomlatools-files/docman-files/guidelines %20on%20investigating%20violations%20of%20ihl_%20final.pdf. 11 brandeis university law journal 2023-2024, volume 11 whether a state is a member of the united nations,” meaning that self-defense against a state can also be legal if the united nations does not recognize that state, if that state is not a member of the united nations, or even if both are applicable.12 in addition to the charter and resolution 3314, the icj’s decision in the republic of nicaragua v. united states of america (1986) is also important in defining self-defense. in 1984, american military intervention in nicaragua caused the latter to launch legal proceedings at the icj the same year.13 nicaragua v. usa adds an additional condition for an act of aggression to justify the right of self-defense: these acts must be “classified as an armed attack rather than as a mere frontier incident.”14 the difference between an armed attack and a frontier incident is based on the “scale and effects” of the operation.15 the icj judgment furthers the importance of unga resolution 3314 by considering the resolution a document of customary international law.16 this decision changed unga resolution 3314 from a non-binding general assembly resolution to one that is binding upon all nations, as is the nature of customary international law.17 the right of self-defense against terror organizations is more complicated than the right of self-defense against a state; in fact, it may appear that unga resolution 3314 limits the 17 south west africa cases, icj 98 (1966); james crawford, brownlie’s principles of public international law 19–28 (9 ed. 2019). 16 id. 15 id. 14 case concerning military and paramilitary activities in and against nicaragua, icj 195 (1986). 13 carlos arguello gomez, request for the indication of provisional measures of protection submitted by the government of nicaragua, (1984), https://www.icj-cij.org/sites/default/files/case-related/70/9629.pdf; carlos arguello gomez, application instituting proceedings, (1984), https://www.icj-cij.org/sites/default/files/case-related/70/9615.pdf. 12 id. 12 brandeis university law journal 2023-2024, volume 11 right of self-defense to attacks from a state.18 in the interest of this article, it is imperative to define terrorism under international law, so that we can evaluate it according to international legal principles. according to the special tribunal for lebanon, terrorism has three elements: “perpetration of a criminal act… or threatening such an act; the intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; when the act involves a transnational element.”19 as previously noted, unga resolution 3314 claims that a state must be the body invading or attacking for it to be considered an act of aggression. in 2003, the general assembly requested that the icj investigate “the legal consequences arising from the construction of the wall being built by israel” in the west bank.20 the opinion of the court became known as the wall advisory opinion, and while it is only an advisory opinion, it carries normative weight.21 the wall advisory opinion (2004) recognized that “article 51 of the [un] charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one state against another state.”22 judge higgins, former president of the icj, offers a dissenting opinion, concluding that “there is, with respect, nothing in the text of article 51 that thus stipulates that self-defense is available only when an armed attack is made by a state.”23 23 id. at 33. (separate opinion of judge higgins) 22 legal consequences of the construction of a wall in the occupied palestinian territory, icj 139 (2004). 21 niccolò lanzoni, the authority of icj advisory opinions as precedents: the mauritius/maldives case, the italian review of international and comparative law (2022). 20 general assembly resolution es-10/14, (2003), https://www.securitycouncilreport.org/atf/cf/%7b65bfcf9b-6d27-4e9c-8 cd3-cf6e4ff96ff9%7d/icj%20areses1014.pdf. 19 the prosecutor v. ayyash et al., 85 (2011). 18 definition of aggression, u.n. gaor (1974). 13 brandeis university law journal 2023-2024, volume 11 professor vaughan lowe, author of numerous books on international law and professor of international law at the university of oxford, strengthens judge higgins’ view by arguing that “the source of [an] attack, whether a state or non-state actor, is irrelevant to the existence of the right” to self-defense.24 the opinions of both judge higgins and professor lowe carry a level of legal weight because the international court of justice’s statute recognizes that “judicial decisions and teachings of the most highly qualified publicists of the various nations” are means for determining law.25 based on their aforementioned qualifications, judge higgins and professor lowe demonstrate that they are, as stated by the icj, “highly qualified.”26 therefore, their opinions are significant for future evaluation, even though they are not binding. raising a further possibility for a right of self-defense, nicaragua v. usa states that if a state has “effective control of the military or paramilitary operations” of a terror organization while the terrorist organization is conducting acts of aggression, the state has a level of legal responsibility.27 moreover, un special rapporteur philip alston remarked that “a targeted killing conducted by one state in the territory of a second state does not violate the second state’s sovereignty if… the first, targeting, state has a right under international law to use force in self-defense under article 51 of the un charter, because … the second state is unwilling or unable to stop armed attacks against the first state launched from its territory.”28 this interpretation allows room for states to fight 28 philiip alston, report of the special rapporteur on extrajudicial, summary or arbitrary executions, 35 (2010). 27 case concerning military and paramilitary activities in and against nicaragua, 115. 26 judge dame rosalyn higgins; vaughan lowe, qc. 25 statute of the icj, 38(1)d, https://www.icj-cij.org/statute. 24 vaughan lowe, principles of international law on the use of force by states in self-defence, 22 (2005). 14 brandeis university law journal 2023-2024, volume 11 terror organizations in foreign territory without the explicit permission of the sovereign. another advancement in the right of self-defense relating to terror is represented by un security council resolution (unscr) 2249. the security council passed resolution 2249 in november 2015 as a means of combating the islamic state throughout the middle east and the wider world.29 this resolution “calls upon member states … to eradicate the safe haven [the islamic state of iraq and syria (isis)] have established.”30 importantly, the resolution uses the language “calls upon,” and these words are “exhortatory rather than mandatory language and … therefore, they do not purport to impose any legal duty on any state.” 31 given the lack of a legal duty on a state to eradicate isis, marc weller, professor of international law at the university of cambridge, argues that unscr 2249 “does not grant any fresh authority for states seeking to take action,” but rather that this ability has already existed within international customary law.32 dapo akande, professor of public international law at the university of oxford, and marko milanovic, associate professor in law at the university of nottingham, agree with the assessment that unscr 2249 “neither adds to, nor subtracts from, whatever authority” states already have in fighting terror.33 the language 33 dapo akande & marko milanovic, the constructive ambiguity of the security council’s isis resolution, blog of the european journal of international law (nov. 21, 2015), 32 arabella lang, legal basis for uk military action in syria, 8 (2015), https://www.voltairenet.org/img/pdf/cbp-7404.pdf. 31 legal consequences for states of the continued presence of south africa in namibia (south west africa) notwithstanding security council resolution 276, icj 114 (1971). 30 resolution 2249, (2015). 29 threats to international peace and security caused by terrorist acts, (2015), https://documents.un.org/doc/undoc/pro/n15/383/49/pdf/n1538349.pdf?toke n=s5uy6ull3akxofnvqa&fe=true. 15 brandeis university law journal 2023-2024, volume 11 in unscr 2249 indicates that the right of states to attack terror regimes in foreign countries is not new, and that the resolution simply codified an established rule of customary international law that has been developing since the nicaragua vs. usa ruling.34 the majority of the academic discussion thus far relates to the right of self-defense against terror organizations and whether a terror organization is operating in another sovereign’s territory. therefore, discussions of what constitutes sovereign territory and the relevant principles for this conversation are essential. iv. sovereignty, elements of a state, and occupation article 2(1) of the un charter recognizes the idea of sovereignty of states through the principle of “sovereign equality” of nations.35 in the case concerning the frontier dispute between burkina faso and mali, the icj recognized the principle of uti possidetis juris (as possessing of law) as an aspect of customary international law. through this, the court recognized that the borders of post-colonial states could result “from mere internal administrative divisions” of the previous colonial ruler. in this court case, the previous colonial ruler was france with the former french territories of french upper volta, later burkina faso, and french sudan, later mali. the icj applied the principle of uti possidetis juris to establish the 35 united nations charter, 2(1) (1945), https://treaties.un.org/doc/publication/ctc/uncharter.pdf. 34 arabella lang, legal basis for uk military action in syria, (2015), https://www.voltairenet.org/img/pdf/cbp-7404.pdf; michael scharf, how the war against isis changed international law, (2016). https://www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils -isis-resolution/. 16 brandeis university law journal 2023-2024, volume 11 border between burkina faso and mali based on the french colonial borders.36 notably, the case land and maritime boundary between cameroon and nigeria notes that “the fundamental principle of respect for frontiers inherited from colonization [is] uti possidetis juris” and other relevant commitments.37 other decisions, such as the land, island and maritime frontier dispute between el salvador and honduras, have also recognized the importance of uti possidetis juris.38 professor malcolm shaw, professor of international law at the university of leicester, has written that the principle of uti possidetis juris means that “a new state has the boundaries of the previous entity.” 39 the montevideo convention on the rights and duties of states (1933) is a document of customary international law that lays out the requirements for a state to be granted statehood according to international law.40 the convention enumerates that for a state to be considered a state under international law, it must have “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”41 41 montevideo convention on the rights and duties of states, 1 (1933). 40 dj harris, cases and materials on international law (6th ed. 2010). 39 malcolm shaw, international law 450 (9th ed. 2021). 38 land, island and maritime frontier dispute, icj (1992), https://www.icj-cij.org/sites/default/files/case-related/75/075-19920911-ju d-01-00-en.pdf. 37 the land and maritime boundary between cameroon and nigeria, icj 18d (1998), https://www.icj-cij.org/sites/default/files/case-related/94/094-19980611-ju d-01-00-en.pdf. 36 case concerning the frontier dispute, icj 21–22 (1986), https://www.icj-cij.org/sites/default/files/case-related/69/069-19861222-ju d-01-00-en.pdf. 17 brandeis university law journal 2023-2024, volume 11 v. palestine and the montevideo criteria there are two paths set out in international law—as previously explained—that israel could use to justify its invasion of gaza. the first is a determination that it benefits from a right of self-defense, and the second involves establishing a connection between previous customary law on terrorism and hamas, without relying on the doctrine of self-defense. although both judge higgins and professor lowe offer insight into the view that the right of self-defense may come from a non-state actor, in the interest of a strengthened argument, the remainder of the article will proceed on the basis of the majority’s reasoning in the international court of justice’s wall advisory opinion.42 under that reasoning, the right of self-defense outlined in article 51 of the un charter must be self-defense from a state. it is also worth mentioning that it does not matter whether the state is a member of the united nations per unga resolution 3314.43 the determining factor, therefore, is whether gaza is a state—which would include being part of a more comprehensive state—or not. there is considerable debate among legal scholars on whether to consider palestine a state under international law.44 within the pre-trial proceedings of an international criminal court case to determine whether palestine is a state, professor malcolm shaw claimed that “palestine is not a state according to international law as it does not conform with the 44 errol mendes, statehood and palestine for the purposes of article 12(3) of the icc statute. 43 definition of aggression, u.n. gaor (1974). 42 legal consequences of the construction of a wall in the occupied palestinian territory, at 33 (separate opinion of judge higgins); vaughan lowe, principles of international law on the use of force by states in self-defense, 22 (2005); legal consequences of the construction of a wall in the occupied palestinian territory, 139. 18 brandeis university law journal 2023-2024, volume 11 internationally recognized montevideo criteria.”45 however, in the same case, the opposition argued for a more lenient application of the montevideo criteria in determining whether palestine is a state, which could allow it to fulfill the definition.46 one way or another, however, in determining whether palestine is a state that includes gaza, one must deploy the montevideo principles.47 the first point, a permanent population, is easy to prove—the population of gaza in 2002 was about 1.1 million and about 2.1 million in 2023.48 however, it is trickier for a palestinian “state” in gaza to prove it has a defined territory in accordance with the second criteria. in demonstrating a defined territory, it must be shown that the “territory is both the object of the state’s right and the space within which its sovereignty and jurisdiction are exercised,” as accepted by professor shaw.49 therefore, it is important to definitely determine the de facto (based on the reality) and de jure (based on laws) ruler of gaza. the borders of the british mandate on may 14, 1948, included the gaza strip as delineated in an agreement between the ottomans and british-ruled egypt in 1906. this was further confirmed in a speech in 1925 by the british minister of state where he said that “the line dividing the territories under egyptian and turkish administration [was] defined in 1906 by 49 malcolm shaw, title to territory in africa: international legal issues (1986), 15. 48 the west bank and gaza: a population profile, (2002), https://www.prb.org/resources/the-west-bank-and-gaza-a-population-profile /; gaza strip, (2024), https://www.cia.gov/the-world-factbook/countries/gaza-strip/#people-and-s ociety. 47 montevideo convention on the rights and duties of states. 46 office of the prosecutor, situation in the state of palestine, https://www.icc-cpi.int/sites/default/files/courtrecords/cr2020_01746.pd f. 45 malcolm shaw, situation in the state of palestine, https://legal-tools.org/doc/p5ixh2/pdf/. 19 brandeis university law journal 2023-2024, volume 11 a boundary commission and has not since been modified.”50 using the aforementioned principle of uti possidetis juris, the gaza strip de jure belongs to israel because the palestinians only made a declaration of independence in 1988, whereas israel did so on may 14, 1948, at the termination of the mandate.51 some may claim that egypt continued the colonization of gaza and therefore, the principle of uti possidetis juris cannot apply; however, this view is fundamentally wrong. only in february 1949, nine months after israel’s declaration of independence, did egypt officially gain control over gaza through an armistice agreement.52 but, this armistice agreement “is not to be construed in any sense as a political or territorial boundary,” meaning that under the principle of uti possidetis juris, egypt’s control of gaza has no effect on israel’s borders.53 furthermore, in 1979, egypt and israel signed a peace treaty whereby “the permanent boundary between egypt and israel is the recognized international boundary between egypt and the former mandated territory of palestine … without prejudice to the issue of the status of the gaza strip.”54 while this peace treaty recognizes a special status for gaza, this does not jeopardize the principle of uti possidetis juris. using this principle, israel could be the only inheritor of the 54 peace treaty between the state of israel and the arab republic of egypt, ii (1979). 53 id. at v(2). 52 armistice agreement between egypt and israel, (1949), https://documents.un.org/doc/undoc/gen/nl4/914/45/pdf/nl491445.pdf?toke n=oo9yv9lqmaevgipshd&fe=true. 51 palestinian national council declaration of independence, (1988), https://fmep.org/wp/wp-content/uploads/2015/01/pnc-declaration-of-indep endence.pdf; declaration of israel’s independence, (1948), https://avalon.law.yale.edu/20th_century/israel.asp. 50 xx reports of international arbitral awards: case concerning the location of boundary markers in taba between egypt and israel, 24–25, 114–116 (1988), https://legal.un.org/riaa/cases/vol_xx/1-118.pdf. 20 brandeis university law journal 2023-2024, volume 11 territory based on the preceding information and the fact that israel and egypt signed the peace treaty nine years before a palestinian declaration of independence.55 others argue that the israeli withdrawal from gaza in 2005 indicates a loss of israel’s de jure status over the gaza strip. however, the israeli cabinet resolution detailing the withdrawal never mentioned a loss of de jure status and maintained israeli operational capabilities within gaza.56 therefore, a palestinian state in gaza failed on this point—a defined territory—of the montevideo convention. the third criterion in the montevideo convention, the existence of a government, is also tricky to establish, especially within gaza. the challenges arise because the plo “has been recognized as the sole legitimate representative of the palestinian people” by the arab league.57 however, since 2006, hamas has been controlling gaza, and the plo, primarily controlled by the palestinian authority, has not been able to exercise its rule over gaza.58 a more accurate presentation would be to label it as controversial whether a 58 kali robinson, who governs the palestinians, (2024).; ian slesinger, the limits of control: technological agency, urban terrain, strategy and the state in the 2014 gaza war, political geography (2022); yezid sayigh, hamas rule in gaza: three years on, brandeis university crown center for middle east studies (2010). 57 salem barahmeh, the palestinians, the plo, and political representation: the search for palestinian self-determination, (2014), https://icsr.info/wp-content/uploads/2014/07/icsr_atkin-series_salem-bar ahmeh.pdf. 56 the cabinet resolution regarding the disengagement plan, (2004), http://www.mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revise d%20disengagement%20plan%206-june-2004.aspx; i acknowledge that israel does not claim sovereignty over gaza, however this does not make any substantive differences in israel’s de jure status over the territory. 55 palestinian national council declaration of independence, (1988), https://fmep.org/wp/wp-content/uploads/2015/01/pnc-declaration-of-indep endence.pdf 21 brandeis university law journal 2023-2024, volume 11 palestinian state in gaza fulfills the third criterion due to the lack of a well-established government. the last point in the montevideo criteria is much easier to prove, irrespective of the controversial status of whether the plo or hamas governs gaza. the plo has observer status in the united nations and diplomatic representation in about ninety countries.59 hamas has definite relations with qatar and turkey and suspected relations with several other countries, thereby demonstrating its ability to enter into relations with foreign states.60 while not explicitly a document of customary law, the european political cooperation declaration on the recognition of new states in eastern europe and the soviet union states that unless a new state commits itself “to the rule of law … the community and its member states will not recognize” the state.61 this statement has led individuals such as tal becker, legal advisor for the israeli ministry of foreign affairs, and professor robbie sabel, professor of international law at the hebrew university of jerusalem, to believe that, “even if the palestinian entity were to meet those [montevideo] criteria, the illegality associated with its current unilateral claim to statehood demands that recognition be withheld.”62 the 62 tal becker, international recognition of a unilaterally declared palestinian state: legal and policy dilemmas, https://www.jcpa.org/art/becker2.htm.; robbie sabel, international law and the arab-israeli conflict i, 397 (2022); jeremy sharon, israel rejects 61 statement by an extraordinary epc ministerial meeting concerning the “guidelines on the recognition of new states in eastern europe and in the soviet union,” (1991), http://aei.pitt.edu/36871/1/a2880.pdf. 60 mirren gidda, hamas still has some friends left, (2014), https://time.com/3033681/hamas-gaza-palestine-israel-egypt/; henri barkey, turkey, the united states, and the israel-hamas war, (2023), https://www.cfr.org/article/turkey-united-states-and-israel-hamas-war. 59 general assembly resolution 3237, (1974). list of diplomatic missions in palestine & palestinian diplomatic missions abroad, https://www.embassy-worldwide.com/country/palestine/. 22 brandeis university law journal 2023-2024, volume 11 illegality that becker and sabel refer to is the violations of the oslo accords if the palestinians establish a palestinian state unilaterally. the oslo accords were a series of peace agreements between israel and the palestinian liberation organization (plo) in the 1990s.63 professor watson, former attorney-advisor in the u.s. department of state and professor of international law, regards the oslo accords as “binding international agreements.”64 unilaterally establishing a palestinian state would violate the portion of the oslo accords stipulating that the palestinian national “council will not have powers and responsibilities in the sphere of foreign relations,” which would be covered by israel. thus, unless israel gives explicit permission for a palestinian state, it would be illegal under the oslo accords.65 the oslo accords also state that “neither side shall initiate or take any step that will change the status of the west bank and the gaza strip.”66 the unilateral establishment of a palestinian state would clearly change the status of the territory that this state occupies. although the merits of a palestinian state fulfilling the montevideo criteria and whether a palestinian state is legal are unconvincing due to the aforementioned disagreement on this topic, it is still important to discuss the legality of israel’s invasion, assuming that a palestinian state exists in gaza. 66 israeli-palestinian interim agreement on the west bank and the gaza strip, chapter 5 article xxxi (7) (1995). 65 israeli-palestinian interim agreement on the west bank and the gaza strip, chapter 1 article ix (5)(a), chapter 3 article xvii (4) (1995). 64 geoffrey watson, the oslo accords: international law and the israeli-palestinian peace agreements (200ad), 101. 63 oslo accords, (2024), https://www.britannica.com/topic/oslo-accords. genocide claims at the hague, says south africa’s allegations “baseless,” jan. 12, 2024. 23 brandeis university law journal 2023-2024, volume 11 vi. the legality of israel’s invasion as previously explained, there are two possible palestinian sovereigns of gaza: hamas and the plo. first, assuming that hamas is the state sovereign of gaza, it does not matter that hamas does not have representation at the united nations nor official recognition as detailed in unga resolution 3314. one must classify hamas’ attacks on october 7th as an armed attack. hamas murdered about 1,200 israelis during this invasion, and hamas forces occupied specific locations within israel for at least twenty-four hours.67 moreover, the attacking forces reached over thirty kilometers into israeli territory, reaching israeli towns as far from the gaza border as ofakim.68 these attacks included about one thousand hamas fighters and the combined forces of about five different palestinian armed groups.69 moreover, in the first few hours of the hamas invasion, hamas fired about three thousand rockets at israel.70 as defined in the nicaragua case, this attack 70 emanuel fabian, idf: 9,500 rockets fired at israel since oct. 7, including 3,000 in 1st hours of onslaught, nov. 9, 2023, https://www.timesofisrael.com/liveblog_entry/idf-9500-rockets-fired-at-isra el-since-oct-7-including-3000-in-1st-hours-of-onslaught/. 69 daniel byman et al., hamas’s october 7 attack: visualizing the data, (2023), https://www.csis.org/analysis/hamass-october-7-attack-visualizing-data; abdelali ragad et al., how hamas built a force to attack israel on 7 october, (2023), https://www.bbc.com/news/world-middle-east-67480680. 68 gil lewinsky, bravery in ofakim: the civilians, police who thwarted hamas massacre plan, nov. 4, 2023, https://www.jpost.com/arab-israeli-conflict/gaza-news/article-771532. 67 tamsin westlake, an analysis of the 7th of october 2023 casualties in israel, (2023), https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-i n-israel-as-a-result-of-the-hamas-attack/; michael bachner & emanuel fabian, israel evacuates civilians from gaza-area towns as forces scour for remaining gunmen, the times of israel, oct. 9, 2023, https://www.timesofisrael.com/israel-evacuates-civilians-from-gaza-area-to wns-as-forces-scour-for-remaining-gunmen/. 24 brandeis university law journal 2023-2024, volume 11 is not “a mere frontier incident,” but a full-scale invasion, with ground forces assaulting numerous towns, combined with an air and rocket attack.71 therefore, assuming that gaza is a state governed by hamas, israel would have the right of self-defense. the other grounds for an israeli invocation of the right of self-defense does not depend on identifying a specific sovereign of gaza. rather, it depends on an analysis of laws governing state responses to terrorism. the first step is to apply the definition of terrorism to hamas. irrespective of the fact that over eight countries and the european union, have designated hamas as a terror organization, it is crucial to apply this definition according to international law as opposed to domestic law.72 for international law to consider an organization a terrorist organization, three criteria must be met: 72 el gobierno argentino incluirá al grupo hamás en la lista de organizaciones terroristas, frente a cano, dec. 23, 2023, https://frenteacano.com.ar/el-gobierno-argentino-incluira-al-grupo-hamas-e n-la-lista-de-organizaciones-terroristas/.; hamas to be listed in entirety as a terrorist organisation by australian government, abc news, feb. 17, 2022, https://www.abc.net.au/news/2022-02-17/hamas-palestinian-listed-as-terrori st-group-australia-government/100839262.; trudeau affirms support for israel in call with war cabinet member benny gantz, city news, nov. 16, 2023, https://toronto.citynews.ca/2023/11/16/no-canadians-on-updated-exit-list-fo r-the-rafah-border-crossing-hundreds-still-stuck/.; daniel boffey, eu court upholds hamas terror listing, the guardian, jul. 26, 2017, https://www.theguardian.com/world/2017/jul/26/eu-court-upholds-hamas-te rror-listing.; paraguay adds hamas, hezbollah to terrorism list, middle east monitor, aug. 20, 2019, https://www.middleeastmonitor.com/20190820-paraguay-adds-hamas-hezbo llah-to-terrorism-list/.; ashlyn messier, israel, australia, japan, uk, us, others have officially designated hamas a terrorist organization, fox news, oct. 13, 2023, https://www.foxnews.com/world/countries-designate-hamas-terrorist-organi zation. 71 case concerning military and paramilitary activities in and against nicaragua, 195. 25 brandeis university law journal 2023-2024, volume 11 a criminal act, intent to spread fear or coerce a national or international body to take or refrain from action, and transnationality.73 international criminal court prosecutor karim khan remarked that the cruelties that occurred on october 7th led him to have “reason to believe” that hamas’ actions are criminal in nature according to international law.74 non-state actors are bound by doctrines of customary international law, including the geneva conventions.75 hamas violated article iii of the 1949 geneva conventions through “murder … mutilation, cruel treatment and torture; taking of hostages” and more.76 they murdered over eight hundred civilians on october 7th, raped women, and kidnapped about 240 civilians and soldiers into gaza.77 experts at the combating terrorism center at west point have determined that hamas’ motivations before, on, and after october 7th are political, seeking to destroy the state of israel.78 moreover, u.s. president joe biden believes that hamas intended to disrupt israeli-saudi normalization with the 78 devorah margolin & matthew levitt, the road to october 7: hamas’ long game, clarified, 16 ctc sentinel (2023). 77 westlake; bethan mckernan, evidence points to systematic use of rape and sexual violence by hamas in 7 october attacks, the guardian, jan. 18, 2024, https://www.theguardian.com/world/2024/jan/18/evidence-points-to-system atic-use-of-rape-by-hamas-in-7-october-attacks.; police say they’ve identified 859 civilian victims from october 7 massacre, up 16. 76 the geneva conventions of 12 august 1949, iii. 75 tatiana londoño-camargo, the scope of application of international humanitarian law to non-international armed conflicts, vniversitas 207 (2015).; legality of the threat or use of nuclear weapons, icj (1996). 74 yael freidson, icc prosecutor calls oct. 7 hamas attack on israelis “serious international crimes,” haaretz, dec. 3, 2023, https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-c alls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3 069-da74-afce-b5f926bb0000. 73 interlocutory decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative charging, 85. 26 brandeis university law journal 2023-2024, volume 11 said attack, indicating that hamas had political goals.79 these points answer the second and third criteria for terrorist organizations. using violence for political purposes fulfills the second criterion; the de facto rulers of israel and the gaza strip are different, thus making hamas’ attacks within the de facto sovereign territory of israel, a transnational event.80 given that hamas is a terrorist organization under international law, one can use the customary international law of unsc resolution 2249 to prove the legality of israel’s invasion.81 since it is legal under international law for one state to attack terror organizations outside of their state, one can also focus on un special rapporteur philip alston’s aforementioned comments on targeted killings in the territory of another state if that state is “unwilling or unable to stop armed attacks against the first state launched from its territory.” 82 while the israeli invasion is not a targeted killing, this reasoning may help to establish grounds on which to build a legal case to prove the legality of israel’s invasion.83 benjamin netanyahu, the prime minister of israel, and other israeli defense officials have clearly stated that israel’s ultimate goal in launching the invasion is the elimination of hamas, which is in line with customary international law.84 84 chris brown, after more than 3 months of fighting, even small victories for israel are elusive, cbc, jan. 20, 2024; https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~: text=have%20been%20elusive.-,war%20aims,a%20news%20conference% 20on%20saturday; matt gutman, israeli defense minister predicts 2 more months of war, then “mop up,” abc news, dec. 6, 2023, 83 lang. 82 alston, 35. 81 resolution 2249. 80 yezid sayigh, hamas rule in gaza: three years on, brandeis university crown center for middle east studies (2010). 79 hamas attack aimed to disrupt saudi-israel normalization, biden says, oct. 20, 2023, https://www.reuters.com/world/middle-east/hamas-attack-aimed-disrupt-sau di-israel-normalization-biden-2023-10-20/ 27 brandeis university law journal 2023-2024, volume 11 some may argue that based on the international court of justice wall advisory opinion, israel does not benefit from a right of self-defense because israel does not recognize a palestinian state. hence, the argument may go, the invasion is not legal.85 however, this ruling is not fully relevant because the ruling was decided well before the development of the customary doctrine on dealing with terrorism in 2015, and the remarks by special rapporteur philip alston in 2010. this new evidence demands a fresh understanding of israel’s rights in dealing with terror.86 vii. conclusion based on current standing international laws and rules governing conflict, it is apparent that israel’s invasion of gaza on october 27, 2023 is legal under international law. since gaza is not part of a palestinian state, israel does not benefit from the traditional understanding of self-defense. however, recent expansions in customary international law, as well as the opinions of special rapporteur philip alston, legally substantiate israel’s invasion of gaza, even if gaza is not a state in the traditional sense. although israel’s invasion may be legal under international law, this article makes no comment on the legality of israel’s conduct during the war. this war has harmed thousands of israelis and palestinians. moreover, there is no clear end in sight.87 hopefully, this article can aid those seeking to understand the legality of israel’s invasion by 87 police say they’ve identified 859 civilian victims from october 7 massacre, up 16; mounting death tolls in gaza, war could take months wsj, the jerusalem post, dec. 25, 2023, https://www.jpost.com/israel-hamas-war/article-779421. 86 resolution 2249, 17.; alston, 35. 85 legal consequences of the construction of a wall in the occupied palestinian territory, 139. https://abcnews.go.com/international/israeli-defense-minister-predicts-2-mo nths-war-mop/story?id=105377308. 28 brandeis university law journal 2023-2024, volume 11 showing that it is legal under current understandings of international law regarding self-defense. 29 levy manuscript: law journal: volume 12 brandeis university law journal 2024-2025, volume 12 second to one: walking in the shoes of a giant noah levy1 this book review of john adams by david mccullough situates the reader in president adams’ tumultuous position during the american revolution. in the spirit of the law, the article utilizes his legal milestones to reveal the inherent risk in his actions and the rewards of living by a cause. the time boston is crumbling, and you are fleeing your home as a penniless refugee. rewind: what just happened? while it may be out of fashion in the twenty-first century, imagine being a proud colonial british farmer in the 18th century. the sunrise is a signal to pick up a plow or force someone else to, depending on local values. when the yield is plentiful, mighty british trade routes are convenient to export surpluses. most goods are english and support “the good life.” there is a scuffle in boston, and the royal taxes become increasingly pervasive. the situation escalates, and suddenly, your fellow countrymen are declaring independence. which side do you choose? in retrospect, it is easy to declare allegiance to the winners, but it would have been a dangerous decision in the historical milieu. britain was the world’s major superpower, with the most powerful army, navy, and commerce network. rebelling would put one’s life and livelihood at catastrophic risk. playing it safe by remaining loyal to the crown would result in being among the thousands who fled in haste.2 through riveting storytelling, david mccollough, the author of john adams, illustrates that those who risked treason for liberty were the unlikely victors. 2 david mccullough, john adams 76 (2001). 1 brandeis university, class of 2025, brandeis university law journal, editor-in-chief. 40 https://www.zotero.org/google-docs/?broken=kmu3l0 brandeis university law journal 2024-2025, volume 12 the man john adams faced a far more arduous decision than many of his countrymen. put yourself in his shoes, coming from a patrilineage of new england farmers with a prestigious maternal heritage.3 the family works hard to put food on the table, taking advantage of vast land holdings.4 your father is a deacon who recognizes your potential to follow in his footsteps.5 breaking the family’s long-standing maxim against selling land, he parts with ten of his seventy-five acres to send you to harvard.6 you toil in books while others labor in the soil. while not exceedingly rich, the harvest provides a life of relative comfort. thinking you “would make a better lawyer than preacher” leads to employment as a schoolmaster after graduation to save up for a legal apprenticeship.7 the work is exhausting and builds on a preexisting yearning for more prestige. sociological research shows that periods of major societal upheaval lend to excellence.8 later on, arguing as vice president that president washington should be referred to as “his excellency” may be a tacit early recognition of the time’s significance. there lies a desire to seal the prestige of the position in perpetuity. while ambition is externally viewed as vain, a fire burns within. two years of legal training culminates in admission to the massachusetts bar. a cascade of success emerges, including moving your law office from braintree to boston, beginning to acquire land, and becoming “boston’s busiest attorney.”9 many newly minted law school graduates say they’ll put in their time with “white shoe” law and move on to 9 mccullough, supra note 2 at 63. 8 malcolm gladwell, outliers: the story of success, 60 (2008). 7 id. at 37. 6 id. at 35. 5 id. at 34. 4 id. at 32. 3 id. at 30. 41 https://www.zotero.org/google-docs/?broken=qxeieh https://www.zotero.org/google-docs/?broken=2ascz9 https://www.zotero.org/google-docs/?broken=eagwrw https://www.zotero.org/google-docs/?broken=jtctyo https://www.zotero.org/google-docs/?broken=ssg39k https://www.zotero.org/google-docs/?broken=9ndihx https://www.zotero.org/google-docs/?broken=w77kgn brandeis university law journal 2024-2025, volume 12 other work. you embody this modern ideal, yet you refuse to forgo the time’s iconic metal-clasped, black colonial shoes, appearing before the “superior court… in more than two hundred… cases” in a single year. your public profile grows, serving as braintree’s surveyor and selectman. then, early in a soon-to-be storied career, a crossroads emerges. a dear friend, jonathan sewall, shares “an offer you cannot refuse” to lead the “office of advocate general in the court of admiralty,” a plush royal position and a massive career advancement.10 the thirst for prominence has never been closer to being satisfied. yet, in the face of the stamp act, you begin a legal movement for national independence instead, halting the prospect of immediate ascendancy. you campaign with the historic phrase, “no taxation without representation,” building out ironclad revolutionary ideals.11 you have “no difficulty saying no” to sewall.12 having everything to lose, you inextricably tie your fate to a budding nation. achieving the coveted societal status of a landowner warrants the conviction of expanding liberty to your countrymen through war. soon after choosing a side, an opportunity arises to exercise your values. the people of massachusetts are outraged at the events of the boston massacre. no lawyer will take the british soldier’s case until the one and only john adams esq. rises to the occasion. this choice leads to “public scorn… painful in the extreme.”13 being extremely self-conscious and loathing criticism, the negative publicity scars your ego, which is a surprisingly grounding experience. nevertheless, the “principle” that “no man in a free country should be denied the right to counsel” trumps all personal considerations. unknowingly, this will aid political ambitions later. 13 id. at 66. 12 id. at 64. 11 id. at 61. 10 id. at 64. 42 https://www.zotero.org/google-docs/?broken=ayzoke https://www.zotero.org/google-docs/?broken=fau52u https://www.zotero.org/google-docs/?broken=g4q7hs https://www.zotero.org/google-docs/?broken=uenfk3 brandeis university law journal 2024-2025, volume 12 the government while some have the initial instinct to take up arms or aimlessly bash the present circumstances, you take a more calculated path, detailed in various publications. the instrumental ideas you authored in thoughts on government recognize that the “form of government which communicates… happiness… to the greatest number of persons… is the best.”14 the subject is a government with three branches: the executive, legislative, and judiciary. each should be independent to serve as a check on the others. in the face of war, there is a release valve called “militia law,” where the executive takes the reins of the state to straighten out conflict.15 you pride yourself in solutions, so deride thomas paine’s common sense, which identifies a problem without proposing an adequate fix. these seminal works, endowed with legal prowess, will constantly inform your activism. congress is indecisive when debating independence. some prefer a semi-autonomous status, others sovereign freedom.16 you leverage your oratorical skills to keenly apply procedural rules and ensure the effectiveness of the debates.17 the first attempt at a declaration failed, leaving two more weeks for negotiations. you draw on your lawyering days to whip together a unanimous final vote.18 authoring the declaration of independence’s preamble is an honor. modern readers can see that it alone can serve the document’s purpose. the document explains that government legitimacy lies upon the consent of the governed to provide the “unalienable rights” to “life, liberty, and the pursuit of happiness.”19 since the british crown was “destructive towards 19 john adams, preamble to the declaration of independence, (1776). 18 id. at 129. 17 id. at 123. 16 mccullough, supra note 2 at 126. 15 id. at 2. 14 john adams, thoughts on government, 1 (1776), http://founders.archives.gov/documents/adams/06-04-02-0026-0004 (last visited jan 2, 2025). 43 https://www.zotero.org/google-docs/?broken=zmap26 https://www.zotero.org/google-docs/?broken=mlv27x https://www.zotero.org/google-docs/?broken=vyudpv https://www.zotero.org/google-docs/?broken=qxeieh https://www.zotero.org/google-docs/?broken=wrifam https://www.zotero.org/google-docs/?broken=ascp0r https://www.zotero.org/google-docs/?broken=ascp0r https://www.zotero.org/google-docs/?broken=ascp0r brandeis university law journal 2024-2025, volume 12 these ends[,] it is the right of the people… to abolish it… and to institute [a] new government.” the circumstances in the colonies were “reduced[ed to] despotism,” and it was the “duty” of americans to “throw off such government.” as if signing the document is not a sufficient mortal risk, you double down by championing it with vigor. leading up to the vote, you defended it in a speech that thomas jefferson describes as having “a power of thought and expression that moved us from our seats.”20 while unbeknownst at the time, mccullough will say it was “the most powerful and important speech heard in the congress since it convened, and the greatest of [your] life.” later, the british will write a list of founding fathers to pardon in the case of reunification. “adams” is absent, corroborating the risk inherent in these choices.21 the statesman the precarious global circumstances make it abundantly clear that america needs global support, so you become its top statesman, liaising between france, britain, and the netherlands.22 a vital duty is to negotiate terms for peace with britain, defense from france, and financing from the dutch. the treaty of paris cements american independence, defense from france provides naval armaments in the war, dutch loans finance the war of independence, and the correspondence you spearhead with france leads to the conditions necessary for jefferson’s louisiana purchase.23 your spoken legal eloquence serves your pursuit of liberating america. the u.s. constitution is modeled after the values you enshrined in authoring massachusetts’, which will become “the 23 id. at 586. 22 id. at 384. 21 id. at 158. 20 mccullough, supra note 2 at 127. 44 https://www.zotero.org/google-docs/?broken=icp4qa https://www.zotero.org/google-docs/?broken=vezgko https://www.zotero.org/google-docs/?broken=pq3qqt https://www.zotero.org/google-docs/?broken=9znrhy brandeis university law journal 2024-2025, volume 12 oldest functioning written constitution in the world.”24 the constitutional role of the vice president comes easily.25 you dutifully undertake your job and go above and beyond to preside over all the senate’s sessions. as president, the law holds the fledgling republic together. with the nearing prospect of war with france, your long-term ambition of establishing a navy to maintain the borders and reactionary measures of the alien and sedition acts attempt to maintain unity in tumultuous times.26 the navy is one of the most vital institutions for america’s independence. it critically aids madison’s defense of the shore during the war of 1812. though initially a critic of the branch, jefferson will come to admit his mistake in judgment in personal correspondence.27 the alien and sedition acts neglect the first amendment, acutely policing speech. the administration does not prosecute anyone under the alien act but does police the sedition act by imprisoning republicans who have slandered you. you judge these actions to be necessary as a temporary measure during times of war.28 while your heart may be in the right place to promote unity in a divided time, history will prove this measure wrong. the legacy of this mistake will perpetually cast a dark shadow over the period in the history books. as the nation’s second presidency is coming to a close and the government is becoming increasingly partisan, it seems a fruitful time to bolster the courts. you nominate justices that will be called the “midnight judges” despite being confirmed more than a week before leaving office.29 if you lived until the twenty-first century, you could take this historical inaccuracy up with its chief propagator, lin-manuel miranda. yet, among 29 id. at 563. 28 id. at 505–506. 27 id. at 606. 26 id. at 499, 504. 25 id. at 434. 24 id. at 225. 45 https://www.zotero.org/google-docs/?broken=gmyqh8 https://www.zotero.org/google-docs/?broken=fbarza https://www.zotero.org/google-docs/?broken=ypvvxq https://www.zotero.org/google-docs/?broken=7ccrlo https://www.zotero.org/google-docs/?broken=jvhz1y https://www.zotero.org/google-docs/?broken=u2vifc brandeis university law journal 2024-2025, volume 12 the judges is justice john marshall, who will become the most celebrated justice to have served on the supreme court.30 along with these appointments, you create six more circuit courts to protect against the despotism of unfettered power, as strengthening the courts by any means is among your central values. nonetheless, these courts will not survive jefferson’s impending presidency.31 you believe parties are destructive to the government’s functioning, as factions definitionally cause more, not less, disagreement.32 this leads to the maintenance of washington’s cabinet and the consideration of appointments void of partisan loyalties.33 at the cost of mental well-being, you endure the slander and subversion of the cabinet to sustain the people’s best interests. the legacy you question your self-worth on account of criticism from all angles yet stay wedded to your ideals. you are open-minded but remain resolute to acknowledge when you are right. when the odds are stacked against you, you double down. time will count billions who ride the tide, but you break the current. your project will become a force for good that lifts billions from poverty, serves as a model for governance, and flourishes for 248 years and counting. you could have been on that boat to london and reconstituted a law practice abroad. watching your city recede into the horizon would have hurt, but the feelings would have been temporary. instead, you will not give up on your freedom without a fight and will secure a seat in the annals of history for taking the road never traveled. 33 id. at 518. 32 id. at 422. 31 id. at 577. 30 id. at 560. 46 https://www.zotero.org/google-docs/?broken=rhdssk https://www.zotero.org/google-docs/?broken=cnay62 https://www.zotero.org/google-docs/?broken=bxmdfn https://www.zotero.org/google-docs/?broken=ib140o second to one: walking in the shoes of a giant the time the man the government the statesman the legacy online version -volume 10, issue 2 brandeis university law journal spring 2023, volume 10, issue 2 antitrust: what is it good for? the story of a failed merger between penguin random house and simon & schuster and its implications for the labor market gonny d. nir1 for the last forty years, antitrust cases have largely been argued on the basis of consumer welfare. this basis has enabled firms to excuse practices–no matter how pernicious–if they can show that such practices reduce prices or increase the value of the goods and services they offer to consumers. in the fall of 2021, the department of justice filed a complaint which alleged that a proposed merger between penguin random house llc and simon & schuster inc. improperly stifled competition in the market for best-selling books and reduced author advancements within the same market. in december of 2022, the united states district court for the district of columbia enjoined the doj’s complaint. this article examines the threat that monopsonies present in labor markets; it argues that a shift in antitrust enforcers’ focus from the sell side of a market to its buy side can bolster economic output and empower the labor force. i. the details behind the proposed $2.2 billion deal in november of 2020, penguin random house (prh), a wholly-owned subsidiary of the german media mogul bertelsmann se & co., announced its bid to acquire simon & 1 brandeis university undergraduate, class of 2025, editor-in-chief of the brandeis university law journal. 7 brandeis university law journal spring 2023, volume 10, issue 2 schuster inc. (s&s) from its parent company viacomcbs inc.2 prh proposed to buy s&s for $2.175 billion, a reported “premium” against other bidders looking to purchase the prestigious publishing house.3 at the time of the acquisition’s announcement, prh—itself a product of a 2013 merger between penguin and random house—was, and remains to be, the largest book publisher in the united states.4 in its complaint filed in the district of columbia in november of 2021, the antitrust division of the department of justice recounted prh’s staggering extent of market share in us markets for best-selling books. the complaint uncovered that in the fiscal year of 2020, prh, through its ownership of 90 imprints,5 published over 2,000 new titles, amassing over $2.4 5 in the publishing industry, an imprint is a trade name of a smaller press that is owned by a larger publisher. imprints enable large publishers to create smaller “in-house” publishers that focus on specific genres or readership. for instance, penguin classics is an imprint of prh that specializes in printing classic works of literature. 4 julie bosman, “penguin and random house merge, saying change will come slowly,” the new york times, july 1, 2013. https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-an d-random-house-is-completed.html (accessed january 4, 2023). 3 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster,” the wall street journal, november 2, 2021. https://www.wsj.com/articles/justice-department-sues-to-block-penguin-ran dom-houses-acquisition-of-simon-schuster-11635866422?mod=article_inlin e(accessed december 28, 2022). 2 viacom cbs has, as of february 2022, merged with paramount inc., creating paramount global which is a subsidiary of national amusements inc.; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs,” the wall street journal, november 25, 2020. https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-bu y-simon-schuster-from-viacomcbs-11606268232?mod=article_inline (accessed december 27, 2022). 8 brandeis university law journal spring 2023, volume 10, issue 2 billion in total revenue in the us market.6 consequently, as a report by the wall street journal found,7 between january and october of the same year, prh dominated sales in the market for printed books, accounting for 25 percent of all printed books sold in the us market.8 s&s, being the third-largest publisher in the united states,9 operates over 30 imprints in the us market. the company publishes over 1,000 new titles annually, leading it to amass over $760 million in revenues in 2020.10 from january to october of the same year, s&s accounted for 9.1 percent of printed book sales in the us market, with its sellers including some of the best-selling books of the year, such as mary l. trump’s memoir too much and never enough and john bolton’s the room where it happened: a whitehouse memoir.11 although the publishing house has enjoyed industry prestige for decades, it has recently garnered particular praise for its publishing streak of critically acclaimed political 11 benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 10 united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 8. 9 the second-largest publisher in the united states market is harpercollins, a subsidiary of news corp since 1987. harpercollins accounted for 11 percent of printed books sold in the us market in the fiscal year of 2020; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 8 in addition to its us presence, prh also operates 325 imprints in 22 countries; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 7 the journal is a wholly-owned subsidiary of news corp. 6 united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., case 1:21-cv-02886, united states district court in for the district of columbia: filed 11/02/2021, https://s.wsj.net/public/resources/documents/dojlawsuit1102.pdf (accessed december 27, 2022), 8. 9 brandeis university law journal spring 2023, volume 10, issue 2 memoirs, award-winning biographies, and other best-selling works of non-fiction.12 subsequently, when the deal between two of the industry’s most influential publishing houses was announced, the antitrust division of the justice department (doj) quickly moved to block the merger. although the government’s swift action was not entirely surprising given the size of the proposed merger, the theories which the government deployed to block the deal did indeed come as a surprise to many.13 ii. the legal theories behind the case a. the consumer welfare standard the theories which the government deployed to argue against this merger notably depart from traditional antitrust arguments used before courts. for the last forty years, the use of the consumer welfare standard (cws) in the practices of law and economics has dominated, and therefore framed, debates over lawful mergers and acquisitions in courtrooms around the country. the cws is a measurement derived from market analyses which assesses whether actions that a firm(s) is apt to take within a given market—such as merging with a competitor—will raise prices, decrease economic output, or 13 in march of 2020, after viacomcbs announced its wish to sell s&s to another media company, s&s ceo jonathan karp, wrote to one of the publishing house’s best-selling authors,“i’m pretty sure that the department of justice wouldn’t allow penguin random house to buy us, but that’s assuming we still have a department of justice.” needless to say, as karp very quickly found out, we definitely still do have a department of justice and it was not pleased about the proposed merger; united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc, 6. 12 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 49. 10 brandeis university law journal spring 2023, volume 10, issue 2 suppress innovation within that market. the standard was developed by a group of economists and law professors at the university of chicago in the 1970s; it remains the dominant standard by which economists and antitrust lawyers assess whether the economic consequences incurred by consumers from a firms’ practices warrant government action.14 the cws is anchored by two premises: that buyers benefit from the lowering in cost of the goods or services they consume, and that buyers benefit from an increase in the value or quality of the products or services firms offer to them.15 the standard effectively illustrates where inefficiencies in a market may precipitate given a firm’s actions, but as former federal trade commissioner christine s. wilson wrote in a 2019 paper, “…if consumers are not harmed… antitrust agencies do not act.”16 under the cws, so long as the difference between what each consumer actually pays and their willingness to pay for a product or service is maximized, any actions that a firm may take, regardless of if those actions amount to the hyper consolidation of an industry or the loss of political autonomy among the populace, are excusable in court.17 under the cws, a challenged practice can only be defeated before a court were it to either raise the price that 17 wilson, “welfare standards underlying antitrust enforcement: what you measure is what you get,” 5. 16 wilson, christine s., “welfare standards underlying antitrust enforcement: what you measure is what you get,” luncheon keynote address at george mason law review 22nd annual antitrust symposium: antitrust at the crossroads? (arlington, va: united states of america federal trade commission, 2019), https://www.ftc.gov/system/files/documents/public_statements/1455663/wel fare_standard_speech_-_cmr-wilson.pd, 2. 15 robert bork. the antitrust paradox: a policy at war with itself (new york: free press, 1978). 14 the group most prominently consists of professors robert bork and richard posner from uchicago law and professor milton freedman of the stigler center at uchicago school of economics. 11 brandeis university law journal spring 2023, volume 10, issue 2 consumers would ordinarily pay for a good or service, or depress market-wide outputs for the products or services a market would otherwise provide to its consumers. however, in this case, the government’s theories to block prh and s&s’s merger did not rely on the cws. b. the government’s theory the doj argued that the proposed merger between prh and s&s would, in the market for best-selling books, i) disincentive publishers to offer superior editorial and marketing services to prospective best-selling authors whose publishing rights they hope to secure and,18 ii) depress the sum of advancements authors would receive for selling the rights to their books to a publisher19 a. therefore, reducing the number (and variety) of books published.20 notice that the real crux behind these arguments does not lie in a concern for the consumers of best-selling books, rather, the concern is primarily for the writers of best-selling books. these arguments are concerned with the laborers (i.e., the authors) in the market for best-selling books, notably, not the buyers of best-sellers. the sub-argument for the second major argument does account for the lessened volume and variety of materials buyers (i.e., readers) will encounter, but the subargument exists only in relation to the broader argument regarding author advances. advances are negotiated, up-front, 20 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 1. 19 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 2. 18 this is how publishers compete against each other. 12 brandeis university law journal spring 2023, volume 10, issue 2 quarterly21 payments that authors receive from a publisher upon waiving the publishing rights to a work and are an author’s primary source of revenue for a written work.22 hence, the sub-argument concerning a lessened quantity and variety of published material exists only in relation to the lessened wage authors would earn were this merger granted by the court. the arguments the doj made in its complaint were claims for the protection of a labor force, rather than a consumer block. in an ordinary antitrust case, the government is chiefly concerned with harms enacted upon a market when one firm gains substantial seller market power.23 in analyzing seller market power, the government’s chief suspicion lies with monopolies, and whether a merger of the proposed size of prh and s&s would monopolize an industry.24 however, in this case, the government was chiefly concerned with the status of a monopsony firm and its labor market power.25 arguments 25 benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 24 it should be noted here, that—in what is perhaps the most smirk-worthy distinction in law—it is not illegal for a firm to be a monopoly under the sherman act of 1890 (one of the two chief antitrust laws), but it is illegal for one firm to monopolize an industry. 23 market power refers to the ability of a single firm to raise the prices of its goods or services without losing sizable sales to its competitors; stevenson, betsey & wolfers, justin, principles of microeconomics 1st ed., (new york: worth publishers, 2021), chapter 14, section 14. 22 in the doj’s complaint, advancements were described as how authors “fund their writing and pay their bills.” united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 2. 21 authors used to receive advancements in two payments. however, due to the consolidation of the publishing industry, publishers have been able to strike this schedule for payments because of increased leverage of authors’ literary agents. instead, because of their preference to pay less upfront, publishers prefer to spread the sum of an advancement over a series of quarterly payments made to authors for their work; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 45. 13 brandeis university law journal spring 2023, volume 10, issue 2 against monopolies are concerned with markets that are dominated by a single seller of a good(s) or service(s), whereas arguments against monopsonies are concerned with markets dominated by a single buyer of a good(s) or service(s). hence, the peculiarity of the government’s argument in this case is that its theory is concerned with a single buyer of labor in a market, rather than a single buyer of goods within that market.26 for the past half-century, the publishing industry has been subject to hyper-consolidation by five publishing houses (the big five): prh, harpercollins, s&s, hachette book group, and macmillan (named in descending order of market share).27 according to alexandra alter, a reporter for the new york times, such consolidation has “completely transformed the industry.”28 if one accepts the government’s argument, such consolidation enables the big five to adversely manipulate the conditions upon which they purchase their labor. this argument equates monopsonist harms to monopolist harms, looking to the labor rather than seller market to assess the damages of a merger. the argument advances that a firm the size of a consolidated prh and s&s can purchase its labor at a reduced cost without facing the risk of losing that labor to its competitors. the government argued that a firm with this extent of buying power in a given market is too big. this argument is only reached because of the argument that precedes it, one that is a more-traditional, pro-competition argument. the government’s first major argument, that the proposed merger would stifle competition between publishers 28 lauren hodges, christopher intagliata, & mary louise kelly, “federal judge blocks penguin random house from buying simon & schuster.” 27 lauren hodges, christopher intagliata, & mary louise kelly, “federal judge blocks penguin random house from buying simon & schuster,” npr, november 1, 2022, https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguinrandom-house-from-buying-simon-schuster, (accessed december 28, 2022). 26 rittenberg, libby & tregarthen, timothy. principles of microeconomics 2nd ed., (new york: flat world knowledge, 2008), ch. 14, section 14.1. 14 brandeis university law journal spring 2023, volume 10, issue 2 to secure rights to a prospective best-seller, is much more in-line with traditional anti-merger arguments.29 this argument holds that a merger which would create a firm whose market share is nearly twice the size of its strongest competitor gives too much influence and control over the industry to one firm in a given market.30 such a firm, the government argues, could unfairly guide the trajectory of industry practices in their favor, reinforcing already high barriers of entry for new firms and choking existing competition among even the most prominent industry players.31 c. prh and s&s’s theoretical response in response to the government’s allegations, in their briefs to the court, prh and s&s reasoned that, i) a consolidated publishing house could have more leverage with associated retailers such as amazon and other large book distributors, ii) which would enable both authors and publishing houses to write and publish riskier material, print a greater quantity of content, and enlarge the house’s distributing capacity.32 in a statement for the journal, lorraine shanley, the president of market partners international, a consulting firm in the publishing industry, shared that the theory conveys that 32 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 31 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 5-6. 30 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 2. 29 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 11-17. 15 brandeis university law journal spring 2023, volume 10, issue 2 through its acquisition of s&s, prh could make s&s’s existing catalog more widely accessible for domestic and international markets,33 leading to higher sales for the “book behemoth.”34 the defendants argued that leverage against “the behemoth that has actually dominated the publishing industry for the past three decades [is] (and that dwarfs penguin random house—or prh/s&s, for that matter): amazon,”35 which enables publishers to take greater risks regarding what they publish. securing rights to a book, especially a prospective best-seller, is a risky and expensive process involving two traditional avenues: auctions or private negotiations.36 an author’s literary agent will hold an auction for the rights to a work, where publishers gather and place their bets for a book, hoping to out-bet their competitors by offering 36 initial bids at book-auctions among the big five can start from anywhere between $150,000 to $400,000, and catapult to well over $700,000. as publishers experience what is coined as “auction fever,” when their peers essentially validate their own senses regarding how much a book is worth. auction fever drives up the amount a book’s publishing rights are sold for, benefiting the author and their agent; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 11-14. 35 alex shephard, “the penguin random house-simon & schuster merger has been blocked. what now?” the new republic, november 3, 202, https://newrepublic.com/article/168444/penguin-random-house-merger-bloc ked, (accessed december 28, 2022). 34 chief executive of news corp, robert thomson’s words for the merger between prh and s&s. as was aforementioned, news corp owns harpercollins, which has since shown reinterest in acquiring s&s from viacomcbs following the failure of its merger with prh. such a merger would allot harpercollins and s&s an estimated 20 percent of market share in the us market for best-selling books. so, no self-interested irony on thompson’s end here; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 33 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 16 brandeis university law journal spring 2023, volume 10, issue 2 a higher bid backed by superior marketing services such as book tours, day-time talk show appearances by the author, and other editorial perks that build public anticipation. these auctions are scenes of intense competition between rival publishing houses, making them crucial to authors looking to make a living off of their writing. because publishers know that it “[only] takes one passionate editor at another imprint to win that book away,”37 they are driven to offer more in advancements and perks to the author for publishing rights of the auctioned work. stephen king, the beloved fiction writer who publishes through s&s, testified at trial that under his understanding of the publishing industry, “consolidation makes it tougher and tougher for writers to find enough money to live on.”38 the average writer makes an estimated $20,000 annually from publishing their work, which, as mr. king rightly underscores, is “well below the poverty line.”39 literary agents also hold private, one-on-one negotiations with prospective publishers. even in these private sessions, however, publishers are cognizant of the fact that “i am negotiating exclusively, but i always have my competition in my rearview mirror,”40 as an agent’s foremost task is to secure the highest advancement with the best perks for their author. although there are “no other 40 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 13. 39 janwolfe and jeffrey a. trachtenberg, “trial ends in government challenge to penguin random house and simon & schuster merger.” 38 jan wolfe and jeffrey a. trachtenberg, “trial ends in government challenge to penguin random house and simon & schuster merger,” the wall street journal, august 19, 2022. https://www.wsj.com/articles/trial-ends-in-government-challenge-to-pengui n-random-house-and-simon-schuster-merger-11660932615?mod=article_inl ine (accessed december 27, 2022). 37 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 11. 17 brandeis university law journal spring 2023, volume 10, issue 2 market inputs,”41 publishers will often preemptively offer agents a high advancement to entice them into doubting whether another publisher could match or exceed their offer.42 prh and s&s argued that the challenged merger would create a firm whose size can adequately ensure that authors are at liberty to write unconventional material which would otherwise not garner high advancements in an auction or private negotiation, thus increasing the quantity and variety of books which get published.43 this argument rests on the premise that backlists, which are books formerly purchased by a publisher that still earn a profit for every print, are profitable enough to negate any losses a publisher assumes by overpaying for a book’s publishing rights.44 although it should be noted here that a book “need not earn out its entire advance for a publisher to profit; publishers begin to profit at around 70 percent of earnout for most books.”45 prh, for example, has the largest backlist in the publishing industry, which is the “most significant”46 portion of its annual revenue. 46 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 16. 45 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 16 footnote 8. 44 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 16. 43 janwolfe and jeffrey a. trachtenberg, “trial ends in government challenge to penguin random house and simon & schuster merger.” 42 in these ways the market system, in publishing, is working exactly as it should. every good capitalist dreams of a market whose conditions are such that firms (publishers) must compete (via advancements) and innovate (through fashioning new editorial systems or offering more effective marketing strategies) to offer the best goods and services to its consumers (literary agents and their clientele) to gain customer loyalty and market share. perhaps there is hope for the market system, after all; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 13-16. 41 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 13. 18 brandeis university law journal spring 2023, volume 10, issue 2 midsize competitors confirm that publishers of the big five’s scale can take on riskier books or overpay for best-sellers because of this existing source of continual revenue.47 hence, the capital that the big five have enables them to entice authors to publish under their imprints, whilst covering any losses they may incur from a disappointing deal.48 if one accepts the defendants arguments, a firm the size of the proposed merger could empower authors to write more avant-garde material without fear that a publisher would decline to bid for the work due to the publisher’s doubts regarding whether the investment could be recouped. a consolidated firm has a larger distributive capacity which enables more books with unconventional themes or plots to circulate across markets. iii. the opinion of the court the case, which was heard before circuit judge florence y. pan in the united states district court for the district of columbia (d.c.),49 ultimately sided with the government. in an economic memorandum opinion, judge pan deduced that the merger between the defendants under section 7 of the clayton act, which in relevant part reads, “[that mergers and acquisitions whose effect] may be substantially to 49 judge pan assumed the former seat of now-justice ketanji brown jackson in the united states court of appeals for the district of columbia circuit on september 26, 2022; “florence y. pan,” district of columbia circuit, united states court of appeals, accessed january 11, 2022. https://www.cadc.uscourts.gov/internet/home.nsf/content/vl+-+judges+-+ fyp. 48 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, 16. 47 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 17-20. 19 brandeis university law journal spring 2023, volume 10, issue 2 lessen competition, or to tend to create a monopoly,”50 would likely “substantially lessen competition in the market for the publishing rights to anticipated top-selling books.”51 the opinion deployed two primary modes of analysis to reach its final judgment: the baker hughes burden test (1990) and the herfindahl-hirschman index (hhi). a. the baker hughes burden test the baker hughes burden test (or baker hughes as it will be referred to henceforth) is derived from the 1990 d.c. circuit court decision, united states v. baker hughes inc.52 the test is used to analyze whether a merger or acquisition between defendants would, in all likelihood, raise prices or produce anticompetitive effects in an affected market.53 baker hughes has a preliminary requirement that the government must fulfill as well as three subsequent steps:54 54 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22. 53 ordinarily, baker hughes is deployed to stop mergers or acquisitions on the sell-side of a given market. hence, its utility in mitigating the monopolization of industries. however, the government’s theory in this case is that “the combined defendants would exercise market power on the buy side of the publishing market, i.e., monopsony…. [but] the kinship between monopoly and monopsony suggest similar legal standards should apply to claims of monopolization and to claims of monopsonization”; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 21 footnote 13. 52 united states v. baker hughes inc., 908 f.2d 981, 982-83 (d.c. 1990). 51 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 80. 50 “the antitrust laws,” federal trade commission, accessed january 11, 2022. https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-l aws/antitrust-laws. 20 brandeis university law journal spring 2023, volume 10, issue 2 i) at the outset, the government must point to the existence of a relevant market—followed by the three accompanying steps: a. by demonstrating excessive concentration within the relevant market, the test permits the government to “establish a prima facie55 case and a presumption of anticompetitive effects.”56 b. the burden then shifts to the defendants to show why non-ideal circumstances demonstrate that merely pointing to market concentration alone is not reliably indicative of the merger’s supposed anticompetitive effects. c. finally, if the defendants succeed in rebuttal, the burden shifts back to the government to ultimately persuade the court of the merger’s undesirable effects.57 the court found the government’s identification of the market for anticipated best-selling books in the us satisfactory in fulfilling the preliminary requirement for the baker hughes test. further, the court affirmed the government’s reasoning that hyper-consolidation within this market would result in “lower advances for authors of such books and less favorable contract terms”58 for the authors of best-sellers. at trial, the defendants confirmed the merger would result in “fewer books being published, less variety in the marketplace of ideas, and 58 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 23. 57 this so-called burden of persuasion remains with the government throughout the duration of the case; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22. 56 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22. 55 meaning, on its face. 21 brandeis university law journal spring 2023, volume 10, issue 2 an inevitable loss of intellectual and creative output.”59 yet, the defendants contest that advancement sums would decrease following the merger. they argue that competition among existing publishers would go unaffected and that eventually, author advancements would actually rise because of the merged house’s increased access to capital and continuous revenue.60 defining a relevant market has two components: the government must identify the geographic market and the product market. in this case, both parties agreed that the relevant geographic market is that of publishing rights in the united states. however, the parties contested the boundaries of the product market.61 the government argued that the relevant product market at stake was that of publishing rights to anticipated best-selling books, being those that are expected to generate high revenue and produce a higher advancement for authors. following the government’s theory, the “targeted sellers against whom the merged defendants might lower the prices paid”62 are authors looking to sell rights to their works.63 63 it helps to understand that in the monopsony context, “[a] submarket exists when [buyers] can profitably [cut] prices to certain targeted [sellers] but not to others.” applied in this case, the submarket for best-selling authors could reasonably exist as—if one buys the government’s position—the consolidated parties could profitably cut the wages (i.e., the amount paid to authors in advancements) they pay to best-selling authors, but refrain to cut the wages of non-best-selling authors. united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 25. 62 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 25. 61 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 24. 60 refer to sub-section c of the second section in this article, pp. 7-10, for a detailed analysis of this rebuttal. 59 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 23. 22 brandeis university law journal spring 2023, volume 10, issue 2 the court primarily relied on qualitative practical indicia64 to outline the relevant product market.65 to draw the boundaries of the relevant product market, the court utilized the government’s threshold of a minimum of $250,000 (being the sum publishers pay in advances to prospective best-selling authors).66 the court found that books which meet this threshold, though only making up two percent of all book acquisitions in the us, account for 70 percent of advance spending by publishers.67 in the market for books which earn a minimum of $250,000 in advancements, the big five comprise 91 percent of the market share, while mid-to-small publishing houses make up the remaining nine percent. yet, in the market for books whose advancements are below the $250,000 threshold, the big five only hold 45 percent of the market share.68 such a difference between market share among the big five and mid-to-small sized publishing houses, alongside the common practice among publishers, that books which do receive advances at or above the threshold require the approval from senior members of the house, signal the probable existence of a submarket.69 in rebuttal, the defendants argued that defining a submarket by the price certain books garner for advances is 69 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 28. 68 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 27. 67 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 26. 66 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 26-33. 65 the court also engages with the “hypothetical monopsonist test” on pp. 40-43 of the memorandum opinion. although this discussion is worthy of further mention, it is beyond the reach of this article’s scope and page count. 64 a term derived from the supreme court’s 1962 case, brown shoe co. v. united states, 370 us 294, 325 (1962), used to describe signs or situations which render a hypothetical scenario likely. 23 brandeis university law journal spring 2023, volume 10, issue 2 insufficient to firmly establish the existence of a submarket of best-selling books. the defendants argued that “any correlation between advance level and expected sales shows only that books are ‘valued along a continuum.’”70 the court was unpersuaded by the rebuttal, underscoring that the $250,000 threshold serves as a necessary starting benchmark, which “’support[s] the appropriateness of regarding’ anticipated top-selling authors as a ‘distinct [seller] group’ that buyers can target.’”71 the court added that, in addition to the $250,000 threshold top-sellers typically meet, authors within this submarket have unique demands regarding the reputation of the publishers who distribute their books, the contract terms authors receive for working with particular houses, and the different competitive conditions these authors face due to the substantial share the big five control in the market for best-sellers.72 b. market concentration and hhi courts turn to analyses of market concentration to determine whether the effects of a merger or acquisition would substantially increase concentration within a given market. typically, markets comprised of many buyers and sellers—all 72 “it is precisely those specialized needs that make the authors of anticipated best-selling books vulnerable to targeting for price reductions. publishers of anticipated top-selling books know that such authors are not able to find adequate substitutes for publishing their books because of their unique needs and preferences. those publishers therefore can target authors of anticipated top-selling books for a decrease in advances (prices) because it is not as likely that such a price decrease will cause the publishers to lose a book”; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 36 and 33-34. 71 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 32. 70 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 32. 24 brandeis university law journal spring 2023, volume 10, issue 2 of which hold little to no market share or power—enjoy the greatest degree of competition. when there are relatively few firms competing amongst each other in a given market, coordinated behavior aimed at reducing output and raising profits above those of competitive thresholds is more common.73 in the 1963 decision united states v. philadelphia nat’l bank, the supreme court ruled that any merger or acquisition which results in a combined market share of at least 30 percent establishes a legal presumption that the merger likely violates section 7 of the clayton act.74 the court found that in the market for books at or exceeding the $250,000 threshold, prh holds 37 percent of the market share and s&s maintains 12 percent. conversely, in the market for books below the $250,000 threshold, that of non-best sellers, prh holds 16 percent, while s&s only hold 9 percent. consolidated, the two houses would hold a staggering 49 percent of the market for best-selling books, which is just over double the 24 percent market share that harpercollins, their direct competitor, would control.75 considering these statistics, it is important to note that rights to a book are sold to the highest bidder 93 percent of the time, while 60 percent of anticipated best-sellers (books that meet or exceed the $250,000 threshold) include a negotiated advancement sum.76 this means that not only do the rights to a best-seller often hinge on how much a publisher is willing to pay for them, but also that authors use this opportunity to amass the highest possible wage for their work. hence, the remaining 76 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 9. 75 hachette would own 10 percent, while macmillan would hold nine percent; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 44. 74 united states v. philadelphia nat'l bank, 374 us 321 (1963). 73 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 43. 25 brandeis university law journal spring 2023, volume 10, issue 2 small-to-medium independent publishers would only hold a 9 percent share of the submarket following such a merger. the court referred to the already “undeniable trend in consolidation”77 within the publishing industry, along with the substantial raise in market share the combined defendants would hold, to justify its presumption that anticompetitive effects would follow from a merger. to ground its final judgment on the post-merger effects of the market’s concentration, the court used the herfindahl-hirschman index (hhi), a measuring tool used by economists to evaluate the competitiveness of a market based on the number of firms and their size in a market. by summing the squared share of the market every firm holds within the market, the index provides an insightful analysis regarding the conditions of the market post-merger.78 in an hhi analysis, the figures of the post-merger hhi and the increase in the hhi from pre-and-post-merger indicate whether a merge or acquisition is detrimental to competition in a given market. any merger that increases the hhi of a given market by more than 200 points, with a post-merger hhi of over 2,500 is “presumptively anticompetitive.”79 in this case, the post-merger hhi would amount to 3,111 with an increase of 891 points.80 as the court noted, this is “well above the threshold required to trigger the [anticompetitive] presumption.”81 the court addended that in addition to this high market concentration, the merger would also likely harm authors by eliminating the 81 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 46. 80 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 46. 79 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 46. 78 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 45. 77 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 45. 26 brandeis university law journal spring 2023, volume 10, issue 2 yields82 of the direct competition between two of the most powerful publishers83 and increase the risk of coordinated anticompetitive conduct between the post-merger big four publishing houses.84 in settling its determinations regarding the detrimental effects to the best-seller submarket, the court concluded that a merger between prh and s&s would “distill the big five to a big four, with an overwhelmingly dominant top firm … controlling 49 percent of the market and dwarfing its nearest competitor. in the newly configured market, the top two firms … would have 74 percent market share,”85 making price leadership and coordination between firms a serious threat in an already highly consolidated market. iv. case conclusions & the decision’s implications a. the labor market the government’s victory in this case is not merely a win for the authors of best-selling books or small-to-medium sized publishing houses who compete with the big five. this victory could represent a pathway to strengthening labor protections through existing antitrust law. while the general public may not think of authors as traditional laborers for a slate of sociocultural reasons, writers are ultimately laborers. 85 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 61. 84 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 48. 83 the government’s expert found that “prh is s&s’s closest competitor, and that s&s is a significant competitor to prh… if prh lowered advances, between 19 and 27 percent of its authors would divert to s&s; and that if s&s lowered advances, between 45 and 59 percent of its authors would divert to prh”; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 50. 82 editorial offerings and marketing techniques. 27 brandeis university law journal spring 2023, volume 10, issue 2 they participate in the labor market in the same capacity as every other worker in the greater labor force, and this case came down in their as well as the greater labor force’s favor. as former doj antitrust lawyer taylor owings told the journal, the case “demonstrates that the doj is going to test new theories in cases that focus on older industries … [this case is] an important one for setting an agenda in the labor space.”86 cases which advance enforcement actions against agreements between firms that restrain competition in labor markets is a significant drift away from the traditional consumer welfare notions of how antitrust law ought to be applied.87 the high-risk strategy is emerging as influential enforcers and scholars across the country are increasingly concluding that practices by firms which encroach upon workers’ ability to secure higher pay and better working conditions are, in fact, enforceable antitrust issues.88 a panel, hosted by new york university’s (nyu) school of law in may of 2022, saw scholars and enforcers discuss the challenges and prospects of bringing these kinds of cases before courts. professor steven c. salop of georgetown university law argued that the philadelphia national bank approach to labor 88 karen hoffman lent & kenneth schwartz,“expect aggressive antitrust enforcement and novel theories,” new york law journal, vol. 267, no. 89 (2022). https://www.skadden.com/-/media/files/publications/2022/05/expect_aggres sive_antitrust_enforcement_and_novel_theories.pdf. 1. 87 geoffrey a. manne, the president of the center for law and economics, told the journal in the response to the peculiar nature of the prh and s&s merger that, “labor markets just have not been the subject of much [antitrust] litigation”; jan wolfe, “key tests loom in 2023 for us antitrust enforcers,” the wall street journal, december 28, 2022. https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enfor cers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mo d=wtrn#cxrecs_s (accessed december 28, 2022). 86 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 28 brandeis university law journal spring 2023, volume 10, issue 2 restraints, which regards laborers as consumer-equivalences, blocks courts from balancing consumer benefits, such as lower prices, against labor harms, such as decreases in wages.89 such tactics appear viable even in the supreme court. in justice brett kavanaugh’s concurrence in ncaa v. alston (2021), he argued that defendants in antitrust suits ought not to be able to balance anticompetitive harms in one relevant market against the benefits deductible from another relevant market.90 kavanaugh wrote that “price-fixing labor is price-fixing labor. and price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”91 evidently, there are justices, even in the highest court, that may be receptive to these arguments. diana moss, president of the american antitrust institute, underscored at the nyu’s spring panel, that regulators’ “historic neglect”92 of the effect of firms’ anticompetitive practices in the labor market is a serious issue which requires immediate attention. moss advanced that this neglect has had depressive implications on the quantity of economic output and the liberty of workers within the labor force.93 in his most-recent book, how antitrust failed workers, professor eric posner94 of the university of chicago school of 94 in a simple twist of scholastic-fate, professor posner is the son of former-professor and judge of the ninth circuit, richard posner, who was 93 karen hoffman lent & kenneth schwartz, “expect aggressive antitrust enforcement and novel theories,” 3. 92 karen hoffman lent & kenneth schwartz, “expect aggressive antitrust enforcement and novel theories,” 3. 91 national collegiate athletic association v. alston et al., (2021), 43. 90 national collegiate athletic association v. alston et al., 594 us (2021). 89 professor salop’s areas of expertise include trade and regulation in the antitrust realm as well as law and economics, more broadly; karen hoffman lent & kenneth schwartz, “expect aggressive antitrust enforcement and novel theories,” 3. 29 brandeis university law journal spring 2023, volume 10, issue 2 law, argues that firms who are permitted to engage in monopsony behavior on the buy-side of markets, leading to an excessive increase in market concentration, create a loss in output and equity among workers within a given market.95 posner concludes that, contrary to the cws model, the savings in labor costs does not translate to lower prices for consumers. instead, these savings enrich employers and shareholders because the prices consumers pay are determined by frameworks of the product market, not the labor market.96 by exercising market power on the buy-side through purchasing inputs, such as goods & services and labor, at a reduced cost, employers are able to concentrate a market to maximize profits and cut wages without suffering losses. posner explains that market concentration enables a monopsony firm to pay workers wages between competitive and monopsony wages without losing this labor to other competitors because of its large holdings in the market. hence, workers must either accept the lessened wage, undergo expensive retraining, or retire.97 the options (or lack thereof) that workers in monopsony markets face ultimately hurt consumers and the economy as a whole because monopsony power enables firms to raise the prices of goods or services by reducing output or wages, just as in product markets. moreover, employers within a monopsonied market can more easily engage in explicit or implicit collusion to decrease output by further suppressing wages.98 by reducing labor costs through hiring fewer workers, and paying them less-than-competitive wages, consumers end up paying higher prices because of a decline in the production 98 posner, how antitrust failed workers, p. 77. 97 posner, how antitrust failed workers, 16-18. 96 posner, how antitrust failed workers, 23. 95 eric posner, how antitrust failed workers (oxford university press: cambridge, uk, 2021). 23 among the leading figures in the chicago school, and a voiceful advocate of the consumer welfare standard. 30 brandeis university law journal spring 2023, volume 10, issue 2 of goods and services labor monopsonists output. such actions not only reduce the number of workers willing and able to work for firms, but also reduce the quantity of economic output firms annually contribute to the american economy.99 b. antitrust as more than competition and lower prices for consumers on their podcast, capitalisn’t, from uchicago’s stigler center & booth school of business, economist luigi zingales and journalist bethany mclean discussed why we, as consumers, laborers, and citizens, should support robust antitrust enforcement. in an episode discussing the case, united states v. microsoft corp.,100 zingales and mclean advanced the following thesis: we should support antitrust regulation not necessarily because it benefits us economically. as in many cases, especially in the age of the information economy, antitrust regulations will not economically benefit citizens; but we should want these regulations because they are fundamental to securing our ideals of self-determination.101 cases such as the failed merger between prh and s&s show us that corporations which are permitted to grow, and then capture such an enormous share of a given market, pose a threat to the welfare of workers, the health of an economy, and, especially in this case, the liberty of citizens to think for themselves. 101 luigi zingales and bethany mclean, capitalisn’t, podcast audio january 14, 2021, https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitr ust-and-big-tech. 100 us v. microsoft corp., 253 f.3d 34 (d.c. cir. 2001). 99 eric posner, “the rise of the labor-antitrust movement,” competition policy international, november 29, 2021. https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitr ust-movement/ (accessed december 29, 2022). 31 brandeis university law journal spring 2023, volume 10, issue 2 the defendants in this case are two publishing houses who publish some of the most widely read and influential authors in the industry. prh publishes the obamas, john brown, and danielle steel, while s&s has published f. scott fitzgerald, bob woodward, and ernest hemingway. these are among the most influential writers and thinkers of modern thought. had publishers not provided the “venture capital”102 for these authors to write their ideas and circulate them through the public sphere, the country may have never been exposed to such critical material.103 to consumers, who are ultimately citizens, such a threat should not be dismissed. the power monopolists wield in labor markets have real consequences for the economic and intellectual autonomy of workers and ordinary citizens alike. the threat of a select few persons in private board rooms deciding who gets to circulate their ideas in the public sphere and under what conditions they may do so is not to be dismissed frivolously. who controls the basis upon which political, economic, and cultural issues are debated determines the trajectory of how those issues are settled in the public arena.104 if we claim to have deliberative, democratic ideals, then every citizen should have the opportunity to influence how these issues are presented and ultimately settled in the public sphere. the case between the government and prh and s&s demonstrates that we, as both consumers and citizens, must 104 à la foucault’s concept that it is not knowledge that is power, but rather, that power is knowledge; michel foucault, power/ knowledge: selected interviews & other writings, 1972-1977, ed. by colin gordon (new york: pantheon, books, 1980). 103 hence, diminishing the “breadth, depth, and diversity of our stories and ideas,” the remarks of assistant attorney general of the doj, jonathan kanter regarding the block of the merger between prh and s&s; brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 102 alex shephard, “the penguin random house-simon & schuster merger has been blocked. what now?” 32 brandeis university law journal spring 2023, volume 10, issue 2 come to think of antitrust as more than some brainy-economic area of law which only focuses on advancing consumer welfare. rather, we must come to conceive of it as a critical tool to bolster the strength of the broader economy and the health of our civic society. subsequently, antitrust enforcers must continue to ground their arguments in equating monopsony harms to monopoly harms to ensure that labor markets are competitive, productive, and ethical. 33 brandeis university law journal spring 2023, volume 10, issue 2 bibliography bork, robert. the antitrust paradox: a policy at war with itself. new york: free press 1978. bosman, julie. “penguin and random house merge, saying change will come slowly.” the new york times. july 1, 2013. https://www.nytimes.com/2013/07/02/business/media/ merger-of-penguin-and-random-house-is-completed.ht ml “florence y. pan.” district of columbia circuit. united states court of appeals. https://www.cadc.uscourts.gov/internet/home.nsf/conte nt/vl+-+judges+-+fyp. foucault, michel. power/ knowledge: selected interviews & other writings, 1972-1977. edited by colin gordon. new york: pantheon, books, 1980. hodges, lauren, intagliata, christopher, & kelly, mary louise. “federal judge blocks penguin random house from buying simon & schuster.” npr. november 1, 2022. https://www.npr.org/2022/11/01/1133375227/federal-ju dge-blocks-penguin-random-house-from-buying-simonschuster. hoffman lent, karen & schwartz, kenneth. “expect aggressive antitrust enforcement and novel theories.” new york law journal. vol. 267, no. 89 (2022). https://www.skadden.com/-/media/files/publications/20 22/05/expect_aggressive_antitrust_enforcement_and_n ovel_theories.pdf. kendall, brent & trachtenberg, jeffrey a. “justice department sues to block penguin random house’s acquisition of simon & schuster.” the wall street journal. november 2, 2021. https://www.wsj.com/articles/justice-department-sues-t 34 brandeis university law journal spring 2023, volume 10, issue 2 o-block-penguin-random-houses-acquisition-of-simon-s chuster-11635866422?mod=article_inline. mullin, benjamin & trachtenberg, jeffrey a. “penguin random house parent to buy simon & schuster from viacomcbs.” the wall street journal. november 25, 2020. https://www.wsj.com/articles/penguin-random-house-pa rent-near-deal-to-buy-simon-schuster-from-viacomcbs11606268232?mod=article_inline. posner, eric. how antitrust failed workers. oxford university press: cambridge, uk, 2021. posner, eric. “the rise of the labor-antitrust movement,” competition policy international, november 29, 2021. https://www.competitionpolicyinternational.com/the-ris e-of-the-labor-antitrust-movement/. rittenberg, libby & tregarthen, timothy. principles of microeconomics 2nd edition. new york: flat world knowledge, 2008. shephard, alex. “the penguin random house-simon & schuster merger has been blocked. what now?” the new republic. november 3, 2022. https://newrepublic.com/article/168444/penguin-rando m-house-merger-blocked. stevenson, betsey & wolfers, justin. principles of microeconomics 1st edition. new york: worth publishers, 2021. “the antitrust laws.” federal trade commission. https://www.ftc.gov/advice-guidance/competition-guida nce/guide-antitrust-laws/antitrust-laws. wilson, christine s. “welfare standards underlying antitrust enforcement: what you measure is what you get.” luncheon keynote address at george mason law review 22nd annual antitrust symposium: antitrust at the crossroads? arlington, va: united states of america federal trade commission, 2019. 35 brandeis university law journal spring 2023, volume 10, issue 2 https://www.ftc.gov/system/files/documents/public_stat ements/1455663/welfare_standard_speech_-_cmr-wilso n.pdf. wolfe, jan. “key tests loom in 2023 for us antitrust enforcers.” the wall street journal. december 28, 2022. https://www.wsj.com/articles/key-tests-loom-in-2023-fo r-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx _testvariant=cx_168&cx_artpos=1&mod=wtrn#cxre cs_s. wolfe, jan and trachtenberg, jeffrey a. “trial ends in government challenge to penguin random house and simon & schuster merger.” the wall street journal. august 19, 2022. https://www.wsj.com/articles/trial-ends-in-governmentchallenge-to-penguin-random-house-and-simon-schuste r-merger-11660932615?mod=article_inline. zingales, luigi & mclean, bethany. capitalisn’t. podcast audio. january 14, 2021, https://www.capitalisnt.com/episodes/microsoft-1998-v s-google-2020-antitrust-and-big-tech. cases cited national collegiate athletic association v. alston et al., 594 us __ (2021). united states v. baker hughes inc., 908 f.2d 981, 982-83 (d.c. cir. 1990). united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., f.2d case 1:21-cv-02886 (d.c. cir. 2021). united states v. microsoft corp., 253 f.3d 34 (d.c. cir. 2001). united states v. philadelphia nat'l bank, 374 us 321 (1963). 36 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 states of emergency: the history and legal ramifications maia katsnelson88 emergencies happen globally on a daily basis, underscoring the pivotal role of governmental responses in managing these situations. the extent of a government's ability, specifically its executive branch, to respond to an emergency can be a determining factor in disaster mitigation and future government stability. in the us, the power of the executive branch has been a longstanding issue, evident in the founders' aim to limit it and prevent a new monarchy in the early republic. despite their intentions, this article highlights the significant increase of executive branch authority during times of emergencies. to explore the historical and legal foundations of state of emergency jurisprudence, this article details how this concept developed across europe, but more specifically in the united states. lastly, further reforms to the doctrine as it is practiced in the united states are proposed. i. introduction pages upon pages of history books describe catastrophes: wars, disease, famine, and terror. human suffering is thereby processed, recounted, cataloged, and taxonomized. this article addresses what often becomes occluded in retrospection, namely the immediate response to emergencies, rather than the eventual outcome. the expansion of governmental power in the aftermath of a disaster is the subject of this investigation. the concept of a “state of emergency” has existed for centuries without consensus on the limit of government power 88 brandeis university undergraduate, class of 2026. 30 brandeis university law journal 2023-2024, volume 11 during such times.89 cornell’s legal dictionary defines the legal concept as “a government declaration stating that because of some crisis, the normal workings of political and social life are suspended in the given jurisdiction. a state of emergency may alter government operations, order specific action by individuals, and suspend regular civil rights.”90 states of emergency have recently come to the forefront of the news cycle due to events such as the covid-19 pandemic, the war in ukraine, and, most recently, the october seventh terror attacks by hamas militants on israel. this article addresses how the u.s. and european countries have grappled with questions such as: what constitutes a state of emergency, which constitutional procedures and personal liberties can a government suspend, and how long can a state of emergency last? this article also proposes a mechanism by which congress can place necessary limits on executive power during states of emergency and proposes narrowing the definition of the concept. ii. historical perspective a. europe modern invocations of states of emergency originate from the legal traditions of democracies in nineteenth-century western europe.91 the concept traces back to the ancient roman practice of designating an auctoritas, a dictator, in times of external attack or rebellion within the republic.92 the auctoritas had the power to grant or suspend laws and operate 92 id. 91 scott p sheeran, supra note 89. 90 state of emergency | wex |u.s.law | lii / legal information institute, https://www.law.cornell.edu/wex/state_of_emergency (last visited nov 26, 2023). 89 scott p sheeran, reconceptualizing states of emergency under international human rights law: theory, legal doctrine, and politics, 34. 31 brandeis university law journal 2023-2024, volume 11 outside the potesta (the normal binding power of law).93 in the eighteenth and nineteenth centuries, european states began to codify this roman tradition into modern law. the french revolution constituted the most prominent european event that worked to establish the modern understanding of states of emergency. the french revolutionaries proposed the idea of suspending the constitution in response to a great danger.94 subsequently, in 1848, the second french republic created a new article for its constitution, which formalized the definition of a “state of siege.”95 the post-enlightenment definition was, therefore, born in a short-lived democratic historical moment. historically, states of emergency have often been swiftly followed by dictatorships, human rights abuses, and the breakdown of constitutional government. the twentieth century saw a proliferation of states of emergency, especially during the world wars.96 governments worldwide took extraordinary measures, from rationing to censorship, to address wartime challenges.97 however, this era also witnessed 97 id. 96arend lijphart, emergency powers and emergency regimes: a commentary, 18 asian survey 401 (1978). 95 the second french republic is defined by britannica as the republic established after the revolution which lasted from 1848-1852; agamben, giorgio, “the state of exception” (kevin attell trans., univ. of chi. press 2005) (2003). article 14 of the constitution granted the government the power to “make the regulations and ordinances necessary for the execution of the laws and the security of the state'' and the acte additional to the constitution first mentioned a “state of siege”; sheeran, scott p. “reconceptualizing states of emergency under international human rights law: theory, legal doctrine, and politics” michigan journal of international law, vol. 34, issue 3, pp. 491-557. 94 giordanengo, davide “the state of exception”, june 21, 2016, https://www.e-ir.info/pdf/63909. 93 botha, marc “review: untitled”, review of: state of exception by giorgio agamben, kevin attell, oxford literary review, vol. 31, no. 2, pp. 255-259. 32 brandeis university law journal 2023-2024, volume 11 state of emergency misuse, with some regimes using the doctrine to justify the suppression of political opposition.98 notably, the breakdown of constitutional government in the weimar republic, germany 1918, was partly due to the abuse of states of emergency declarations.99 article 48 of the weimar constitution described the emergency powers of the president, stating that the president protects against great threats with “measures necessary to reestablish law and order, if necessary using armed force and including the suspension of a particular and limited set of rights.”100 the drafters of the weimar constitution attempted to prevent a situation in which a ruler could take advantage of the state of emergency laws, but these attempts failed. article 48 was invoked approximately 250 times throughout the relatively brief lifetime of the weimar republic.101 once adolf hitler and the nazi party rose to power, they suspended all articles of the weimar constitution pertaining to personal liberties.102 weimar politicians had made a major mistake–they had “normalized” emergencies. it was all the easier therefore for nazi’s to end constitutional norms entirely. b. the united states the united states played a key role in establishing states of emergency as a feature in the modern rule of law. since president abraham lincoln’s administration and his suspension of habeas corpus during the civil war, u.s. history 102 id. 101 sheeran, scott p. “reconceptualizing states of emergency under international human rights law: theory, legal doctrine, and politics” michigan journal of international law, vol. 34, issue 3, pp. 491–557. 100 the reich constitution of august 11th 1919 (weimar constitution) with modifications, psm data, http://www.zum.de/psm/weimar/weimar-vve.php. 99 id. 98 id. 33 brandeis university law journal 2023-2024, volume 11 is riddled with instances of executive use of emergency powers.103 the alien and sedition acts of 1798 were a defining moment in the codification of emergency powers. although a formal state of emergency was not declared at the time, the united states stood on the brink of the quasi-war with france, a limited naval conflict centered on american trading rights.104 the federalist government of the time, afraid the democratic-republic criticism of federalist policies would endanger the war effort and that ‘aliens’ who were subjects of foreign enemies would sympathize with the french during the conflict, passed four laws known as the alien and sedition acts.105 the president at the time, john adams, criminalized criticism of his party through these acts, specifically through the sedition act.106 freedom of the press was the main freedom curtailed by the sedition act which stated that: “if any 106 the alien and sedition acts (1798) | constitution center, https://constitutioncenter.org/the-constitution/historic-document-library/deta il/the-alien-and-sedition-acts-1798 (last visited dec 6, 2023); avalon project an act in addition to the act, entitled "an act for the punishment of certain crimes against the united states, https://avalon.law.yale.edu/18th_century/sedact.asp (last visited dec 6, 2023). 105 alien and sedition acts (1798), national archives (2021), https://www.archives.gov/milestone-documents/alien-and-sedition-acts (last visited dec 6, 2023). 104 the quasi-war with france (1798 1801), uss constitution museum, https://ussconstitutionmuseum.org/major-events/the-quasi-war-with-france/ (last visited dec 6, 2023). 103 habeas corpus ad subjiciendum | wex |u.s.law | lii / legal information institute, https://www.law.cornell.edu/wex/habeas_corpus_ad_subjiciendum (last visited nov 28, 2023)., defined as ““that you have the body to submit to” in latin. it is also known as the “great writ” and is a writ that is directed to someone detaining another person to inquire as to the legality of the detention; declared national emergencies under the national emergencies act | brennan center for justice, https://www.brennancenter.org/our-work/research-reports/declared-nationalemergencies-under-national-emergencies-act (last visited nov 28, 2023). 34 brandeis university law journal 2023-2024, volume 11 person shall write, print, utter or publish [...] any false, scandalous and malicious writing or writings against the government of the united states, [...], or to excite against them, or either or any of them, the hatred of the good people of the united states, or to stir up sedition within the united states, [...] shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”107 this is a clear restriction of first amendment free speech and an expansion of executive power during a time of national emergency, although it was not considered as such by president adams in 1798. these acts and the subsequent sedition act trials led to a sharp increase in criticism of the federalist party and contributed to their defeat in 1800.108 when thomas jefferson won the presidency in 1800, the acts expired and he pardoned those convicted under them.109 there were other instances in the past 200 years which include the suspension of habeas corpus under president lincoln, the espionage act of 1917 and the amendment to title i of the act the sedition act of 1918 which curtailed free speech rights during war-time.110 additionally, president franklin delano roosevelt declared an unlimited national emergency in may of 1941.111 111 radio address announcing an unlimited national emergency. | the american presidency project, https://www.presidency.ucsb.edu/documents/radio-address-announcing-unli mited-national-emergency (last visited feb 11, 2024). 110 espionage act of 1917 and sedition act of 1918 (1917-1918) | constitution center, national constitution center – constitutioncenter.org, https://constitutioncenter.org/the-constitution/historic-document-library/deta il/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918 (last visited feb 11, 2024). 109 the alien and sedition acts (1798) | constitution center, supra note 106. 108 alien and sedition acts (1798), supra note 105. 107 id. 35 brandeis university law journal 2023-2024, volume 11 in 1976, the u.s. congress passed the national emergencies act (nea), which created a time limit on existing declared states of emergency.112 it also included termination methods for a state of emergency, such as the “automatic termination of national emergency upon its anniversary every year, if the president does not act to renew it.”113 the nea aimed to formalize the process of declaring and renewing the state of emergency.114 iii. legal framework a. constitutional provisions modern constitutions often contain provisions for states of emergency.115 for instance, the u.s. constitution allows for the suspension of habeas corpus “when in cases of rebellion or invasion the public safety may require it.”116 this principle was called into question in 2001 after the terror attacks on september eleventh, 2001. on november twelfth, 2001, president george w. bush issued a military order to protect the united states from terrorist attacks, terrorists, or those in any 116 u.s.const., article 1, section 9. 115 states of emergencies: part i, harvard law review, https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/ (last visited mar 5, 2024). “over 90% of constitutions in force today include emergency clauses that allow the government to step outside of the ordinary constitutional framework and to take actions that would not otherwise be permitted.” 114 michael greene, national emergencies act: expedited procedures in the house and senate, february 21, 2023. 113 emergency powers | wex | us law | lii / legal information institute, https://www.law.cornell.edu/wex/emergency_powers (last visited nov 26, 2023). 112 50 usc ch. 34: national emergencies, https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi on=prelim (last visited nov 26, 2023). 36 brandeis university law journal 2023-2024, volume 11 way affiliated or suspected to be affiliated with al-qaeda.117 the government could detain and try those suspected of being affiliated with al-qaeda without applying “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the united states district courts.”118 this order led to a landmark case, hamdan v. rumsfeld, in 2006, which raised questions about the limits on executive power.119 in the case, salim ahmed hamdan was captured by militia forces in afghanistan and turned over to the u.s. military, after which he was transferred to the guantanamo bay military detention center.120 in april of 2004, hamdan petitioned for a writ of habeas corpus in federal district court. however, before the court could rule on his petition, a military tribunal designated him as an enemy combatant.121 the district court granted hamdan’s petition and ruled that he must be allowed a hearing to determine his status as a prisoner of war under the third geneva convention before he could be tried by a military tribunal.122 this decision was reversed by the circuit court of appeals for the district of columbia with the rationale that the geneva convention could not be enforced by federal courts and that the military tribunals were authorized by congress and were therefore not unconstitutional.123 the supreme court held, in a 5-3 decision, that the bush administration’s attempt to try a prisoner of war (the plaintiff) by a military commission was outside the bounds of 123 id. 122 id. 121 hamdan v. rumsfeld, supra note 119. 120 peter j. spiro, hamdan v. rumsfeld. 126 s.ct.2749, 100 am. j. int. law 888 (2006). 119 hamdan v. rumsfeld, oyez, https://www.oyez.org/cases/2005/05-184 (last visited nov 28, 2023). 118 id. 117 president issues military order, https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011 113-27.html (last visited nov 26, 2023). 37 brandeis university law journal 2023-2024, volume 11 executive powers and violated the constitutional rights of the plaintiff.124 this decision imposed a clear limit on emergency executive authority. however, this constraint was soon disregarded when congress passed the military commissions act (mca) in 2006, eliminating the right of habeas corpus to prisoners at guantanamo bay and other detainment facilities.125 b. powers granted to government during emergencies the united states constitution does not detail any extraordinary executive powers in times of emergency or war. however, many scholars believe that the framers implied these powers by creating an executive branch that is more efficient than the legislative branch.126 for this reason, congress passed the nea, granting the president 123 statutory powers during a declared emergency—ensuring that during a national emergency, decisions could be made quickly and efficiently to protect the nation.127 seven years later, the supreme court's decision in immigration and naturalization service v. chadha emphasized a check to emergency executive power by restating the traditional position that congress can not veto an administrative decision with a majority vote, a two-thirds 127 executive powers are a national emergency harvard political review, https://harvardpolitics.com/executive-powers-emergency/ (last visited nov 26, 2023). 126 emergency powers, supra note 113. 125 legal resources | intelligence committee, https://www.intelligence.senate.gov/laws/military-commissions-act-2009-tit le-xviii-national-defense-authorization-act-fiscal-year-2010 (last visited nov 28, 2023). 124 office of the solicitor general | hamdan v. rumsfeld brief (merits) | united states department of justice, (2014), https://www.justice.gov/osg/brief/hamdan-v-rumsfeld-brief-merits (last visited nov 27, 2023); hamdan v. rumsfeld, united states reports, june 29, 2006; ncc staff, “ hamdan v. rumsfeld: applying the constitution to guantánamo prisoners”, june 19, 2017. 38 brandeis university law journal 2023-2024, volume 11 majority is required in order to override executive power.128 although this ruling established a greater balance between executive and legislative powers, it still did not impose a significant enough limit of executive power. this “legislative veto” that was reinforced for the nea following the chadha decision, has led to a situation where it is nearly impossible to collect enough votes to block declarations of emergencies.129 individual states in general have their own separate laws relating to states of emergency. in times of crisis, the governor has the power to declare a state of emergency, at which point executive powers are increased. however, state legislatures generally have relatively strong checks on executive power, even in exigent circumstances.130 for example, state laws on executive authority cannot be changed by an executive order, and legislatures can create firm limits on executive power.131 these widespread checks demonstrate that bulwarks against growing executive power are a crucial 131 id. 130 legislative oversight of emergency executive powers, https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emerg ency-executive-powers (last visited nov 26, 2023). 129 trust the process: how the national emergency act threatens marginalized populations and the constitution—and what to do about it, n.y.u. review of law & social change (2020), https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-e mergency-act-threatens-marginalized-populations-and-the-constitution-andwhat-to-do-about-it/ (last visited mar 5, 2024). 128 immigration and naturalization service v. chadha, united states reports, june 23, 1983. this case called into question a section of the immigration and nationality act which allowed either house of congress to suspend the deportation rulings of the u.s.attorney general. the constitutional question was whether the separation of powers doctrine was violated by authorizing a veto of executive power from only one house of congress. the decision was 7-2, the court held that the immigration and nationality act did in fact violate the constitution. the consequences of this were that congress essentially needed a two-thirds majority to override executive power because a simple majority in both houses would be vetoed by the president. 39 brandeis university law journal 2023-2024, volume 11 component of preserving the necessary balance of power between the arms of the government of a constitutional republic. iv. proposed reforms during times of crisis, a fine line must be walked by the executive branch as to the extent of its powers. however, without proper limits and regulations on executive emergency powers, there is no guarantee that the executive branch will limit its powers. “as long as the two elements [law and life] remain correlated yet conceptually, temporally, and subjectively distinct ... their dialectic [...] can nevertheless function in some way. but when they tend to coincide in a single person, when the state of exception, in which they are bound and blurred together, becomes the rule, the juridico-political system transforms itself into a killing machine.”132 the dangers of an unlimited government cannot be understated. our current system allows for a situation in which the president seizes considerable power under the guise of protecting the nation against an emergency.133 to address this problem, congress ought to create a set definition, and/or series of conditions, for declaring a state of emergency. this would remedy the potential concern that the executive branch can declare an emergency during a non-emergent situation. however, defining such a broad concept is a difficult feat and congress would have to create and pass a law that defines and 133 executive powers are a national emergency harvard political review, supra note 127. 132 agamben, giorgio, “the state of exception” (kevin attell trans., univ. of chi. press 2005) (2003), 86. 40 brandeis university law journal 2023-2024, volume 11 narrows emergency powers. some disasters are completely unexpected and cannot be anticipated in such a way. in such a case, there should be a condition that congress must approve of the determination of a state of emergency. this would prevent unnecessary renewals of states of emergency and ensure that our rulers cannot take liberties with emergency powers. v. conclusion a potentially dangerous situation is created when the executive branch is granted an exceeding amount of power during any national emergency. the argument that this discretion increase is necessary as it expedites a usually lengthy decision-making process during circumstances in which time is often finite, willfully ignores the threat of unrestrained presidential power. regardless of conditions, unchecked executive power is a threat to democracy. delineating between necessary and superfluous power in times of calamity is a difficult job, but one the american legislature must take head-on, considering the history of rampant abuse of emergency executive power.134 the 100-plus powers granted to the president during a declared state of emergency include giving the president the power to deploy u.s. troops to any foreign country, take over domestic communications, and seize american bank accounts.135 these powers are enormously broad and, without proper oversight, 135 elizabeth goitein, joseph nunn, “emergency powers”, brannan center for justice, https://www.brennancenter.org/issues/bolster-checks-balances/executive-po wer/emergency-powers. 134 states of emergencies: part i, harvard law review, https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/ (last visited mar 5, 2024). 41 brandeis university law journal 2023-2024, volume 11 can easily be abused by over-ambitious politicians.136 although the nca exists as a sort of safeguard, it is not strong enough to place adequate restrictions on emergency executive powers—mainly because it fails to define what qualifies as an emergency.137 the nca grants a president the power to declare a state of emergency simply by signing an executive order. although the law creates a semi-time limit for these powers, it allows the president to renew the state of emergency status indefinitely.138 the checks and balances put in place by the founding fathers must be protected from erosion. separation of powers is key to maintaining a limited executive branch, without which there is a danger of dictatorial power. the current legislative framework, while designed with the intention of swift and decisive action in times of crisis, also fails to ensure an equilibrium between executive agility and legislative oversight. such a balance is crucial not only for safeguarding democratic principles, but also for maintaining public trust in governmental institutions. the development and implementation of stricter guidelines and definitions of states of emergency would serve as a vital step toward mitigating the risk of abuse. the ultimate goal should be the creation of a framework that allows for the effective management of crises while simultaneously protecting the democratic freedoms and liberties of the united states. 138 50 usc ch. 34: national emergencies, https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi on=prelim (last visited nov 26, 2023). 137 id. 136 trust the process: how the national emergency act threatens marginalized populations and the constitution—and what to do about it, supra note 129. 42 block manuscript_ law journal_ volume 12 brandeis university law journal 2024-2025, volume 12 letter from the editor-in-chief dear reader, thank you for lending your time to our scholarship. our dedicated team of over two hundred editors labored over these pages to provide an analytical lens through which to view past, present, and future legal issues. this issue is chock-full of novel perspectives. our authors braved the uncharted waters of the rise of the major question doctrine and trade with state sponsors of terror. others looked back to our nation’s founding to clarify the period and teach lessons for the present. some looked into the structure of american government, commerce, and justice, bringing fresh insights to enduring debates. through joint journal and departmental workshops designed to refine their work, our authors have crafted a style of legal narrative sure to keep you engaged. we have completely transitioned our citation style to the bluebook: a uniform system of citation. this process has been over a year in the works, and we are so grateful for the whole-of-organization effort that brought this full transition to fruition. our editors are the unsung heroes that constitute the backbone of our journal. they have submitted thousands of comments and spent over a hundred hours fixing spelling, syntax, content, and style to ensure our articles meet the highest standards of clarity and accuracy. our authors went beyond their call of duty to meet with our executive board frequently, adding entire sections to their writing as recommended by our editors, and invested exorbitant amounts of their time to polish their work. their contributions were a labor of love, as evident from the quality of the articles they produced. the executive board is a uniquely deliberative setting. mutual respect and admiration constitute its core. our faculty advisors, professor breen and kabrhel are our guiding lights and remind us of our dedication to judah marans. without resources from the student union allocation board, this journal wouldn’t come to print. we dearly thank all our backers for their support. four board members in particular have been instrumental in the journal. gonny nir, my predecessor, is a model i aspire to emulate in this role. daniel block, my co-editor-in-chief, has had some of the most thought-out opinions and guidance, vitally keeping us on track and ensuring the journal runs smoothly. koby gottlieb, who is transitioning into daniel’s position, has been a phenomenal collaborator whose efforts have ensured the successful piecing together of a thriving future for the platform. our outgoing treasurer, peyton gillespie, worked tirelessly with our publisher and the university at the final stretch of our programming and editorial process. like the crystal back of a timepiece or the open hood of a high-performance vehicle, we hope this brief view into the operations behind the words nourishes your experience and you come back for more. sincerely, noah levy editor-in-chief 7 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 covid and the court: why the supreme court should not diffuse european speech restrictions into american law brandon king205 speech constitutes an immense power which, at its best, can lead to open dialogue that creates the opportunity to achieve positive political and social change. at its worst, the freedom to speak can precipitate hate speech and violence. across the world, the standards governing free speech are not necessarily the same. this article aims to analyze the constructs of free speech in both europe and the united states. to this end, this article concerns two major questions: should the united states adopt legislation to combat hate speech in line with the digital services act which the european union previously enacted; and should this be enacted via the supreme court’s opinion in murthy v. missouri, a case analyzing possible infringement of free speech by the federal government on social media sites. this article discusses the nature of how and which comparative law principles and jurisprudence should be diffused into judicial opinions written by u.s. judges. as well as why this issue is not one that should be handled by the courts, especially through the diffusion of european authored regulations on speech. in february 2020, covid-19 emerged as the worst pandemic in almost a century.206 hospitals were overwhelmed, store shelves were emptied, masks were mandated, and the 206 please note,murthy v. missouri is an ongoing case currently pending a decision in the united states supreme court. any perspectives or interpretations provided in this article have been completed as of april 2024 and may be subject to alteration pending the court's decision. 205 brandeis university undergraduate, class of 2026. 61 brandeis university law journal 2023-2024, volume 11 global economy came to an abrupt halt.207 globally, to pursue prudent public health measures at the time, masks were worn, social distancing mandates were enacted, and individuals were forced to make hard decisions. decisions such as attending funerals of loved ones over zoom and kids attending classes online rather than in person, all in an effort to stop the spread. across the world, many individuals followed protocols aimed at preventing the virus’ spread, while others, contrary to the advice of the united states center for disease control at the time, did not.208 subsequently as time went on, the unity of the nation exhibited at the start of the pandemic transitioned into polarized partisanship, with staunch opposition to policies such as mask and vaccination mandates.209 nowhere was this opposition to covid-19 policies more evident than on social media. over time, governments across the world, particularly the united states government, came to understand the risks associated with social media during a pandemic.210 in response to misinformation regarding covid-19 which circulated across social media and the negative impacts of this misinformation on the nation; the biden administration initiated communications through both electronic and physical 210 hichang cho et al., the bright and dark sides of social media use during covid-19 lockdown: contrasting social media effects through social liability vs. social support, 146 comput. hum. behav. 107795 (2023). 209 lu he et al., why do people oppose mask wearing? a comprehensive analysis of u.s. tweets during the covid-19 pandemic, 28 j. am. med. inform. assoc. jamia 1564 (2021). 208 judy stone, public pushes back on cdc’s plan to weaken infection control, forbes, https://www.forbes.com/sites/judystone/2023/08/25/public-pushes-back-oncdcs-plan-to-weaken-infection-control/ (last visited jan 9, 2024). 207 kate li, mona al-amin & michael d. rosko, early financial impact of the covid-19 pandemic on u.s. hospitals, 68 j.healthc.manag. 268 (2023). 62 brandeis university law journal 2023-2024, volume 11 means with social media companies such as facebook, x (formerly known as twitter), and google via the white house, office of the surgeon general, and department of justice.211 through these communications, the biden administration urged social media companies, often by threat of future government scrutiny and antitrust prosecution, to take down and/or “shadow ban” certain posts and accounts.212 the biden administration’s goal as shown by the majority opinion issued in the united states’ fifth court of appeals in the case of missouri v. biden, the prior name for murthy v. missouri currently pending in front of the united states supreme court, was to limit the dissemination of covid-19 misinformation via platforms’ internal algorithms, as well as to limit the reach of the accounts of influential individuals who were deemed by the administration to be spreading covid-19 misinformation.213 as a result of these requests, many social media companies began a widespread crackdown on misinformation, often utilizing data provided to them by executive agencies.214 in response to this crackdown, a group of plaintiffs, including the state of missouri, sued the biden administration in federal court, alleging that the administration coerced social media platforms into censoring certain social media content. plaintiffs alleged that these actions amounted to the state suppression of speech and at times “prior restraint,” violating the first amendment’s freedom of speech clause.215 in response, the united states court of appeals for the fifth circuit issued a ruling in favor of the plaintiffs, stating that the biden 215 id. 214 id. 213 id. 212 id. 211 biden v. missouri, 595 u.s. (2022), https://supreme.justia.com/cases/federal/us/595/21a240/ (last visited dec 5, 2023). 63 brandeis university law journal 2023-2024, volume 11 administration, both directly and through executive agencies, “coerced and significantly encouraged the platforms to moderate content … unlawfully violating the plaintiffs (first amendment) rights.”216 covid-19 misinformation was not just a domestic issue, but a global one, affecting nearly every country in the world, including those within the european union (eu). in response to the rise in misinformation through social media channels, the eu parliament on july 5, 2022 enacted the digital services act (dsa). the legislation set january 1, 2024 as the date on which affected companies had to begin complying with the legislation.217 in this enactment, the eu set forth a comprehensive list of regulatory procedures to control the spread of misinformation, hate speech, terrorist propaganda, as well as specific provisions relating to the suppression of content during times of emergency. the legislation also established penalties for companies not in compliance, including a fine of up to six percent of a company’s global revenues, and the barring of the company from operating in eu countries for a period determined by an independent commision.218 through the case of murthy v. missouri, the supreme court has the opportunity to incorporate aspects of comparative law, by adopting ideals of other nations' laws into the laws of the united states, as the court has done in the past 218 sweeping eu digital misinformation law takes effect, legal dive, https://www.legaldive.com/news/digital-services-act-dsa-eu-misinformation -law-propaganda-compliance-facebook-gdpr/691657/ (last visited dec 21, 2023). 217 the digital services act package | shaping europe’s digital future, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package (last visited dec 21, 2023). 216 id. 64 brandeis university law journal 2023-2024, volume 11 with cases such as roper v. simmons.219 though uncommon, the practice of adopting the ideals of other nations' laws into the laws of the united states is not unprecedented for the us supreme court; in fact, the landmark decision in roper v. simmons referred to international sources of law, including the united nations convention on the rights of the child, in order to articulate how the eighth amendment’s cruel and unusual punishments clause bars the sentencing to death of a minor found guilty of a capital offense.220 in his opinion in roper v. simmons, justice kennedy not only utilized the laws of western european nations that bar the execution of minors, but he also compared the united states to nations deemed “international pariahs'' in the 1990s, including iran, pakistan, saudi arabia, yemen, nigeria, the democratic republic of congo, and china.221 as shown by this example, it is not unprecedented for the united states supreme court's jurisprudence to reference the laws and doctrines of other nations. utilizing this precedent, this paper will analyze three major questions regarding the implementation of other nations’ laws in the legal system of the united states.222 1) under what circumstances should the supreme court or lower courts utilize laws and or cases from other nations in their deliberation of cases? 2) in the case of murthy v. missouri, should the supreme court incorporate the ideals or principles of the eu’s dsa in its jurisprudence of this case? 222 john marshall,murray v. the charming betsey, 6 u.s. 64 (1804), justia law, https://supreme.justia.com/cases/federal/us/6/64/ (last visited mar 30, 2024). 221 id. 220 id. 219 roper v. simmons, 543 u.s. 551 (2005), https://supreme.justia.com/cases/federal/us/543/551/ (last visited dec 21, 2023). 65 brandeis university law journal 2023-2024, volume 11 3) what is a potential counter argument to this type of jurisprudence? i. circumstances in which united states’ courts should utilize the laws and cases of other nations “courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”223 in the united states, courts impose checks on the elected bodies of government in accordance with their interpretation of the constitution. while the supreme court was created by article 3 section 1 of the constitution, its role in government was not fully realized until the landmark opinion of marbury v. madison.224 in this opinion, chief justice marshall lays out the judiciary’s role to review the constitutionality of acts from other branches of government through judicial review.225 while the courts may have the power to determine the constitutionality of legislative acts, they cannot act in a legislative capacity. this inability is the primary argument against the usage of foreign laws and cases in the deliberation of cases in american courts.226 in a democratic system, laws are passed by the people's representatives based on the interests and goals of 226 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 225 john marshall, marbury v. madison, 5 u.s. 137 (1803), https://supreme.justia.com/cases/federal/us/5/137/ (last visited dec 21, 2023). 224 the constitution of the united states: a transcription, national archives (2015), https://www.archives.gov/founding-docs/constitution-transcript (last visited dec 5, 2023). 223 the avalon project : federalist no 78, https://avalon.law.yale.edu/18th_century/fed78.asp (last visited dec 21, 2023). 66 brandeis university law journal 2023-2024, volume 11 those affected by the enacted laws.227 therefore, it is argued that courts should not base their decisions on the laws and cases of other nations. looking at the current case at hand, the decision in murthy v. missouri has no bearing upon the citizens of eu countries, the organization which enacted the dsa; furthermore, the representatives of the american people were not party to the passage of the dsa, and therefore legislative actions enacted by the eu should have no bearing on american courts. in the case of roper v. simmons, justice kennedy presents a comprehensive argument for the barring of the death penalty for minors. the opinion applies previous case law, conducts an analysis of states that barred the practice, and examines the psychological and biological differences between minors and adults.228 these arguments alone would have sufficiently demonstrated that the imposition of the death penalty on minors violated the eighth and fourteenth amendments.229 however, justice kennedy goes further in his opinion, bringing in the laws and practices of other nations to determine if a punishment is cruel or unusual. by mentioning the laws and practices of other nations to justify his opinion, justice kennedy grossly misstepped his authority and weakens the strength of his argument.230 in his opinion, justice kennedy references article 37 of the united nations convention on the rights of the child, which prohibits capital punishment for crimes committed by individuals under the age of eighteen.231 justice kennedy 231 general assembly resolution 44/25, convention on the rights of the child, ohchr (1989), 230 id. 229 id. 228 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 227 overview rule of law | united states courts, https://www.uscourts.gov/educational-resources/educational-activities/overv iew-rule-law (last visited dec 21, 2023). 67 brandeis university law journal 2023-2024, volume 11 specifically mentions how every nation has ratified the treaty, with the exception of the united states and somalia.232 he uses this fact to further his point that most of the world has outlawed capital punishment for juveniles, and thus, the cruel and unusual punishment clause of the eighth amendment should apply in this case.233 this rationale is a blatant overstep of separation of powers; and should not have been used in the opinion. the united states constitution is clear about the procedure of ratifying treaties, as article 2 section 2 of the constitution states that the president “shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.”234 the judicial branch of government is not mentioned in this section of the constitution and plays no role in negotiating and ratifying treaties, therefore should not incorporate laws or beliefs set forth by international treaties in which the united states is not a signatory nation. furthermore, justice kennedy reads into the rest of the world banning capital punishment for minors (with the exception of the united states and somalia) as a clear example of times changing, and the world now viewing capital punishment for minors as a cruel and unusual punishment, thus he argued that the united states should follow suit.235 on the contrary, the fact that the united states senate did not ratify this treaty, speaks louder than the treaty’s ratification by a large majority of the world. by referencing the actions of other legislatures in ratifying this treaty as a motive for baring the practice of imposing capital punishment against juveniles, justice kennedy places greater value on the 235 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 234 the constitution of the united states, supra note 224. 233 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 232 id. https://www.ohchr.org/en/instruments-mechanisms/instruments/conventionrights-child (last visited jan 9, 2024). 68 brandeis university law journal 2023-2024, volume 11 will of other nations’ legislatures, values, and people over that of the american congress, the american constitution, and most importantly, the american people. congress did not ratify article 37 of the united nations convention on the rights of the child, and this failure to ratify is the best proof that the american people as a whole were not in favor of departing from the imposition of capital punishment for juveniles on the federal level. given the evolving standards of the eighth amendment and his belief on the will and actions of other nations rather than his own, justice kennedy decided to override this implicit articulation by congress.236 in general, courts should avoid applying the laws and cases of other nations in their jurisprudence of cases, with one exception. since the act of creating law is vested in the legislature, lawmakers have immense freedom to craft laws given constituent needs, as long as such laws are in line with the constitution. given this freedom, legislatures are free to derive ideas from various sources, one such source can be other nations.237 a congressperson is free to look at the laws and policies of other nations and decide if it could benefit the united states. that legislator must then go through the process of proposing a bill which diffuses the laws and policies of another nation. the bill must then be passed by the house of representatives and the senate, and subsequently signed by the president.238 if a legal case arises before a court regarding the meaning of this new law which was passed incorporating the 238 the legislative branch, the white house, https://www.whitehouse.gov/about-the-white-house/our-government/the-leg islative-branch/ (last visited apr 3, 2024). 237 toni johnson, congress and u.s. foreign policy, council on foreign relations, https://www.cfr.org/backgrounder/congress-and-us-foreign-policy (last visited jan 9, 2024). 236 id. 69 brandeis university law journal 2023-2024, volume 11 laws and policies of another nation.a court who decides to utilize legislative intent as a means to decide what the true intention of the law is could examine the diffused law or policy from the country of origin which served as inspiration for the act of congress. while the courts should be free to look at the laws and policies of other nations in order to establish legislative intent, the court should only take the lessons learned from the other countries' laws and policies in an advisory capacity. if there are better means of finding legislative intent, those means should take priority over the other countries’ cases and enactments. ii. should the supreme court incorporate the ideals or principles of the dsa in their decision on murthy v. missouri? applying the principles articulated in the prior question, the supreme court should not incorporate the ideals or principles of the eu’s dsa in their decision of murthy v. missouri. courts in the united states, as referenced in question i, should not apply the laws and doctrines of other nations in their jurisprudence of cases in the us.239 in fact, applying foreign law to this case necessitates condemnation in even stronger terms than did justice kennedy’s use of international examples as applied in roper v. simmons.240 in the case of roper v. simmons, one could argue for an international consensus, excluding the united states and somalia, in regards to the imposition of capital punishment against minors.241 it cannot be argued that the same international consensus exists in regards to deciding the appropriate regulations to curb misinformation in the age of social media, as this issue is very 241 general assembly resolution 44/25, supra note 231. 240 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 239 cornell law school, jurisprudence, lii / legal information institute, https://www.law.cornell.edu/wex/jurisprudence (last visited jan 9, 2024). 70 brandeis university law journal 2023-2024, volume 11 new and there has been far less time for consensus to emerge than there was in the case of capital punishment for juveniles. while as argued prior, such consensus should not impact the jurisprudence of american courts, this lack of consensus serves to differentiate between the cases of roper v. simmons and murthy v. missouri. some, such as justice kennedy, have made the argument that comparative principles must be diffused into the united states jurisprudence in regards to roper v. simmons. this same argument cannot be made for murthy v. missouri, given the lack of an international consensus on the issue, as the international consensus which existed in regards to capital punishment for minors, which was a core aspect of justice kennedy’s opinion, does not exist in regards to the american interpretation of governmental intrusion on free speech. the first amendment of the united states constitution—and subsequent interpretations by the courts—have endowed the us with some of the strongest protections for the freedoms of speech and expression in the world.242 with particular reference to europe, almost every country within the eu can be described as a western democracy with certain protections for free speech.243 however, many members of the eu have freedom of speech laws which are not nearly as strong or go as far as those in the united states. for example, in germany, an eu member state, section 130 of the german criminal code bans “incitement to hatred and insults that assault human dignity against people based on their racial, national, religious or ethnic 243 id. 242 alex gray, freedom of speech: which country has the most?, world economic forum (2016), https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-com parison/ (last visited jan 9, 2024). 71 brandeis university law journal 2023-2024, volume 11 background.”244 this law has been used to prosecute individuals who publicly deny the holocaust, as well as those who distribute nazi propaganda both on and offline.245 laws like this undoubtedly would be deemed unconstitutional in the united states, as freedom of speech is a fundamental concept strictly enforced by the supreme court.246 given that the restrictions imposed by the dsa would constitute a content based restriction, a restriction on speech imposed by the government that regulates speech on the basis of the content that the speech entails.247 the doctrine of strict scrutiny applies in which the government is required to demonstrate a compelling state interest, as well as a narrowly tailored least restrictive approach, to any legal limitations imposed in the form of content based restrictions.248 one of the most famous cases in regards to content based restriction on speech is the case of cohen v. california.249 in this case, paul robert cohen entered the corridor of a court room wearing a jacket which stated “fuck the draft”, in reference to the draft associated with the 249 cohen v. california, oyez, https://www.oyez.org/cases/1970/299 (last visited apr 1, 2024). 248 strict scrutiny, supra note 246. 247 content based regulation, lii / legal information institute, https://www.law.cornell.edu/constitution-conan/amendment-1/content-based -regulation (last visited mar 30, 2024). 246 strict scrutiny, lii / legal information institute, https://www.law.cornell.edu/wex/strict_scrutiny (last visited mar 30, 2024). 245 germany: constitutional court upholds free speech restriction in banning public support of former nazi regime, library of congress, washington, d.c. 20540 usa, https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constit utional-court-upholds-free-speech-restriction-in-banning-public-support-offormer-nazi-regime/ (last visited apr 3, 2024). 244 dan glaun, germany’s laws on antisemitic hate speech and holocaust denial, https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hatespeech-nazi-propaganda-holocaust-denial/ (last visited jan 9, 2024). 72 brandeis university law journal 2023-2024, volume 11 vietnam war ongoing at the time.250 he was subsequently arrested for violating section 415 of the california penal code which criminalizes “maliciously and willfully disturbing the peace or quiet of any neighborhood or person … by … offensive conduct.”251 when this case was ruled on by the supreme court of the united states, justice john harlan wrote one of the most famous majority opinions in the courts history stating, “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. … the constitution leaves matters of taste and style so largely to the individual.”252 as demonstrated by the strong opinion written by justice harlan, california had no good reason to enforce this statute, given that the statement on paul cohen’s jacket was speech, california did not have a compelling state interest that was threatened by his use of explicit terminology.253 this case is demonstrative of the many differences in the legal interpretations of free speech in the united states versus europe. given this difference in the levels of speech protections, it is clear that fundamental cultural, constitutional, and legal differences exist between the us and eu countries. these divisions would make any attempted implementation of the dsa, within the opinion of murthy v. missouri, to go against the court's established precedent on this issue. this is due to the first amendment concerns that would make any implementation of the dsa not only controversial, but also raise additional constitutional questions, given the 253 strict scrutiny, supra note 246. 252 cohen v. california, supra note 249. 251 cohen v. california, global freedom of expression, https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/ (last visited apr 3, 2024). 250 vietnam lotteries, selective service system, https://www.sss.gov/history-and-records/vietnam-lotteries/ (last visited apr 3, 2024). 73 brandeis university law journal 2023-2024, volume 11 high level of scrutiny the supreme court takes regarding regulations of speech, especially ones that are content based. third, the issue of misinformation being spread via social media, and particularly the power of large tech companies in the united states, is a topic that is discussed often in congress.254 many hearings have taken place between members of congress and the chief executive officers’ of major tech companies. many members of congress have also advocated in favor of many ideas to curb the power of big tech, including the targeting of misinformation to vulnerable users.255 if the supreme court were to rule in the case of murthy v. missouri based on the principles of the dsa, they would severely limit the ability for members of congress to impose regulations on big tech. this would be due to the court implementing the principles of the european dsa in a manner that would likely interfere with the ability of american legislators to pass legislation which best serves the american public. iii. counter argument to this method of jurisprudence? while freedom of speech is one of the most fundamental rights in the united states, many point to the rise of hate online hate speech and misinformation such as foreign adversaries attempts to influence the american electorate through digital means, as a rationale for why the united states government should implement a european-style approach to 255 house approves antitrust bill targeting big tech dominance | ap news, https://apnews.com/article/2022-midterm-elections-technology-business-lob bying-congress-6e49cfc65668b99c633647898d114a8b (last visited jan 9, 2024). 254 a. b. c. news, congress grills tech ceos in wide-ranging hearing on monopoly, political bias, china and more, abc news, https://abcnews.go.com/technology/ceos-amazon-apple-facebook-google-fa ce-congressional-antitrust/story?id=72034939 (last visited jan 9, 2024). 74 brandeis university law journal 2023-2024, volume 11 combating misinformation online.256 furthermore, concerned citizens may conclude that if the legislative and executive branches of government cannot figure out how to combat these issues, the supreme court ought to do it unilaterally. the government has a duty to target misinformation online; the country does not benefit from external actors posting misinformation during elections and times of national emergencies.257 this is a major issue that requires major government action in order to promote the public good. however, the public good must be weighed against individuals’ civil liberties in regards to the first amendment. this issue must be treated appropriately under our current system of government, in accordance with current precedent concerning government regulations regarding speech. the fact that congress has not acted in a major way regarding the rise in misinformation online, is indicative of the fact that no general consensus has formed in regards to the best way to target the problems associated with misinformation.258 it is not the role of the judicial system to impose upon the american people a solution to a problem of which other branches of government have not solved yet. this would be vastly in contradiction with the democratic process. instead, 258 gabriel sanchez & keesha middlemass,misinformation is eroding the public’s confidence in democracy, brookings, https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-c onfidence-in-democracy/ (last visited mar 30, 2024). 257 oecd, transparency, communication and trust: the role of public communication in responding to the wave of disinformation about the new coronavirus, oecd, https://www.oecd.org/coronavirus/policy-responses/transparency-communic ation-and-trust-the-role-of-public-communication-in-responding-to-the-wav e-of-disinformation-about-the-new-coronavirus-bef7ad6e/ (last visited mar 30, 2024). 256 russian interference in 2016 u.s. elections, federal bureau of investigation, https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-election s (last visited mar 30, 2024). 75 brandeis university law journal 2023-2024, volume 11 congress must be the one that passes a bill into law which addresses the issues of misinformation online, which the president must then sign. if congress chooses to implement a european-styled dsa approach to that legislation, that is entirely permissible, as congress is free to derive ideas from a variety of sources, including other nations. additionally, the issue regarding misinformation on social media, especially during elections and public health emergencies, is a complex political issue. in times of emergency, congress and the executive branch, which unlike the federal courts is directly answerable to the american people, must take the lead over the judicial branch of government in solving this complex issue. the role of congress is to identify problems, research the best ways to solve the problems, and build a consensus strong enough to allow the passage of a bill to deal with the problems.259 this process is purely political and must take into account the views of citizens throughout the nation through their representatives in order to build a consensus and step forward. in contrast, the supreme court's role is to review laws and balance them with constitutional principles in order to make sure that the law does not conflict with the civil liberties and rights afforded to the american people by the constitution.260 the supreme court’s role is not to engage in the political process, and therefore, the court should not apply the laws and doctrines of other nations, in what would effectively be a legislative capacity, by implementing the dsa and the european principles of free speech through their ruling in murthy v. missouri. even if one were to assert that the 260 about the supreme court | united states courts, https://www.uscourts.gov/about-federal-courts/educational-resources/abouteducational-outreach/activity-resources/about (last visited mar 30, 2024). 259 about congress | u.s. capitol visitor center, https://www.visitthecapitol.gov/explore/about-congress# (last visited mar 30, 2024). 76 brandeis university law journal 2023-2024, volume 11 implementation of a dsa type law in the united states would bring more public good than harm, its enactment must go through proper channels of government via the people's representatives, not forced through by an unelected assortment of nine justices. the act of balancing goods and harms is a classic legislative function and as the nine justices of the court are not tasked with the political process of legislating bills into law, the issue of combating misinformation online is a political issue that requires a legislative solution, not a judicial one.261 those who support the dsa may argue that countries within the eu such as germany are strong democracies, often with less polarized electorates than the united states; therefore, given the polarized nature of the united states, a court should step in to implement a dsa-styled approach to regulate free speech protections in order to guard against misinformation and the dangers that can come from it. it is important to note that from speech comes power, and power has the possibility of leading to tyranny and abuse. free speech, by nature, is a double-edged sword, which at times it can be used for good in order to defend the rights of the minority and offer necessary criticism to individuals in power without fear of prosecution.262 on the other hand, the allowance of absolute free speech can lead to rhetoric designed to enthrall hate groups, leading towards violence.263 while the dark side of free speech may be dangerous and one may not like what someone else says, the law must protect the other person’s right to speak freely and if the roles were reversed, the 263 daniel byman, how hateful rhetoric connects to real-world violence, brookings, https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-w orld-violence/ (last visited mar 30, 2024). 262 genevieve lakier, the first amendment’s real lochner problem, univ. chic. law rev. 261 the court and constitutional interpretation supreme court of the united states, https://www.supremecourt.gov/about/constitutional.aspx (last visited feb 5, 2024). 77 brandeis university law journal 2023-2024, volume 11 same dynamics would apply. in conclusion, the supreme court should not utilize the laws of other nations in their jurisprudence of cases in the united states, with the exception of the accepted use of such laws and cases in order to establish legislative intent when relevant. additionally, in the case of murthy v. missouri, the supreme court should not diffuse the principles of the dsa within their jurisprudence of the case. by doing such, the court would impede the separation of powers between the judicial and legislative branches of government, severely impacting the legislature’s ability to create policy and law tackling misinformation online, as the court would be forcing laws upon the american people that they did not put in place on themselves, through their elected representatives. in summary, the supreme court should decide the case of murthy v. missouri based upon current precedent regarding the first amendment, including relevant us case law, and the close nexus test.264 264 state action doctrine and free speech, lii / legal information institute, https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-d octrine-and-free-speech (last visited apr 3, 2024). 78 granahan manuscript: law journal: volume 12 brandeis university law journal 2024-2025, volume 12 the sedition act of 1798 as a federalist legal instrument jack granahan1 the sedition act of 1798, enacted alongside the other federalist-proposed alien and sedition acts, stands as the most egregious violation of the first amendment’s free speech and free press clauses in american history. this law, passed by a predominantly federalist congress and signed into law by president john adams, criminalized the uttering and publishing of criticism of the federal government.2 this paper aims to demonstrate that the sedition act constituted more than just a national security measure that the federalists supported on the grounds of empowering a strong, central government. rather, as shown by the motives of the law described by federalist politicians and the biased trial proceedings of those charged under the law, the sedition act was a calculated act of legal instrumentalism that sought to empower the federalists by punishing anti-federalist dissenters. i. introduction the american political climate of the late 1790s was defined by ideological conflict: federalists supported a centralized federal government, while democratic-republicans supported a decentralized, agrarian vision.3 in 1797, federalist john adams was inaugurated as president, allowing the federalists to aggressively pursue their agenda.4 this included pushing for a war with france in the wake of the xyz affair, which saw the french government extort bribes from american diplomats as a prerequisite for negotiation. the fiercely anti-authoritarian democratic-republicans, who largely sympathized with the french republican government, opposed 4 douglas bradburn, a clamor in the public mind: opposition to the alien and sedition acts, 65 wm. & mary q. 565 (2008). 3 gérard hugues, norms for a misuse of authority: the alien and sedition acts, 74 rev. fr. d'études am. 93, 95 (1997). 2 an act for the punishment of certain crimes against the united states, ch. 9, 1 stat. 112 (1790). 1 brandeis university, class of 2026. 120 brandeis university law journal 2024-2025, volume 12 this war. as a consequence of this anti-war sentiment and other criticisms of the adams administration, adams and the federalist majority in both houses of congress sought to reduce anti-federalist political activity through legislative means.5 in the summer of 1798, this effort came to fruition with the implementation of the alien and sedition acts. in addition to three acts that regulated immigration and citizenship law, this collection of legislation concluded with the sedition act. among other provisions, this statute made “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the united states” a crime punishable by a fine of up to $2,000 (equivalent to over $51,000 in 2024) and up to two years in prison.6 this paper argues that the sedition act was based on an instrumentalist interpretation of the first amendment meant to empower the federalists by suppressing political dissent by the democratic-republicans. legal instrumentalism refers to the commandeering of specific interpretations and applications of legal texts as “instrument[s] of social change.”7 the alien and sedition acts conform to this practice. the first three parts of the act, which pertain to immigration and naturalization, constitute a clear effort to combat the “french peril” alleged by many federalists following the xyz affair.8 meanwhile, the sedition act was designed to crack down on democratic-republican opposition to, among other policies, the federalists’ march towards a war with france. the sedition act and its accompanying interpretation of the first amendment was used by the federalists as a legal instrument against the democratic-republicans. this use of legal instrumentalism can 8 hugues, supra note 3 at 95-96. 7 steven quevedo, formalist and instrumentalist legal reasoning and legal theory, 73 ca. law rev. 119, 125 (1985). 6 an act, supra note 2. 5 id. at 565-566. 121 brandeis university law journal 2024-2025, volume 12 be illustrated through federalist attempts to justify the subversion of the constitution, democratic-republican explanations of the law’s implications, and the individuals who would be prosecuted for sedition. ii. sedition and freedom of speech democratic-republicans slammed the sedition act as a blatant violation of the first amendment to the constitution, which states that “congress shall make no law […] abridging the freedom of speech, or of the press.”9 new york representative edward livingston declared that the sedition act was “an abridgement of the liberty of the press, which the constitution has said shall not be abridged,” and that the proper constitutional response to defamatory criticism of the government is “to disprove the fact” rather than “to prosecute the man who makes the charge.”10 in other words, seditious content must be met with correction instead of prosecution. it was also evident to the democratic-republicans even before passage that the sedition act was an explicit attempt by the federalists to clamp down on democratic-republican speech and presses. while the law worked its way through congress, vice president thomas jefferson, an unabashed democratic-republican, stated that “the object of [the sedition act] is the suppression of the [democratic-republican] presses.”11 north carolina representative nathaniel macon attacked the bill on the house floor, proclaiming that it would “produce more uneasiness, more irritation, than any act which ever passed the legislature of the union.”12 several counties in northern virginia, a democratic-republican stronghold known for its frequent public meetings at which citizens freely 12 walter berns, freedom of the press and the alien and sedition laws, 1970 sup. ct. rev. 109, 121 (1970). 11 id. at 18. 10 wendell bird, criminal dissent: prosecutions under the alien and sedition acts of 1798 (2020). 9 u.s. const. amend. i. 122 brandeis university law journal 2024-2025, volume 12 criticized the federal government, issued official resolutions condemning the sedition act. some of these resolutions “mimicked the laudatory petitions of the federalists and sent their complaints directly to adams.”13 federalists took different stances on the applicability of the first amendment to the sedition act. many federalist legal scholars asserted that, due to the importance of the journalistic integrity of newspapers in the revolutionary effort for american independence, government officials were entitled to freedom against “slanderous commentary in the press.”14 some federalist judges argued that the constitution did not apply to wartime legislation and that english common law could be used as a precedent for american law without the first amendment. this led some to turn towards the lengthy history of english common law statutes prohibiting “seditious libels” and “any dangerous or offensive writings” to preserve, in the words of sir william blackstone, “peace and good order, […] government and religion.”15 additionally, a common federalist argument supporting the law postulated that defaming the government during a period of such fierce hostilities with france was akin to aiding the enemy during wartime.16 meanwhile, connecticut representative samuel dana focused primarily on the defamatory nature of seditious speech, arguing that “the liberty of uttering malicious falsehood” does not exist in the constitution.17 these arguments may initially suggest that the impetus for the passage of the sedition act was grounded in sensible governance. however, even some arguments posed by supporters of the law challenge this interpretation, as they 17 bird, supra note 10 at 46. 16 ralph frasca, “treasonable expressions”: james bell and the emerging legal right to criticize, 86 pa. hist. 67, 73 (2019). 15 bird, supra note 10 at 42. 14 hugues, supra note 3 at 94. 13 bradburn, supra note 4 at 569. 123 brandeis university law journal 2024-2025, volume 12 demonstrate that the law was an attempt to suppress democratic-republican newspapers. connecticut representative john allen gave the first speech in favor of the sedition act while it was still in congress. he referred to the democratic-republicans as “the jacobins of our country” who sought to use “all the presses in the nation” as a means of overthrowing the federal government, urging the federalists to “wrest it away from them.”18 numerous federalist supporters of the law also referenced president george washington’s 1793 statement that partisan newspapers (particularly those associated with democratic-republicans) were “stuffing their papers with scurrility and malignant declamation.”19 the gazette of the united states, a prominent federalist newspaper, regularly characterized democratic-republican newspapers as “nest[s] of traitors” and “set[s] of revolters to france,” calling for those running these newspapers to be prosecuted to the fullest extent of the law.20 these federalist condemnations of democratic-republican newspapers are indicative of the sedition act’s purpose as a vehicle for the suppression of the democratic-republican press. iii. common law sedition prosecutions even more damning against the federalists, however, was the political affiliation of the individuals who were charged and prosecuted under the sedition act. the accused were all associated with democratic-republican publications or were prominent political dissidents who opposed the adams administration.21 before the passage of the sedition act, several democratic-republican dissidents had been charged with seditious libel under the common law. this followed the aforementioned trend of federalist judges adhering to blackstone’s common law rather than the constitution during 21 bird, supra note 10 at 385. 20 id. at 33. 19 id. at 18. 18 id. at 45. 124 brandeis university law journal 2024-2025, volume 12 times of war. the most notable of these common law sedition prosecutions was that of benjamin franklin bache, the grandson of the eponymous founding father, as well as the founder and editor-in-chief of the philadelphia-based aurora general advertiser.22 after its establishment, the aurora quickly became a prominent dissident newspaper. vice president jefferson had previously stated that bache’s newspaper had the potential to become the primary “[democratic-]republican vehicle of news established between the seat of government and all it’s [sic] parts.”23a relentless advocate of a free press, bache criticized attempts by the federalist-dominated congress to “muzzle the press” by restricting reports of a physical attack on vermont representative matthew lyon, a democratic-republican, by connecticut representative roger griswold, a federalist.24 this advocacy on lyon’s behalf made bache a key target of the federalist crackdown on democratic-republican speech. one source of bache’s contempt for president adams came from his continued support of the jay treaty, signed in 1795 by president washington, which strengthened ties between the u.s. and monarchist great britain at the expense of relations with republican france. bache slammed president adams in the aurora for his support of the treaty, rhetorically asking: “how has [adams] protected liberty? by writing in favor of monarchy and encouraging the suppression of the right of free opinion. how has he patronized religion? by promoting war.”25 after the aurora repudiated adams, bache was charged at the behest of secretary of state timothy pickering, a devout federalist, with “libeling the president and the executive government, in a manner tending to excite sedition and opposition to the laws, by sundry publication and 25 frasca, supra note 16 at 68. 24 id. at 71. 23 bird, supra note 10 at 58. 22 frasca, supra note 16 at 68. 125 brandeis university law journal 2024-2025, volume 12 re-publication.”26 mere days before his case was set to go to trial, bache fell victim to philadelphia’s yellow fever epidemic; he died prematurely, denying federalist judge john sloss hobart the ability to try him for speaking out against the federalist government.27 iv. the lyon trial the first individual to be criminally charged under the sedition act was congressman lyon of vermont in the summer of 1798.28 lyon, an irish-born immigrant, had previously faced fierce xenophobia from federalists in congress on account of his ethnic background, culminating in the cane attack on lyon by congressman griswold.29 lyon was also the editor-in-chief of the scourge of aristocracy, a newspaper intended to promote “the [democratic-]republican interest.”30 this put a target on lyon’s back, and in july of 1798, the federalists found their excuse to charge lyon with seditious libel. during this time, spooner’s vermont journal published a letter written by lyon that lambasted president adams for maladministration. this letter was written and sent to the press two weeks before the passage of the sedition act, so charging lyon with seditious libel would arguably violate the constitutional prohibition of ex post facto criminal charges (that is, a criminal charge levied against a defendant for actions committed prior to the criminalization of said act).31 nevertheless, lyon was indicted under the sedition act in october of 1798. the indictment accused lyon of attempting to “stir up sedition, and to bring the president and government of the united states into contempt,” citing lyon’s statement that 31 id. at 91. 30 bird, supra note 10 at 89. 29 id. at 580. 28 bradburn, supra note 4 at 580. 27 hugues, supra note 3 at 97. 26 bird, supra note 10 at 67. 126 brandeis university law journal 2024-2025, volume 12 condemned the president’s “continual grasp for power, […] unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”32 lyon’s trial exemplified a kangaroo court. federalist-influenced supreme court associate justice william paterson presided over the trial, and his conduct was fraught with judicial irregularities. paterson personally disqualified jurors whom he believed viewed the sedition act as an unconstitutional statute, and even instructed the jury to convict lyon on the grounds that the defendant had admitted to writing the supposedly seditious letter.33 paterson’s instructions to the jury required them to convict lyon if it was determined that lyon’s letter portrayed president adams “ odious or contemptible,” prohibiting the jury from assessing the validity of lyon’s criticisms.34 most glaringly, paterson specifically invalidated lyon’s defense that the law he was being charged under violated the first amendment. according to paterson, the constitutionality of the sedition act had already been settled by congress, and “the guilt consists in the publication” and the publication exclusively.35 therefore, it was no surprise when lyon was found guilty of seditious libel. he was ordered to pay a fine and legal costs totaling $1,060.96 (equivalent to over $27,000 in 2024) and sentenced to four months in prison, with this incarceration to continue until the fine and legal fees were paid.36 in november of 1798, lyon ran for reelection and became the first and only individual to win a congressional election while imprisoned.37 lyon was accordingly designated by a democratic-republican newspaper from connecticut as “the first martyr to the cause of liberty, under this law [the 37 bradburn, supra note 4 at 580. 36 id. at 95. 35 bird, supra note 10 at 94. 34 lyon’s case, supra note 32. 33 hugues, supra note 3 at 98. 32 lyon’s case, 15 f. cas. 1183, (c.c.d. vt. 1798). 127 brandeis university law journal 2024-2025, volume 12 sedition act].”38 lyon’s reelection was hailed as a victory for the democratic-republican party, but it was perhaps even more important as a demonstration of backlash against the draconian sedition act and the dubiously impartial prosecution of lyon. from the blatant hatred faced by lyon for his irish heritage (coupled with endemic anti-french xenophobia), to the ex post facto indictment of lyon, to justice paterson’s politically biased charge of the jury without consideration for lyon’s argument of constitutionality, the congressman’s show trial was indicative of the sedition act’s role as an instrument designed to infringe upon the freedoms of speech and the press held by democratic-republicans. v. the final wave of sedition prosecutions following a lengthy hiatus in enforcing the sedition act, a new wave of prosecutions took place between 1799 and 1800, this time focusing almost exclusively on democratic-republican newspaper editors. due to congressman lyon’s continued democratic-republican advocacy as editor of the scourge of aristocracy, he would once again be charged during this campaign of indictments, though the charges against him would never be served, as he left vermont after his retirement from congress.39 another victim of this return of the sedition act was democratic-republican stalwart anthony haswell, the editor-in-chief of the vermont gazette. haswell was charged with seditious libel in october of 1799, with his indictment citing his self-published defense of the previously imprisoned lyon, in which haswell stated that lyon was being held “by the oppressive hand of usurped power in a loathsome prison, deprived almost of the right of reason, and suffering all the indignities which can be heaped upon him by a hard-hearted 39 id. at 284-285. 38 bird, supra note 10 at 97. 128 brandeis university law journal 2024-2025, volume 12 savage.”40 in essence, haswell described lyon as a political prisoner of a tyrannical federalist regime. in the same publication, haswell castigated president adams for supporting the pro-british jay treaty, claiming that “the administration publicly notified that tories, men who had fought against our independence, who had shared in the desolation of our homes, and the abuse of our wives and daughters, were men who were worthy of the confidence of the government.”41 the demonstrably prejudiced justice paterson presided over haswell’s trial, refusing to accommodate the time necessary for the defendant to call witnesses and even referring to him as “a seditious libeller of your government, a convict justly suffering the penalty of a mild law” in the presence of the jury.42 needless to say, haswell was found guilty and sentenced to two months in prison and a $200 fine (equivalent to over $5,000 in 2024). despite the relatively short length of the sentence, it still took its toll on haswell; two months of inactivity left the vermont gazette bankrupt, and nine months after his release from prison, haswell stated, “i have been reduced to distress, and almost to penury.”43 this was far from an accident. the prosecution of a democratic-republican newspaper editor for criticizing a government agent’s treatment of an imprisoned congressperson, especially before a judge as politically skewed as paterson, likely had a specific intended impact: the elimination of that individual as a threat to the federalist administration in power. the federalist strategy of targeting outspoken democratic-republican figures continued with the prosecution of democratic-republican lawyer thomas cooper in pennsylvania. cooper had previously fled england due to 43 id. at 281. 42 bird, supra note 10 at 280. 41 id. 40 united states v. haswell, 26 f. cas. 218 (c.c.d. vt. 1800). 129 brandeis university law journal 2024-2025, volume 12 unresolved sedition charges.44 cooper’s experience with newspaper editing started and ended with a two-month-long stint as an editor for the sunbury and northumberland gazette.45 still, this was more than enough time for cooper to find himself in hot water with the federalists. in a leaflet distributed in northumberland county, pennsylvania in november of 1799, cooper lamented how the adams administration had left the us “saddled with the expense of a permanent navy” and “threatened [...] with the existence of a standing army,” and commented that the nation’s credit was “reduced so low as to borrow money at eight percent in time of peace, while the unnecessary violence of official expressions might justly have provoked a war.”46 arguably the most innocuous statement to result in a criminal charge under the sedition act, cooper’s criticism of president adams was nevertheless deemed libelous enough to have the lawyer indicted. in a trial heard by supreme court associate justice and staunch federalist samuel chase, cooper was forbidden from having the appropriate witnesses for his argument subpoenaed, leaving him unable to call any witnesses in his defense.47 additionally, chase told the jury that the criminalization of supposedly seditious press “is necessary to the peace and welfare of this country,” ordering the jurors to render a guilty verdict if cooper had published the pamphlet and did so with the intent to defame (both of which cooper had admitted to).48 cooper was convicted of seditious libel, receiving an unusually harsh sentence of six months in prison and a $400 fine (equivalent to over $10,000 in 2024). this egregious punishment, along with the fierce repudiation of jurors who did not follow his strict procedural guidelines, was 48 id. at 298-299. 47 bird, supra note 10 at 296. 46 united states v. cooper, 25 f. cas. 631 (c.c.d. pa. 1800). 45 id. at 293. 44 id. at 291-292. 130 brandeis university law journal 2024-2025, volume 12 one of many demonstrations of justice chase’s explicit federalist bias–a staple of sedition act prosecutions.49 the penultimate indictment under the sedition act was that of james t. callender, a prominent democratic-republican writer and contributor to the richmond examiner. in early 1800, callender published the prospect before us, a book in which he wrote that the “reign of mr. adams has been one continued tempest of malignant passions,” describing the “grand object” of the adams administration as “to exasperate the rage of contending parties” and “to calumniate and destroy every man who differs from his opinions.”50 callender had previously drawn criticism from federalist publications for referring to president adams as a “hoary headed incendiary” and former president washington as a “venal poltroon” (a combination of archaic terms describing a coward who is susceptible to corruption and bribery).51 consequently, callender was indicted on seditious libel charges, and once again, presiding justice chase issued a warrant for the writer’s arrest.52 as in previous trials heard by chase, the defendant was railroaded. utilizing common law libel standards, chase charged that callender could only be acquitted if he proved his condemnation of adams as an aristocrat and an actor for british interests to be factual. in the judge’s words, “you must prove both these points, or you prove nothing.”53 when callender’s attorney attempted to argue that the sedition act infringed upon the defendant’s first amendment rights, chase reportedly said that “it is not competent to the jury to decide on this point.”54 yet again, a guilty verdict for seditious libel was produced; callender received a nine-month prison sentence and 54 bird, supra note 10 at 308. 53 united states v. callender, supra note 50. 52 bird, supra note 10 at 306. 51 berns, supra note 12 at 121. 50 united states v. callender, 25 f. cas. 239 (c.c.d. va. 1800). 49 united states v. cooper, supra note 46. 131 brandeis university law journal 2024-2025, volume 12 a $200 fine. following the democratic-republican takeover of congress, chase would be unsuccessfully impeached in 1804 for showing bias during jury selection and courtroom procedure, even after his repeated instances of prejudiced conduct in seditious libel cases.55 vi. conclusion in total, thirty-nine individuals, all democratic-republicans, were criminally indicted for violating the sedition act between 1798 and 1800.56 these defendants included newspaper editors, members of congress, and other prominent democratic-republican figures. virtually all of these cases shared common features. the vast majority were presided over by federalist-appointed judges, often with political biases too severe to overlook. most of these judges rejected any arguments questioning the constitutionality of the law itself. many were also arguably tainted by xenophobic sentiments, be they against the irish, the french, or other groups. it is difficult to ignore the evidence that the sedition act was a legal instrument of the federalists, with the specific goal of using either a misinterpretation or an outright rejection of the first amendment to disenfranchise their political opponents. yet, the repugnance of the sedition act still succeeded as an exercise of what happens when the unalienable is alienated; that is, when an erroneous interpretation of constitutional rights is weaponized by a political faction as a legal tool. following the historic democratic-republican victory in the 1800 presidential and congressional elections, the federal government allowed the sedition act to expire.57 this raises the question: did the democratic-republican revolution in congress usher in the demise of the sedition act? or alternatively, did democratic-republican commitment to the 57 id. at 368. 56 id. at 385. 55 id. at 308-312. 132 brandeis university law journal 2024-2025, volume 12 first amendment in the face of federalist revisionism cause the meteoric rise of the former’s party? if the latter answer is the case, then surely a similar fall from political power would occur among any group that were to create a similar restriction of freedom of speech and press today. 133 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 the development of privity of contract as the common law standard for product liability: an analysis of winterbottom v. wright, thomas v. winchester, and industrialization harrison sugarman434 this article explores the development of standards of product liability during the market revolution, arguing that jurists adopted the standard of privity of contract to protect manufacturers from the legal consequences of industrialization. this article surveys the history of product liability prior to the market revolution, and then it describes how winterbottom v. wright and thomas v. winchester radically departed from this tradition. this article then analyzes how judges specifically feared the increased volume of liability cases under a strict liability framework that would have arisen from a depersonalized and mechanized economy. the article concludes with parallels between questions surrounding product liability in the market revolution and the present day. i. introduction james mcgreevey, former governor of new jersey, once said, “the arc of american history almost inevitably moves toward greater individual legal rights.”435 since the 1930s, his statement applies to much of american history, but 435 james mcgreevey, james mcgreevey quotes, brainyquote.com, https://www.brainyquote.com/quotes/james_mcgreevey_468732.https://ww w.brainyquote.com/quotes/james_mcgreevey_468732. 434 brandeis university undergraduate, class of 2024. 117 brandeis university law journal 2023-2024, volume 11 there have also been long periods where legislatures and courts restricted individual rights. for example, american courts dismantled a series of 17th and 18th-century legal privileges during the market revolution (1815-1855). this was a period of unprecedented economic growth, industrialization, and corporatization in the rapidly maturing republic. during these years, the courts particularly targeted product liability, a “condition of being bound to respond because a wrong has occurred… with reference to property, proceeds[, or] yield.”436 under the colonial standard of strict liability, average consumers could have successfully sued for injuries caused by a manufacturer "when neither care nor negligence, neither good nor bad faith, neither knowledge nor ignorance will save [the] defendant.”437 winterbottom v. wright (1842) and thomas v. winchester (1852), two court cases decided within a decade of each other, overturned strict liability and replaced it with a standard of privity of contract. jurists define this concept as “that connection or relationship which exists between two or more contracting parties.”438 in other words, these two cases limited a manufacturer’s duty of care strictly to consumers with whom a contract was agreed. this sudden shift in jurisprudence left scholars of american legal history perplexed as to what caused this departure from precedent. this article argues that judges established privity of contracts to protect manufacturers from the potential legal ramifications of industrialization. this article provides background on the strict liability era, and the two cases that overturned it. it will also connect the factual background of the cases with the two trends, the emergence of 438 id. at 1362. 437 black, supra note 436 at 1591. 436 henry campbell black, black’s law dictionary, 1060, 1374 (4th ed. 1968), https://heimatundrecht.de/sites/default/files/dokumente/black%27slaw4th. pdf. 118 brandeis university law journal 2023-2024, volume 11 a “faceless economy” and dangerous industrial technology, that led judges to legally insulate manufacturers. lastly, the article will establish broader connections between late 19th century product liability standards and modern tort jurisprudence. ii. background prior to winterbottom v. wright, product liability was an obscure field of the law that had hardly changed since its inception. historians have determined that early roman law includes the first mention of product liability as a legal concept.439 laws, such as the twelve tables of 450 bc, presumed that goods purchased by consumers at a fair price should be of a fair quality, and therefore, the manufacturer was liable for any injury the purchaser suffered as a result of the manufacturer’s negligence.440 when rome conquered britain in 43 ad, roman law strongly influenced english common law and continued to prove fundamental long after the fall of the western roman empire. in his summa theologica, st. thomas aquinas — among the foremost western philosophers — defended the virtue of strict liability on the basis that selling a product with a known liability was a sin according to scripture.441 scholars agree that his endorsement contributed to strict liability’s survival throughout the medieval era.442 english colonists imported english common law to the new world, including its understanding of product liability, and it remained foundational into the antebellum period.443 until 1842, american courts 443 id. at 959–960. 442 id. at 958–959. 441 owen, supra note 439 at 958. 440 john c. reitz, a history of cutoff rules as a form of caveat emptor: part ii-from roman law to the modern civil and common law, 37 am. j. comp. law 247, 249 (1989). 439 david g. owen, the evolution of products liability law, 26 rev. litig. 955, 956 (2007). 119 brandeis university law journal 2023-2024, volume 11 upheld this standard of product liability which remained virtually unchanged since antiquity.444 it was in winterbottom v. wright that courts took the first step to dismantle the ancient standard of strict liability. winterbottom, a stagecoach driver, was severely injured when his stagecoach broke down on august 8, 1840.445 an investigation revealed that the carriage broke down because wright, a stagecoach repairman and builder, did not properly maintain it.446 consequently, winterbottom sued wright for damages, and the case went all the way to the court of exchequer, which ultimately ruled in favor of the respondent.447 the court reasoned that wright acted negligently but was not liable for winterbottom’s injuries because wright owed winterbottom no duty of care.448 the court ruled that a manufacturer could only owe a consumer a duty of care within privity of contract; that is, only a well-established contract between parties could, in case of breach, give rise to damages.449 winterbottom and wright did not have a contractual relationship due to the absence of privity between them as consumer and servicer.450 winterbottom worked as a driver for the postmaster-general, and the postmaster-general was, in turn, employed by nathaniel atkinson, a wealthy aristocrat.451 atkinson also employed 451 id. at 109. 450 id. 449 winterbottom v. wright, supra note 445 at 110–116. 448 black, supra note 436 at 267. 447 id; the court of exchequer was one of the four major courts of england prior to the reorganization of the english court system during the late 19th century. the court heard common and natural law cases, especially those relating to financial matters and equity. 446 id. 445 winterbottom v. wright, 110–116, https://sites.la.utexas.edu/judpro/files/2016/02/winterbottom-v.pdf. 444 id. at 960. 120 brandeis university law journal 2023-2024, volume 11 wright to maintain his fleet of carriages.452 hence, wright had no contractual obligations to winterbottom because they did not sign a contract to formally establish any duty of care.453 wright vanished from the historical record after this case, but winterbottom remained handicapped for the rest of his life and did not receive compensation for his injuries.454 ten years later, thomas v. winchester affirmed the legality of winterbottom v. wright’s precedent, with certain exceptions. the facts of the case are as follows: mrs. mary ann thomas became ill in 1849.455 after visiting the doctor, mrs. thomas received a prescription for dandelion extract.456 her husband picked up a dose from dr. foord’s drug store, but immediately after mrs. thomas took the medication, she fell almost fatally ill.457 an investigation discovered that the jar was mislabeled and contained belladonna, a poison that resembles dandelion extract. mr. thomas sued the labeler, an employee of winchester named a. gilbert. gilbert sold the mislabeled belladonna to a distributor named aspinwall, who then sold it to dr. foord.458 the case eventually reached the new york court of appeals in 1852 and the court ruled in favor of thomas.459 the court upheld the legality of privity of contract, but it ruled that the danger and blatancy of winchester’s negligence made it almost tantamount to manslaughter.460 justice ruggles made this argument by first defining manslaughter as “[when] 460 thomas v. winchester, supra note 456. 459 id. 458 id.; daniel breen, supra note 454. 457 id. 456 thomas v. winchester, https://www.nycourts.gov/reporter/archives/thomas_winchester.htm (last visited dec 3, 2023). 455 id. 454 daniel breen, the role of the judge in formulating legal rules, (2021). 453 id. at 110–116. 452 id. 121 brandeis university law journal 2023-2024, volume 11 culpable negligence, [an individual] causes the death of another, although without intent to kill.”461 he then included several examples of case law where a court found a pharmacist or chemist guilty of manslaughter due to mislabeling by an employee, improper mixing of chemicals, or any other such act of negligence.462 mrs. thomas' survival of the poisoning shielded him from criminal prosecution, but the court found “no doubt of his liability in a civil action” according to their understanding of equity.463 thus, thomas v. winchester crystalised the precedent of winterbottom v. wright that a manufacturer could only be liable for damages within the privity rule, except in cases where products were “imminently dangerous to human life.”464 iii. connections from the case to the argument this article primarily relies upon two sources of information. the first is a set of legal opinions from the market revolution, winterbottom v. wright and thomas v. winchester. these legal decisions offer the fact patterns or the key facts of a particular legal case, and the court’s reasoning behind each decision. second, this article utilizes scholarly articles that trace the development of anglo-american product liability law, and provide invaluable context and an overview of broad american legal and historical trends. articles written by donald g. gifford, a professor of tort law at the francis king carey school of law, and david g. owen, a professor emeritus at the joseph f. rice school of law support my argument that courts established the privity of contract standard to protect nascent industry from legal repercussions. these articles provide invaluable contextualization and overviews of 464 id.; daniel breen, supra note 454. 463 id. 462 id. 461 id. 122 brandeis university law journal 2023-2024, volume 11 broad legal and historical trends that will help understand the development standards of product liability. thus, these two types of sources create a robust explanation for the switch in standards of product liability. the establishment of the privity rule had a profound impact on american society because it facilitated american industrialization during the second half of the 19th century. to this effect, owen writes, “the privity requirement was an effective instrument of social policy for a nation bent on promoting the development of its infant industries.”465 in other words, american manufacturers were left uninhibited by the fear of product liability litigation.466 this allowed manufacturers to expand in size, develop new technologies, and take risks that contributed to the us’s unparalleled economic supremacy by the beginning of the 20th century.467 gifford best summarizes this development: “[t]he liability exposure of businesses [that] heavily invested in new technologies was almost assuredly substantially reduced. as a result, railroads, mines, and factories flourished. in effect, the change from a strict liability to a negligence-based regime created a ‘subsidy’ for railroads and other newly emerging industries.”468 the decision to establish the privity of contract standard represented a massive departure from the tradition of formalism in american jurisprudence.469 formalist political and 469 michael willrich, the making of the u.s. constitution, part ii, (2022). 468 id. at 30–31. 467 donald g. gifford, technological triggers to tort revolutions: steam locomotives, autonomous vehicles, and accident compensation, 30 (2017), https://digitalcommons.law.umaryland.edu/fac_pubs/1590. 466 id. 465 owen, supra note 439 at 963. 123 brandeis university law journal 2023-2024, volume 11 legal theorists of the early republic, such as alexander hamilton and other federalists (and later whigs), maintained that judges “[had] no active resolution whatsoever.”470 law, in the formalist tradition, evolves by applying a precedent to different fact patterns, which leads to the gradual “discovery of new law.”471 however, as american historian morton horowitz writes, the market revolution (the period of economic, technological, and political growth during the antebellum period) “reflected the overthrow of eighteenth-century pre-commercial and anti-developmental common law values.”472 this included the anachronistic judicial paradigm of formalism. in replacement of formalism, legal instrumentalism, which advanced that the law could be directed toward a collective social good, began to dominate american courts, including the ny court of appeals.473 according to accredited sources, any discussion about american product liability, privity of contract, and thomas v. winchester would be fundamentally incomplete without discussing winterbottom v. wright at length.474 although the case was adjudicated under english law, applying the principles of winterbottom v. wright to american jurisprudence is essential because the ny court of appeals adopted the court of exchequer’s approach, exemplifying the concurrent socioeconomic and legal challenges great britain and the us faced as a consequence of industrialization and economic expansion. 474 daniel breen, supra note 454; gifford, supra note 467 at 50; owen, supra note 439 at 960. 473 michael willrich, supra note 469. 472 morton j. horwitz, the rise of legal formalism, 19 am. j. leg. hist. 251, 251 (1975). 471 id. 470 alexander hamilton, no. 78, in the federalist 401, 409 (by alexander hamilton ed. et al. eds., gideon ed. 2001). 124 brandeis university law journal 2023-2024, volume 11 iv. analysis a. the technology-expansion fear judges also feared that strict liability left manufacturers vulnerable to litigation resulting from the expansion of the market of manufactured goods.475 the market revolution and industrialization increased the overall efficiency of production and distribution which dramatically lowered prices for consumers.476 the lower cost of finished products allowed more consumers to engage in the market and created a middle class of high-paid workers and managers who could now afford these products.477 because they were part of the emerging consumer class themselves, judges keenly realized that the combination of these factors would produce more injuries inflicted by defective products.478 other businesses also constituted a large share of the manufactured goods market, and the amount of product liability lawsuits coming from the private sector dramatically rose in the decades prior to 1842.479 faulty machinery caused 63 percent of injuries in the textile industry—among the largest aspects of american industry—and many of these injured people successfully sued the manufacturers.480 judges understood that, in the words of gifford, the “darker side to this unprecedented expansion of technology and industry,” would engulf american industry if strict liability was not modified or replaced.481 even more, judges feared the consequences of an expanding market with increasingly dangerous products and 481 id. 480 id. at 18. 479 id. at 19. 478 gifford, supra note 467 at 31. 477 michael willrich, supra note 469. 476 michael willrich, legal instrumentalism in the age of the market revolution, (2022). 475 gifford, supra note 467 at 17. 125 brandeis university law journal 2023-2024, volume 11 machinery. lewis mumford, a foremost american historian and sociologist of the 20th century, described the industrial revolution as “a transition from the ‘ecotechnic’ era, characterized by wood, water, and handicrafts, to a new ‘paleotechnic’ world of steam, iron, and factories.”482 essentially, the industrial revolution represented a shift in both the materials and methods of manufacturing, moving away from craftsmanship toward industrialization. the industrial machines that dominated this new paleotechnic era provided “much greater [power] than that supplied during the pre-industrial era by humans and animals and, as a result, the severity of the injury was likely to be much greater.”483 market revolution judges presumed that the increased severity of injuries caused by paleotechnic technology would increase the likelihood that a consumer would seek legal action against a negligent manufacturer.484 a trend in tort law vindicated this belief because, before 1842, mechanized transportation (railroads and steamships) generated a disproportionate amount of litigation, and the severity of the injuries incentivized victims to sue tortfeasors.485 judges found the idea of mechanized transportation companies being litigated to bankruptcy especially likely, and disturbing, because of their risk, profitability, and economic importance.486 chief justice lemuel shaw, in the massachusetts supreme court’s ruling on farwell v. boston & worcester railroad company (1842), wrote that the protection of the nascent railroad industry “is an action of new impression in our courts, and involves a principle of great importance.”487 in that case, a railroad engineer sued 487 farwell v. boston & w. r. r. corp, 55, https://advance.lexis.com/api/document?collection=cases&id=urn:contentit 486 michael willrich, supra note 469. 485 gifford, "technological triggers," 10. 484 id. at 19. 483 id. 482 id. 126 brandeis university law journal 2023-2024, volume 11 his employer for damages he suffered from the negligence of a fellow employee.488 shaw understood that affirming the plaintiff’s suit would set a precedent that transportation and heavy industry must assume the financial risk associated with the dangers of their business, so shaw elected to err on the side of business and pen his infamous “assumption of risk” doctrine.489 judges, compelled by concerns about severity and frequency, decided to act decisively in favor of installing privity of contract. the ruling in winterbottom v. wright illustrates the fear of judges at a time when technology, specifically mechanized transportation, was expanding and becoming more innovative. justice byles provided, in his dissent, the example of a recent railroad accident in france to support his argument: “for example, every one of the sufferers by such an accident as that which recently happened on the versailles railway, might have his action against the manufacturer of the defective axle. so…every person affected, either in person or property, by the accident, might have an action against the manufacturer, and perhaps against every seller also of the iron.”490 he embedded the key presumption of unreasonableness in this example to illuminate the absurdity of winterbottom’s case.491 his usage of the phrase “every one” suggests that the railroad accident resulted in broad and severe damages.492 paying remedies for so many severe injuries would have bankrupted 492 id. 491 id. 490 winterbottom v. wright, supra note 445 at 111. 489 id. 488 michael willrich, supra note 469. em:3wbv-v4h0-00kr-f49d-00000-00&context=1516831.https://advance .lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4 h0-00kr-f49d-00000-00&context=1516831. 127 brandeis university law journal 2023-2024, volume 11 the manufacturer of the defective axle. he warned that “alarming consequences” would have followed for the economy if the court ruled for winterbottom and defended strict liability.493 the opinion in thomas v. winchester voices a concern for unfamiliar products, and this illustrates the issues of the technology expansion theory.494 ruggles wrote that belladonna and extract of dandelion “ may on careful examination be distinguished the one from the other by those who are well acquainted with these articles.”495 in a pre-industrial world, someone consuming either belladonna or dandelion extract would likely not have possessed the expertise necessary to differentiate between the two substances themselves or immediate access to expert supervision. here, ruggles recognized that consumers buying and using unfamiliar products was an inevitable consequence of consumerism’s upsurge.496 prior to industrialization, consumer expertise was a final safeguard against injuries, but the court reaffirmed the privity of contract to reduce manufacturer liability from consumer unfamiliarity. however, ruggles somewhat accounted for the severity of injuries caused by modern technology through the “imminent danger” exception. pre-industrial pharmacists could not make enough of a drug, with sufficient concentrations of chemicals, to accidentally kill a consumer through their negligence.497 however, new machinery allowed pharmacists to increase the quantity and quality of their products, so they faced increased legal risk through producing better drugs.498 even though the court decided to penalize winchester, the 498 id. 497 daniel breen, supra note 454. 496 id. 495 id. 494 thomas v. winchester, supra note 456. 493 id. 128 brandeis university law journal 2023-2024, volume 11 exception of “imminent danger” leaves ample space for manufacturers of possibly hazardous products to defend themselves from product liability lawsuits.499 b. the faceless economy theory through analysis of the relevant literature and sources, it became evident that judges worried that depersonalizing the relationship between the consumer and the manufacturer would create additional product liability lawsuits. for the purposes of clarity, i shall refer to the aforementioned process as the faceless economy theory. before 1820, gifford concluded that few product liability lawsuits were argued because most consumers personally knew the artisan who made their product; they were often relatives, friends, or personally connected.500 this connection further disincentivized the consumer from filing a product liability lawsuit.501 litigation remains an inherently acrimonious and arduous process that destroys any personal relationship between the parties. industrialization fundamentally depersonalized the relationship between the manufacturer and the consumer, who started to see manufacturers as “anonymous…large industrial enterprises that had access to significant resources to pay for the costs of the accidental injuries they had inflicted.”502 judges sensed the change in public opinion toward manufacturers and the subsequent increased prosperity to sue them for negligence. the privity standard theoretically remedied this issue by rehumanizing litigation because an injured party could only sue a manufacturer with whom he shared a contract. this implies a certain familiarity between both parties, and therefore a desire to avoid any acrid litigation. 502 id. 501 id. at 11. 500 gifford, supra note 467 at 9, 11. 499 id. 129 brandeis university law journal 2023-2024, volume 11 the opinion in winterbottom v. wright demonstrates the court of exchequer’s conviction in the faceless economy theory. lord james scarlett abinger, who wrote the main opinion for the court, maligns that “if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action.”503 he foresaw that ruling in favor of winterbottom, based on the old standard of strict liability, would have “le[t] in …an infinity of actions.”504 abinger’s language implies that any individual with the slightest injury from the accident would try to sue wright, a man they likely had no personal connection with. the subsequent “infinity of actions” would financially ruin wright’s business and swamp the courts with seemingly frivolous litigation.505 therefore, the court would prevent these opportunistic litigants by ruling for winterbottom. the nysc’s decision in thomas v. winchester demonstrates the faceless economy theory because it ruled in favor of the plaintiff and against privity of contract, based on the exception of “imminent danger.”506 chief justice charles ruggles, the author of the court’s unanimous opinion, upheld the legality of the decision on wright v. winterbottom. however, he stated that the court ruled against the defendant because “the case …stand[s] on a different ground.”507 unlike the negligence of a repairman failing to maintain a carriage or a “horse be[ing] defectively shod by a smith[,] … [t]he death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label.”508 508 id. 507 thomas v. winchester, supra note 456. 506 daniel breen, supra note 454. 505 id. 504 id. 503 winterbottom v. wright, supra note 445 at 112. 130 brandeis university law journal 2023-2024, volume 11 the court ruled in favor of the plaintiff for “considerations of public policy or safety.”509 otherwise, manufacturers would have faced no civil legal liability for virtual manslaughter. this decision held manufacturers more culpable for injuries arising from their negligence.510 however, it established such a high threshold for the “imminent danger” exception that it shielded manufacturers from the opportunistic litigants that judges feared.511 iv. conclusion judges stimulated industrial growth during the market revolution by reducing manufacturers’ legal liability to consumers. the nysc overturned its previous ruling on thomas v. winchester with its 1916 decision on macpherson v. buick motor company, and legal scholars view this as the beginning of modern product liability law; the case established the standard of reasonability, but a series of product liability cases further reestablished the ancient standard of strict liability.512 justice benjamin cardozo of the ny court of appeals astutely realized that the economy had become so industrialized and integrated by the early 20th century that consumers almost exclusively purchased products from manufacturers they did not know personally.513 the distribution of burden that privity of contract placed on consumers by that point was so unacceptable that even conservative formalists, like carodozo, knew that the faceless economy theory outlived its utility.514 in a broader context, the analysis of the shift in product liability standards assesses the distribution of risk 514 id. 513 id. 512 daniel breen, old rules in modern settings: how the rule of law provides for change, even as it strives for consistency, (2021). 511 id. 510 daniel breen, supra note 454. 509 id. 131 brandeis university law journal 2023-2024, volume 11 associated with technological progress. new forms of industries and products unavoidably generate accidents and injuries, so the legal system ought to establish order and assign blame accordingly.515 keeping pace with a rapidly globalizing and digitizing world will continue to bedevil contemporary jurists, as questions of industrialization frustrated them during the industrial revolution.516 516 gifford, supra note 467 at 5. 515 michael willrich, supra note 469. 132 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 the psychedelic surge and its threats to native american communities leora karoll619 the psychedelic substances market is preparing to outpace the legal cannabis market in the united states by 2027. the country’s federal policies are not prepared to protect native americans in the potential acquisition of their traditional resources such as peyote (lophophora williamsii), a small and spineless cactus that contains psychoactive alkaloids. through case studies of biopiracy instances in the united states and around the world, this paper demonstrates the vulnerability of indigenous knowledge and resources and advocates for its protection as the popularity of psychedelics surges. these cases prove how easily and recklessly indigenous knowledge and resources are exploited, barring indigenous people from accessing them due to new patent rights, laws, or scarcity. president biden pledged to incorporate indigenous knowledge in federal research and policymaking in 2022, but due to the lack of a tribal consultation model and international agreements signed to protect native americans, the administration risks enabling further exploitation of these invaluable resources in the united states. i. introduction america is surging into psychedelic research. an unprecedented amount of funding is being allocated to psychedelic research to bring promising discoveries to the field of mental health.620 however, to many native americans, the 620 “johns hopkins center for psychedelic and consciousness research,” johns hopkins medicine, accessed november 9, 2023, 619 brandeis university undergraduate, class of 2024. 167 brandeis university law journal 2023-2024, volume 11 powerful healing properties of the psychoactive plant peyote have been known and used in religious ceremonies for thousands of years.621 as more research is done, policymakers and more than half of american voters begin to wake up to the wealth of benefits that many currently illegal substances may bring to american society.622 although exciting to many, this phenomenon causes concern for many traditional peyote users. many believe peyote should remain a closed practice, and staunchly oppose genetic manipulation of the plant and commercialization of what many native americans consider an “ancestor and a living relative.”623 even more pressing is the threat of biopiracy, the act of taking knowledge and genetic resources from indigenous communities without consent or compensation.624 companies and individuals have historically used united states patent law to gain the sole right to produce and distribute medical plants that have long been part of the traditional knowledge of indigenous people. the legalization of psychedelics has the potential to improve countless american lives; however, numerous protections need to be established to protect native american sovereignty over their traditional resource. the united states has signed the united nations declaration on the rights of indigenous peoples 624 john reid, “biopiracy: the struggle for traditional knowledge rights,” american indian law review 34 (2009). 623 louis sahagun, “legalization efforts spur ‘peyote crisis’; as cities move to allow psychedelic plants, some native americans cry foul.,” los angeles times, may 17, 2020. 622 catherine ho, “majority of u.s. voters support therapeutic use of psychedelic drugs,” san francisco chronicle, july 13, 2023, https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-the rapeutic-use-18197873.php. 621 james d. muneta, “peyote crisis confronting modern indigenous peoples: the declining peyote population and a demand for conservation,” american indian law journal 9, no. 1 (december 23, 2020), 139. https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-researc h. 168 brandeis university law journal 2023-2024, volume 11 (undrip), but has yet to meaningfully ratify it. in doing so, the united states would be obligated to prioritize native american voices by improving its tribal consultation model by establishing free, prior, and informed consent (fpic) standards. in addition to undrip, the united states must sign and uphold international agreements such as the nagoya protocol to protect the rights of native americans. led by emerging medical studies funded by the united states national institutes of health625 and the united states department of veterans affairs, a 21st century term, “psychedelic renaissance,” has been coined to describe this new period of acceptance of psychedelics.626 psychedelics are psychoactive substances that are either lab-made or naturally occurring in plants. peyote, methylenedioxy-methamphetamine (mdma), ayahuasca, psilocybin, and lysergic acid diethylamide (lsd) are common psychedelic drugs.627 consumption of these drugs generally does not lead to dependence or addiction.628 from 2007 to 2020, 105 registered clinical trials took place around the world examining the use of psychedelic drugs.629 notably, johns hopkins medicine 629 joshua s kurtz et al., “the use of psychedelics in the treatment of medical conditions: an analysis of currently registered psychedelics 628 nichols, “psychedelics,” 264–355. 627 david e. nichols, “psychedelics,” pharmacological reviews 68, no. 2 (february 3, 2016): 264–355, https://doi.org/10.1124/pr.115.011478. 626 “correa, bergman applaud house-passage of their amendment pushing va to study impact of psychedelics on veterans: united states congressman lou correa of california,” congressman correa, july 27, 2023, https://correa.house.gov/news/press-releases/correa-bergman-applaud-house -passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelicson-veterans. 625 brian s. barnett, sloane e. parker, and jeremy weleff, “united states national institutes of health grant funding for psychedelic-assisted therapy clinical trials from 2006–2020,” international journal of drug policy 99 (january 2022): 103473, https://pubmed.ncbi.nlm.nih.gov/34624734/. 169 brandeis university law journal 2023-2024, volume 11 received a federal grant of nearly $4 million to research the impacts of psilocybin630 on tobacco addiction in 2021.631 a breakthrough study by johns hopkins (2022) found that psilocybin relieved symptoms of major depressive disorder for up to a month in adults, and a follow-up study proved that benefits lasted up to a year for some participants.632 in 2010, the journal of psychopharmacology found that 83 percent of formerly treatment-resistant patients who underwent two mdma treatments were cured of ptsd.633 a long-term follow-up study found the positive results to be stable for 3.5 years.634 in response to the promising results of these studies, the united states congress unanimously passed an amendment to the military construction, veterans affairs, and related agencies appropriations bill in 2023 to encourage the united states department of veterans affairs to utilize federal funding for research of psychedelic therapies to help treat veterans suffering from ptsd.635 a growing proportion of americans report using psychedelic drugs, and 53 percent of users say they used it therapeutically.636 fifty-six percent of united states voters also express support for federal regulators to approve the use of psychedelics for prescription use, 636 ho, “voters support therapeutic use.” 635 congressman correa “applaud house-passing amendment.” 634 krediet et al., “psychedelics treatment of ptsd,” 385–400. 633 mdma is also known as ecstasy, a synthetic stimulant and psychedelic drug; erwin krediet et al., “reviewing the potential of psychedelics for the treatment of ptsd,” international journal of neuropsychopharmacology 23, no. 6 (2020): 385–400, https://doi.org/10.1093/ijnp/pyaa018. 632 natalie gukasyan et al., “efficacy and safety of psilocybin-assisted treatment for major depressive disorder: prospective 12-month follow-up,” journal of psychopharmacology 36, no. 2 (2022): 151–58, https://doi.org/10.1177/02698811211073759. 631 johns hopkins medicine “psychedelic research.” 630 psilocybin is a psychedelic chemical compound naturally occurring in some species of fungi. studies in the american drug trial registry,” cureus, september 14, 2022, https://doi.org/10.7759/cureus.29167. 170 brandeis university law journal 2023-2024, volume 11 according to a survey by the uc berkeley center for the science of psychedelics.637 as more studies provide fruitful findings, the psychedelic substances market is projected to rapidly expand, from $2 billion in 2020 and expected to reach $10.75 billion by 2027.638 these studies display the increased readiness of the american medical community, government, and general public to accept the legality of psychedelics. ii. peyote in native american communities although the medical community in the united states may only begin to accept the benefits of psychedelic remedies, they have long been understood by native americans. herbal medicines and psychedelics such as peyote have been used for thousands of years by native americans as part of their medicinal and spiritual practices and rituals; carbon dating proves that peyote was used 6,000 years ago at an archaeological site in texas.639 however, many tribes further claim that peyote has been used by them since time immemorial.640 peyote is often ingested during a night-long ceremony shared by a community involving singing, praying, drumming, and communication with a creator or some other metaphysical entity.641 members sit in a tipi or other ceremonial structure facing a crescent-shaped altar with a fire. there are four elements to the ceremonies, including praying, singing, 641 peter n. jones, “the native american church, peyote, and health: expanding consciousness for healing purposes,” contemporary justice review 10, no. 4 (2007): 411–25, https://doi.org/10.1080/10282580701677477, 415. 640 fannie kahan, “the struggle for peyote,” in a culture’s catalyst (university of manitoba press, 2016), https://doi.org/10.1515/9780887555084-007. 639 muneta, “peyote crisis,” 139. 638 phelps, “investment in psychedelics.” 637 ho, “voters support therapeutic use.” 171 brandeis university law journal 2023-2024, volume 11 ingestion of peyote, and quiet contemplation.642 ceremonies are usually called by a tribe to pray for the healing of a sick person or to give thanks for being cured.643 additionally, ceremonies take place to heal other problems or to pray for a loved one who is away at school or in the military.644 according to personal anecdotes, the revelations experienced through these ceremonies can lead to forgiveness, the alleviation of physical and emotional illness, and bonding with others in the community.645 as peyote offers both religious, emotional, and physical healing, it has helped countless native americans recover from life challenges such as substance abuse, mental illness, homelessness, poverty, and food insecurity.646 the tradition of the peyote ceremony strengthens communities through a shared intergenerational ritual, not only by connecting individual community members but also by linking generations through a common experience. losing this ritual endangers the wellness of individuals, the strength and continuity of their communities, and their religious freedom. however, with the arrival of settlers from the west, this tradition became vulnerable. european conquerors and their descendants have long been critical of peyote and its religious uses by indigenous people. when the spanish conquistadors arrived on the land in 1492, they tried to eradicate the plant entirely.647 as the natives reported visiting god when using peyote, the spanish identified it as a threat to the priesthood of their catholic 647 michael pollan, “chapter 4: mescaline,” how to change your mind, directed by alison ellwood and lucy walker, 2022, netflix. 646 muneta, “peyote crisis,” 172–173. 645 jones, “native american church,” 415. 644 jones, “native american church,” 415. 643 jones, “native american church,” 415. 642 jones, “native american church,” 415. 172 brandeis university law journal 2023-2024, volume 11 faith.648 in 1620, the roman catholic church deemed peyote “an evil to be rooted out in the new world.”649 during the mexican inquisition, the plant was labeled the “diabolical root” and was a “heretical perversity opposed to the purity and integrity of our holy catholic faith.”650 from the start of western colonization of the land, indigenous rights to peyote have been imperiled. after thousands of years of native american use of peyote, congress passed the indian religious crime code of 1883, enforcing the imprisonment and withholding of government rations from anyone in possession of peyote.651 the legislation stated that “dances and so-called religious ceremonies, shall be considered ‘indian offenses’... cognizable by the court of indian offenses.”652 upon losing the ability to legally practice these traditional and spiritual rituals, the alienation of native americans and their cultures became codified in law. this law forced these practices to move underground out of threat of persecution. it fragmented the passing down of indigenous knowledge from one generation to the next, severing a connection between past and present. this infringement of indigenous rights to peyote fractured identity, sovereignty, community connection, spirituality, healing, and freedom.653 as of the 1994 amendment of the american indian religious freedom act (airfa), native american church of north america (nacna) members alone are legally allowed to use peyote for solely religious purposes.654 the potential mainstream legalization of the plant raises concerns for many 654 muneta, “peyote crisis,” 139. 653 muneta, “peyote crisis,” 140. 652 muneta, “peyote crisis,” 140. 651 muneta, “peyote crisis,” 140. 650 pollan, “mescaline.” 649 muneta, “peyote crisis,” 139. 648 pollan, “mescaline.” 173 brandeis university law journal 2023-2024, volume 11 indigenous people, especially in the wave of decriminalization of other psychedelics such as psilocybin. colorado became the first state to legalize psilocybin for therapeutic uses in 2019, and oregon followed in 2020.655 based on data from the trajectory of cannabis legalization, it is projected that most states will have passed legislation legalizing psychedelics by 2033–2037.656 nonprofit organizations such as decriminalize nature have emerged in recent years, aiming to grant the healing properties of natural hallucinogens including peyote accessible to all.657 some native americans, including navajo spiritual leader steven benally, beg outsiders to “leave peyote alone” and ask, “is that too much to ask?”658 benally claims that “the spiritual healing power peyote offers is only attainable through native american protocol,” and that the illegality of the plant for non-natives “is one of the few federal laws on our side…we want to hold on to it.”659 benally is one voice of many who believe that peyote should remain inaccessible to the general public. from his perspective, peyote usage is a closed practice and should only be ingested ceremonially with the proper protocol traditionally performed by tribes. the concept of a closed practice asks only members of a certain culture to perform traditional practices as a way of preserving the culture and practices and often the sanctity centered around them. close practices for some cultures are a way of self-protection against colonial infiltration, especially if the group suffers from a history of settler colonialism. 659 sahagun, “legalization efforts.” 658 sahagun, “legalization efforts.” 657 sahagun, “legalization efforts.” 656 siegel et al., “psychedelic drug legislative reform,” 80. 655 joshua s. siegel et al., “psychedelic drug legislative reform and legalization in the us,” jama psychiatry 80, no. 1 (january 1, 2023): 77, https://doi.org/10.1001/jamapsychiatry.2022.4101. 174 brandeis university law journal 2023-2024, volume 11 in a commercialist society, many traditional peyote users fear what could happen if the sacred plant becomes accessible to the general public. dawn davis, a member of the shoshone-bannock tribes, worries about any “cultivation of peyote outside of the ancient terrain it shares with indigenous people” and that “it is a step toward hybridization and commercialization.”660 she is concerned that this reborn national interest in psychedelic experiences reminds her of the 1960s when peyote was illegally bought and sold to non-natives. this illegal activity decreased access to native americans and led many non-natives to profit from the illegal exploitation of the sacred plant. although to most americans peyote is just a psychoactive plant, davis explains that “to us, peyote is an ancestor and a living relative,” holding immense spiritual significance.661 for this reason, the hybridization and commercialization of it poses serious concerns. however, some native americans believe that the use of the plant should not be restricted to native americans alone. indigenous leaders such as comanche william voelker claim that the decriminalization of peyote may be best for all.662 voelker is also the director of the nonprofit group sia, which is dedicated to the preservation of eagle feathers. he argues that “it wouldn't be very humble of us to claim exclusive ownership to peyote and prevent others from using it. it wasn't just given to us.”663 however, in opening up the practice to outsiders, there should be intentional respect for the plant and consideration for its conservation needs. miriam volat, a soil scientist and co-director of the riverstyx foundation, which funds psychedelic research while simultaneously collaborating with tribes to contribute to the conservation of peyote argues that “instead of saying, ‘[y]ou owe us this plant, the 663 sahagun, “legalization efforts.” 662 sahagun, “legalization efforts.” 661 sahagun, “legalization efforts.” 660 sahagun, “legalization efforts.” 175 brandeis university law journal 2023-2024, volume 11 decriminalization movement should be saying, ‘[w]e’d like to help you take care of your sacred medicine.’”664 researchers should work with tribal leaders to ensure respectful use of the sacred plant. however, native americans have previously witnessed an exploitative pattern of their traditional resources. jon brady, the former president of the native american church of north america (nacna), worries that [a] lot of people want to tap into [peyote] because they see the potential, the almighty dollar … they’ve done that to a lot of our medicines already … this is kind of the last of our medicines of our native american people, so we’re trying every avenue to have its protection.665 according to brady, with the influence of capital, peyote will inevitably become exploited if it becomes legal for all. he believes that nacna “should not have to fight endless efforts to decriminalize peyote,” and that “it requires that the federal government to anticipate and act to cease states’ usurpation of american indian religious rights.”666 brady argues that legalization and decriminalization of peyote violates the religious right of peyote as outlined in the 1994 amendment of the american indian religious freedom act (airfa). he therefore instigates the federal government to initiate actions to prevent states’ legalization or decriminalization efforts. 666 jon brady, “strengthening the indigenous communities through cultural and environmental preservation” (testimony before the house natural resources committee, united states congress, november 8, 2021), 2. 665 hallie golden, “inside the battle to save the sacred peyote ceremony: ‘we’re in dire straits,’” the guardian, december 9, 2022, www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medici ne-nacna-federal-protection. 664 sahagun, “legalization efforts.” 176 brandeis university law journal 2023-2024, volume 11 however, as the federal government falls short on meeting many necessary protections for native americans, many tribal governments are empowered to implement their own legislation for protecting their cultural property. indigenous rights scholar angela riley is concerned that “in an age of globalization…property and quasi-property can spread across the world…in a matter of moments.”667 once indigenous cultural ideas and practices gain exposure, they are subject to appropriation and exploitation, and therefore need protection. although tribal law has limited jurisdiction, its development or revitalization is uniquely capable of accommodating the specific needs and circumstances of each tribe.668 therefore, tribes can determine how to protect themselves within each cultural context and normative framework. as tribal law gains prevalence, it will gain legitimacy and standing in american courts.669 riley advocates for a tiered system approach of incorporating international, national, and tribal law to protect cultural property.670 however, tribal law must be the foundation.671 iii. the threat of biopiracy many indigenous communities in the united states and abroad have historically been exploited by biopiracy, executed by individuals and companies. this process often involves using patent law to grant the patent holder the sole right to manufacture and distribute a plant. consequently, indigenous people are criminalized for using the plant in their traditional way if they lose their rights to it. 671 riley, “straight stealing.” 670 riley, “straight stealing.” 669 riley, “straight stealing.” 668 riley, “straight stealing.” 667 angela r. riley, “‘straight stealing’: towards an indigenous system of cultural property protection,” washington law review, 2005, 69–164, 79. 177 brandeis university law journal 2023-2024, volume 11 this process often involves pharmaceutical companies using indigenous knowledge to identify medicinal plants. indigenous knowledge is a body of knowledge, observations, practices, philosophies, and beliefs developed by indigenous people, passed down from generation to generation, based on lived experiences, and interactions with the environment.672 as pharmaceutical companies seek treatments in plants such as psychedelics, the research process is lengthy and expensive. using indigenous knowledge of medicinal plants instead of discovering them individually increases efficiency by over 400 percent.673 therefore, the world market for medicinal plants discovered by indigenous communities is valued at up to $43 billion.674 the united states has a history of lenient patent laws, allowing the biopiracy of many plants and their medicinal applications. in 1995, a united states patent was granted to two researchers at the university of mississippi medical center filed for the oral and topical use of turmeric powder from india as a surgical wound and ulcer healing agent.675 this was allowed despite the fact that evidence of ancient ayurvedic texts on traditional indian medicine, books about home remedies. simultaneously, previous scientific publications proved that turmeric has been known and used as a wound healer long before the university of mississippi medical center even existed.676 similarly, in 1993, american company agridyne received a united states patent for the use of neem oil extract as an insecticide and fungicide in the united states 676 jayaraman, “patent on indian herb.” 675 k. s. jayaraman, “us patent office withdraws patent on indian herb,” nature 389, no. 6646 (1997), https://doi.org/10.1038/37838. 674 reid, “biopiracy.” 673 reid, “biopiracy.” 672 “indigenous knowledge and traditional ecological knowledge,” national parks service, accessed february 29, 2024, https://www.nps.gov/subjects/tek/description.htm. 178 brandeis university law journal 2023-2024, volume 11 and the european union.677 neem is a tree that has been used in india for over two thousand years as a medicine, cosmetic, and insect repellent. once the patent was approved and came into effect, the european union struck it down for lack of novelty because it had proof of traditional usage, although the patent was upheld in the united states. the indian government spent nearly six million dollars fighting these cases.678 lack of novelty can help protect these resources when backed by indigenous knowledge of these resources. however, especially seen with historically marginalized people, novelty can often be difficult to prove. for an invention to be patented in the united states, it needs to be qualified as a novel invention. to be novel, “it either could not have been known or used by others in the united states or have previously been patented or described in a printed publication in the united states or a foreign country.”679 therefore, if a medicinal plant is known to indigenous people or published, it should be protected from patenting. however, with lack of publishing, it can be challenging to prove if it is known by indigenous people. additionally, by tweaking a minor part of the plant or the procedure in which the plant is used for medicinal purposes, novelty can be justified, especially against historically marginalized people.680 most indigenous knowledge on medicinal resources is not written or published and is instead passed down orally, which increases the vulnerability of patenting by non-natives. if the traditional indian documents on turmeric were officially published and reviewed by the united states patent office, india would not have needed to spend millions of dollars fighting the case.681 681 reid, “biopiracy,” 90. 680 reid, “biopiracy,” 92. 679 reid, “biopiracy,” 82. 678 reid, “biopiracy,” 90. 677 reid, “biopiracy,” 89. 179 brandeis university law journal 2023-2024, volume 11 following the turmeric and neem cases, india’s national institute of science communication and information resources (niscir) started collecting information on 130,000 traditional indian medicinal products to publish in a database. the european patent office (epo) entered an agreement with india to gain access before granting any patents involving botanical knowledge to the database to help prevent future cases like these.682 this was a progressive step towards preventing biopiracy, as if the knowledge of a plant’s medicine uses has been previously published, it cannot be patented. implementing this system with native american medicine would prove to be almost impossible. tracking down all traditional knowledge on medicinal plants spanning thousands of years and all over the country would be a nearly impossible and costly feat, if possible at all. the database project in india had a budget of $2 million. much indigenous knowledge is passed down orally and uses different names for plants than what scientists use. additionally, due to the closed nature of many native american practices, community members may feel uncomfortable sharing their sacred knowledge that has traditionally only been passed down orally from generation to generation.683 a database may pose additional concerns and may inadvertently subject this knowledge to further biopiracy. an estimated 4,000 plants with medicinal properties have been patented on plants that are already known.684 therefore, traditional knowledge could more easily be obtained and copied. it is also subject to being misconstrued or distorted and then patented. for example, a united states patent was granted for a solution of leaves from the aloe vera plant and water that was documented in indian literature.685 the patent was granted 685 reid, “biopiracy,” 92. 684 reid, “biopiracy,” 92. 683 reid, “biopiracy,” 82. 682 reid, “biopiracy,” 91. 180 brandeis university law journal 2023-2024, volume 11 on the grounds that the solution used only chlorinated water.686 by changing one element such as the kind of water or the temperature of the water, the practice is then eligible to be patented. the united states often exercises leniency when defining novelty; therefore, companies that pirate and profit from indigenous resources often rely on united states patent law. in 1974, the founder of the international plant medicine corporation based in california, loren miller, traveled to ecuador, where he obtained samples of ayahuasca from a local indigenous tribe. ayahuasca is a psychoactive plant that has been used by indigenous south americans and is often administered by a shaman in a long healing ceremony for its therapeutic and medicinal benefits.687 the plant is sacred to many indigenous south americans; the name translates from quechua as the vine of “souls.”688 miller took samples back to california to reproduce and study for its potential uses in cancer treatment and psychotherapy. in 1986, miller obtained united states plant patent no. 5,571 for the specific strain, awarding him the exclusive right to grow and sell it.689 in a statement, miller claimed: “if this patent was causing any harm to the indigenous people, i would have it canceled myself.”690 however, in 1994, the amazon alliance, center for international environmental law, and coordinating body of indigenous organizations of the amazon basin challenged the patent. they were successful on the basis that the strain was no 690 press, “ayahuasca on trial,” 352. 689 press, “ayahuasca on trial,” 329. 688 sara v. press, “ayahuasca on trial,” history of pharmacy and pharmaceuticals 63, no. 2 (2022): 328–53, https://doi.org/10.3368/hopp.63.2.328, 329. 687 jonathan hamill et al., “ayahuasca: psychological and physiologic effects, pharmacology and potential uses in addiction and mental illness,” current neuropharmacology 17, no. 2 (january 7, 2019): 108–28, https://doi.org/10.2174/1570159x16666180125095902. 686 reid, “biopiracy,” 92. 181 brandeis university law journal 2023-2024, volume 11 different from the original form of the plant that miller collected and therefore lacked novelty. in 1999, the united states patent and trademark office revoked the patent. however, miller succeeded in his patent reinstatement in 2001 based on evidence that the shapes of the leaves and stems of his breed were novel.691 miller left many indigenous people concerned with his actions, despite his supposed good intentions to study the beneficial uses of a plant. miller’s patent reinstatement by the united states after protests and legal action from indigenous-led groups demonstrates the unwillingness to listen to and consider indigenous voices in these matters. this case demonstrates again how lenient patent law in the united states can be, and how easily novelty can be proven. in 2022, san francisco-based company journey colab, which uses psychedelics to study addiction treatment, obtained a patent for lab-made mescaline (the active ingredient in peyote). however, it became the first company of its kind to publish a patent non-assertion pledge. this means that the company vowed to not sue indigenous people for patent infringement for using peyote in their traditional way.692 additionally, journey colab established the journey reciprocity trust, devoting a small portion of the company’s founding equity to indigenous communities; however, the company does not specify which indigenous communities and whether they are solely ones that use peyote.693 although this initiative is a progressive addition to studying psychedelics for medical research and innovation in mental health care, it is unclear to what extent indigenous communities were 693 journey colab, “reciprocity trust.” 692 “the journey colab reciprocity trust,” journey colab, accessed november 9, 2023, https://www.journeycolab.com/the-journey-colab-reciprocity-trust. 691 press, “ayahuasca on trial,” 331. 182 brandeis university law journal 2023-2024, volume 11 thoroughly consulted, and whether they provided consent and are receiving benefits from this process. hopefully, companies continue to follow this precedent. however, there are no regulations or incentives to follow suit. a non-assertion pledge is not required, enforceable by law, or even encouraged. as psychedelic lab research accelerates companies continue to receive patents, the federal government must have a role in protecting the rights of indigenous people to not be sued for patent infringement for using their crucial traditional resource of peyote. iv. the federal government’s role protected by the patent laws of the united states, private companies can become the new gatekeepers of indigenous knowledge and resources. as this surge in psychedelic research accelerates, policies need to be implemented quickly to protect against exploitation and biopiracy of indigenous resources such as peyote on united states soil. patent law leniency jeopardizes the autonomy of indigenous people’s right to use peyote if companies gain the right to peyote or mescaline. new medical research of psychedelics spearheads potential progress in the mental health medical field. discoveries in psychedelics have the potential to improve countless lives. many supporters of these initiatives argue that no more roadblocks or limitations should be placed on these endeavors.694 however, “progress” in the united states often comes at the expense of native american livelihoods.695 695 john gast, “american progress,” an allegorical female figure of america leads pioneers westward, as they travel on foot, in a stagecoach, 694 alicia victoria lozano, “candidates who support psychedelics as medicine get a political action committee,” nbcnews.com, march 20, 2023, https://www.nbcnews.com/news/us-news/candidates-support-psychedelicsmedicine-get-political-action-committe-rcna75295. 183 brandeis university law journal 2023-2024, volume 11 while the pursuit of these new medical advances for americans accelerates, native americans still experience unequal access to health care. the life expectancy of native americans is five years shorter than the general united states population.696 native americans are 20 percent more likely than white americans to experience colon and lung cancer.697 native americans are more likely to commit suicide than white americans, with those under the age of 25 being three times more likely.698 the indian health service (ihs) expenditures per patient are three times lower compared to medicare.699 the ihs struggles with the retention and recruitment of professional staff, causing grave limitations and a lack of continuity of care. ihs primary care physicians often feel overworked and are forced to take on a higher degree of patient complexity than they can manage without specialty consultation.700 lack of attention and funding for the ihs from congress leads to poor health and the premature deaths of native american individuals. funding towards research in psychedelics has the potential to deliver transformative health care, however, simultaneously, the indigenous people of this land still lack the funding and support to meet their basic healthcare needs. 700 kruse et al., “the indian health service.” 699 desiree l fox, ciara d hansen, and ann m miller, “over-incarceration of native americans: roots, inequities, and solutions,” safety and justice challenge, n.d., https://doi.org/https://safetyandjusticechallenge.org/, 35. 698 kruse et al., “the indian health service.” 697 kruse et al., “the indian health service.” 696 gina kruse et al., “the indian health service and american indian/alaska native health outcomes,” annual review of public health 43, no. 1 (2022): 559–76, https://doi.org/10.1146/annurev-publhealth-052620-103633. conestoga wagon, and by railroads, where they encounter native americans and herds of bison., the library of congress, 1872, autry museum of the american west, los angeles, california, https://www.loc.gov/item/97507547/. 184 brandeis university law journal 2023-2024, volume 11 v. legislation and agreements one hundred and forty-four other countries have vowed to take steps against the exploitation of indigenous resources by signing the nagoya protocol on access and benefit sharing.701 the nagoya protocol was established by the united nations in 2014 to protect indigenous resources such as peyote, turmeric, and neem against biopiracy. this international treaty stresses working with indigenous communities to agree upon terms in an informed, consensual manner with an emphasis on benefit sharing. when countries abide by the nagoya protocol, indigenous communities need to consent to the utilization of their traditional knowledge and genetic resources by any government, individual, or company.702 further, they also need to negotiate mutually agreed upon written terms for the equitable and fair sharing of profits and subsequent third-party use.703 each party may take legislative, administrative, or policy measures to ensure that the terms of their agreement are upheld. the nagoya protocol also promises that indigenous knowledge associated with genetic resources is accessed with the prior and informed consent of the indigenous communities. in addition, under the protocol, there must be consideration for the indigenous and local communities' customary laws, community protocols, and procedures. parties who benefit from the utilization of genetic resources are encouraged to contribute to the conservation efforts and sustainable uses of the resource. although the protocol was opened for signatures 703 united nations treaty collection, “nagoya protocol.” 702 united nations treaty collection, “nagoya protocol.” 701 “nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the convention on biological diversity,” united nations treaty collection, n.d., https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=x xvii-8-b&chapter=27&clang=_en. 185 brandeis university law journal 2023-2024, volume 11 in the united nations headquarters in new york for a full year, the united states has never signed it.704 in 2021, the bidenharris administration announced new pledges to support native american communities and elevate indigenous knowledge to inform federal policymaking.705 the administration outlined its goals of growing mutually beneficial relationships with tribal nations and indigenous people, as well as “considering, including, and applying indigenous knowledge in federal research, policies, management, and decision making.”706 this is a tremendous and properly celebrated achievement in legitimizing indigenous knowledge and elevating indigenous voices in initiatives such as climate resilience and environmental restoration. along with this statement, the administration vowed to strengthen the tribal consultation model.707 tribal consultation is the government-to-government dialogue between official representatives of tribes and federal agencies to discuss federal proposals before the federal agency makes decisions on those proposals.708 new consultation training and guidebooks will be created to ensure that tribal self-government, sovereignty, and rights are respected and upheld. these statements sound promising. however, the 708 government-to-government dialogue between official representatives of tribes and federal agencies to discuss federal proposals before the federal agency makes decisions on those proposals. 707 the white house “indigenous knowledge guidance.” 706 the white house “indigenous knowledge guidance.” 705 “fact sheet: biden-harris administration announces new actions to support indian country and native communities ahead of the administration’s second tribal nations summit,” the white house, november 30, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/ fact-sheet-biden-harris-administration-announces-new-actions-to-support-in dian-country-and-native-communities-ahead-of-the-administrations-secondtribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,p romote%20environmental%20sustainability%20and%20the. 704 united nations treaty collection, “nagoya protocol.” 186 brandeis university law journal 2023-2024, volume 11 guidebook, which was published in 2023, is seriously flawed. it includes tips for consulting with tribal nations such as “[a]void using patronizing language when working with tribes” and “do not mistake kindness, silence, or politeness for consent or agreement,” but does not require obtaining consent from tribes. in fact, in the 121-page document, requiring consent is only mentioned when it involves removing native american human remains, cultural items, and archeological resources from tribal lands.709 therefore, although the federal government may use traditional knowledge to guide federal agencies, native americans are still powerless to consent to how indigenous knowledge is used.710 additionally, the federal government is still not required to receive consent from native americans about federal proposals involving tribes. free, prior, and informed consent (fpic) must be implemented in the united states. fpic is the right of self-determination of indigenous people, established by the united nations. under fpic, when decisions are made by 710 editorial note: here, the author intended to justify the use of capitalizing indigenous and traditional knowledge. these terms are capitalized by the doi and white house. see the following sources for inspiration of this capitalization: “departmental policy on indigenous knowledge | indian affairs,” accessed march 23, 2024, https://www.bia.gov/service/tribal-consultations/departmental-policy-indige nous-knowledge; “indigenous knowledge | ostp,” the white house, accessed march 23, 2024, https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indi genous-knowledge/; however, i have also seen literature fail to capitalize indigenous knowledge and traditional knowledge. see the harvard public health magazine for recent works without capitalization:harvard public health magazine and makepeace sitlhou tu lucy, “how indigenous knowledge may shape the future of u.s. policy,” harvard public health magazine (blog), june 5, 2023, https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-a pproach-to-health-climate/. 709 dod legacy resource management program, department of defense tribal engagement guidebook, 2023. 187 brandeis university law journal 2023-2024, volume 11 governments that impact indigenous people, resources, or land, indigenous people must consent without coercion, intimidation, or manipulation prior to authorization of activities. they must also receive sufficient knowledge about the proposed activities. in the federal government’s aim to strengthen ties with tribal nations, no effort has been made to implement fpic. fpic in tribal consultation is outlined in article 19 of the united nations declaration on the rights of indigenous peoples (undrip), declaring that states must consult with and obtain fpic from indigenous people “before adopting and implementing legislative or administrative measures that may affect them.”711 the united states did not support undrip when it was adopted by the general assembly in 2007 but later endorsed it in 2010 due to administration change. however, alongside the endorsement came a preface; a document expressing that the declaration will have limited legal power.712 the united states announced that instead, the “[d]eclaration expresses aspirations that the united states seeks to achieve.”713 although the biden-harris administration’s steps to improve tribal consultation display progress, the united states, if it wants to keep its word about aspiring to uphold undrip, must begin to implement fpic in tribal consultation. vi. conclusion before proceeding with the expansion of psychedelic research and legalization, the united states must instate protections for native american. first, the united states must sign and abide by the nagoya protocol. this will codify native 713 arndt, “‘rights of indigenous peoples.’” 712 jordyn arndt, “explanation of position on ‘rights of indigenous peoples’” (new york, new york, november 7, 2019). 711 united nations, united nations declaration on the rights of indigenous peoples, 2007. 188 brandeis university law journal 2023-2024, volume 11 americans’ ability to use peyote without risk of criminalization for patent infringement. it will ensure that native american people, communities, indigenous knowledge, and resources are protected and used under mutually agreed-upon terms. second, the biden-harris administration must fully ratify and abide by undrip. this will require native americans to provide free, prior, and informed consent for the use of their resources and indigenous knowledge. tribes and companies must reach mutual agreements on the sharing of benefits, extraction, and use of peyote. third, tribal law must be legitimated and considered in matters involving tribes. fourth, funding for the ihs including addiction, trauma, and mental health treatment must be increased to mitigate unacceptable disparate health outcomes that leave native americans behind. these actions are not just empty promises, statements, or aspirational documents. native american rights and sovereignty over their traditional resources must not be protected “aspirationally,” but protected by no less than united states law. 189 brandeis university law journal 2023-2024, volume 11 bibliography arndt, jordyn. “explanation of position on ‘rights of indigenous peoples.’” new york, new york, november 7, 2019. barnett, brian s., sloane e. parker, and jeremy weleff. “united states national institutes of health grant funding for psychedelic-assisted therapy clinical trials from 2006–2020.” international journal of drug policy 99 (january 2022): 103473. https://pubmed.ncbi.nlm.nih.gov/34624734/. brady, jon. “strengthening the indigenous communities through cultural and environmental preservation.” testimony before the house natural resources committee, united states congress, november 8, 2021. “correa, bergman applaud house-passage of their amendment pushing va to study impact of psychedelics on veterans: u.s. congressman lou correa of california.” congressman correa, july 27, 2023. https://correa.house.gov/news/press-releases/correa-ber gman-applaud-house-passage-of-their-amendment-push ing-va-to-study-impact-of-psychedelics-on-veterans. dod legacy resource management program. department of defense tribal engagement guidebook, 2023. “departmental policy on indigenous knowledge | indian affairs.” accessed march 24, 2024. https://www.bia.gov/service/tribal-consultations/depart mental-policy-indigenous-knowledge. ellwood, alison, and lucy walker. "mescaline." how to change your mind. netflix, 2022. “fact sheet: biden-harris administration announces new actions to support indian country and native communities ahead of the administration’s second tribal nations summit.” the white house, november 30, 2022. 190 brandeis university law journal 2023-2024, volume 11 https://www.whitehouse.gov/briefing-room/statements-r eleases/2022/11/30/fact-sheet-biden-harris-administrati on-announces-new-actions-to-support-indian-country-a nd-native-communities-ahead-of-the-administrations-se cond-tribal-nations-summit/#:~:text=initiated%20at%2 0the%202021%20tribal,promote%20environmental%2 0sustainability%20and%20the. fox, desiree l, ciara d hansen, and ann m miller. “over-incarceration of native americans: roots, inequities, and solutions.” safety and justice challenge, n.d. https://doi.org/https://safetyandjusticechallenge.org/. gast, john. “american progress.” an allegorical female figure of america leads pioneers westward, as they travel on foot, in a stagecoach, conestoga wagon, and by railroads, where they encounter native americans and herds of bison. the library of congress, 1872. autry museum of the american west. los angeles, california. https://www.loc.gov/item/97507547/. golden, hallie. “inside the battle to save the sacred peyote ceremony: ‘we’re in dire straits.’” the guardian, december 9, 2022. https://www.theguardian.com/us-news/2022/dec/09/pey ote-native-american-medicine-nacna-federal-protection. gukasyan, natalie, alan k davis, frederick s barrett, mary p cosimano, nathan d sepeda, matthew w johnson, and roland r griffiths. “efficacy and safety of psilocybin-assisted treatment for major depressive disorder: prospective 12-month follow-up.” journal of psychopharmacology 36, no. 2 (2022): 151–58. https://doi.org/10.1177/02698811211073759. hamill, jonathan, jaime hallak, serdar m. dursun, and glen baker. “ayahuasca: psychological and physiologic effects, pharmacology and potential uses in addiction and mental illness.” current neuropharmacology 17, 191 brandeis university law journal 2023-2024, volume 11 no. 2 (january 7, 2019): 108–28. https://doi.org/10.2174/1570159x16666180125095902. ho, catherine. “majority of u.s. voters support therapeutic use ...” san francisco chronicle, july 13, 2023. https://www.sfchronicle.com/bayarea/article/majority-u -s-voters-support-therapeutic-use-18197873.php. “indigenous knowledge and traditional ecological knowledge.” national parks service. accessed february 29, 2024. https://www.nps.gov/subjects/tek/description.htm. jayaraman, k. s. “us patent office withdraws patent on indian herb.” nature 389, no. 6646 (1997): 6–6. https://doi.org/10.1038/37838. “johns hopkins center for psychedelic and consciousness research.” johns hopkins medicine. accessed december 7, 2023. https://www.hopkinsmedicine.org/psychiatry/research/p sychedelics-research. jones, peter n. “the native american church, peyote, and health: expanding consciousness for healing purposes.” contemporary justice review 10, no. 4 (2007): 411–25. https://doi.org/10.1080/10282580701677477. “the journey colab reciprocity trust.” journey colab. accessed november 9, 2023. https://www.journeycolab.com/the-journey-colab-recipr ocity-trust. kahan, fannie. “the struggle for peyote.” in a culture’s catalyst. university of manitoba press, 2016. https://doi.org/10.1515/9780887555084-007. krediet, erwin, tijmen bostoen, joost breeksema, annette van schagen, torsten passie, and eric vermetten. “reviewing the potential of psychedelics for the treatment of ptsd.” international journal of 192 brandeis university law journal 2023-2024, volume 11 neuropsychopharmacology 23, no. 6 (2020): 385–400. https://doi.org/10.1093/ijnp/pyaa018. kruse, gina, victor a. lopez-carmen, anpotowin jensen, lakotah hardie, and thomas d. sequist. “the indian health service and american indian/alaska native health outcomes.” annual review of public health 43, no. 1 (2022): 559–76. https://doi.org/10.1146/annurev-publhealth-052620-103 633. kurtz, joshua s, neal a patel, julian l gendreau, chenyi yang, nolan brown, nick bui, bryce picton, et al. “the use of psychedelics in the treatment of medical conditions: an analysis of currently registered psychedelics studies in the american drug trial registry.” cureus, 2022. https://doi.org/10.7759/cureus.29167. lozano, alicia victoria. “candidates who support psychedelics as medicine get a political action committee.” nbcnews.com, march 20, 2023. https://www.nbcnews.com/news/us-news/candidates-su pport-psychedelics-medicine-get-political-action-comm itte-rcna75295. magazine, harvard public health, and makepeace sitlhou tu lucy. “how indigenous knowledge may shape the future of u.s. policy.” harvard public health magazine (blog), june 5, 2023. https://harvardpublichealth.org/equity/indigenous-know ledge-to-shape-u-s-approach-to-health-climate/. muneta, james d. peyote crisis confronting modern indigenous peoples: the declining peyote population and a demand for conservation 9, no. 1 (december 23, 2020). “nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the convention on biological diversity.” 193 brandeis university law journal 2023-2024, volume 11 united nations treaty collection, n.d. https://treaties.un.org/pages/viewdetails.aspx?src=tre aty&amp;mtdsg_no=xxvii-8-b&amp;chapter=27&a mp;clang=_en. nichols, david e. “psychedelics.” pharmacological reviews 68, no. 2 (february 3, 2016): 264–355. https://doi.org/10.1124/pr.115.011478. phelps, joshua, ravi n. shah, and jeffrey a. lieberman. “the rapid rise in investment in psychedelics—cart before the horse.” jama psychiatry 79, no. 3 (2022): 189. https://doi.org/10.1001/jamapsychiatry.2021.3972. press, sara v. “ayahuasca on trial.” history of pharmacy and pharmaceuticals 63, no. 2 (2022): 328–53. https://doi.org/10.3368/hopp.63.2.328. pure ideas. “usa patent law vs european patent law.” pure ideas, november 16, 2022. https://pure-ideas.co.uk/2021/06/21/usa-patent-law-vs-e uropean-patent-law/. reid, john. “biopiracy: the struggle for traditional knowledge rights.” american indian law review 34 (2009). riley, angela r. “‘straight stealing’: towards an indigenous system of cultural property protection.” washington law review, 2005, 69–164. sahagun, louis. “legalization efforts spur ‘peyote crisis’; as cities move to allow psychedelic plants, some native americans cry foul.” los angeles times. may 17, 2020. siegel, joshua s., james e. daily, demetrius a. perry, and ginger e. nicol. “psychedelic drug legislative reform and legalization in the us.” jama psychiatry 80, no. 1 (january 1, 2023): 77. https://doi.org/10.1001/jamapsychiatry.2022.4101. the white house. “indigenous knowledge | ostp.” accessed 194 brandeis university law journal 2023-2024, volume 11 april 7, 2024. https://www.whitehouse.gov/ostp/ostps-teams/climate-a nd-environment/indigenous-knowledge/. united nations. united nations declaration on the rights of indigenous peoples, 2007. “white house releases first-of-a-kind indigenous knowledge guidance for federal agencies.” the white house, december 1, 2022. https://www.whitehouse.gov/ceq/news-updates/2022/12 /01/white-house-releases-first-of-a-kind-indigenous-kn owledge-guidance-for-federal-agencies/. 195 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 “decisions we do not like”: flag desecration case law and the culture war jack granahan541 the years following the reagan administration were defined by a newfound american cultural conservatism. the first amendment’s protection of flag desecration as a form of symbolic speech was one of the most divisive issues in american politics, and it comprised a major facet of the cultural conflict between liberals and conservatives.542 although the supreme court issued several conservative rulings on cultural issues at this time, the decisions of texas v. johnson (1989) and united states v. eichman (1990) did not follow this trend. this paper analyzes the extent to which the supreme court in general, and the court’s conservative wing in particular, repudiated culture war pressures to uphold constitutional civil liberty. i. introduction during the 1992 republican national convention (rnc), presidential candidate and traditionalist conservative stalwart pat buchanan gave a speech in which he described the political division of the united states as “a cultural war, as critical to the kind of nation we will one day be as was the cold war itself,” and called upon republican voters to “take back [their] culture, and take back [their] country.”543 according to buchanan, this marked an increased political relevance of cultural issues, which positioned traditionalist, nationalist, and 543 collins, transforming america, 171. 542 henderson, “today’s symbolic speech dilemma,” 534. 541 brandeis university undergraduate, class of 2026. 148 brandeis university law journal 2023-2024, volume 11 religious conservatives against countercultural, secular, and multicultural liberals.544 over three decades later, america still appears to be in the midst of a culture war. in the 2022 u.s. midterm elections, three prominent cultural issues—abortion, gun policy, and parental oversight of education—held special significance in the eyes of voters, with over half of registered voters considering these issues to be “very important.”545 the shift of american politics toward a focus on the cultural issues buchanan described can be traced back ten to twenty years prior to his rnc speech. following the conservative backlash against the counterculture movement during the nixon era, american politics experienced a liberalization under gerald ford and jimmy carter’s presidencies. shortly thereafter, the presidency of ronald reagan ushered in a period of increased conservatism, religious faith, and american patriotism. increased reverence for the american flag was indicative of the reagan era resurgence of patriotism—one of the most prominent facets of the culture war.546 conversely, desecration (usually by burning) of the american flag became a symbol for some of reagan’s political opponents.547 with few exceptions, the holdings of cases heard by the late burger court and early rehnquist court overwhelmingly took traditionalist stances on cultural issues. in the 1986 case of bowers v. hardwick, which upheld georgia’s criminal statute prohibiting sodomy, chief justice warren burger appealed to traditional perceptions of sexuality. more specifically, he pointed to the blackstonian view of homosexuality as an “infamous crime against nature,” stating 547 goldstein, flag burning and free speech, 44. 546 hunter, culture wars, 147. 545 schaeffer and green, “key facts about u.s. voter priorities ahead of the 2022 midterm elections.” 544 ibid, 171. 149 brandeis university law journal 2023-2024, volume 11 that “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”548 although it upheld roe v. wade’s federal protection of reproductive rights, the supreme court’s 1992 holding in planned parenthood v. casey also rolled back many of roe’s provisions and created additional obstacles for those seeking abortions.549 in his concurrence, chief justice william rehnquist compared abortion to the other traditional vice of bigamy, “with which entire societies of reasonable people disagree.”550 the supreme court’s traditionalist streak during and after the peak of the reagan era was indicative of a “spiteful kulturkampf” (or cultural clash), motivated by religious and national conservative values.551 the supreme court’s decisions in texas v. johnson and united states v. eichman are unique in that, unlike in cases regarding other cultural issues, they rejected the application of cultural conservatism to their jurisprudence in favor of protecting the constitutional rights of americans. ii. history of flag customs although reverence for the american flag is usually seen as ubiquitous in the united states, this was not the case for much of the country’s history. in the decades following the american revolution, even the united states military did not fight under the flag, and the “demand for flags was so low that no private company manufactured them until after 1845.”552 in fact, it was not until the civil war that the american flag received its current reputation, as it was union veterans of the 552 goldstein, flag burning and free speech, 1. 551 schulman, “kulturkampf and spite,” 62. 550 ibid. 549 planned parenthood v. casey, 505 u.s. 833, 120 l. ed. 2d 674, 112 s. ct. 2791 (1992). 548 bowers v. hardwick, 478 u.s. 186, 92 l. ed. 2d 140, 106 s. ct. 2841 (1986). 150 brandeis university law journal 2023-2024, volume 11 civil war who founded the flag protection movement (fpm) in the 1890s.553 this movement was a conglomeration of organizations that sought to prevent the flag from being desecrated, commercialized for profit, or otherwise disrespected. the first state law banning flag desecration was enacted in south dakota, in 1897.554 by 1932, every state had a ban on flag desecration.555 in the first half of the 20th century, approximately two dozen individuals were prosecuted for flag desecration, most of whom committed such acts in protest of american entry into world war i.556 however, only one of these prosecutions, that of new york clergyman bouck white in 1916, involved the burning of the flag, which is generally considered the gravest offense against the flag.557 flag desecration, particularly flag burning, made a resurgence in the late 1960s, following the deployment of american troops in the vietnam war. this protest was accompanied by a spike in popularity for the anti-establishment counterculture movement.558 in response, congress passed the flag protection act of 1968, a federal statute that banned “publicly mutilating, defacing, defiling, burning, or trampling upon” the american flag.559 shortly after the passage of this law, the american flag became, as described by a 1970 time story, “the emblem of disunity.”560 many cultural liberals saw the desecration of the flag as a symbol of protest, whereas their conservative counterparts saw the flag itself as a powerful symbol of traditional american culture.561 the conservative 561 ibid, 23. 560 goldstein, flag burning and free speech, 24. 559 h.r.10480 90th congress (1967-1968). 558 goldstein, flag burning and free speech, 23. 557 goldstein, flag burning and free speech, 27. 556 guenter, the american flag, 1777-1924, 167–169. 555 guenter, the american flag, 1777-1924, 144. 554 codified law 22-9-1. 553 ibid, 7. 151 brandeis university law journal 2023-2024, volume 11 reagan revolution of the 1980s coincided with the increased flying of the american flag.562 as reagan-era american patriotism eclipsed the counterculture movement’s skepticism of the idealist american vision, so too did reverence for the flag eclipse disdain for the flag. this is perhaps why so many americans had such visceral reactions to flag burnings, including the one by gregory lee johnson on august 22, 1984. iii. background of texas v. johnson the 1984 rnc in dallas, texas, was met with left-wing political demonstrations against president reagan. one particular protest was carried out by the revolutionary communist party (rcp), an anti-capitalist organization that “advocated violent revolution in the united states,” particularly in light of the rise of reagan-era nationalist conservatism.563 at the end of the protest, rcp member gregory lee johnson set an american flag, in his possession, on fire.564 johnson’s disdain towards the american flag was certainly a product of his reaction to cultural conservatism. in his own words, johnson saw “a need to condemn and repudiate” reagan’s “belligerent american patriotism” by “burning the flag of the empire.”565 johnson also compared dallas, which had “flags draped all over the place,” to “a modern nuremberg rally.”566 johnson was convicted under texas’s flag desecration law and sentenced to one year in prison and a $2,000 fine.567 he subsequently appealed his case to the texas supreme court, 567 taylor, “the protection of flag burning as symbolic speech and the congressional attempt to overturn the decision,” 1477. 566 ibid. 565 johnson, gregory lee johnson interview. 564 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 563 goldstein, flag burning and free speech, 44. 562 hunter, culture wars, 147. 152 brandeis university law journal 2023-2024, volume 11 which struck down the state’s law and vacated johnson’s conviction.568 when texas appealed to the u.s. supreme court, famed civil liberties attorney william kunstler defended johnson. kunstler’s defense hinged upon the first amendment to the constitution, which states that “congress shall make no law [...] abridging the freedom of speech.”569 in previous cases, however, the supreme court had ruled that speech can be restrained when it is “likely to produce a clear and present danger of a serious substantive evil that rises far and above public inconvenience, annoyance, or unrest.”570 kunstler’s argument explained that flag desecration, while controversial and inflammatory, did not produce a clear and present danger.571 kunstler cited west virginia state board of education v. barnette, a 1943 supreme court ruling that held students could not be legally compelled to recite the pledge of allegiance to the american flag in their classrooms.572 the barnette decision specifically held that mandating respect for the flag “cannot be justified as a means of meeting a ‘clear and present danger’ to national unity,” with justice robert jackson famously opining that “compulsory unification of opinion achieves only the unanimity of the graveyard.”573 according to kunstler, barnette and johnson shared the same premise, and if the government “can’t order you to salute the flag,” it also “can’t order you to do all these obeisances with relation to the flag,” such as not burning it.574 in addressing chief justice william rehnquist, who was “easily 574 texas v. johnson. 573 west virginia state board of education v. barnette, 319 u.s. 624, 87 l. ed. 1628, 63 s. ct. 1178 (1943). 572 ibid. 571 texas v. johnson. 570 terminiello v. chicago, 337 u.s. 1, 93 l. ed. 2d 1131, 69 s. ct. 894 (1949). 569 constitution annotated. 568 ibid. 153 brandeis university law journal 2023-2024, volume 11 the most conservative member” on the bench at the time, kunstler stated that the predicament created by johnson’s burning of the flag was exactly what the first amendment was written to protect.575 kunstler reasoned that “to hear things or to see things that we hate test[s] the first amendment more than seeing or hearing things that we like [...] it wasn’t designed for things we like.”576 district attorney kathi drew, who argued on behalf of the state of texas, pushed back against kunstler’s reasoning. while being questioned by justice antonin scalia, drew stated that the “preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest,” and the flag desecration law was crucial to preventing a “breach of the peace.”577 drew also attempted to frame the american flag’s status as one transcending private property ownership in favor of being “this nation’s cherished property,” to which justice scalia responded, “i never thought that the flag i owned is your flag.”578 this was the first indication of scalia’s hesitancy to rule on behalf of traditional patriotic values in johnson, despite his conservative approach to jurisprudence. he was not convinced that the collective interest of the state outweighed the personal agency of the individual burning the flag. iv. politics of the rehnquist court for william kunstler, arguing before the supreme court in texas v. johnson was an uphill battle. at the time of this case, the judicial branch of the federal government was not immune to the culture wars. in his two terms, president reagan appointed more federal judges than any other american president, and the supreme court was no exception. three 578 ibid. 577 ibid. 576 texas v. johnson. 575 “biography: chief justice william rehnquist.” 154 brandeis university law journal 2023-2024, volume 11 conservative supreme court justices—anthony kennedy, sandra day o’connor, and antonin scalia—were appointed by reagan, while the nixon-appointed william rehnquist had been elevated to the position of chief justice in 1986.579 additionally, the ford-appointed john paul stevens, while known for his more liberal tendencies, fell squarely within the conservative wing of the supreme court on questions of american patriotism.580 stevens, an outspoken world war ii veteran, gave an emotionally charged response to kunstler’s argument that flag desecration constituted free expression. during these exchanges with kunstler, stevens reportedly “turned red and was clearly quite angry.”581 the reliably centrist byron white similarly had a history of ruling conservatively on flag use cases, having previously joined rehnquist’s dissent in the 1974 case of spence v. washington. in spence, the supreme court held that adorning an american flag with peace symbols was a constitutionally protected form of free speech.582 this left three liberal justices—harry blackmun, william brennan, and thurgood marshall—for kunstler to rely on, compared to the six justices who would ostensibly be eager, as evidenced by their past decisions regarding cultural issues, to reinstate the conviction of a man who had committed, what many had deemed to be, the most egregious offense against the american flag.583 v. the johnson decision on june 21, 1989, the supreme court handed down its decision in texas v. johnson. in an unexpected rebuke of culture war conservatism, the ruling was 5-4 in favor of 583 ibid, 98. 582 ibid, 99. 581 ibid, 95. 580 goldstein, flag burning and free speech, 106–107. 579 hunter, culture wars, 251–252. 155 brandeis university law journal 2023-2024, volume 11 gregory lee johnson. as expected, rehnquist, o’connor, stevens, and white sided with the state of texas and voted to reinstate johnson’s conviction for flag desecration. anthony kennedy and antonin scalia, however, defected from their conservative colleagues to side with the liberal wing of the court in opposition to the legal prohibition of flag desecration.584 justice william brennan wrote the opinion for the majority, in which he applied several legal standards to texas’s flag desecration law.585 first, brennan clarified that johnson’s burning of the american flag, especially outside of a political convention in protest of a political action or entity, constitutes “expressive conduct” of an “overtly political nature.”586 though johnson himself had uttered no words in the process of setting the flag alight, he had, in brennan’s view, made a powerful enough non-verbal statement for the first amendment to be applicable.587 brennan also discredited kathi drew’s testimony on behalf of the state of texas under the o’brien test. the o’brien test stipulates that, for the government to prohibit an act of symbolic speech, there must be a “legitimate governmental interest” in doing so that “is unrelated to restricting expression.”588 this test originated from o’brien v. united states, a 1968 case that held that the first amendment did not protect draft card burning because such an act, while expressive, interfered with the state interest of raising a military force via conscription.589 therefore, to uphold the texas statute would 589 taylor, “the protection of flag burning as symbolic speech and the congressional attempt to overturn the decision,” 1479–1480. 588 henderson, “today’s symbolic speech dilemma,” 550–551. 587 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 586 goldstein, flag burning and free speech, 103. 585 ibid. 584 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 156 brandeis university law journal 2023-2024, volume 11 require the state to prove that flag desecration impedes the government’s ability to further its interests. upon analyzing the purported interest of the state of texas in preventing a breach of the peace, the supreme court found that johnson’s burning of the flag did not increase the risk of such an event, nor did texas’s legal counsel even attempt to prove such a risk.590 brennan’s opinion also challenged the supposed importance of the texas law in maintaining “nationhood and national unity,” which the supreme court found to be an insufficient interest, due to the inherently expressive nature of opposing such a form of patriotism.591 brennan wrote that the motive behind the texas law was instead to prohibit an action that an audience could take “serious offense” to, a concern that brennan countered by pointing out that the “bedrock principle underlying the first amendment” is that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”592 vi. justice kennedy’s concurrence justice anthony kennedy’s concurrence in texas v. johnson was perhaps the most powerful indicator of the case’s rejection of the culture war. agreeing with brennan’s definition of flag burning as a form of constitutionally protected political expression, kennedy emphasized that “the hard fact is that sometimes we must make decisions we do not like. we make them because they are right, right in the sense that the law and the constitution, as we see them, compel the result.”593 justice kennedy, a reagan-appointed conservative, made no secret of his opposition to flag desecration. however, he also firmly 593 henderson, “today’s symbolic speech dilemma,” 573. 592 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 591 ibid, 642. 590 birkett, “flag desecration statutes after texas v. johnson,” 640. 157 brandeis university law journal 2023-2024, volume 11 argued that “the flag is constant in expressing beliefs americans share, beliefs in law and peace and that freedom which sustains the human spirit,” and that “it is poignant but fundamental that the flag protects those who hold it in contempt.”594 despite his own disgust with the practice of flag burning, he acknowledged that the law is not to be solely based on his own personal views, and that the first amendment’s protection of free expression had been settled long before gregory lee johnson burned the flag. vii. dissenting opinions chief justice william rehnquist, joined by justice sandra day o’connor and justice byron white, wrote the primary dissenting opinion. the chief justice’s dissent rejected the overtly legal angle to flag desecration law taken by the majority, in favor of an emotionally charged exaltation of the american flag as a unique symbol deserving special legal protection.595 most importantly, chief justice rehnquist disagreed with the premise that the flag represented “simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”596 instead, he claimed that “millions and millions of americans regard it with an almost mystical reverence” and a “uniquely deep awe and respect” that would create a legitimate interest under the o’brien test.597 sentiment like that of the chief justice was well at home in the 1980s; as a result of the culture war, the american flag was “monopolized” as a “symbol of legitimacy” for the conservative movement.598 among an american populace that 598 hunter, culture wars, 147. 597 goldstein, flag burning and free speech, 106. 596 ibid. 595 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 594 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 158 brandeis university law journal 2023-2024, volume 11 had elected ronald reagan president twice in a row in landslide victories, it is likely that very few individuals would not take offense to the destruction of the american flag.599 following this surge of american patriotism, justice john paul stevens wrote a separate dissenting opinion that decried the majority’s belief that the flag was but an expendable symbol of a political ideology. a testament to justice stevens’ military service and immense patriotism, this dissent drew heavily on military iconography, stating that the flag, which had motivated “the philippine scouts who fought at bataan and the soldiers who scaled the bluff at omaha beach,” was “itself worthy of protection from unnecessary desecration.”600 in contrast with the conservatives of the majority, stevens, a justice with moderate conservative-to-liberal tendencies, heavily incorporated cultural conservatism in his decision.601 viii. reactions to johnson the supreme court’s ruling in texas v. johnson, which invalidated all state laws prohibiting flag desecration, received nearly instantaneous backlash. according to a washington, d.c. dispatch from the day following the decision, “citizens across america were outraged by the supreme court decision yesterday ruling that flag burning is not a crime.”602 some 602 hunter, culture wars, 28. 601 there is academic skepticism that cultural conservative assumptions are able to fully explain stevens’ dissent. i am grateful to professor daniel breen of the brandeis university legal studies department for pointing out that justice stevens’ use of cultural conservatism is not the most important or heaviest part of this descent. to read more on why this skepticism is warranted, see the words of one of his former clerks: “the least popular dissent,” scotusblog (blog), may 4, 2010, https://www.scotusblog.com/2010/05/the-least-popular-dissent/. 600 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 599 goldstein, flag burning and free speech, 108. 159 brandeis university law journal 2023-2024, volume 11 opponents of the decision went as far as “gather[ing] on the steps of the high court… to burn a mock supreme court justice’s robe.”603 on the night of the decision, peter jennings told abc evening news viewers that “there are very few supreme court decisions which we can imagine evoking such a gut reaction as this one,” while a usa today poll taken two days after the johnson decision found that “69 percent [of americans] supported a constitutional amendment” prohibiting flag desecration.604 president george h.w. bush stated that the supreme court’s decision to effectively legalize the desecration of a “banner of freedom” was “wrong, dead wrong.”605 meanwhile, the house of representatives voted 411-15 to condemn the ruling and the senate voted 97-3 to express “profound disappointment” with the supreme court.606 although the johnson decision struck down all state-level flag desecration statutes, it did not preclude the federal government from acting on the issue. both houses of congress quickly moved to legally circumvent johnson, with jack b. brooks (d-tx) leading the charge in the house of representatives and joseph r. biden (d-de) in the senate.607 after initial arguments over whether to introduce a constitutional amendment or a more feasible federal statute, representative brooks and senator biden each proposed a bill to amend the flag protection act of 1968 in their respective chambers. to avoid a challenge similar to johnson, the flag protection act of 1989 amended the 1968 act to criminalize flag desecration in the name of any ideology. the flag 607 ibid, 115. 606 goldstein, flag burning and free speech, 114. 605 henderson, “today’s symbolic speech dilemma,” 564. 604 goldstein, flag burning and free speech, 108–112. 603 ibid, 28. 160 brandeis university law journal 2023-2024, volume 11 protection act of 1989 passed in both houses, before president bush allowed it to pass without signing it.608 ix. united states v. eichman tests the johnson decision the immense public backlash to the johnson ruling may suggest that the decision was a regrettable mistake by the supreme court. this possibility was soon eliminated when the flag protection act of 1989 received its first test. on the day of the law’s codification into federal law, gregory lee johnson and seven others burned american flags in protest of the law in washington, d.c. and seattle, washington.609 all eight were charged with violating the 1989 law, though charges against johnson were dropped after witness testimony confirmed that his flag had not ignited.610 just as supporters and opponents of the flag protection act had planned, the case was appealed to the supreme court, with the case being submitted as united states v. eichman (johnson’s fellow activist, shawn eichman, was listed as the primary appellee).611 after almost a year of the public relations firestorm that had resulted from the johnson decision, it certainly would not have been surprising for any of the five justices who had voted with the majority—especially a conservative justice who had only tentatively sided with johnson—to change their mind on the flag desecration issue. nevertheless, on june 11, 1990, the supreme court once again ruled 5-4 that the flag desecration ban was unconstitutional, and every justice voted the same as in texas v. johnson.612 william brennan’s majority opinion in eichman was nearly identical to his johnson opinion, slamming the flag protection act as “suppression of free 612 goldstein, flag burning and free speech, 206. 611 united states v. eichman, 496 u.s. 310, 110 l. ed. 2d 287, 110 s. ct. 2404 (1990).” 610 ibid, 175. 609 goldstein, flag burning and free speech, 174. 608 text h.r.2978 101st congress (1989-1990). 161 brandeis university law journal 2023-2024, volume 11 expression.”613 john paul stevens’s eichman dissent also mirrored his johnson dissent, claiming that the federal government, like texas’s state government, “has a legitimate interest in protecting the symbolic value of the american flag.”614 since the supreme court’s decision in eichman, the focus of supporters of a flag desecration ban has shifted towards passing a constitutional amendment to circumvent johnson and eichman. such an amendment would supersede the first amendment to prohibit flag desecration, exempting the ban from the o’brien test. the most recent of these attempts was in 2006 when orrin hatch (r-ut) introduced a senate resolution proposing an amendment to ban flag desecration, which would ultimately fall one vote short of the two-thirds majority needed to pass in the senate.615 x. conclusion shortly before his 1990 retirement from the supreme court, william brennan expressed his disappointment with the supreme court’s shift towards cultural conservatism but also stated firmly that he was “not discouraged to the point of giving up [...] after all, kennedy and scalia joined me on the flag-burning case, for god’s sake.”616 in the words of gregory lee johnson, “being able to criticize the government is at the heart of the first amendment—without that, the first amendment really means nothing.”617 this was the view of flag desecration taken by five members of the supreme court in texas v. johnson and united states v. eichman, not the least surprising of whom were anthony kennedy and antonin 617 johnson, gregory lee johnson interview. 616 goldstein, flag burning and free speech, 101. 615 s.j.res.12 109th congress (2005-2006). 614 ibid. 613 united states v. eichman, 496 u.s. 310, 110 l. ed. 2d 287, 110 s. ct. 2404 (1990). 162 brandeis university law journal 2023-2024, volume 11 scalia. for these two conservative, reagan-appointed justices to join the liberal wing of the supreme court in affirming a constitutional civil liberty, not once, but twice, was no accident. by choosing to rule in favor of gregory lee johnson and later shawn eichman, et. al., kennedy and scalia were able to set their own conservative leanings aside to rule in a way that they believe most appropriately interpreted the first amendment. to paraphrase kennedy, the two made a decision they did not like, but in doing so made the right decision, compelled by the law and the constitution.618 thus, as the supreme court becomes more motivated by partisan politics, perhaps the sitting justices should heed the words of anthony kennedy and make more decisions they do not like. 618 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 163 brandeis university law journal 2023-2024, volume 11 bibliography birkett, william c. “flag desecration statutes after texas v. johnson a legislative solution to a political problem.” southern illinois university law journal 14, no. 3 (1990 1989): 625–56. collins, robert m. transforming america: politics and culture in the reagan years. new york: columbia university press, 2007. congress.gov. “h.r.2978 101st congress (1989-1990): flag protection act of 1989.” legislation, october 28, 1989. 10/28/1989. https://www.congress.gov/bill/101st-congress/house-bil l/2978. congress.gov. “s.j.res.12 109th congress (2005-2006): a joint resolution proposing an amendment to the constitution of the united states authorizing congress to prohibit the physical desecration of the flag of the united states.” legislation, june 27, 2006. 06/27/2006. https://www.congress.gov/bill/109th-congress/senate-jo int-resolution/12/. constitution annotated: analysis and interpretation of the u.s. constitution. “first amendment.” accessed march 9, 2023. https://constitution.congress.gov/constitution/amendme nt-1/. goldstein, robert justin. flag burning and free speech: the case of texas v. johnson. landmark law cases & american society. lawrence, kan: university press of kansas, 2000. govtrack.us. “h.r.10480 90th congress (1967-1968): flag protection act of 1968.” legislation, july 5, 1968. 07/05/1968. https://www.govtrack.us/congress/bills/90/hr10480/text. guenter, scot m. the american flag, 1777-1924: cultural 164 brandeis university law journal 2023-2024, volume 11 shifts from creation to codification. rutherford, n.j: fairleigh dickinson university press, 1990. henderson, michael a. “today’s symbolic speech dilemma: flag desecration and the proposed constitutional amendment comment.” south dakota law review 41, no. 3 (1996): 533–73. hunter, james davison. culture wars: the struggle to define america. new york: basicbooks, 1991. johnson, gregory lee. gregory lee johnson interview. interview by author. soundcloud audio, april 1, 2021. https://soundcloud.com/user-565827568/gregory-lee-jo hnson-interview. pbs newshour. “biography: chief justice william rehnquist,” september 4, 2005. https://www.pbs.org/newshour/politics/law-july-dec05-r ehnquist_09-04. schaeffer, katherine, and ted van green. “key facts about u.s. voter priorities ahead of the 2022 midterm elections.” pew research center. accessed april 22, 2023. https://www.pewresearch.org/short-reads/2022/11/03/ke y-facts-about-u-s-voter-priorities-ahead-of-the-2022-mi dterm-elections/. schulman, alex. “kulturkampf and spite: the rehnquist court and american ‘theoconservatism.’” law and literature 22, no. 1 (2010): 48–75. scotusblog. “the least popular dissent,” may 4, 2010. https://www.scotusblog.com/2010/05/the-least-populardissent/. south dakota legislature. “codified law 22-9-1.” accessed november 17, 2023. https://sdlegislature.gov/statutes/22-9-1. taylor, r. neil iii. “the protection of flag burning as symbolic speech and the congressional attempt to overturn the decision: texas v. johnson case note.” 165 brandeis university law journal 2023-2024, volume 11 university of cincinnati law review 58, no. 4 (1990 1989): 1477–1508. cases cited bowers v. hardwick, 478 u.s. 186, 92 l. ed. 2d 140, 106 s. ct. 2841 (1986). planned parenthood v. casey, 505 u.s. 833, 120 l. ed. 2d 674, 112 s. ct. 2791 (1992). terminiello v. chicago, 337 u.s. 1, 93 l. ed. 2d 1131, 69 s. ct. 894 (1949). texas v. johnson, 491 us 397 (1989). texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). united states v. eichman, 496 u.s. 310, 110 l. ed. 2d 287, 110 s. ct. 2404 (1990). west virginia state board of education v. barnette, 319 u.s. 624, 87 l. ed. 1628, 63 s. ct. 1178 (1943). 166 online version -volume 10, issue 2 brandeis university law journal spring 2023, volume 10, issue 2 regulation: realities and possibilities286 sophia reiss287 modern communication technologies increasingly raise concern. this growing awareness prompts examination of the effectiveness of current regulation and consideration of possible changes. this article explores the possibility of using both previous american regulation and european regulation efforts as examples to frame improvements in communications governance. first, it evaluates the fairness doctrine and its role in regulation as part of the federal communications commission (fcc) and the current section 230 regulation. next, the article reviews proposed amendments and alternative pathways for regulation before providing a recommendation based on these regulatory schemes. i. introduction the supreme court heard two cases in early 2023 presenting questions of online speech regulation: gonzalez v. google and twitter v. taamneh.288 both cases were brought by the families of american victims of the 2015 terrorist attacks in paris. the families are suing the platforms for their role in allowing these terrorists to use their platforms in order to facilitate the attacks.289 these two cases reveal some of the 289 “twitter, inc. v. taamneh,” oyez, https://www.oyez.org/cases/2022/21-1496. 288 brian fung, “two supreme court cases this week could upend the entire internet | cnn business,” cnn, february 20, 2023, https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index. html. 287 brandeis university graduate class of 2023, former editor-in-chief of the brandeis university law journal. 286 this article is adapted from an essay recognized for the 2023 justice louis d. brandeis essay prize. 98 brandeis university law journal spring 2023, volume 10, issue 2 profound harms that social media can facilitate and challenges the status quo of current american regulation of online platforms. these cases illustrate how online hate and disinformation influence offline hate, violence, and distrust. the proliferation of social media platforms, especially the specialized platforms that appeal to those trafficking in conspiracies, allow people to fall deeper into the alternative reality of conspiracy theories, confirm their own implicit biases, and breed hate. since social media platforms are run by private companies, where users are private individuals operating within a relationship with these companies, regulation is limited. this is particularly challenging in the united states given that current communications governance limits legal liability and public regulation. current communications governance heavily depends on the initial expectations of technology and communications growth potential at the outset of these new technologies’ arrival on the marketplace. when the internet first began being marketed to the public, the u.s. government, specifically congress, understood that innovation should be encouraged and could have positive, far-reaching implications. the unimaginable possibilities and opportunities of the internet promised the longed-for progress and growth. the internet connects people, inspires innovation, broadens access, and provides information. the focus of early legislation was to encourage this growth. in considering new regulation, several tensions need to be balanced by legislators and regulators. the power and opportunity for change, growth, understanding, and constructive debate are fiercely protected by freedom of speech. there is no question that freedom of speech is a core value protecting, most centrally, political dissent.290 on the 290 whitney v. california (1927); tinker v. des moines independent school 99 brandeis university law journal spring 2023, volume 10, issue 2 other hand, speech has the power and potential to cause emotional pain, physical violence, social alienation, and conflict. these emotional, physical, and social harms must be considered and balanced against the value of freedom of speech. other harms exist as well, as speech and dissent can disrupt and even threaten governmental institutions. this online environment allows for us to have digital personas, versions of ourselves which exist online and are created from our digital actions and behavior. beyond the offline harms that online platforms enable, digital personas and one’s personal digital footprint can also be harmed. one definition of the verb “balance,” according to merriam webster, is “to bring into harmony or proportion” which speaks to a kind of equipoise and is the regulatory solution this article hopes to propose.291 this is vital because the idea of balance helps to achieve “harmony.” through careful weighing of the before-mentioned tensions, regulation of new technologies should enable creativity, innovation, and positive change, while mitigating the potential for harm. this article will propose a regulatory solution based on elements present in the fairness doctrine, section 230, proposed amendments, consumer protection laws, and regulatory strategies in europe like the gdpr. to do so, the article will first provide a background and history of each to delineate the components and precedence that can address the harms of social media that abound in our current digital climate. upon this background, an explanation of a few potential regulatory responses that are currently being debated and explored will be offered. finally, the paper will draw from the aforementioned regulations and responses to propose a new governance response which combines the benefits and best 291 “definition of balance,” february 22, 2023, https://www.merriam-webster.com/dictionary/balance. district (1969) 100 brandeis university law journal spring 2023, volume 10, issue 2 techniques of each of the reviewed regulations and proposed approaches. ii. background regulations a. fairness doctrine – previous regulation first, the former regulation system of the fairness doctrine must be examined. the fairness doctrine was created by the federal communications commission (fcc) in 1949 to regulate “the airwaves” as there was a “scarce supply” of stations that “were owned by the public, with tv and radio stations functioning as ‘public trustees.’”292 the fairness doctrine lasted until its repeal by the fcc in 1987 and required broadcasters to present opposing views on important issues of public interest.293 the notion that broadcasting licenses serve the public interest derives from the existence of limited bandwidth and the fcc’s role in granting licenses with the public’s participation. the fairness doctrine’s requirement of a well-rounded and fair portrayal serves the public interest.294 294 “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969),” justia law, https://supreme.justia.com/cases/federal/us/395/367/. 293 dan macguill, “did ronald reagan pave the way for fox news?,” snopes, january 26, 2018, https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/; “fairness doctrine,” ronald reagan, https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine; dylan matthews, “everything you need to know about the fairness doctrine in one post,”washington post (blog), august 23, 2011, https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-nee d-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cx zj_blog.html; kathleen ann ruane, “fairness doctrine: history and constitutional issues.” 292 tom rosentiel, “is the fairness doctrine fair game?,” pew research center (blog), july 19, 2007, https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game. 101 brandeis university law journal spring 2023, volume 10, issue 2 the doctrine specifically required “that every licensee devote a reasonable portion of broadcast time to the discussion and consideration of controversial issues of public importance.”295 the second component of the doctrine specified “that in doing so, [the broadcaster must be] fair – that is, [the broadcaster] must affirmatively endeavor to make … facilities available for the expression of contrasting viewpoints held by responsible elements with respect to controversial issues presented.”296 this required people on both sides not only to speak and express their opinions, but also to find the appropriate presenters to voice opposing viewpoints.297 while this may have enforced or enabled neutrality, or at least debate, it also could create false equivalencies, one of the concerns to be treated with caution for any discussions of reinstatement. the high efficacy appears clear throughout the fairness doctrine’s record and its continued support from the public and governmental institutions over the years until its removal. regardless of its exact impact, the technique of incorporating fairness and balance into a doctrine where reasonable viewpoints must be presented provides a potential model for future regulation. the fairness doctrine found support in congress and the supreme court. the supreme court unanimously upheld the fairness doctrine due to its focus on the public interest in the 1969 case red lion broadcasting co., inc. v. federal communications commission.298 in its decision, “[t]he court held that the fcc’s [f]airness [d]octrine regulations enhanced rather than infringed the freedoms of speech protected under 298 matthews, “everything you need to know about the fairness doctrine in one post”; “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969).” 297 ruane, “fairness doctrine: history and constitutional issues.” 296 ruane, “fairness doctrine: history and constitutional issues.” 295 ruane, “fairness doctrine: history and constitutional issues.” 102 brandeis university law journal spring 2023, volume 10, issue 2 the first amendment.”299 further, they wrote that “the ‘public interest’ in broadcasting clearly encompasses the presentation of vigorous debate of controversial issues of importance and concern to the public.”300 in 1987, however, the fairness doctrine met its demise. this came about after the fcc decided that “the fairness doctrine was no longer necessary given the changes that had taken place in the media environment” and had failed to prove its efficacy.301 while this may seem like definitive proof of its flaws, closer examination shows that may not be true. additionally, the fcc’s statement about the doctrine’s necessity can be questioned and the efficacy evaluation may have been biased and not thoroughly researched. the “1985 fairness report,” which the fcc relied on, was the first “‘empirical assessment as to the efficacy of this chosen regulatory mechanism to promote access by the public to the marketplace of ideas’” and included public comment from many as part of its review process.302 the report met criticism, including that it “lacked any systematic statistical analysis and relied too heavily on anecdotal examples by broadcasters.”303 subsequent to this report, governance changes were implemented to improve data-gathering practices and the accuracy of regulatory mechanisms.304 304 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select.” 303 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select.” 302 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select.” 301 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select,” https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7c a191854511&v=2.1&it=r&ugroup=outside. 300 “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969).” 299 “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969).” 103 brandeis university law journal spring 2023, volume 10, issue 2 b. section 230 – current regulation the next section of this paper centers on section 230. first, this section will explore section 230’s historical and legislative context. second, the paper will examine the details of the law itself and congress’ motivations for putting section 230 in place. third, the practical implications and impact of section 230 will be evaluated in contrast to its development and textual priorities. section 230 came about through “[t]he communications decency act of 1996 (cda)” which “added section 230 to the communications act of 1934, generally protecting online service providers from legal liability stemming from content created by the users of their services.”305 the law itself explains congress’ original rationale for the law. both its findings and policy objectives will be examined later in greater depth.306 section 230 or “47 u.s.c. § 230” not only responded to the innovation of the internet, but attempted to resolve two prior conflicting cases.307 these cases, namely cubby, inc. v. compuserve, inc. and stratton oakmont, inc. v. prodigy servs. co, both dealt with message board content and the question of whether platforms are “publishers” of this content.308 the first case, “cubby v. compuserve (1991),” featured the defendant, compuserve, who maintained an information service which included special interest forms and found its way to court “[w]hen a columnist for one of the special-interest forums 308 “section 230.” 307 “section 230: legislative history,” electronic frontier foundation, september 18, 2012, https://www.eff.org/issues/cda230/legislative-history. 306 “47 u.s. code § 230 protection for private blocking and screening of offensive material,” lii / legal information institute, accessed march 25, 2023, https://www.law.cornell.edu/uscode/text/47/230. 305 kathleen ann ruane, “how broad a shield? a brief overview of section 230 of the communications decency act” (congressional research service, february 21, 2018). 104 brandeis university law journal spring 2023, volume 10, issue 2 posted defamatory comments about a competitor, the competitor sued compuserve for libel.”309 the u.s. district court for the southern district of new york, which heard the case, concluded that “compuserve could not be held liable as the columnist’s distributor because compuserve did not review any of the content on the forums before it was posted,” which meant they lacked “knowledge of the libel” and therefore “could not be held responsible for it.”310 the court wrote that “compuserve’s cis product is in essence an electronic, for profit library” which is “at the forefront of the information industry revolution,” and that allows individuals to have “instantaneous access to thousands of news publications across the world.”311 the court continued that “compuserve has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for compuserve to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”312 the second case, stratton oakmont inc. v. prodigy servs, co., happened four years after compuserve, in 1995, and featured the new york supreme court with a differing opinion on online platforms’ responsibility.313 the case involved prodigy, “a web services company” that “hosted online bulletin boards.”314 this case centered around actions prodigy took, namely when “prodigy moderated its online 314 “section 230.” 313 “section 230.” 312 cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991). 311 cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991), accessed march 25, 2023. 310 “section 230.”; castro, “overview of section 230.” 309 ashley johnson and daniel castro, “overview of section 230: what it is, why it was created, and what it has achieved,” february 22, 2021, https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-i t-was-created-and-what-it-has-achieved/; “section 230.” 105 brandeis university law journal spring 2023, volume 10, issue 2 message boards and deleted some messages for ‘offensiveness and ‘bad taste,’’’ which the court found made prodigy “akin to a publisher with responsibility for defamatory postings that made it onto the site.”315 given the multitude of posts on this platform, specifically “60,000 postings a day,” review of these for defamatory content would be quite a challenge.316 the first case, compuserve, appears to be a clearer and stronger application of precedents to a new technology. the court’s comparison between the information service at issue in the case and a library presents one type of interwoven relationships and control within the online sphere, which frames the information service provider as a very hands-off and structural type of internet operator. the second case, stratton v. prodigy, dealing with a platform that actively moderated its content while still maintaining a large amount of content typical of internet services, would be responsible despite no clear legal precedent providing a background for this conclusion. this led to a conflict where one platform, compuserve, would not be classified as a publisher, therefore void of any liability for the content on its platform, while another similar platform, prodigy, would be classified as a publisher, leading them to be held liable and responsible for the content on its platform. as a result, “section 230 had two purposes: the first was to ‘encourage the unfettered and unregulated development of free speech on the internet,’ as one judge put it; the other was to allow online services to implement their own standards for policing content and provide for child safety.”317 section 230 consists of six sections.318 section 230 starts with congress’ findings and the legislators framing of the context 318 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 317 “section 230.” 316 “section 230.” 315 “section 230.” 106 brandeis university law journal spring 2023, volume 10, issue 2 which inspired the law’s creation.319 congress explained the need for section 230 as arising out of “[t]he rapidly developing array of internet and other interactive computer services” which “represent an extraordinary advance in the availability of educational and informational resources to our citizens.”320 congress explained that the goals of section 230 were “to promote the continued development of the internet and other interactive computer services and interactive media…to preserve the vibrant and competitive free market… [and] to encourage the development of technologies that maximize user control over information.”321 through section 230(c), congress granted “protection for ‘good samaritan’ blocking and screening of offensive material,” meaning that anyone using the internet sphere would be treated automatically as being well-intentioned or as “good samaritans.”322 good samaritan laws rely on the concept of good public policy as being that which “limit[s] liability for those who voluntarily perform care and rescue in emergency situations.”323 the utilization of this principle in section 230 exemplifies its wider application, encompassing situations where limited liability is enforced. section 230 and the protections under the “good samaritan” header include “[n]o provider or user of an interactive computer service shall be held liable” given their “good faith to restrict access” to content.324 further, “the good samaritan law provides protection from claims of negligence for those who provide 324 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 323 brian west and matthew varacallo, “good samaritan laws,” in statpearls (treasure island (fl): statpearls publishing, 2023), http://www.ncbi.nlm.nih.gov/books/nbk542176/. 322 “47 u.s. code § 230.” 321 “47 u.s. code § 230.” 320 “47 u.s. code § 230.” 319 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 107 brandeis university law journal spring 2023, volume 10, issue 2 care without expectation of payment,” which provides an interesting contradiction when applied to section 230’s focus on “interactive computer service” providers and “information content provider[s],” who are monetizing their roles and actions.325 these providers are not considered “good samaritans.” despite this inherent contradiction, the liability shield within section 230(c)(1) removes these companies from liability “as publisher or speaker.”326 section 230 continues in (c)(2) to state that “[n]o provider or user of an interactive computer service shall be held liable on account of” their actions taken either, “to restrict access to…material… whether or not such material is constitutionally protected…[or]...to enable or make available to information content providers.”327 the first part “means online services are not liable for defamatory or otherwise unlawful content their users post.”328 in contrast, section 230(c)(2) “protects online services from liability for engaging in content moderation and enforcing their online standards” specifically for actions “‘taken in good faith.’”329 section 230(d) explains that providers should “notify such customers that parental control protections... [exist and] provide the customer with access to information identifying current providers of such protections.”330 this appears to indicate the legislator’s awareness that limited liability would result in children being left vulnerable absent these extra controls. section 230 has minimal effect on other laws.331 the definitions provide insight into how much the internet has 331 “47 u.s. code § 230.” 330 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 329 johnson and castro, “overview of section 230.” 328 johnson and castro, “overview of section 230.” 327 “47 u.s. code § 230.” 326 “47 u.s. code § 230.” 325 west and varacallo, “good samaritan laws.”; “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 108 brandeis university law journal spring 2023, volume 10, issue 2 developed since section 230 was implemented. section 230(f) defines the “[i]nternet,” “interactive computer service,” “information content provider,” and “access software provider.”332 the way the “interactive computer service” is defined is through a comparison to “services offered by libraries or educational institutions.”333 by continuing to uphold that image, serving in a similar way to libraries, allows these services to remain the subject of the limited liability that section 230 provides.334 section 230 also incorporates the way courts interpret and apply the law and its “[l]iability [s]hield.”335 section 230 is applied broadly due to the interactive computer service definition and the information content provider definitions.336 section 230 defines “interactive computer service” as “any information service, system or access software provider that provides or enables computer access by multiple users to a computer server.”337 first, the interactive computer service definition allows for the most broad liability shield which “[r]eviewing courts have interpreted [the liability shield] to cover many entities operating online, including broadband internet access service providers (e.g., verizon fios and comcast xfinity), internet hosting companies (e.g., dreamhost and godaddy), search engines (e.g., google and yahoo!), online message boards, and many varieties of online platforms.”338 338 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 337 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 336 ruane. 335 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 334 “47 u.s. code § 230.” 333 “47 u.s. code § 230.” 332 “47 u.s. code § 230.” 109 brandeis university law journal spring 2023, volume 10, issue 2 the second definition in its application covers “when [providers] disseminate others’ allegedly unlawful content, but not when they are wholly or partially responsible for the production of such content,” or when they are acting as an “information content provider.”339 as a result, it allowed business models to proliferate which all “rely on a wide variety of user generated content” including making possible “user reviews and comments” through “the liability protection offered by section 230.340 so far the courts presented with this question have decided that editing content does not change the content enough to remove the platforms’ protection under section 230’s liability shield.341 the court’s choice to interpret editing compared to other actions of the platforms helps frame how section 230 categorizes these online services as distinct from publishers or speakers.342 section 230 provides a liability shield for “traditional publishing functions” and editorial choices including publishing content and withdrawing such content.343 this aspect of section 230 protects platforms even when they remove content, which enables “those same websites to filter out violent, or graphic content, harassment, misinformation, hate speech, and other objectionable content, thereby creating a better user experience.”344 while this appears to obligate platforms or services to keep users safe, the other protection specifically from liability for the third-party content means that there is no obligation to filter content.345 the obligation does not necessarily create the protective 345 johnson and castro, “overview of section 230.” 344 johnson and castro, “overview of section 230.” 343 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 342 ruane. 341 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 340 johnson and castro, “overview of section 230.” 339 ruane. 110 brandeis university law journal spring 2023, volume 10, issue 2 environment it appears to and as a result, judicial interpretation makes clear section 230’s exact scope including the extent and limits of its protections. as applied, section 230 does not protect online platforms if they develop or induce illegal content, selectively repost content, breach contracts, fail to act in good faith, or fail to warn users of illegal activity hosted on their platform.346 further judicial interpretation has pointed to areas where section 230 is unclear, particularly in the face of a vast and new technology environment.347 this includes cases where algorithmic sorting was examined by the courts as it appears to be an unclear issue of immunity where algorithmic filters content particularly on social media platforms and searches.348 a district of columbia circuit court held that a “search engine’s tools did ‘not distinguish’ between different types of user content” and instead simply “translated all types of information, both legitimate and scam information, in the same manner.”349 overall, the practical implications and section 230’s legal interpretations result in an unregulated online environment where platforms maintain user agreements that hint to filters and where most content can be shared without repercussions. this environment raises questions about objectionable content that remains on their site, algorithms that spread this content, and the general growth and control of big tech. these questions and investigations are complex because section 230 assumes that online actors act in “good faith” and 349 brannon and holmes, “section 230: an overview.” 348 brannon and holmes, “section 230: an overview.” 347 valerie c brannon and eric n holmes, “section 230: an overview,” april 7, 2021, 58. 346 daniel castro and ashley johnson, “the exceptions to section 230: how have the courts interpreted section 230?,” february 22, 2021, https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-c ourts-interpreted-section-230/. 111 brandeis university law journal spring 2023, volume 10, issue 2 fully place the obligation for filtering content on the companies with no examination of how they do it or what content leaves and what content remains on the platforms. further, algorithms which are central to many platforms’ business models are not addressed by section 230. social media algorithms “can be defined as technical means of sorting posts based on relevancy” in which the content that the user sees is prioritized including, at times, based on usage of the platform.350 the way algorithms curate user experiences would most likely fall into “editorial decisions,” which platforms are expected to make in “good faith,” but the public often has limited information or awareness of how the algorithms work and change their experiences. this leaves people to deal with the consequences of the curated content without recourse, as the algorithms are made and run by the platforms who can hide behind section 230’s “liability shield.” lastly, the way big tech, the largest companies dominating the technology marketplace, grew and gained control over the online space was encouraged and enabled by section 230, but the consequences of their actions and algorithms and these companies’ relative power compared to that of users, regulators, and lawmakers may have been unforeseen. indeed, some even argue that the debate over section 230 has become a substitute for larger debates around speech and discussions about how a free marketplace of ideas can really function.351 further, these questions relate to who should be the ones’ deciding how this marketplace should 351 ovide, shira. “what’s behind the fight over section 230.” the new york times, march 25, 2021, sec. technology. https://www.nytimes.com/2021/03/25/technology/section-230-explainer.htm l. 350 maria alessandra golino, “algorithms in social media platforms,” april 24, 2021, https://www.internetjustsociety.org/algorithms-in-social-media-platforms. 112 brandeis university law journal spring 2023, volume 10, issue 2 work, what happens in response to any harms that ensue, and who should be responsible.352 iii. potential responses a. proposed changes to section 230 – potential response 1 as a result of this unregulated technology and media environment, proposals abound for how to amend section 230 to fix its flaws to achieve its policy objectives. some proposed amendments make the liability protection conditional, others add “more exceptions” to the liability protection, in addition to more drastic proposals “to repeal section 230 entirely,” or “more incremental rollbacks.”353 internet companies joined the flurry of reform proposals with ideas of their own.354 the rationale for these reforms often goes along the lines of the need to regulate the vast power of big tech especially with regard to content removal and the impacts of algorithms on young people.355 these suggested reforms run counter to section 230 proponents, who argue for the law’s preservation as “its myriad benefits outweigh its few flaws,” especially given the law’s major role in creating the online world.356 one proposal is the platform accountability and consumer transparency act (pact act) which removes immunity for illegal content, and outlines procedures for 356 ashley johnson and daniel castro, “proposals to reform section 230,” february 22, 2021, https://itif.org/publications/2021/02/22/proposals-reform-section-230/. 355 brannon and holmes, “section 230: an overview.” 354 ovide, “what’s behind the fight over section 230.”; brannon and holmes, “section 230: an overview.” 353 ovide, “what’s behind the fight over section 230.”; valerie c brannon and eric n holmes, “section 230: an overview,” april 7, 2021, 58. 352 ovide, shira. “what’s behind the fight over section 230.” 113 brandeis university law journal spring 2023, volume 10, issue 2 content removal.357 this proposal faced problems as it conflicts with the digital millennium copyright act (dmca) that addresses copyright law violations where the law “provides a ‘safe harbor’ to cover providers who remove content after being notified that the content may” be in violation.358 the pact act may also be changing since “both the dmca and the e-commerce directive [(a similar eu law)] have also been subject to debate and proposals for reform.”359 another proposal is the “stopping big tech’s censorship act” in which “providers and users may only claim immunity under section 230(c)(1) if a service ‘takes reasonable steps to prevent or address the unlawful use’ of the service’ or publication of such illegal content.”360 the case-it act also removes platform immunity, but opts for a different approach.361 the case-it act has “providers and users lose section 230(c)(1) immunity for a year if they engage in certain activities, including permitting harmful content to be distributed to minors, if the harmful content “‘is made readily accessible to minors’” without the existence or use of systems to prevent this from happening.362 another similar proposal is “the safeguarding against fraud, exploitation, threats, extremism, and consumer harms (safe tech) act,” which would not provide immunity for platforms’ “ads or paid content, civil rights law, stalking or harassment laws, wrongful death actions, or human rights violations abroad” and failures to take down content in response to a court order.363 this bipartisan proposal is supported by advocacy groups including the anti-defamation 363 johnson and castro, “proposals to reform section 230.” 362 brannon and holmes, “section 230: an overview.” 361 brannon and holmes, “section 230: an overview.” 360 brannon and holmes, “section 230: an overview.” 359 brannon and holmes, “section 230: an overview.” 358 brannon and holmes, “section 230: an overview.” 357 brannon and holmes, “section 230: an overview.” 114 brandeis university law journal spring 2023, volume 10, issue 2 league (adl) and muslim advocates.364 each of these content and activity carve-outs risk “over-enforcement” as they “require online services to determine what is legal or illegal,” and would likely lead them to remove grey area “to avoid liability.”365 this already took place in response to a similar carve-out for sex trafficking that passed in 2018.366 the over-enforcement resulted in a substantial share of material being removed that had no connection to sex trafficking harms.367 however, too many exceptions to section 230 would, in effect, repeal the law entirely.368 adding a multitude of exceptions to the liability shield would not only affect bad actors benefiting from illegal content, but platforms genuinely trying to prevent and remove illegal content.369 the ending support for internet censorship act would require companies of a certain size, or with a particular level of revenue, “to prove to the federal trade commission every two years that their algorithms and content moderation practices are politically neutral in order to receive section 230 liability 369 johnson and castro, “proposals to reform section 230.” 368 johnson and castro, “proposals to reform section 230.” 367 johnson and castro, “proposals to reform section 230.” 366 johnson and castro, “proposals to reform section 230.” 365 johnson and castro, “proposals to reform section 230.” 364 chris riley and david morar, “legislative efforts and policy frameworks within the section 230 debate,” brookings (blog), september 21, 2021, https://www.brookings.edu/techstream/legislative-efforts-and-policy-frame works-within-the-section-230-debate/; “muslim advocates applauds new bill to enact reforms to section 230,” muslim advocates, february 5, 2021, https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-billadding-reforms-to-section-230/; “adl supports reforming section 230 of the communications decency act to hold tech companies accountable, prioritize users and protect civil rights | adl,” accessed april 6, 2023, https://www.adl.org/resources/press-release/adl-supports-reforming-section230-communications-decency-act-hold-tech. 115 brandeis university law journal spring 2023, volume 10, issue 2 protection.”370 this is most clearly akin to the fairness doctrine given its emphasis on balanced presentation.371 another proposal focuses on algorithms by limiting federal immunity from liability for technology companies when their platform’s algorithms recommend third party content that “cause physical or emotional injury.”372 other proposals encourage the creation of “[b]ehavioral [s]tandards” for “sufficiently responsible behavior and establish enforcement mechanisms that evaluate compliance (while navigating first amendment limits on government restriction of corporate speech).”373 this includes the online freedom and viewpoint diversity act, the earn it act, and a proposal by mark zuckerberg.374 lastly, repeals of section 230 are proposed to enforce accountability through liability and remove the protections of early innovations as it is no longer necessary to protect the early trial-and-error period of these companies. while there may be a concern that without section 230 free speech and exchanges of ideas online would be restricted, government action and restrictions would still be limited by the first amendment.375 further, the first amendment would provide background protections for speakers and publishers, like those offline, while there would be less consistent and vast immunity protections for the platforms.376 376 brannon and holmes, “section 230: an overview.” 375 brannon and holmes, “section 230: an overview.” 374 riley and morar, “legislative efforts and policy frameworks within the section 230 debate.” 373 riley and morar, “legislative efforts and policy frameworks within the section 230 debate.” 372 "h.r.5596 117th congress (2021-2022): justice against malicious algorithms act of 2021." congress.gov, library of congress, 18 october 2021, https://www.congress.gov/bill/117th-congress/house-bill/5596. 371 johnson and castro, “proposals to reform section 230.” 370 johnson and castro, “proposals to reform section 230.” 116 brandeis university law journal spring 2023, volume 10, issue 2 b. consumer protection laws – potential response 2 although section 230 may appear as the only legal avenue through which platform regulation and the conversations around it is possible, there are other legal avenues through which online speech could be regulated to comply and fulfill the high expectations that these technology companies regularly set. for instance, these goals can be achieved through consumer protection laws; specifically, laws that prohibit unfair, deceptive acts and practices (udaps). such laws particularly focus on upholding the public interest as the core expectation behind these companies actions and treatment of their users. in addition to overseeing antitrust law, the federal trade commission (ftc) monitors consumer protection violations.377 while “section 5 does not define ‘unfair or deceptive acts or practices’” it does state that, “a practice is not ‘unfair’ unless it ‘causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”378 beyond the federal law and its enforcement through federal agencies, “[s]tates have crafted their own consumer protection laws based on a handful of model acts (including the ftc act)” which aim to protect consumers from unfair and deceptive acts and practices.379 these entities are all able to “bring similar lawsuits alleging 379 canzona, “i’ll know it when i see it.” 378 eric n. holmes, “unfair or deceptive acts or practices (udap) enforcement authority under the federal trade commission act” (congressional research service, november 4, 2022), https://crsreports.congress.gov/product/pdf/if/if12244. 377 “consumer protection laws,” lii / legal information institute, accessed april 10, 2023, https://www.law.cornell.edu/wex/consumer_protection_laws. 117 brandeis university law journal spring 2023, volume 10, issue 2 udap-based violations” to act in the public interest, as well as consumers or advocacy groups.380 in relation to social media regulation, consumer protection laws like udap provide an avenue for the public interest to be protected, given the special role these technology companies hold within society. as jack m balkin, knight professor of constitutional law and the first amendment at yale law school, notes, “[s]ocial media companies and search engines have social and moral obligations to the public” that arise out of their role in society.381 these companies often voluntarily categorize themselves as places “to promote public-spirited goals,” and therefore should “act according to public-regarding, professional norms.”382 given that their innovations often revolve around providing a space for positive developments like greater and stronger interconnection, access, and creativity; these companies, like other technology companies, provide a useful service to society. when these companies choose to frame themselves in this way, act to provide such services, and take on such obligations as those balkin discusses, they become legally obligated to hold themselves accountable to their own self-portrayal. the public should be able to expect that these companies are being honest with users and the public. the udaps do just that, holding the companies accountable to their public portrayal by prohibiting false promises and unfair and deceptive behavior. social media companies illustrate this as they often declare in congress how safe their platforms are and how they enforce their user agreements, while users and 382 balkin, “free speech is a triangle.” 381balkin, jack m., free speech is a triangle (may 28, 2018). columbia law review, 2018, forthcoming, yale law school, public law research paper no. 640, https://ssrn.com/abstract=3186205 380 holmes, “unfair or deceptive acts or practices (udap) enforcement authority under the federal trade commission act.” 118 brandeis university law journal spring 2023, volume 10, issue 2 advocacy groups find that they still face the same unsafe behavior banned by these user agreements. the ftc and state attorneys general enforce consumer protection laws with regard to privacy and “[r]especting [c]onsumer [c]hoice” with respect to “[d]o-not-track settings on browsers which prevent advertisers from tracking consumers’ online activities.”383 consumer protection laws and udaps, in particular, already protect consumers from financial injury, but the vital question here is whether courts will see these laws as fit to protect consumers from online companies. in 2021, muslim advocates, a muslim civil rights advocacy group, sued facebook and facebook executives for deception over their actions relating to the content on the platform.384 the lawsuit, using the d.c. consumer protection procedures act, or the dc cppa, “allege[d] that facebook ha[d] exaggerated how aggressively it remove[d] hate speech” in violation of the law.385 facebook’s actions specifically violated the dc cppa, as it states that “it is illegal for a company to make material misrepresentations about a good or service in the district of columbia.” muslim advocates asked for facebook to either “[s]top lying, or have your actions conform to your statements.”386 importantly, muslim advocates’ assertions centered on the statements of facebook executives and the user agreement’s community standards that frame users’ expectations of safety on their platform. while 386 allyn, “muslim advocates has filed a lawsuit against facebook.” 385 allyn, “muslim advocates has filed a lawsuit against facebook.” 384 bobby allyn, “muslim advocates has filed a lawsuit against facebook,” npr, april 8, 2021, sec. religion, https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-l awsuit-against-facebook. 383 danielle keats citron, “the privacy policymaking of state attorneys general,” notre dame law review 92, no. 2 (december 2016), https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7c a484155772&v=2.1&it=r&ugroup=outside. 119 brandeis university law journal spring 2023, volume 10, issue 2 this method of using consumer protection laws is still being tested, given its efficacy and broad application elsewhere, it could provide a model for accountability and necessary enforcement to counteract failures to uphold one’s duty to serve the public interest. c. european union’s solutions – potential response 3 in this section, the paper turns to the european union because it stands out as a model given the promise shown in their active regulation of big tech with far-ranging impacts and strong popularity among the public.387 these impacts are apparent since when those companies are fined, they often improve their behavior and apply the changes required by the eu’s regulation worldwide for ease of operation.388 the popularity of these regulations, which will be explained in this paragraph, derives from how the regulatory laws themselves are written, which often give citizens more information and control with regard to their own data and experience.389 the european union seeks to meet the needs that arise out of these new technologies through a focus on privacy and data protection. the laws and regulation of privacy online, specifically data privacy protections, is known as the general data protection regulation (gdpr). the gdpr went into effect in 2018, after passing in 2016, in order to give companies and countries time to prepare for this robust legislation.390 the gdpr grew out of the right to privacy 390 “data protection in the eu,” june 4, 2021, https://commission.europa.eu/law/law-topic/data-protection/data-protection389 amaro, “how europe became the world’s top tech regulator.” 388 amaro, “how europe became the world’s top tech regulator.” 387 silvia amaro, “how europe became the world’s top tech regulator,” cnbc, march 25, 2021, https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds -top-regulator.html. 120 brandeis university law journal spring 2023, volume 10, issue 2 codified in the 1950 european convention on human rights which states, “everyone has the right to respect for his private and family life, his home and his correspondence.”391 the gdpr is one of a series of new technology governance laws in which the eu worked to protect one’s right to privacy within legislation.392 the way the gdpr functions with its definitions, and specification of both the rights and requirements for companies, enables a clear and comprehensive application. the burden of proof is placed on the company fulfilling gdpr requirements.393 further, both national institutions within the european union member states and international institutions exist that help enforce the regulations of the gdpr.394 one example of these international institutions is the european data protection board (edpb) which is an independent regulatory body charged with maintaining “the consistent application of data protection rules throughout the european union” established by the gdpr and that includes representatives of the national entities, an eu supervisor, and non-voting involvement of the european commission.395 since the gdpr, the european union has continued to focus on technology and is creating “[t]he digital services 395 “data protection in the eu.” 394 “data protection in the eu,” june 4, 2021, https://commission.europa.eu/law/law-topic/data-protection/data-protectioneu_en. 393 “what is gdpr, the eu’s new data protection law?” 392 “what is gdpr, the eu’s new data protection law?” 391 “what is gdpr, the eu’s new data protection law?” eu_en; “regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/ec (general data protection regulation) (text with eea relevance),” 119 oj l § (2016), http://data.europa.eu/eli/reg/2016/679/oj/eng; “what is gdpr, the eu’s new data protection law?,” gdpr.eu, november 7, 2018, https://gdpr.eu/what-is-gdpr/. 121 brandeis university law journal spring 2023, volume 10, issue 2 package” which includes both the “digital services act and digital markets act.”396 in addition to this package, more regulation is being worked on to govern artificial intelligence.397 the european commission states that “[t]he digital services act and digital markets act aim to create a safer digital space where the fundamental rights of users are protected and to establish a level playing field for businesses.”398 it appears to focus on the same kinds of companies as section 230, with a similar overarching goal. this prompts the question: what, if anything, is really different between section 230 and the eu’s efforts? perhaps the european union learned from the mistakes of section 230. their laws came later, allowing for a stronger understanding of the technologies at play.399 following their adoption in july 2022, these eu laws began taking effect by 17 february 2023, when the regulatory authorities categorized services into a size and type category that will frame the requirements that they need to meet.400 these newest pieces of regulation will be fully in place by 2024 and also include several checkpoints that technology companies need to meet along the way to ensure full compliance and incorporate accountability mechanisms.401 401 “the digital services act package | shaping europe’s digital future.” 400 “the digital services act package | shaping europe’s digital future.” 399 “the digital services act package | shaping europe’s digital future.” 398 “the digital services act package | shaping europe’s digital future,” february 9, 2023, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package. 397 “the digital services act package | shaping europe’s digital future,” february 9, 2023, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package; amaro, “how europe became the world’s top tech regulator.” 396 “the digital services act package | shaping europe’s digital future,” february 9, 2023, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package; amaro, “how europe became the world’s top tech regulator.” 122 brandeis university law journal spring 2023, volume 10, issue 2 the digital services act “proposed large fines for internet platforms like facebook, twitter [(now known as 𝕏)] and youtube if they do not restrict the spread of certain illegal content like hate speech.”402 this is similar to the gdpr’s large fines, which often make a big splash in the news.403 widely, “gdpr fines are used to fund public services,” a model that would likely be replicated with these newer regulations.404 these fines, while quite substantial, are applied taking into account the companies’ size and offense so as to remain proportional.405 for the gdpr, “[t]here are two tiers of penalties which max out at $20 million or 4% of global revenue (whichever is higher),” as well as enabling those harmed “to seek compensation for damages.”406 further, composition, explanation, and implementation of these regulations takes into account all of the players involved: individuals, the technology companies, business users, and society.407 in these regulations, the eu often requires compliance to be built into the structure of companies. for example, the gdpr outlines implementation of data security training, specifies the responsibilities of data protection within 407 “the digital services act: ensuring a safe and accountable online environment,” accessed april 13, 2023, https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/euro pe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-onlineenvironment_en. 406 “what is gdpr, the eu’s new data protection law?” 405 “what is gdpr, the eu’s new data protection law?” 404 “three years of gdpr.” 403 “three years of gdpr: the biggest fines so far,” bbc news, may 24, 2021, sec. technology, https://www.bbc.com/news/technology-57011639. 402 adam satariano, “big fines and strict rules unveiled against ‘big tech’ in europe,” the new york times, december 15, 2020, sec. technology, https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europ e.html. 123 brandeis university law journal spring 2023, volume 10, issue 2 teams, and details data protection officer requirements for certain organizations.408 these regulations are met with what dessislava savova describes as “‘a real willingness and wide political support in the eu to set the highest global standards when it comes to tech regulations.’”409 she further notes that the digital services “‘package will be a real game changer’” as “‘[i]t will create a single regulatory framework and will set up a foundation of a strong cooperation and a new governance structure in the eu, with tangible enforcement mechanisms and important sanctions.’”410 further, the new york times notes that these regulations, along with some national ones, “helped reinforce europe as home to some of the world’s toughest policies toward the technology industry.”411 iv. new plan inspired by this history – this paper’s solution this section will present the pros and cons of each of the previously discussed regulations and how they could be combined in such a way that improves upon these regulatory schemes. first, this section will outline the positives of each regulatory method; second, it will address their limitations; third, it will offer a multipronged recommendation. 411 satariano, “big fines and strict rules unveiled against ‘big tech’ in europe.” 410 amaro, “how europe became the world’s top tech regulator.” 409 amaro, “how europe became the world’s top tech regulator.” 408 “what is gdpr, the eu’s new data protection law?” 124 brandeis university law journal spring 2023, volume 10, issue 2 a. favorable aspects of these regulations the fairness doctrine proved effective at instilling balance in regulatory schemes by encouraging technological innovation while safeguarding the public’s interest in being informed on issues of public concern and safety. broadcast stations developed within the fairness doctrine’s regulatory realm introduced and popularized these new technologies. at the same time, the supreme court endorsed the fairness doctrine’s role in promoting free speech and an informed public. section 230 attempted to balance and incorporate similar interests through a different mechanism. section 230 used an almost absolute liability shield that enabled online platforms and services to develop and grow tremendously. this enabled technology companies to create different strategies and approaches to content on their platforms, including algorithms. the section 230 reforms present promising solutions. consumer protection laws prove effective in other markets as they prevent misrepresentation and unfair treatment of consumers. the european union’s solutions promote accountability through massive fines and illustrate a strong protection-based approach. b. limitations of these regulations the fairness doctrine lacked enough meaningful buy-in from broadcasters as well as clear methods to maintain accountability as a regulation long-term because it became difficult to evaluate or prove its efficacy. section 230 failed at maintaining balance because the interpretation of the liability shield prevented technology companies from being held accountable. both the section 230 reforms and the consumer protection laws remain relatively untested within the online 125 brandeis university law journal spring 2023, volume 10, issue 2 environment and technology companies at large. there are many section 230 reforms proposed and many, while framed similarly, promote vastly different approaches. despite some gaining momentum recently, it is unclear when and how they would be applied. the european union’s solutions build more regulatory structures and focus on privacy, which distinguishes it from american regulations. further, the strict protection of freedom of speech existing in the united states is unparalleled elsewhere, including in the eu, so the eu’s solutions may not fit with american free speech absolutism. also, there may be concerns amongst united states legislators about stopping the growth of technology companies through strict regulation. c. the outlined recommendation from this background, the new proposal is one which welcomes regulation not as a hindrance to growth, innovation, and freedom, but as something that enables and protects it. an informed public’s access to information is no longer confined solely to news media. thus, regulations regarding who is informing the public and how they are being informed must expand its range to include the context of online platforms. the standard should be elevated from a basic level of protecting the ability to hear both sides of a matter to consumers being informed about their privacy, their safety, and the accountability of the platforms they are on. strong understandings of technology companies and how their products work must be incorporated into the background of the new proposed regulation. the fairness doctrine lacked this element as it failed to understand the practical approaches it encouraged broadcasters to take and the challenges that came with that approach. there must be a careful understanding of the interests, innerworkings, and 126 brandeis university law journal spring 2023, volume 10, issue 2 particular context of the technology companies to avoid pushback from the companies. following the fairness doctrine’s balanced approach to speech, new regulation should promote free speech through providing content-neutral regulation and not tell companies what to regulate, but how to regulate content: evenly and fairly. parts of the regulations mentioned above fit this proposed framework. for instance, one of section 230’s proposed reforms, the safe tech act, illustrates how comprehension of technology companies and true accountability can be built into an american framework. simply copying the effective methods of the european union’s regulation would not be ideal as the american context is just that: american. this distinction requires understanding and incorporation of respect for american ideals, including a broader protection for freedom of speech and the promotion of innovation. the eu’s privacy law, the gdpr, should be incorporated to a certain extent, as we generally lack privacy laws and data protection. this is already starting in california, but beyond incorporating the gdpr and other eu laws, our approaches could be inspired by theirs. our regulations could be more effective following the multipronged approach found in the european union’s regulations where rights are defined, expectations are outlined, compliance is formalized, compliance guidelines are clear, and meaningful fines are incorporated. together, the history and potential future of technology regulation show promise. regulation promoting both the public interest in tandem with encouraging innovation has existed previously and continues to exist. understanding the public interest, policy concerns, new technology, historical regulation, business impact, and the innovation and online environments is crucial to a successful and balanced regulatory approach. 127 brandeis university law journal spring 2023, volume 10, issue 2 bibliography “adl supports reforming section 230 of the communications decency act to hold tech companies accountable, prioritize users and protect civil rights | adl.” accessed march 27, 2023. https://www.adl.org/resources/press-release/adl-supports-r eforming-section-230-communications-decency-act-hold-t ech. allyn, bobby. “muslim advocates has filed a lawsuit against facebook.” npr, april 8, 2021, sec. religion. https://www.npr.org/2021/04/08/985475645/muslim-advoc ates-has-filed-a-lawsuit-against-facebook. amaro, silvia. “how europe became the world’s top tech regulator.” cnbc, march 25, 2021. https://www.cnbc.com/2021/03/25/big-tech-how-europe-b ecame-the-worlds-top-regulator.html. anand, meghan, kiran jeevanjee, daniel johnson, quinta jurecic, brian lim, irene ly, matt perault, et al. “all the ways congress wants to change section 230.” slate, march 23, 2021. https://slate.com/technology/2021/03/section-230-reform-l egislative-tracker.html. balkin, jack m., free speech is a triangle (may 28, 2018). columbia law review, 2018, forthcoming, yale law school, public law research paper no. 640, https://ssrn.com/abstract=3186205. bambauer, derek e. “how section 230 reform endangers internet free speech.” brookings (blog), july 1, 2020. https://www.brookings.edu/techstream/how-section-230-re form-endangers-internet-free-speech/. bbc news. “three years of gdpr: the biggest fines so far.” may 24, 2021, sec. technology. https://www.bbc.com/news/technology-57011639. brannon, valerie c, nina m hart, eric n holmes, and chris d 128 brandeis university law journal spring 2023, volume 10, issue 2 linebaugh. “update: section 230 and the executive order on preventing online censorship,” brannon, valerie c, and eric n holmes. “section 230: an overview,” april 7, 2021, 58. caitlin bassett. “section 230: what is it and why the controversy?” mind matters, august 8, 2010. https://mindmatters.ai/2021/08/section-230-what-is-it-andwhy-the-controversy/. castro, daniel, and ashley johnson. “the exceptions to section 230: how have the courts interpreted section 230?,” february 22, 2021. https://itif.org/publications/2021/02/22/exceptions-section230-how-have-courts-interpreted-section-230/. chung, andrew. “as u.s. supreme court weighs youtube’s algorithms, ‘litigation minefield’ looms.” reuters, february 17, 2023, sec. legal. https://www.reuters.com/legal/us-supreme-court-weighs-y outubes-algorithms-litigation-minefield-looms-2023-02-17 /. citron, danielle keats. “the privacy policymaking of state attorneys general.” notre dame law review 92, no. 2 (december 2016). https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis &id=gale%7ca484155772&v=2.1&it=r&ugroup=outsi de. cnn, by brian fung and tierney sneed. “supreme court hears gonzalez v. google case against big tech.” cnn. accessed february 25, 2023. https://www.cnn.com/business/live-news/supreme-court-g onzalez-v-google-2-21-23/index.html. cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991). accessed march 25, 2023. “data protection in the eu,” june 4, 2021. https://commission.europa.eu/law/law-topic/data-protectio n/data-protection-eu_en. 129 brandeis university law journal spring 2023, volume 10, issue 2 “data protection in the eu,” june 4, 2021. https://commission.europa.eu/law/law-topic/data-protectio n/data-protection-eu_en. “definition of balance,” february 22, 2023. https://www.merriam-webster.com/dictionary/balance. electronic frontier foundation. “section 230: legislative history,” september 18, 2012. https://www.eff.org/issues/cda230/legislative-history. federal communication commission. fairness report, 1985. http://archive.org/details/fairnessreport. “finally, an interesting proposal for section 230 reform | wired.” accessed march 27, 2023. https://www.wired.com/story/section-230-reform-safe-tech -act/. fung, brian. “two supreme court cases this week could upend the entire internet | cnn business.” cnn, february 20, 2023. https://www.cnn.com/2023/02/20/tech/supreme-court-tech -platforms/index.html. gdpr.eu. “what is gdpr, the eu’s new data protection law?,” november 7, 2018. https://gdpr.eu/what-is-gdpr/. holmes, eric n. “unfair or deceptive acts or practices (udap) enforcement authority under the federal trade commission act.” congressional research service, november 4, 2022. https://crsreports.congress.gov/product/pdf/if/if12244. isd. “online civil courage initiative (occi).” accessed march 25, 2023. https://www.isdglobal.org/isd-programmes/online-civil-co urage-initiative-occi/. johnson, ashley, and daniel castro. “overview of section 230: what it is, why it was created, and what it has achieved,” february 22, 2021. https://itif.org/publications/2021/02/22/overview-section-2 30-what-it-why-it-was-created-and-what-it-has-achieved/. 130 brandeis university law journal spring 2023, volume 10, issue 2 “proposals to reform section 230,” february 22, 2021. https://itif.org/publications/2021/02/22/proposals-reform-s ection-230/. justia law. “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969),” https://supreme.justia.com/cases/federal/us/395/367/. “justice department issues recommendations for section 230 reform,” june 17, 2020. https://www.justice.gov/opa/pr/justice-department-issues-r ecommendations-section-230-reform. lii / legal information institute. “47 u.s. code § 230 protection for private blocking and screening of offensive material.” accessed march 25, 2023. https://www.law.cornell.edu/uscode/text/47/230. lii / legal information institute. “consumer protection laws.” accessed april 10, 2023. https://www.law.cornell.edu/wex/consumer_protection_la ws. macguill, dan. “did ronald reagan pave the way for fox news?” snopes, january 26, 2018. https://www.snopes.com/fact-check/ronald-reagan-fairness -doctrine/. “mark zuckerberg, joe manchin, and isis: what facebook’s international terrorism lawsuits can teach us about the future of section 230 reform proquest.” accessed march 27, 2023. https://www.proquest.com/docview/2607798213?pq-origsi te=primo&parentsessionid=qy8kwub2j%2byn0ettx8qf udlpp8v4a8fonsvuhxfnc6a%3d. matthews, dylan. “everything you need to know about the fairness doctrine in one post.”washington post (blog), august 23, 2011. https://www.washingtonpost.com/blogs/ezra-klein/post/ev erything-you-need-to-know-about-the-fairness-doctrine-inone-post/2011/08/23/giqan8cxzj_blog.html. 131 brandeis university law journal spring 2023, volume 10, issue 2 muslim advocates. “muslim advocates applauds new bill to enact reforms to section 230,” february 5, 2021. https://muslimadvocates.org/2021/02/muslim-advocates-ap plauds-new-bill-adding-reforms-to-section-230/. ovide, shira. “what’s behind the fight over section 230.” the new york times, march 25, 2021, sec. technology. https://www.nytimes.com/2021/03/25/technology/section230-explainer.html. oyez. “twitter, inc. v. taamneh,” (2023) https://www.oyez.org/cases/2022/21-1496. “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select,” n.d. https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis &id=gale%7ca191854511&v=2.1&it=r&ugroup=outsi de. rash, wayne. “lawmakers introduce bipartisan reforms making big tech liable as supreme court considers section 230.” forbes. accessed march 27, 2023. https://www.forbes.com/sites/waynerash/2023/02/28/sectio n-230-reforms-introduced-into-us-senate-and-house-of-rep resentatives/. regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/ec (general data protection regulation) (text with eea relevance), 119 oj l § (2016). http://data.europa.eu/eli/reg/2016/679/oj/eng. riley, chris, and david morar. “legislative efforts and policy frameworks within the section 230 debate.” brookings (blog), september 21, 2021. https://www.brookings.edu/techstream/legislative-efforts-a nd-policy-frameworks-within-the-section-230-debate/. rodrigo, chris mills. “facebook’s zuckerberg proposes 132 brandeis university law journal spring 2023, volume 10, issue 2 conditional section 230 reforms.” text. the hill (blog), march 24, 2021. https://thehill.com/policy/technology/544707-facebooks-z uckerberg-proposes-conditional-section-230-reforms/. roeven, sanne. “exploring the history of section 230 of the communications decency act of 1996 – ballotpedia news.” accessed march 25, 2023. https://news.ballotpedia.org/2021/06/08/exploring-the-hist ory-of-section-230-of-the-communications-decency-act-of -1996/. ronald reagan. “fairness doctrine,” https://www.reaganlibrary.gov/archives/topic-guide/fairnes s-doctrine. rosentiel, tom. “is the fairness doctrine fair game?” pew research center (blog), july 19, 2007. https://www.pewresearch.org/2007/07/19/is-the-fairness-d octrine-fair-game/. ruane, kathleen ann. “fairness doctrine: history and constitutional issues,”———. “how broad a shield? a brief overview of section 230 of the communications decency act.” congressional research service, february 21, 2018. satariano, adam. “big fines and strict rules unveiled against ‘big tech’ in europe.” the new york times, december 15, 2020, sec. technology. https://www.nytimes.com/2020/12/15/technology/big-tech -regulation-europe.html. “the digital markets act: ensuring fair and open digital markets.” accessed april 13, 2023. https://commission.europa.eu/strategy-and-policy/prioritie s-2019-2024/europe-fit-digital-age/digital-markets-act-ens uring-fair-and-open-digital-markets_en. “the digital services act: ensuring a safe and accountable online environment.” accessed april 13, 2023. https://commission.europa.eu/strategy-and-policy/prioritie 133 brandeis university law journal spring 2023, volume 10, issue 2 s-2019-2024/europe-fit-digital-age/digital-services-act-ens uring-safe-and-accountable-online-environment_en. “the digital services act package | shaping europe’s digital future,” february 9, 2023. https://digital-strategy.ec.europa.eu/en/policies/digital-serv ices-act-package. “the justice department unveils proposed section 230 legislation,” september 23, 2020. https://www.justice.gov/opa/pr/justice-department-unveilsproposed-section-230-legislation. totenberg, nina. “supreme court showdown for google, twitter and the social media world.” npr, february 21, 2023, sec. law. https://www.npr.org/2023/02/21/1157683233/supreme-cou rt-google-twitter-section-230. washington post. “perspective | the fairness doctrine won’t solve our problems — but it can foster needed debate.” february 4, 2021. https://www.washingtonpost.com/outlook/2021/02/04/fair ness-doctrine-wont-solve-our-problems-it-can-foster-neede d-debate/. west, brian, and matthew varacallo. “good samaritan laws.” in statpearls. treasure island (fl): statpearls publishing, 2023. http://www.ncbi.nlm.nih.gov/books/nbk542176/. wnyc studios. “how did talk radio get so politically lop-sided? | on the media.” accessed march 21, 2023. https://www.wnycstudios.org/podcasts/otm/episodes/talk-r adio-lopsided-on-the-media. cases cited cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991) gonzalez v. google llc, 598 u.s. __ (2023) 134 brandeis university law journal spring 2023, volume 10, issue 2 red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969) tinker v. des moines independent community school district, 393 u.s. 503 (1969) twitter, inc. v. taamneh, 598 u.s. ___ (2023) whitney v. california, 274 u.s. 357 (1927) eu codes cited the digital markets act: ensuring fair and open digital markets the digital services act: ensuring a safe and accountable online environment regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/ec (general data protection regulation) (text with eea relevance), 119 oj l § (2016). http://data.europa.eu/eli/reg/2016/679/oj/eng us codes cited "h.r.5596 117th congress (2021-2022): justice against malicious algorithms act of 2021." congress.gov, library of congress, 18 october 2021, https://www.congress.gov/bill/117th-congress/house-bill/5 596. lii / legal information institute. “47 u.s. code § 230 protection for private blocking and screening of offensive material.” accessed march 25, 2023. https://www.law.cornell.edu/uscode/text/47/230. lii / legal information institute. “consumer protection laws.” accessed april 10, 2023. https://www.law.cornell.edu/wex/consumer_protection_la ws. 135 hymowitz manuscript: law journal: volume 12 brandeis university law journal 2024-2025, volume 12 a debate decided: civil liberties for guantanamo bay detainees lanie hymowitz1 as of january 2025, the infamous detention camp at the guantanamo bay naval base remains open and operational. this article provides a historical overview of how “gitmo” and its unique jurisdictional standing came to be. particular attention is paid to statutory and judicial developments following the 9/11 attacks during george w. bush’s presidency and the launching of the administration’s war on terror. these measures sanctioned the detention of individuals at guantanamo bay, with few opportunities to pursue legal recourse for the potentially extralegal circumstances of their imprisonment. introduction the legal tug-of-war between ensuring national security and the free exercise of civil liberties in the united states is as old as american jurisprudence itself. this debate reached a degree of unparalleled vigor in light of the september 11th attacks, when the promise of domestic safety seemed especially uncertain. in response to this uncertainty and fear, a military prison in guantanamo bay, cuba, opened for the purpose of detaining suspected terrorists. the prison would ultimately cause the three branches of the federal government to confront the quintessential american debate over national security and civil liberties time and again throughout the 2000s. the guantanamo bay detention camp was, and remains, an embodiment of the forceful stance the united states government takes to combat perceived international threats in the prolonged “war on terror.”2 it is the very 2 the “global war on terrorism” is an international military campaign by the united states against militant islamist groups, primarily from 2001 to 2021, with the u.s. withdrawal from afghanistan. this article will focus on 1 brandeis university, class of 2026. 134 brandeis university law journal 2024-2025, volume 12 foundations of the guantanamo bay naval base and subsequent military prison that engorge the executive branch with expansive powers over national security. the 1934 cuban-american relations treaty and the authorization for use of military force resolution blur the lines of both guantanamo’s sovereignty and the limitations on executive power respectively. the supreme court heard multiple cases concerning detainee rights during the administration of president george w. bush. though the supreme court generally ruled in favor of protected legal rights for guantanamo detainees, the response from congress tended to assert vigorous security measures, even if such actions countered the views of the supreme court. the disagreements between the executive and legislative branch against the judicial branch represents limited effectual justice for guantanamo detainees. post-9/11 america’s proclivity for fervent executive action devalued the civil liberties of detainees, which i argue allowed for abuses of justice. cuba-united states relations in the early 20th century the origins of guantanamo bay precede 9/11, dating back to the era of early american imperialism. following the spanish-american war in 1898, cuba was subject to american military occupation. under these colonial pressures, the cuban government incorporated the platt amendment into the cuban constitution in 1901.3 the platt amendment functioned as an exchange between the united states and cuba, with the united states affording cuba a greater degree of sovereignty in exchange for provisions that would permit continued american presence. section vii of platt mandated that the cuban government “sell or lease to the united states lands necessary for coaling or naval stations…to be agreed upon with the 3 jana k. lipman, guantanamo: a working-class history between empire & revolution, 23 (2008). the war on terror as it unfolded during the presidency of george w. bush (2001-2009). 135 brandeis university law journal 2024-2025, volume 12 president of the united states,” giving the united states president oversight over a portion of cuban territory, to be used at their discretion.4 this stipulation was fortified by a 1903 treaty, which was accompanied by a lease agreement between the two countries. article iii of the 1903 lease states that the, “united states recognizes the continuance of the ultimate sovereignty of the republic of cuba,” yet, “the united states shall exercise complete jurisdiction and control” over the naval base.5 the idea of what “ultimate sovereignty” means for cuba is unclear, as it seems to stand in direct contradiction to the united states exerting complete control over the same portion of land. the “legal invention” of ultimate sovereignty illustrates that actual cuban authority over guantanamo bay was weak in comparison to the robust power of the united states in the region.6 effectively, platt and the 1903 agreements fundamentally entangled the two states thenceforth. the platt amendment was repealed by president franklin delano roosevelt in 1934 as part of roosevelt’s “good neighbor” international policies, framed as a departure from colonialism in latin america.7 platt, as well as the 1903 treaty, were replaced with the cuban-american treaty of relations in 1934. while other provisions of platt were nullified, the new treaty fortified the guarantee of a naval base through a lease agreement which remains the governing language regarding the status of guantanamo bay.8 the treaty prohibited cuba from interfering with the base, stating “[s]o long as the united states of america shall not abandon the said naval station of guantanamo…the station shall continue to have the territorial area that it now has.”9 in effect, the treaty 9 cuban-american treaty of relations, 48 stat. 1682 (1934) § iii. 8 id. 7 president franklin d. roosevelt, first inaugural address (mar. 4, 1933), transcript available at the avalon project. 6 lipman, supra note 3 at 24. 5 agreement between the united states and cuba for the lease of lands for coaling and naval stations (1903) § iii. 4 platt amendment, 31 stat. 895 (1901) § vii; lipman, supra note 3 at 23. 136 brandeis university law journal 2024-2025, volume 12 gave the united states military the power to continue its activities in guantanamo bay, irrespective of the desires of the cuban government. while the united states ostensibly recognized cuba had “ultimate sovereignty” over guantanamo bay, it was evident that the united states could freely use the base for its own purposes. the cuban-american treaty of 1934 carved out a legal loophole for american presidents and the military. despite the letter of the law holding that cuba was leasing the land to the united states, america effectively owned guantanamo bay.10 as such, the united states could reasonably deny having sovereignty over the area while simultaneously carrying out any government operations deemed necessary. the lack of a formal “check” on american actions in the guantanamo bay naval base would thus ensnare the territory in what legal scholars have dubbed a “legal black hole.”11 cuba-united states relations in the early 20th century the legal foundation for using the base as a detention camp began with the authorization of use of military force of 2001 (aumf), a joint resolution passed by congress within a week of the september 11th attacks.12 the resolution conferred upon the president the authority 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” to ensure national security to the utmost degree.13 the broad language of the resolution, which vaguely defined “force,” gave president george w. bush and subsequent presidents an immeasurable arsenal of powers to thwart suspected terrorist threats. 13 authorization for use of military force, 115 stat. 224 (2001) § ii. 12 michael c. dorf, the detention and trial of enemy combatants: a drama in three branches, 122 pol. sci. q. 47 (2007). 11 amy kaplan, where is guantánamo?, 57 am. q. 831, 831–58 (2005). 10 lipman, supra note 3 at 28. 137 brandeis university law journal 2024-2025, volume 12 the aumf and the cuban-american treaty of relations of 1934 work in synchrony to diminish the boundary between the free exercise of civil liberties and the exertion of government authority. acting as the launching pad for authoritative government action to fight the war on terror, the aumf, is amplified by the 1934 treaty. as discussed earlier, the sovereignty of guantanamo bay outlined in the 1934 treaty allowed the united states to deny legal responsibility through a supposed lack of jurisdiction over the naval base. this prospect was made all the more perilous by an executive endowed with nearly unchecked wartime powers by the aumf.14 the robustness of executive power during the “war on terror” was further exacerbated by president bush’s military order, “detention, treatment and trial of certain non-citizens in the war against terrorism,” issued in november of 2001.15 president bush declared that if “there is reason to believe” a captured individual has acted with or aided a terrorist cause, the individual would be detained in a location selected by the secretary of defense and tried by a military commission.16 the order neglects to require a thorough review before an individual is detained, as grounds for detention can be based upon mere suspicion. moreover, the order begins by stating that the authority to make such an order is found in “the constitution and…the authorization for use of military force joint resolution.”17 this military order extended the aumf to apply to operations in guantanamo bay, as “necessary force” meant that government authorities (in their view) did not need to provide a solid rationale for an individual’s detention in the 17 id. 16 detention, treatment, and trial of certain non-citizens in the war against terrorism, 66 fed. reg. 57,833 (nov. 13, 2001). 15a military order, similar to an executive order, is a directive by the president of the united states that dictates actions of armed forces personnel. 14 lisa hajjar, guantánamo’s legacy, 19 ann. rev. l. & soc. sci. 58 (2023). 138 brandeis university law journal 2024-2025, volume 12 prison. thus, the government created an avenue to sweepingly deny the fifth amendment right of due process to detainees. the first prisoners detained at guantanamo bay arrived at the base in january 2002. these prisoners were described by general michael r. lenhert, the first commandant of the prison, as the “worst of the worst,” perhaps to justify the treatment that was to follow.18 the bush administration aimed to treat guantanamo bay as a “battle lab”; information would be extracted from these detainees that would inform the american government’s strategy in the war on terror.19 potential obstacles to the process of extracting information from prisoners–—such as prohibitions on torture–—were rebuffed by president bush in a confidential memo the following february. the memorandum, titled “humane treatment of taliban and al-qaeda detainees,” stated that, “none of the provisions of [the geneva conventions] apply to our conflict with al-qaeda.”20 the bush administration’s rationale was that the geneva conventions of 1949 applied to “high contracting parties,” or countries that agreed to geneva protocols. press secretary ari fleischer claimed that as an international organization that is not recognized as a governing authority, al-qaeda members, “are not covered by the geneva convention, and are not entitled to pow [prisoner of war] status.”21 per the third geneva convention, pow status affords an individual the right to be “treated humanely in all circumstances.”22 by this reasoning, even if a person’s 22 protected persons: prisoners of war and detainees, int’l comm. of the red cross, 21 statement by the press secretary on the geneva convention (feb. 7, 2003) (statement of ari fleischer). 20 memorandum from president george w. bush to the vice pres., sec. of state and def., att’y gen., chief of staff to the pres., dir. of central intelligence, ass’t to the pres. for nat. sec. aff’s, and chair of the joint chefs of staff, regarding the humane treatment of taliban and al-qaeda detainees, § 2(a) (feb. 7, 2002). 19 id. 18 hajjar, supra note 14 at 58. 139 brandeis university law journal 2024-2025, volume 12 detention in guantanamo bay proves gravely unjust, and therefore inhumane, a detainee was not protected by geneva and had little standing to challenge their detention. this assertion functions as a way for guantanamo bay detainees to have as little legal protection as possible. the fight for due process for guantanamo bay detainees the central infractions of this newly applied “law of war” concerned the right of detainees to question their detention, and to assert their rights of due process, rights that could feasibly be overridden based on the cuban-american treaty and the aumf. changes regarding the legal process of guantanamo bay would be primarily derived from a back-and-forth between the supreme court and congress. the first challenges to guantanamo would come before the supreme court in 2004 from hamdi v. rumsfeld and rasul v. bush, concerning the plaintiffs’ right to habeas corpus, the right to challenge their imprisonment.23 yaser hamdi, the plaintiff in hamdi v. rumsfeld, was an american citizen captured in afghanistan in 2001. due to his citizenship, hamdi had the explicit right to question his detention under the fifth amendment and thus, the question squarely before the supreme court was whether his detention violated his right to due process. the plurality decision authored by associate justice sandra day o’connor would hold that despite his status as an “enemy combatant,” the fifth amendment gave hamdi the right to be heard by a neutral decision-maker.24 the provisions of the aumf, and the subsequent military order that authorized the detention camp, had been the legal basis to deny procedural due process for detainees. although the plurality disagreed with this reasoning, 24 hamdi v. rumsfeld, 542 u.s. 507 (2004). 23 jonathan hafetz, habeas corpus after 9/11: confronting america’s new global detention system, 4 (2011). https://www.icrc.org/en/law-and-policy/protected-persons-prisoners-war-an d-detainees. 140 brandeis university law journal 2024-2025, volume 12 the opinion did not challenge the legality of the aumf; instead, it prescribed additional actions to be taken, with the aumf’s framework remaining in place. associate justice david souter, however, challenged the ethics of the aumf in a concurring opinion. souter claimed that “the world war ii internment was thus ordered under the same presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.”25 in making the damning comparison of the powers of the aumf to the military orders that called for the internment of japanese-americans during world war ii, souter shed light on the profound scope of presidential power under the resolution. so long as the aumf remains in place, as the plurality opinion asserted, egregious deprivations of civil liberties, akin to those that occurred during japanese internment, are enabled at guantanamo bay. while hamdi concerned constitutional interpretation, in rasul v. bush, guantanamo’s complex sovereignty and governing documents also played a key role. the case’s numerous plaintiffs held citizenship from england, australia, and kuwait, and filed federal suits stating that they were not granted a hearing or access to counsel before their detainment. the district court for the district of columbia, and the appellate court, held that the plaintiffs were effectively filing writs of habeas corpus.26 the district court drew upon the 1950 case johnson v. eisentrager for its reasoning, a case that concerned german war criminals held in an american-operated prison in germany. the majority in eisentrager held that, “nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the united states.”27 thus, the district court’s ruling was based on the assumption that guantanamo bay is “abroad” relative to the 27 johnson v. eisentrager, 339 u.s. 763 (1950). 26 rasul v. bush, 542 u.s. 466 (2004). 25 id., at 600 (souter, j., concurring in part, dissenting in part, and concurring in judgment). 141 brandeis university law journal 2024-2025, volume 12 united states, and therefore non-american citizens detained at guantanamo bay did not have a right to habeas corpus. as opposed to eisentrager, the supreme court’s majority opinion in rasul relied on braden v. 30th judicial circuit court of kentucky (1973). this case extended writs of habeas corpus to individuals, should their legal custodian be under the jurisdiction of the united states.28 the majority reasoned that because the department of defense was under united states jurisdiction, claims made by foreign nationals on their detention could be heard, though the court held that cuba still retained “ultimate sovereignty” over guantanamo.29 while the majority simply looked at laws in place surrounding guantanamo’s sovereignty, justice antonin scalia’s dissent demonstrated how ideas of sovereignty put forth in the cuban-american treaty of 1934 remained up for interpretation. justice scalia was a proponent of originalism, a legal philosophy concerned with understanding the original intention and text of law. scalia concluded that the 1934 treaty did not “render guantanamo bay the sovereign territory of the united states” and that guantanamo had “never before been thought to be within [american] jurisdiction.”30 despite the united states exercising significant control over the territory in the 2000s, on the basis of the cuban-american treaty, scalia adamantly denied american jurisdiction over cuba. scalia seemed to recognize the “legal black hole” the treaty created, suggesting the united states could avoid this predicament by creating a separate district court for guantanamo bay, as was done with the panama canal zone.31 the government’s avoidance of confronting the treaty’s loophole indicates that the treaty was perceived as a tool for enabling more aggressive 31 id. 30 id., at 502 (scalia, j., dissenting). 29 rasul v. bush, supra note 26. 28 braden v. 30th judicial circuit court of kentucky, 410 u.s. 484 (1973). 142 brandeis university law journal 2024-2025, volume 12 security measures by denying jurisdiction, and thus detainee rights. scalia’s reasoning would lend legal credence for congress to pass the detainee treatment act in 2005.32 the original text of the detainee treatment act (dta) stated that except in certain circumstances (left undefined), “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 department of defense at guantanamo bay.”33 the dta appeared to circumvent the rasul ruling, reflecting on the question of jurisdiction for guantanamo bay, which in part relied on the interpretation of the cuban-american treaty. as the passage of the aumf illuminated, increasing executive authority was viewed as a reliable countermeasure against terror in the 2000s. the dta’s passage illustrates how ambiguity over guantanamo’s sovereignty was leveraged to deny habeas corpus and strengthen executive power, even amid calls for individual rights, as seen in rasul. congressional and judicial disagreements over guantanamo continue the supreme court would hear two more high-profile cases, hamdan v. rumsfeld (2006) and boumediene v. bush (2008), both concerning the right to question one’s detention status at guantanamo bay. both cases further exemplified the battle between the supreme court and the executive and legislative branches, first demonstrated by rasul and the subsequent passage of the dta. a pattern emerged wherein congress would pass a law regarding the legal processes of guantanamo bay, the president would support and sign the bill into law, and the supreme court would partially reject the law. 33 detainee treatment act, pub. l. no. 109–148, §§ 1001–1006, 119 stat. 2680, 2739–44 (2005) (codified in scattered sections of 10, 28, & 42 u.s.c.). 32 hajjar, supra note 14 at 60. 143 brandeis university law journal 2024-2025, volume 12 this would then cause congress to respond with a different bill, thereby perpetuating a cycle in the name of national security. in hamdan, the supreme court reviewed the detainee treatment act and addressed the military commissions being used to try suspected terrorists.34 these commissions were first discussed in president bush’s military order in november of 2001 before being more concretely defined by military commission order no. 1 in march of 2002.35 these commissions differed from ordinary courts of law in the united states, as they permitted hearsay testimony and evidence obtained through coercion; all in the effort to gather higher volumes of evidence.36 salim ahmed hamdan’s legal team argued that his military commission violated both the uniform code of military justice, an american code, and the geneva conventions.37 hamdan split the court, with justice stevens’ majority opinion joined only by the liberal wing of the court, and only in part. the majority rejected the government’s argument that guantanamo bay existed outside of the scope of geneva, preventing further legal insulation of the territory. crucially, the majority also held that “neither the aumf nor the dta can be read to provide specific, overriding authorization for the commission convened to try hamdan.”38 in doing so, the majority defined a clear limit on the aumf, something that had not been done in their earlier decisions. while this limit applies to the trials of detainees, it did not include a limitation on the circumstances or grounds of a detainee’s detention. in this area, the aumf continued to provide room for exploitation. additionally, stevens’ opinion stated that the 38 id. 37 hamdan v. rumsfeld, supra note 34. 36 id. 35 ida l. bostian, one step forward, two steps back: hamdan v. rumsfeld and the military commissions act of 2006, 5 santa clara j. int’l l. 219 (2006). 34 hamdan v. rumsfeld, 548 u.s. 557 (2006). 144 brandeis university law journal 2024-2025, volume 12 aumf “acknowledge[s] a general presidential authority to convene military commissions,” acknowledging an inherent legitimacy to military commissions and leaving open the possibility for an altered form of these commissions to continue.39 with the publication of the hamdan decision, a familiar pattern reemerged; congress passed the military commissions act of 2006 (mca) as a circumvention of the supreme court’s stance.40 the mca both forbid any detainees subject to a military commission from “[invoking] the geneva conventions as a source of rights” and precluded legal actors in the united states from asserting 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.”41 the mca would be challenged in boumediene v. bush, the last notable guantanamo case adjudicated under the bush administration. boumediene had multiple “moving parts”; the constitutionality of the mca, as well as continued considerations of the application of the fifth amendment and the geneva conventions in military commissions.42 despite its many legal complexities, boumediene would ultimately boil down to a simple conclusion: the majority held that section 7 of the mca, which denied a court’s ability to hear a writ of habeas corpus, was an unconstitutional suspension. the majority unequivocally held that “petitioners have the constitutional privilege of habeas corpus.”43 boumediene addressed the two-pronged issue of sovereignty and criminal rights by upholding the right of habeas corpus in the face of encroachment by the executive branch, even while 43 id. 42 boumediene v. bush, 553 u.s. 723 (2008). 41 u.s. congress, house, military commissions act of 2006, h.r. 6166, 109th cong. (2006). 40 lisa hajjar, the counterterrorism war paradigm versus international humanitarian law: the legal contradictions and global consequences of the us ‘war on terror’, 44 law & soc. inquiry 935 (2019). 39 id. 145 brandeis university law journal 2024-2025, volume 12 acknowledging that guantanamo is “outside sovereign u.s. territory.”44 despite the boumediene holding, habeas corpus cases continued to face challenges. under the obama administration, “the dc circuit court overturned every [detainee] victory and instructed lower-court judges to accept the reliability and accuracy of government evidence.”45 the “debate” over national security measures was firmly decided, as it had been for years. from the passage of the aumf to the persistent obstacles against habeas corpus cases, the united states government views guantanamo bay prisoners as a mere tool for asserting executive and military power, rather than human beings entitled to basic legal rights. concluding thoughts the continued denial of detainee rights lies in the structural integrity of guantanamo. the aumf carved out broad warmaking powers to fight the war on terror, which the executive and legislative branch was unwilling to relinquish. the story of guantanamo bay is not necessarily unique, but an example of how the branches of government may interplay in a battle between civil liberties and national security. the september 11 attacks prompted the legislative and executive branches to create and execute measures to bolster national security, such as the aumf and the military orders authorizing guantanamo’s creation. the supreme court then “checked” the power of these branches and the powers they exercised, first through hamdi and up to boumediene. there is a clear separation of powers in the reactionary nature of congress to the decisions of the supreme court, but i argue that the tug-of-war surrounding guantanamo bay resulted in power that was divided unequally among the branches. the rulings of hamdi, rasul, hamdan, and boumediene all supported a bolstering of detainee rights to a certain extent, but in each instance, congress was able to usurp, at least in part, these 45 hajjar, supra note 14 at 65. 44 id. 146 brandeis university law journal 2024-2025, volume 12 decisions. the firm commitment to the interest of national security left detainees without justice. the lesson to be learned from the early years of guantanamo bay is that the mechanisms that enable injustice may not be discernible from a surface level viewing. the lack of civil rights for detainees was not just a matter of the presidential administration, as habeas petitions were consistently denied under a democratic president. the problems that must be addressed is that the framework of guantanamo itself must be reexamined in today’s context, but perhaps even more significant, is the imbalance of power that exists particularly with an engorged executive branch. 147 lawjournalvolume11 brandeis university law journal 2023-2024, volume 11 a proposal to reform the practice of solitary confinement kaia minkin265 solitary confinement is a desolate prison within the penitentiary itself. extreme isolation in a cell barely equipped to house human life manipulates the psyche of the prisoner and works to achieve a dehumanizing experience in the name of the penological interest of the state. it is common for individuals in solitary confinement to endure decades alone in windowless cement rooms the width of a king-sized bed, listening to the echoing cries of other inmates. while some policymakers and correction officers argue that the practice of solitary confinement for extended periods maintains the safety of staff and the other prisoners, the harmful mental toll taken on the inmate is an inappropriate bargain against the protections demanded by the eighth amendment for law enforcement to take. the eighth amendment to the united states constitution states: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”266 the cruel and unusual component of the eighth amendment is shrouded in ambiguity, as what it means for a punishment to be cruel is anything but obvious. in order to establish a “cruel and unusual punishment” violation of the eighth amendment, the appellate must demonstrate: an “objectively, sufficiently serious act or omission resulting in the denial of necessities; a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety; and that he has exhausted the prisoner-grievance system and that he has petitioned for relief 266 u.s const. amend. vii § 2. 265 brandeis university undergraduate, class of 2025 79 brandeis university law journal 2023-2024, volume 11 under article 138, ucmj.”267 studies delineating a link between the experience of social pain and an adverse impact on the mental well-being of incarcerated individuals have been perpetually replicated. the results confirm the detrimental consequences of living in isolation. the harm incurred by an inmate, derived because of prolonged isolation, manifests in emotional, cognitive, and psychosis-related symptoms.268 solitary confinement was designed to encourage inmates to feel proper repentance, but a shift in paradigm has led to a devastating, exacerbated psychological impact on mentally ill.269 social isolation, idleness, and lack of control over aspects of daily life—all phenomena maximized by the practice of solitary confinement—incite rapid, dramatic psychological deterioration in inmates with mental illness. this mental deterioration, including maladaptive social tendencies and socially inept behaviors, can also manifest as extreme acts of self-harm or suicide.270 in one indiana supermax facility, wabash valley correctional facility secured housing unit, a prisoner with mental illness committed suicide by self-immolation, and another man choked himself to death with a washcloth.271 a mentally ill adolescent incarcerated in a new york supermax facility told washington post reporter ian kysel she attempted to hang herself within the first 24 hours of 271 karin grunden, man found hanging in cell at wabash valley correctional facility, terre haute tribune-star, oct. 1, 2003. 270 id, at 8. 269 aclu (2014) the dangerous overuse of solitary confinement in the united states, briefing paper american civil liberties union. available at: https://www.aclu.org/sites/default/files/assets/stop solitary_briefing_paper updated_august_2014.pdf?source=post_page at 6. 268 shalev, s. (2008). the health effects of solitary confinement. in sourcebook on solitary confinement. retrieved from http://solitaryconfinement.org 267 first principles: constitutional matters: cruel and unusual punishment, https://www.armfor.uscourts.gov/digest/ib4.htm. 80 brandeis university law journal 2023-2024, volume 11 solitary confinement.272these few instances, among the thousands of stories that exist, encapsulate the severe psychological trauma affecting mentally ill individuals in solitary confinement. extensive social neuroscience research on the impact of environmental and social deprivation on the brain exists as another avenue of challenging the constitutionality of solitary confinement.273 the results of this research attest to the vital importance of social interaction and stimulating environment on brain function, as studies have revealed brain deterioration imparted by isolation in restrictive housing units within only a couple of days.274 despite overwhelming evidence of the social pain induced through solitary confinement, the supreme court refuses to recognize that this mental harm caused is sufficiently “cruel” to be considered a violation of the eighth amendment.275 with these standards in place, the court has been generally unwilling to recognize that the psychological harm incurred from extreme isolation is sufficient to constitute a violation of the eighth amendment.276 the court’s neglect of the generalized demand for effective clinical support for mentally ill individuals suffering in isolation units stems from two fundamental discrepancies pertaining to basic human needs. the first is a tendency to dismiss social interaction as a basic human necessity, as 276 coppola, supra note 273. 275 claire a. nolasco et al., construing the legality of solitary confinement: analysis of united states federal court jurisprudence, am. j. crim. j. (2018). doi: https://doi.org/10.1007/s12103-018-9463-5 274 id. 273 federica coppola, the brain in solitude: an (other) eighth amendment challenge to solitary confinement journal of law and the biosciences (2019) 272 ian kysel, solitary confinement makes teenagers depressed and suicidal. we ... the washington post (2015), https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-co nfinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/ 81 brandeis university law journal 2023-2024, volume 11 deprivation of human needs is interpreted in terms of concrete physical demands such as nutrition and sanitation.277 this myopic interpretation disregards psychological health as a human need and highlights the immense underestimation of the adverse mental effects of isolation. the ethical dimension of cruelty in punishment remains important within the parameters of basic human needs, and underpins the argument that current solitary confinement conditions meet the “substantial risk of physical harm” stipulation of the objective prong of the conditions standard. the mental, physical, and physiological harms imposed by the conditions of solitary confinement are on par with physical risk involved in starvation and sleep deprivation.278 therefore, although the harm of socio-environmental deprivation may translate into mental deterioration, the damage to the confined individual’s psyche is ultimately due to physical harm to the brain similar to the damage done by starvation.279 as aristotle notably wrote in the politics, “a social instinct is implanted in all men by nature.”280 over two thousand years later, the disciplines of neuroscience and behavioral psychology have produced immense empirical data establishing that the human psyche is biologically rooted in the need to be connected.281 this social connection is as critical to a truly human life as food and water is to survival, and mentally ill or cognitively impaired individuals in solitary confinement should be afforded this fundamental need. eliminating all social and environmental stimulation of 281 coppola, supra note 273. 280 aristotle, politics 5 (benjamin jowett trans., 1999) 279 bennion, elizabeth (2015) "banning the bing: why extreme solitary confinement is cruel and far too usual punishment," indiana law journal: vol. 90: iss. 2, article 7. https://www.ncbi.nlm.nih.gov/pmc/articles/pmc6813937/#fn223, 278 id. 277 id. 82 brandeis university law journal 2023-2024, volume 11 incarcerated individuals is to deprive them of a basic human need and to impose a substantial risk of neurological, physiological, and psychological deterioration. complete isolation involved in current solitary confinement practices risks inflicting unnecessary suffering, characterized by debilitating, and potentially permanent consequences. a punishment that entails unwarranted and possibly permanent damage through deprivation of basic human necessities fails to meet contemporary standards of societal decency, and should not be institutionalized in practice. the court has stated that the interpretation of the “cruel and unusual punishment” aspect of the eighth amendment changes in tandem with the knowledge of an evolving society, and a civilized society should not tolerate the infliction of unnecessary pain on another human being.282 the second reason for this neglect is the dualistic perception of harm endorsed in principle by u.s. law.283 this entails the separation of physical harm from mental suffering, creating a hierarchy of pain in which mental suffering is subjective and less important than physical ailments. as a result of this distinction, social interaction falls outside of the spectrum of constitutionally protected human needs. this has led courts to dismiss cases of mental harm without evidence of physical distress.284 this judicial deference and unwillingness of the court to intervene in the methods of inmate discipline and introduce uniform regulations to mitigate psychological harm incurred from solitary confinement was exemplified in the case of scarver v. litscher.285 in this case, the seventh circuit acknowledged that the plaintiff, who was repeatedly banging his head against the walls of his cell, had endured substantial psychological distress 285 scarver, 434 f.3d 972, at 976. 284 id. 283 coppola, supra note 273. 282 trop, 856 u.s. 86, at 101. 83 brandeis university law journal 2023-2024, volume 11 as a result of placement in solitary confinement. however, in 2006, the supreme court remained hesitant to interfere with correctional management in prisons and deferred to the prison administration to defend a legitimate penological interest in enforcing solitary confinement.286 often, judicial analysis of whether a punishment is cruel and unusual lacks scrutiny of the conditions of supermax facilities.287 supermax prisons do not have a single definition, but their essence is complete social isolation, deprivation of all environmental stimulation, and enforced idleness.288 these qualities of an impoverished social environment are enforced only upon the individuals held in solitary confinement within one of these facilities. the supreme court defined the foundation of the penological evaluation of solitary confinement conditions as the “effect upon the imprisoned”289 and that “deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary.”290 this tendency of courts to show deference to state prison officials risks the penological interests of prison administrations superseding the well-being of incarcerated individuals. the supreme court has stated that constitutional protections relating to the conditions of confinement derive from the acknowledgment that inmates retain the dignity inherent in all humans.291 additionally, the court has established that only “extreme deprivation” adequately supports a condition of confinement claim, and this requirement is met when the socio-environmental deprivation 291 brown v. plata, 563 u.s. 493, 510 (2011) 290 johnson v. california, 543 u.s. 499, 511 289 rhodes, 452 u.s. 337, at 364. 288 david c fathi, the new asylum: supermax as warehouse for the mentally ill prison legal news (2007), https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm ax-as-warehouse-for-the-mentally-ill/ 287 id. 286 coppola, supra note 273. 84 brandeis university law journal 2023-2024, volume 11 of solitary confinement denies “the minimal civilized measure of life’s necessities.”292 therefore, the punishment of extreme isolation deprives a human of basic human needs. it involves the infliction of unnecessary pain, and is therefore incompatible with the concept of human dignity as it exists in civilized society today. inmates who endure substantial mental harm within prison conditions are further burdened by the subjective prong of proving that prison officers were indifferent to their suffering.293 this subjective prong of the conditions standard refers to the prison official’s culpable state of mind and the requirement of proof that substantial risk to an inmate’s health and safety was disregarded.294 the decision of farmer established the parameters of the prison official’s culpability, as the court held that deliberate indifference is equivalent to subjective recklessness.295 while this test of deliberate indifference remains individualized to each solitary confinement case, the court in farmer also recognized that some risks of harm are objective such that “a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”296 the challenge of proving prison official’s knowledge of the incurred mental harm became instrumental in cases regarding solitary confinement conditions, and establishing this deliberate indifference may rely on circumstantial evidence that the risk was known and ignored. proving the deliberate indifference of prison officials constitutes an obstacle to challenging objectively harmful conditions of supermax facilities, particularly in cases 296 id, at 842 295 farmer, 511 u.s. 825, at 839 294 id. 293 coppola, supra note 273. 292 rhodes, 452 u.s. 337, at 347 85 brandeis university law journal 2023-2024, volume 11 involving mentally ill incarcerated individuals.297 due to the lack of mental health training for prison officials, prison administrations may avoid liability by claiming to have no knowledge of the symptoms or risks of mental illness.298 this creates the perverse incentive for prison staff; subpar knowledge of mental illness facilitates an avoidance of constitutional responsibility as this condition stands. in light of the questionability of the subjective prong condition in solitary confinement litigation, the court should consider if the condition of extreme social isolation itself is sufficient to warrant a presumption of intentional disregard of prison administrations. the personal testimonies of incarcerated individuals confined in restrictive cells paired with the research of the psychological harm imposed by prolonged social isolation demonstrates the need for reevaluation of what qualifies as an essential condition of human life. the court should place more emphasis on social interactions among incarcerated individuals and the prison staff, and introduce regulations for solitary confinement which comport with constitutionally afforded protections for mentally ill inmates. recent state reforms provide new insight into the impact of reforming solitary confinement and show a consensus that recognizes the need for change.299 299 jessica sandoval, j. (2023, march). how solitary confinement contributes to the mental health crisis. national alliance on mental illness. https://www.nami.org/blogs/nami-blog/march-2023/how-solitary-confin ement-contributes-to-the-mental-health-crisis#:~:text=among%20many% 20other%20mental%20health,of%20an%20acute%20mental%20illness. 298 lori marschke, proving deliberate indifference: next to impossible for mentally ill inmates, valp. u. l. rev. 487 (2004) 297 coppola, supra note 273. 86 brandeis university law journal 2023-2024, volume 11 i. arguments against unlimited use of solitary confinement through testimonial accounts, hundreds of inmates in solitary confinement have attested to the devastating cognitive effects of isolation, such as perceptual distortions and hallucinations, increased anxiety and depression, fantasies of revenge on society, and other aspects of mental pain.300 the effects of isolation also manifest in decreased cognitive function, as a decline in brain activity was found in inmates incarcerated in solitary confinement for only seven days.301 when the only social stimulation available is sporadic conversations with guards and officers, sentiments of humiliation and meaninglessness compound to damage the mental well-being and neurological health of the prisoner. technological advancements such as video surveillance and virtual platforms of communication have eliminated even that fleeting human contact, facilitating a method of further isolation that was unforeseen in the earlier stages of prison development.302 for example, in decades past, individuals in solitary confinement were able to regularly see and interact with human guards as they made their rounds. as technology developed and was integrated into the surveillance mechanisms of supermax prisons, even fleeting social contact is revoked for inmates in solitary confinement. in a 2007 study conducted by the red cross, the clinical impacts of isolation in solitary confinement were compared to those of physical torture, revealing similarities in negative psychological and 302 david c fathi, the new asylum: supermax as warehouse for the mentally ill prison legal news (2007), https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm ax-as-warehouse-for-the-mentally-ill/ 301 paul gendreau, n.l. freedman, g.j.s. wilde & g.d. scott, changes in eeg alpha frequency and evoked response latency during solitary confinement, 79 j. of abnormal psychol. 54, 57–58 (1972) 300 coppola, supra note 273. 87 brandeis university law journal 2023-2024, volume 11 physiological reactions.303 the socio-environmentally deprived conditions of isolation cells bear a devastating toll on the psychological well-being of those they confine. hardened by psychological and physical abuse by prison administrations maximizing control of an individual, inmates have expressed suicidal ideation merely for the chance of an escape.304 correctional officers frequently misuse physical restraints and chemical agents as disciplinary measures, and the isolated nature of solitary confinement units render detection of staff abuse much more difficult.305 the apathetic attitude of prison administrations to this mistreatment facilitates its practice, and the negative psychological effects of social deprivation are further intensified with this abuse. as stated by a california state prison psychologist in 2002, “it’s a standard psychiatric concept, if you put people in isolation, they will go insane. . . . most people in isolation will fall apart.”306 the claim that solitary confinement cells harbor only the “worst of the worst,” most threatening criminals who were convicted of heinous crimes or assaulted other inmates while incarcerated does not realistically reflect the practice of solitary confinement. mentally ill individuals are disproportionately represented in restrictive housing facilities, and prison officials across the u.s. fill solitary confinement cells with inmates who pose any difficulty to management, whether that be a violation of minor prison rules or launching a lawsuit against the prison 306 human rights watch, ill-equipped: u.s. prisons and offenders with mental illness 149 n. 513 (2003). 305 reyes, supra note 303. 304 calloway, k. (2023, february 27). i spent 16 months in solitary confinement and now i’m fighting to end it: aclu. american civil liberties union. https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi nement-and-now-im 303 dr. hernàn reyes, the worst scars are in the mind: psychological torture, 89 int’l rev. red cross 591, 607 (2007) 88 brandeis university law journal 2023-2024, volume 11 administration.307 if prison administration guidelines upheld this exclusivity and supermax facilities were restricted to only the most predatory, solitary confinement cells would stand virtually empty.308 nationwide data documenting the use of solitary confinement in prisons in the u.s. estimates that as of july 2021, 48,000 individuals are confined in their cells for at least twenty two hours a day for a minimum of fifteen days.309 while this statistic has decreased from the 100,000 individuals housed in solitary confinement in 2014, the population of inmates confined in restricted housing among the two million individuals in state and federal prisons is massively unbalanced.310 a 2003 report based on data from state prisons throughout the u.s. by human rights watch found one-third to one-half of inmates in solitary confinement cells to be mentally ill.311 cognitively impaired and mentally ill individuals who struggle to comprehend and abide by strict prison regulations without treatment garner reputations as troublesome inmates, and are cast aside in solitary confinement cells.312 this facilitates a destructive cycle in which mentally ill inmates are misinterpreted as willfully defiant by under-trained prison staff and are subjected to prolonged periods of disciplinary 312 fathi, supra note 302. 311 zoltan lucas, locking down the mentally ill the crime report (2010), https://thecrimereport.org/2010/02/18/locking-down-the-mentally-ill/ 310 wendy sawyer & peter wagner, mass incarceration: the whole pie 2023 prison policy initiative (2023), https://www.prisonpolicy.org/reports/pie2023.html (last visited dec 9, 2023). 309 correctional leaders association, nationwide report finds reduction in reported use of solitary confinement yale law school (2022), https://law.yale.edu/yls-today/news/nationwide-report-finds-reduction-repor ted-use-solitary-confinement#:~:text=time%2din%2dcell%3a%20a,for %2015%20days%20or%20more. 308 fathi, supra note 302. 307 aclu supra note 269, at 9. 89 brandeis university law journal 2023-2024, volume 11 segregation in solitary confinement cells.313 this “willful defiance” perceived by the prison administration is unfounded, as the psychological damage inflicted by the conditions of solitary confinement alongside pre-existing mental illness compromises the cognitive and affective abilities of the inmates.314 these cognitive and affective capacities are what contribute to logical reasoning and decision-making, and solitary confinement promotes the further atrophy of inmate ability to comprehend and respond to the emotions of others. the maladaptive psychological processes and anti-social behavior patterns identified as risks of confinement in isolation units will continue to comprise the individual's social functioning, and the rehabilitation process intended in solitary confinement is rendered ineffective. inmates with poor mental health are more susceptible to conflict within the prison community and demonstrate increased rates of misconduct and assault. this increases the existing threat to inmates and law enforcement within the prison walls, as complete social isolation of mentally ill inmates only exacerbates symptoms of psychiatric distress.315 along with compromised security, rampant mental illness among inmates demands more from already scarce resources, increasing the limited budgets of correctional facilities to offset the pressure put on correctional officers in deprived prisons.316 the alternative solution to prison security maintenance relies on mitigation of the most oppressive features of supermax facilities. this step toward reform has been found to be effective. for example, a state prison in washington 316 kim kideuk, becker-cohen miriam, serakos maria. 2015. the processing and treatment of mentally ill persons in the criminal justice system. washington, dc: urban institute. 315 lucas, supra note 311. 314 william heirstein et al., responsible brains: neuroscience, law, and human culpability 222–24 (2018). 313 lucas, supra note 311. 90 brandeis university law journal 2023-2024, volume 11 experienced a dramatic decrease in violence and the use of punitive force following increased staff interaction with inmates and introduction of communal activities.317 the overproduction and overuse of supermax facilities, or prisons containing solitary confinement housing units, has also led to fiscal consequences for the entire federal prison institution.318 supermax facilities are three times more expensive to build and operate compared to maximum-security prisons. this fiscal strain was evident in a 2009 study revealing that criminal correction spending exceeded budget growth in all areas of federal and state spending except for medicaid.319 when mentally ill inmates are held in an overcrowded prison system that is simultaneously seeking to occupy expensive solitary confinement cells, these individuals are often transferred to isolation housing.320 the argument that placing certain inmates in solitary confinement protects other prisoners and officers from danger is cast into grave doubt by the fact that their complete seclusion from other inmates further impairs mental and social capabilities, increasing their risk of misconduct.321 isolation exacerbates inmates’ existing mental illnesses and increases the threat posed to the rest of the prison community.322 only five percent of inmates housed in solitary confinement remain there permanently, and thus facilitating effective reentry into the 322 edgemon, t. g., & clay-warner, j. (2019). inmate mental health and the pains of imprisonment. society and mental health, 9(1), 33–50. https://doi.org/10.1177/2156869318785424 321 aclu supra note 269, at 9. 320 id. 319 solomon moore, study shows high cost of criminal corrections, n.y. times, mar. 3, 2009, at a13. 318 fellner jamie. 2006. “a conundrum for corrections, a tragedy for prisoners: prisons as facilities for the mentally ill.” washington university journal of law & policy 22:135–44 317 rhodes, at 192–193. 91 brandeis university law journal 2023-2024, volume 11 greater prison population is essential.323 the american psychological association reports that forty-five percent of federal prisoners experience mental health issues. furthermore, with over two million people incarcerated in the united states, a tremendous number of mentally ill inmates suffer in an environment devoid of psychological treatment.324 the extreme security measures maintained in supermax units render adequate therapy sessions and mental health assessments unavailable. intensified security measures entail being fed through a slot in a door, denial of physical or social contact, and a lack of access to medical services afforded to inmates within the greater prison population.325 the only available therapy for individuals in solitary confinement cells consists of conversations through a steel door, surrounded by other prisoners and officers.326 the inability to receive intimate and personal therapy in solitary confinement makes the available treatment largely ineffective. the withholding of effective therapy to inmates with mental illness in supermax facilities, coupled with the devastating impact of social isolation lays bare the substantial argument that solitary confinement of mentally ill inmates violates the eighth amendment.327 those that argue this suggest that ensured 327 id. 326 aclu supra note 269, at 9. 325 sandoval, supra note 299. 324 taylor, e. (n.d.). mental health and reentry: how court services offender agency meets the challenge of mental health community supervision. https://cops.usdoj.gov/html/dispatch/05-2022/mental_health_reentry.html#: ~:text=approximately%20half%20the%20people%20in,path%20for%20pri soners%20returning%20home. 323 timothy hughes & doris james wilson, reentry trends in the united states, u.s. department of justice, office of justice programs, bureau of justice statustics (2004), available at http://www.bjs.gov/content/pub/pdf/reentry.pdf (reporting that 95% of all state prisoners will eventually be released). 92 brandeis university law journal 2023-2024, volume 11 psychological decline of mentally ill prisoners paired with a lack of treatment renders the practice of total social isolation cruel and unusual as understood in the context of the eighth amendment. as aforementioned, to establish a “cruel and unusual punishment” violation of the eighth amendment, the appellate must demonstrate: an “objectively, sufficiently serious act or omission resulting in the denial of necessities; a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety; and that he has exhausted the prisoner-grievance system and that he has petitioned for relief under article 138, ucmj.”328 the human neurobiological demand for social interaction is complemented by environmental stimulation, both contributing to proper brain function and behavior. thus, the social and environmental stimulation deprived in solitary confinement is to deprive incarcerated individuals with the conditions necessary for physiological brain function, and thus the very nature of themselves. in acknowledging the vital importance of human interaction and environmental stimulation is an implication that forcing inmates into six by eight feet cells in complete isolation is sufficient per se to deprive them of basic human needs.329 courts have endorsed the view that solitary confinement conditions are legitimate as long as they guarantee the same basic necessities afforded to the general prison population.330 however, this notion of equivalence disregards the fact that extreme socio-environmental isolation is the condition that renders the difference between solitary confinement and confinement in the general prison. extreme isolation deprives inmates in solitary confinement of a biological based need that is provided to the general prison population, and social interaction should be regarded as a basic need rather than a 330 hutto 437 u.s. 678, at 686. 329 coppola, supra note 263. 328 first principles: constitutional matters: cruel and unusual punishment, https://www.armfor.uscourts.gov/digest/ib4.htm 93 brandeis university law journal 2023-2024, volume 11 mere privilege. with the vast amount of evidence attesting to the harmful psychological effects of solitary confinement, the detriment to larger policy goals of prisons has become a pertinent topic of conversation. as a result, a reevaluation of the legitimacy of current solitary confinement practices is now in progress.331 federal courts have called into question whether the placement of mentally ill inmates in restrictive housing constitutes cruel and unusual punishment.332 the u.s. senate held its first congressional meeting to discuss the use of isolation measures in prisons in june 2012 and discussion is ongoing.333 several other influential organizations, such as the american civil liberties union, american bar association, and national alliance of mental illness, also vouch in opposition to the use of solitary confinement.334 since 2021, state-level efforts to regulate use of solitary confinement have increased with two hundred fifty-eight pieces of proposed legislation filed across forty-one states, the majority seeking to wholly eliminate some of the aforementioned components of the practice.335 alongside state reform efforts and discussion of the depravity of solitary confinement conditions within federal courts, nationwide polling data demonstrates widespread bipartisan support for restrictions on the practice of complete isolation in prisons.336 this evidence of limited political resistance minimizes deterrence for legislation, and functions as the foundation for constructive reform. legislators and advocates for the regulation of solitary confinement practices are poised for genuine improvement, but some prison 336 id. 335 sandoval, supra note 299. 334 id. 333 bennion, supra note 279. 332 id. 331 sandoval, supra note 299. 94 brandeis university law journal 2023-2024, volume 11 administrations and a widespread judicial hesitancy to interfere with prison security deter change. corrections officers and policy makers who consider solitary confinement an effective strategy to promote order in the prison system maintain that the potential benefits of solitary confinement to the individual inmate, other inmates, and prison staff counterbalances the adverse effects linked with stays in isolation.337 this stance of penological interest is implicitly supported by the court’s exercise of judicial deference to solitary confinement management and condition regulations which prison officials deploy.338 despite the lack of established criteria to assess the penological interest of a prison in solitary confinement litigation, courts often have “deferred to prison officials when they claim that a particular condition or treatment is necessary.”339 this notion posits that prison administrations and officials, who lack required mental health training, have a more accurate sense of which individuals are in need of additional psychological treatment.340 maintaining this skewed perspective on the expertise of prison officials creates a considerable barrier in solitary confinement litigation cases where conditions of isolation pose a risk of substantial harm which should trigger eighth amendment protections. if an inmate without psychological illness is isolated in confinement, the harm to their psyche resulting from a solitary holding cell is enough to induce mental impairment.341 recent studies delineate the lasting detrimental effects of solitary confinement on the mental status of the individual, corroborating the notion that solitary confinement leads to the 341 taylor, supra note 314. 340 lea johnston, conditions of confinement at sentencing: the case of seriously disordered offenders, 63 cath. u. l. rev. 625, 626 (2014) 339 rhodes, 452 u.s. 337, at 364. 338 id. 337 coppola, supra note 263. 95 brandeis university law journal 2023-2024, volume 11 development of acute mental disorders.342 these mental disorders often manifest among incarcerated individuals as difficulties with impulse control, feelings of hostility and mania, and severe anxiety and depression.343 individuals without documentation of previous mental illness are found to become symptomatic with ranging severity after just brief stays in solitary confinement, and the negative psychological impact of isolation affects post-release outcomes of inmates.344 the persisting detriment inflicted by extended time in isolation can be fatal. research identifies a correlation between time spent incarcerated in restrictive housing and an increased risk of death within the first year following release.345 individuals previously incarcerated within solitary confinement units are overall twenty-four percent more likely to die within the first year after release, including seventy-eight percent greater risk of suicide within that demographic.346 the psychological and physical destitution induced through confinement in supermax sections of prisons not only fuels a disproportionately high rate of mental illness and self-harming tendencies compared to the general prison population, but also manifests in other symptoms, including social isolation, loss of identity, and sensory hypersensitivity.347 mental illness originating from an 347 reiter k, ventura j, lovell d, augustine d, barragan m, blair t, chesnut k, dashtgard p, gonzalez g, pifer n, strong j. psychological distress in solitary confinement: symptoms, severity, and prevalence in the united states, 2017-2018. am j public health. 2020 346 id. 345 corcoran, supra note 343. 344 dean, j., & june 16, 2020. (2020, june 16). short stays in solitary can increase recidivism, unemployment. cornell chronicle. https://news.cornell.edu/stories/2020/06/short-stays-solitary-can-increase-re cidivism-unemployment. 343mary corcoran, effects of solitary confinement on the well being of prison inmates applied psychology opus, https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitary-confinement -on-the-well-being-of-prison-inmates/ 342 sandoval, supra note 299. 96 brandeis university law journal 2023-2024, volume 11 inmate’s experience in solitary confinement further prevents them from a successful reentry into society, ultimately posing an even greater impact on the larger population.348 amongst the chilling accounts of solitary confinement published, kiana calloway details his devastating experience of entering “camp j.”349 camp j is a louisiana prison noted for its severe lockdown units, and calloway was confronted with this stark image of what the rest of his life would be like when he entered the prison at only seventeen years of age in 2019.350 entering louisiana state penitentiary, calloway was sentenced to solitary confinement for twenty-three hours a day for sixteen months. struggling to retain his humanity under the torturous “23 and 1” regime, he languished in an environment constructed to maximize control over the individual and minimize the sense of self. amidst the twenty-three hours a day spent within the perpetually lit cell, calloway describes a single hour where a phone call or shower was permitted.351 deprived of educational or vocational programs, inmates are reduced to sitting in their cells listening to the anguished cries of neighboring prisoners who are also suffering the effects of long-term solitary confinement.352 testifying on the consequences of prolonged isolation, calloway states, “it’s been 22 years since my time in solitary and 8 years since my release from prison, but i still have flashbacks and nightmares. even when i’m with someone else, i find myself secluded in 352 id. 351 id. 350 id. 349 calloway, k. (2023, february 27). i spent 16 months in solitary confinement and now i’m fighting to end it: aclu. american civil liberties union. https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi nement-and-now-im 348 taylor, supra note 324. jan;110(s1):s56-s62. doi: 10.2105/ajph.2019.305375. pmid: 31967876; pmcid: pmc6987940. 97 brandeis university law journal 2023-2024, volume 11 my own mind. i call it being psychologically incarcerated.”353 calloway, who maintains his innocence, was initially convicted on two counts of first degree murder by a non-unanimous jury, receiving two life sentences without the possibility of parole and was immediately confined in a supermax facility. however, calloway received an additional trial once it was revealed that the initial judge prohibited him from calling certain witnesses and neglected to require the prosecution to turn over two witness statements. his sentence was reduced to thirty four years in the general prison population.354 kiana calloway is now an advocate for the voice of the experience (vote) organization, a foundation created in new orleans by formerly incarcerated individuals, that strives for the reformation of the louisiana department of corrections disciplinary procedures in prison.355 the complete prohibition of access to education in the name of discipline is another manifestation of the ineffective policies surrounding solitary confinement in u.s. prisons. alongside the development of psychological and physical conditions from complete isolation, the increase in suicide rates and self-harm of inmates in solitary confinement has been repeatedly acknowledged and verified. dr. stuart grassian, a practicing psychologist on the faculty of harvard medical school for over twenty five years, encapsulates the devastating psychiatric effects of solitary confinement by citing 355 frances madeson et al., louisiana hunger strikers already in solitary are being brutally punished truthout (2021), https://truthout.org/articles/louisiana-hunger-strikers-already-in-solitary-arebeing-brutally-punished/ (last visited nov 28, 2023). 354 hutchinson, p. (2023, november 28). louisiana considers education access for the incarcerated including those on death row. news from the states. https://www.newsfromthestates.com/article/louisiana-considers-education-a ccess-incarcerated-including-those-death-row#:~:text=one%20task%20forc e%20member%2c%20kiana,count%20of%20feticide%20in%201997. 353 id. 98 brandeis university law journal 2023-2024, volume 11 testimony from an individual confined in california’s pelican bay state prison.356 by 2011, pelican bay had showcased widespread, unregulated utilization of isolation in segregated units for over a decade, affecting approximately forty-five percent of inmates.357 the incarcerated individual described in dr. grassian’s testimony, lacking previously documented psychiatric disorders, emerged from restrictive housing afflicted with severe mental illness arising from the trauma he endured. dr. grassian states that the individual became “overtly psychotic and suicidal.”358 at one point, the inmate resorted to writing a suicide note in his own blood and confessed to the doctor, “i'm tired of people talking in my head. i was mentally clear before . . . sometimes i get so confused, i don't even know what's going on.”359 through research and personal contact with many formerly and currently incarcerated individuals, dr. grassian established a specific psychiatric disorder called security housing unit (shu) syndrome, giving a name to the distress arising from periods in solitary confinement.360 the practice of prolonged solitary confinement manifests as a psychological detriment to those it confines, having the power not only to aggravate pre-existing mental illnesses but to create them. in 2017, the department of justice guidelines recognized that extreme isolation causes mentally ill inmates' already fragile psychiatric conditions to decline, which led to the launch of reform bills that advocated for limiting the use of 360 sandoval, supra note 299. 359 id. 358 id. 357 tiana herring, the research is clear: solitary confinement causes long-lasting harm prison policy initiative (2020), https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ (last visited nov 28, 2023). 356 aclu, supra note 269. 99 brandeis university law journal 2023-2024, volume 11 solitary confinement in american prisons.361 fueled by the recognition of the substantial risk of psychological harm imposed by solitary confinement practices, a profusion of bills were introduced between 2018 and 2023.362 these bills aimed to create reporting and oversight mechanisms to increase transparency of the inner workings of incarceration and regulate solitary confinement through legislation. however, only 29 states enacted these bills.363 while ideas for reform circulate to regulate the practice, solitary confinement, as a form of security maintenance, in lieu of mental health treatment must be eliminated. although maintaining order and safety within the prison and psychological treatment for mentally ill inmates are not mutually exclusive, the current practice of punitive isolation without access to psychological therapy does not achieve the goal of security. moreover, restricting the use of solitary confinement is linked to a decline in prison misconduct.364 corroborating this phenomenon, a reduction in the number of inmates in solitary confinement has resulted in a decline in prison violence in michigan.365 when all isolation cells rates of violence in mississippi prisons plummeted by seventy percent when all isolation cells were removed.366 366 terry a. kupers et al., beyond supermax administrative segregation: mississippi’s experience rethinking prison classification and creating 365 jeff gerritt, pilot program in up tests alternatives to traditional prison segregation, detroit free press, january 1, 2012, available at www.frep.com/fdcp/?unique=1326226266727. 364 aclu, supra note 269. 363 banning torture: legislative trends and policy solutions for restricting and ending solitary confinement throughout the united states, unlock the box campaign, january 2023. 362 sandoval, supra note 299. 361report and recommendations concerning the use of restrictive housing. the united states department of justice. (2017, march 13). https://www.justice.gov/archives/dag/report-and-recommendations-concerni ng-use-restrictive-housing 100 brandeis university law journal 2023-2024, volume 11 theories supporting the use of solitary confinement emphasizes its capacity to deter future crime among inmates, however, empirical evidence in supermax prisons does not comport with this notion. when comparing the recidivism rates of inmates released from solitary confinement versus the normal prison population, there is an increased risk of recommitting a violent crime among those confined in isolation.367 this increased risk of recidivism is largely rooted in the adverse psychological symptoms imposed by confinement in isolation cells, and present risk factors for socially dysfunctional behaviors.368 alongside its failure to decrease risk of recidivism, solitary confinement oppresses rehabilitation by removing the possibility of positive relationships with other perpetrators and the rest of society. this self-reform based on relational processes is stunted, and inmates in solitary confinement are unable to reintegrate into society as law-abiding and self-sufficient individuals. with the devastating impacts of complete isolation units on psychological well-being being so well-documented, every federal court has been confronted with the question of whether or not placing individuals with mental illness in solitary confinement is cruel and unusual punishment in violation of the eighth amendment.369 despite the formal position statement released by the american psychiatric association stating that inmates afflicted with mental illness should never be confined in restrictive housing units without access to additional clinical support, the practice continues.370 courts endorse the notion that solitary confinement is not cruel and unusual punishment as long as its provisions of nutrition 370 id. 369 aclu, supra note 269, at 12. 368 id. 367 coppola, supra note 273. alternative mental health programs, 36 crim. just. & behav. 1037, 1041 (2009). 101 brandeis university law journal 2023-2024, volume 11 and shelter do not differ from those provided to the general prison population.371 implicit in that precedent is the failure to recognize that extreme social isolation is the fundamental difference in condition between solitary confinement and the general prison population. housing an inmate in supermax deprives inmates of a fundamental need that normal confinement facilitates, and social interaction should be acknowledged as a human necessity, not a mere privilege.372 the proposed policy restrictions on isolated confinement do not prevent the devastating consequences of the inmates’ experience in restrictive housing cells on psychological health. continued access to psychiatric treatment in conjunction with therapy and programs supporting rehabilitation should be demanded of federal and state institutions alike. yet, repeated court mandates have not led to an established and protected right to psychological treatment for mentally ill inmates in solitary confinement.373 inmates are sentenced to live in insufferable confines with no treatment nor codified rights. the rights afforded to inmates in the general prison population include contact with other inmates, participation in programming and communal activities, and visitations.374 solitary confinement strips inmates of those opportunities and the benefits of social interaction. access to therapy and psychiatric treatment in prison is incredibly stunted, as three in five inmates do not receive 374 andreea matei, solitary confinement in us prisons urban institute (2022), https://www.urban.org/sites/default/files/2022-08/solitary%20confinement %20in%20the%20us.pdf. 373 nami. (2023). mental health treatment while incarcerated. national alliance on mental illness. https://www.nami.org/advocacy/policy-priorities/improving-health/mental -health-treatment-while-incarcerated. 372 coppola, supra note 273. 371 hutto 437 u.s. 678, at 686. 102 brandeis university law journal 2023-2024, volume 11 appropriate mental health treatment while incarcerated.375 along with the deficit of effective mental health services, treatment regimens must grind to a halt for prisoners with previously diagnosed mental illness, as fifty percent of inmates who were medicated for mental illness upon admission did not continue to receive medication during their sentence in prison.376 to circumvent the challenges faced by mentally ill incarcerated individuals and enhance the medical services provided to those in solitary confinement, consistent psychological screening and regular access to mental health professionals must be implemented in prisons. while isolation unit conditions vary depending on state legislature, systematic policies of confinement–including isolation behind a steel door for twenty-two to twenty-four hours a day, physical discipline including hog-tying and restraint chairs, severely limited contact with other humans, and inadequate rehabilitative and educational programming—are universal in the united states.377 as they serve their sentences, inmates experience immense anxiety surrounding social conduct after being deprived of interaction. if they are released from solitary confinement into larger society, many former inmates exhibit maladjustment disorders and difficulty acclimating to social contact after release from isolation units compared to inmates released from maximum security prisons.378 in 2006, the commission on safety and abuse in america’s prisons expressed concern for the practice of releasing inmates from isolation settings directly into the community due to the diminished social skills incurred from stays in solitary 378 corcoran, supra note 343. 377 madeodev. (2023). solitary confinement facts. american friends service committee. https://afsc.org/solitary-confinement-facts. 376 id. 375 nami, supra note 373. 103 brandeis university law journal 2023-2024, volume 11 confinement.379 considering ninety five percent of inmates in solitary confinement will be released, the successful reintegration into society of previously incarcerated individuals should be the pinnacle of a correctional administration’s mission.380 the practice of prolonged incarceration excluding the use of solitary confinement for “higher risk” inmates is already highly damaging due to the internalized prisonization effect. the unregulated, unlimited use of solitary confinement in federal prisons perpetuates and intensifies the cycle of “catch and release.” this refers to the fundamental concept of recidivism among individuals released from prison, relating to a relapse into criminal behavior.381 drawn from linked prison records in the u.s. from 2006 to 2013, the recidivism rate for inmates released from solitary confinement increased by fifteen percent beyond the recidivism rate of fifty percent for general population inmates.382 this correlation between release from isolation and increased risk of recidivism is documented in research conducted in state penitentiaries. preliminary research in california shows that recidivism rates are twenty percent higher for those released from solitary confinement as opposed to the general prison population.383 in colorado two-thirds of inmates released from restrictive housing units return to prison within three years of release.384 additional research comparing the behavioral trajectories of inmates who were not placed in solitary 384 id. 383 aclu, supra note 269, at 12. 382 dean, supra note 344. 381 nij. (n.d.). recidivism. national institute of justice. https://nij.ojp.gov/topics/corrections/recidivism#:~:text=recidivism%20is% 20one%20of%20the,intervention%20for%20a%20previous%20crime. 380 hughes, supra note 323. 379 commission on safety and abuse in america’s prisons, confronting confinement 55 (2006), available at http://www.vera.org/download?file=2845/confronting_confinement.pdf 104 brandeis university law journal 2023-2024, volume 11 confinement with the inmates housed in isolation units confirms that the risk of conviction of another crime within three years of release is increased by fifteen percent.385 one potential factor driving recidivism is the psychological trauma incurred from prolonged periods of solitary confinement, and when individuals are labeled as “problem inmates” by correctional officers due to mental health issues, the cycle of detriment continues.386 while research demonstrating the psychological damage from confinement in supermax units has become more widespread over the last two decades, the united states has a prolonged and dismal record of psychological harm resulting from use of isolation units.387 in 1959, the american correctional association’s manual of correctional standards dictated that use of solitary confinement for mentally ill individuals should not exceed fifteen days and should only be utilized as a last resort, stressing that inmates must be provided with individual or group therapy to preserve mental well-being.388 despite previous efforts being made to regulate the practice of solitary confinement in the u.s., its widespread use was reignited in the 1980s, and the research demonstrating these effects is too often cast aside in u.s. prisons.389 it is important to note that the resurrection of isolation units in prisons was also spurred by the widespread dissolution of mental hospitals in the 1960s. this forged an era of “transinstitutionalization” where mentally ill individuals are transferred from psychiatric hospitals to prisons.390 the 390 bennion, supra note 279. 389 herring, t. (2020, december). the research is clear: solitary confinement causes long-lasting harm. prison policy initiative. https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ 388 craig haney, mental health issues in long-term solitary and “supermax” confinement, 49 crime & delinq. 126, 126 (2003). 387 bennion, supra note 279. 386 id. 385 dean, supra note 344. 105 brandeis university law journal 2023-2024, volume 11 intention was to house mentally ill persons in less-restrictive environments with treatment provided in group settings. however, once the mental hospitals closed, funding for support services and community housing failed to materialize.391 as a result, america’s largest inpatient facilities became not hospitals, but jails.392 this concept manifests in the concentration of mentally ill individuals in prison that is observed in current society, as individuals diagnosed with psychological illness are three times more likely to be incarcerated than hospitalized for treatment.393 the u.s. has been grappling with the facilitation of positive change among inmates for decades, and it remains critical that the psychological health of incarcerated individuals is preserved to create a rehabilitative environment. ii. arguments for the unlimited use of solitary confinement advocates for unlimited use of solitary confinement claim that the isolating conditions imposed on a single prisoner preserve the safety of correctional officers and other inmates.394 it is argued that segregation cells deter misconduct and properly punish inmates who are unwilling to abide by the prison’s rules, promoting generalized orderly conduct.395 the fundamental justifications for the use of solitary confinement rely on the deluded notion that only the “worst of the worst” are placed in social isolation cells, working to create a safer general prison environment.396 the reality is wholly different, 396 id. 395 id. 394 aclu, supra note 269, at 10. 393 fathi, supra note 302. 392 nation’s jails struggle with mentally ill prisoners, npr (sept. 4, 2011), http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-ment ally-ill-prisoners. 391 fathi, supra note 302. 106 brandeis university law journal 2023-2024, volume 11 as incarcerated individuals cast into solitary confinement are generally placed there for one of three reasons beyond the presence of a genuine security threat. isolation cells are utilized to control individuals perceived as a current or potential threat to the prison community, to shield certain inmates from threats and violence from other inmates, or to discipline dissent for prison rules.397 within the realm of the perceived threat, the majority of inmates housed in supermax facilities indefinitely are allegedly involved in gang activity.398 despite remaining free of disciplinary write-ups during their sentence and a lack of discrete evidence confirming affiliation with organized crime, inmates suspected of gang membership are confined in restrictive housing without a timeframe for release back into the greater prison population.399 alongside inmates suspected of gang affiliation and those who commit minor infractions, mentally ill inmates are disproportionately represented in restrictive housing. conforming to a heavily regimented prison environment is made even more difficult by the symptoms of severe mental illness, and thus minor infractions are more frequently committed by this group of inmates.400 correctional officers often treat this ‘disordered behavior as disorderly behavior’, and place mentally ill inmates in solitary confinement 400 bennion, supra note 279. 399 thomas l. hafemeister & jeff george, the ninth circle of hell: an eighth amendment analysis of imposing prolonged supermax solitary confinement on inmates with a mental illness, 90 denv. u. l. rev. 1, 10 (2012). 398 bennion, supra note 279. 397 hope metcalf, jamelia morgan, samuel oliker-friedland, judith resnik, julia spiegel, haran tae, alyssa work & brian holbrook, administrative segregation, degrees of isolation, and incarceration: a national overview of state and federal correlation policies 2 (2013), https://www.aclu.org/files/assets/administrative%20segregation,%20degre es%20of%20isolation,%20and%20incarceration.pdf. 107 brandeis university law journal 2023-2024, volume 11 indefinitely, ultimately exacerbating the disordered behavior.401 due to the poorly defined policies regarding which inmates may be placed in solitary confinement, restrictive housing units become densely populated with inmates who committed small transgressions or petty annoyances.402 imposing complete isolation on an inmate is entirely left to the discretion of individual prison administrations, and without definitive guidelines restricting the length of confinement in restrictive housing units, inmates may be left to suffer in solitary confinement indefinitely. these low-risk inmates may pose minor management difficulties for the corrections officers, but do not demand complete sensory deprivation and social isolation. evaluating whether solitary confinement units deprive inmates of a basic human need entails weighing the gravity of the harm caused to an individual against the penological demands of the prison, such as security and inmate management.403 inherent in this comparison of the risk of harm and security needs, is the indifference of the prison guards to the psychological interests of the inmates.404 this functions only to perpetuate the intransient trade-off between the mental well-being of the individuals incarcerated in solitary confinement and maintaining discipline within the prison. neglecting the overwhelming research confirming the damages caused by solitary confinement leads to the use of supermax housing as the predominant solution for any conflict arising in the prison environment, including aforementioned alleged gang affiliation and minor infractions.405 there is an 405 ring, k. a., & gill, m. (n.d.). mental health policies and practices surrounding mental health. prison policy initiative. https://www.prisonpolicy.org/research/mental_health/ 404 id. 403 coppola, supra note 273. 402 atul gawande, hellhole, new yorker, mar. 30, 2009, pg. 36, 39. 401 id. 108 brandeis university law journal 2023-2024, volume 11 imbalance between the traumatic and permanent implications of social isolation and the penological interests that solitary confinement is intended to serve. this emerging imbalance is derived from the fact that socio-environmental deprivation presents an excessive risk of severe brain deterioration and psychological consequences; this extremely unbalanced cost fails to be justified by any penological interest.406 the evidence of excessive risk of psychological damage reinforces existing evidence that neither short nor prolonged sentences in solitary confinement reduces infractions or prison incidents as intended.407 in fact, prisons that have restricted the use of solitary confinement have noted a decrease in inmate violence, and thus limited use of isolation cells does not undermine capacity of prison administrations to maintain prison safety.408 the reality remains that solitary confinement cells are consistently overused, causing a disproportionate isolation of mentally ill or cognitively-impaired prisoners struggling to navigate in prison settings.409 once placed in solitary confinement and excluded from the greater prison population, the prisoner must endure the detrimental effects of social isolation which increases the likelihood of psychological harm. the infliction of social deprivation on inmates through extended periods of solitary confinement is counterproductive to the release of a convict back into the greater prison community, and the release of a rehabilitated individual into 409 ring, supra note 405. 408 asca-liman, working to limit restrictive housing: efforts in four jurisdictions to make changes (oct. 2018), https://law.yale.edu/sites/default/files/documents/pdf/liman/asca_liman_20 18_workingtolimit.pdf. 407 joseph lucas & matthew jones, an analysis of the deterrent effects of disciplinary segregation on institutional rule violation rates, crim. j. pol. rev. 1 (2017). 406 national committee on correctional health care, position statement: solitary confinement (isolation), 22(3) j. correct. health care 257, 258 (2016). 109 brandeis university law journal 2023-2024, volume 11 greater society. mental illness originating from an inmate’s experience in solitary confinement further prevents them from a successful reentry into society, posing an even greater impact on the larger population.410 the pervasive use of the practice of solitary confinement results in the release of thousands of mentally ill inmates from incarceration with diminished social capacities and life skills, and a greater likelihood to reoffend.411 unlimited use of solitary confinement may also be preferred when alternative disciplinary options are ineffective in controlling high-risk inmates.412 supporters of the use of solitary confinement argue that other methods of discipline, including education programs and cognitive-behavioral therapy, are only applicable treatments to a minute portion of the prison population. however, with over fifty percent of the population in federal and state prisons suffering from mental illness, the need for more comprehensive psychological treatment is impertinent.413 according to a prison report published by the prison policy initiative organization, in 2017 and revised in 2023, sixty-six percent of mentally ill inmates do not receive, nor are they offered, psychological treatment while incarcerated.414 in addition to the lack of psychological treatment, contact visits, rehabilitative therapy, work, and all other recreational activities that are afforded to the general prison population are prohibited for inmates in solitary confinement.415 the disproportionate incarceration of individuals with 415 madrid v. gomez, 889 f. supp. 1146, 1229 (n.d. cal. 1995); reassessing solitary confinement: the human rights, fiscal, and public safety consequences: hearing before the subcomm. on the constitution, civil rights & human rights of the s. comm. on the judiciary, 112th cong. 20–21 (2012). 414 ring, supra note 405. 413 id. 412 id. 411 aclu, supra note 269. 410 taylor, supra note 324. 110 brandeis university law journal 2023-2024, volume 11 mental health issues paired with the lack of accessible treatment in prisons illuminates the u.s.’s deficit in attention to the psychological needs of inmates, and the glaring need for reform. the implementation of more opportunities for mental health treatment and the improvement of staff training would enhance communication regarding high-needs prisoners and replace solitary confinement to maintain prison security. the proliferation of supermax facilities as a more fiscally conservative alternative to high-quality therapy is a paradox. supermax facilities are far more expensive to construct and maintain, and holding a prisoner in solitary confinement housing costs more than three times as much as incarceration in a maximum security prison per day.416 the majority of the additional expenses of supermax prisons are rooted in higher staffing costs, as cleaning and food services are typically performed by inmates for no compensation in maximum security prisons.417 through reallocation of funds, community-based activities and increased group therapy programs within the prison can be arranged to maintain a safer prison environment without excessive additional cost. iii. proposal to eliminate the unlimited use of solitary confinement in federal prisons: in this section, i will introduce five achievable reforms designed to mitigate the harm induced by solitary confinement without wholly eliminating the practice. as stated by justice sotomayor in apodaka, “a punishment need not leave physical scars to be cruel and unusual.”418 while discontinuation of the use of supermax facilities to house mentally ill incarcerated individuals is necessary to uphold the eighth amendment, 418 apodaka, 586 u.s. 417 fathi, supra note 302. 416 american correctional association, 2004 directory (65th ed. 2004), at 286, 288, 568, 570. 111 brandeis university law journal 2023-2024, volume 11 implementing the following reforms will alleviate some of the scars imposed by current practices of solitary confinement. 1. prioritize mental health training for correctional officers to place greater emphasis on the psychological treatment of high-risk inmates; high-risk would entail those with pre-established mental illness or cognitive impairments. contact visits, rehabilitative therapy, work, and all other recreational activities that are afforded to the general prison population are prohibited for inmates in solitary confinement. this would ensure that correctional officers have the skills and knowledge necessary to effectively and compassionately manage situations with non-compliant inmates without resorting to solitary confinement. in 2001, appelbaum and colleagues published an article regarding the state of mental health training for correctional officers.419 the article identified the discrepancy between professional cultures of security staff and mental health staff as a prominent issue within prison administrations. the article noted how many members of security and mental health staff actually collaborate effectively and share a common goal of humane treatment of inmates, and the capacity of mental health training sessions to hone these skills. introducing collaborative training sessions focused on mental illness would function to create a multidisciplinary staff equipped with more skills to conduct a safe prison environment, and prevent inmate abuse. in the estelle and wilson420 cases, the supreme court determined that claims of violation of the eighth amendment arising from solitary confinement conditions requires the subjective aspect of “deliberate indifference” of corrections officers to the risk to 420 estelle, 429 u.s. 97; wilson, 501 u.s. 294, at 300 419 kenneth l. appelbaum, james m. hickey & ira packer, the role of correctional officers in multidisciplinary mental health care in prisons, 52 psychiatric services 1343–1347 (2001). 112 brandeis university law journal 2023-2024, volume 11 inmate health.421 through implementation of trauma-response training and established methods of accommodating mentally ill incarcerated individuals, the possibility of ignorant indifference to inmates’ psychological suffering would be eliminated. this would facilitate litigation of solitary confinement conditions to appropriately deliver justice to those individuals who have suffered. 2. establish solitary confinement for mentally ill individuals as a violation of the eighth amendment. this entails the need for the court to uphold that the degree of mental injury endured as a result of prolonged isolation significantly exceeds the psychological pain compatible with eighth amendment standards.422 the justification for this reform is predicated on the research indicating the increased vulnerability to detrimental effects of social isolation in people with pre-existing mental illness.423 once this discrepancy is acknowledged, comprehensive evaluation of the practice of solitary confinement can occur, and congress may pass a statute that would effectively end solitary confinement in the future. within the criteria to establish a punishment as “cruel and unusual” is a demonstration of an “objectively, sufficiently serious act or omission resulting in the denial of necessities…”424 and the mental, physical, and physiological harms imposed by the conditions of solitary confinement are on par with physical risk involved in starvation and sleep deprivation. given the biologically-based human need for social interaction and the irreversible neurological and psychological damage incurred from confinement in isolation units, the complete isolation imposed by solitary confinement 424 first principles: constitutional matters: cruel and unusual punishment, https://www.armfor.uscourts.gov/digest/ib4.htm 423 id. 422 id. 421 coppola, supra note 273. 113 brandeis university law journal 2023-2024, volume 11 constitutes a deprivation of necessities. 3. reconfigure the layout of isolation cells to align with defined environmental standards. the constitution does not mandate comfortable cells.425 however, empirical studies have confirmed that environmental surroundings influence psychological well-being and behavior, and severely under-furnished cells function to magnify the effects of social deprivation.426 research surrounding suicides in prisons have noted that prison characteristics constitute almost half of the variation of distress among inmates who had attempted suicide, highlighting the substantial impact of prison-level factors on compromised mental health.427 affording small personal amenities to incarcerated individuals, such as proper bedding and natural lighting, contributes to more generalized well-being of inmates and overall reduced prison misconduct.428 4. develop alternative disciplinary measures that address the psychological root of an inmate's poor conduct. this could include providing more intensive therapy and vocational training outside of the cell in a consistent routine. access to skills training and preparation for future employment would provide a constructive purpose for inmates to direct the intellectual and creative energies that are suppressed by confinement in supermax housing. access to social activities for inmates, and access to reading material, in-cell programming, and telephone calls can be maintained even if inmates remained segregated from the rest of the prison population. this routine should be maintained for as long as it 428 id. 427 liebling alison. 2006. “the role of the prison environment in prison suicide and prisoner distress.” pp. 16–28 in preventing suicide and other self-harm in prison, edited by dear g. london: palgrave macmillan. 426 coppola, supra note 273. 425 eg rhodes, 452 u.s. 337, at 349. 114 brandeis university law journal 2023-2024, volume 11 is deemed necessary through evaluation by a psychologist. research of brain plasticity has indicated that social engagement induces positive alterations in the neural circuits underlying socio-affective skills such as empathy, cognitive functions, and social behavior that persist throughout the individual’s lifespan.429 facilitating positive social interaction through group therapy and interactive training courses allows for inmates to experience environmental stimulation and develop normal sociable tendencies.430 acknowledging the bidirectional link between cognitive function and social environment in the development of alternative disciplinary measures is key in protecting brain health among inmates and functional reentry into society.431 5. increase the accessibility to enriching activities and group therapy sessions within the general prison population to generate a sense of community and trust between inmates and officers. research indicates that the frequency of prison violence in america is more closely correlated to the manner in which inmates are treated by prison staff than the presence of a minute number of “high-risk” inmates.432 by cultivating an environment of respect as opposed to a skewed hierarchy of power, a safer general prison population can be attained. the current vehicle for achieving respect in maximum security facilities is through repression, and this would be rectified by demonstrating that mentally ill inmates would form bonds of respect through constructive avenues. the availability of work 432 leena kurki & norval morris, the purposes, practices, and problems of supermax prisons, 28 crime and just. 385, 389 (2001). 431 id. 430 coppola, supra note 273. 429 riitta hari et al., centrality of social interaction in human brain function, 88 neuron 181 (2015); sophie valk et al., structural plasticity of the social brain: differential change after socio-affective and cognitive mental training, 3 sci. advances e1700489 (2017). 115 brandeis university law journal 2023-2024, volume 11 and recreational activities have an immense impact on inmates’ mental health, as activity deprivation is linked to depression and aggressive behavior.433 establishing these aspects of functional life within prison walls would decrease hostility between inmates and officers, as well as among inmates themselves. the implementation of this proposal eliminates the need for solitary confinement of mentally ill inmates while establishing a balance between maintaining order and safety within the prison and accommodating the psychological demands of the inmates. current progress towards the limitation and uniform regulation of the use of solitary confinement has proven to be inconsistent, therefore, ongoing dialogue and collaboration with all advocates for and against the unlimited use of solitary confinement must be maintained. 433 tartaro christina, lester david. 2009. suicide and self-harm in prisons and jails. lanham, ma: lexington books. 116 block manuscript_ law journal_ volume 12 brandeis university law journal 2024-2025, volume 12 the canary in the west virginia coal mine: how the major questions doctrine led to the demise of chevron by daniel block1 for almost four decades, federal courts ruling on issues of administrative law relied on chevron v. natural resource defense council (nrdc).2 the chevron doctrine instructed courts to defer to an agency’s reasonable interpretation of ambiguous texts.3 in 2000, the supreme court began sporadically applying a new “major questions doctrine” (mqd) that weakened chevron’s primacy.4 the mqd, while not named until west virginia v. epa (2022), would increasingly undermine basic assumptions of chevron.5 two years after west virginia, in loper bright enterprise v. raimondo, the court found chevron unworkable, contrary to principles of separation of powers, and incongruent with the administrative procedure act.6 this article traces the twenty-year leadup to west virginia and loper bright, arguing that, while the mqd began as a rarely used tool for statutory interpretation, the court’s growing hostility toward agency powers led it to expand the mqd into a stringent clear 6 this paper does not discuss the court’s decision in loper bright, but argues that mqd cases led to the court’s holding that “congress expects courts to handle technical statutory questions.” see loper bright enterprises v. raimondo, 603 u.s. __, 24 (2024). 5 west virginia v. epa, 597 u.s. 697 (2022). 4 daniel deacon & leah litman, the new major questions doctrine, 109 va. law rev. 1040 (2023) (the “major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies.”). 3 chevron u.s.a., inc. v. nrdc, 467 u.s. 837 (1984). 2 kent barnett & christopher j. walker, chevron and stare decisis, 31 george mason law rev. (2024). 1 brandeis university, class of 2025; brandeis university law journal, editor-in-chief. 8 brandeis university law journal 2024-2025, volume 12 statement rule.7 this shift reshaped principles of separation of powers, eliminating any need for chevron deference. i. roadmap this article begins with an introduction to chevron deference, highlighting its respect for separation of powers and its support for the administration of laws meant to protect people and the environment. then, a historical analysis of mqd cases will highlight the supreme court’s growing opposition to administrative deference. afterward, a review of the first three cases of the “major questions quartet” will show how the mqd is underpinned by poorly defined constitutional values.8 then, a close reading of the atextual decision in west virginia v. epa will argue that the mqd encourages judges to draw from their personal beliefs to hold agencies to an ambiguous and arbitrarily applied threshold defined by “economic and political magnitude.”9 finally, this article will show how the mqd cases turned chevron’s version of separation of powers on its head, rendering the decades old precedent unworkable and unconstitutional. ii. chevron as law in 1979, the environmental protection agency (epa) created a “bubble” rule under the clean air act (caa), allowing factories in areas that met the national ambient air quality standards (naaqs) to treat all pollutant-emitting sources within a plant as though they were inside a single 9 fda v. brown & williamson tobacco corp., 529 u.s. 120 (2000). 8 the term “major questions quartet” comes from mila sohoni and refers to alabama ass’n of realtors v. dhhs, nfib v. osha, biden v. missouri, and west virginia v. epa. see infra note 29. 7 john f. manning, clear statement rules and the constitution, 110 columbia law rev. 399, 401 (2010) (a clear statement rule “insist[s] that congress express itself clearly when it wishes to adopt a policy that presses a favored constitutional value.”). 9 brandeis university law journal 2024-2025, volume 12 “bubble.”10 this meant that emissions could be managed collectively, enabling plants to offset increases from some pollutant-emitting devices with reductions from others, as long as overall emissions remained stable. with the change of presidential administrations in 1981, president reagan’s epa expanded this rule so that it also applied to factories in areas that did not meet air quality standards, known as “nonattainment” areas.11 by extending the bubble rule to include plants in these more polluted regions, the epa allowed factories to receive permits for new or modified equipment even if they increased emissions, provided that the net emissions from the entire plant did not increase.12 arguing that the new policy ran contrary to the caa’s goals of protecting “human health and the environment from emissions that pollute ambient, or outdoor, air,” the natural resources defense council (nrdc) filed a petition for review in the u.s. court of appeals for the district of columbia.13 writing for a unanimous panel, then-judge ginsburg noted that the raison d’être of the nonattainment provisions of the caa is to ensure reductions in air pollution such that “attainment can be achieved… no later than five years from the date the area was designated nonattainment.”14 since the bubble rule could only guarantee the maintenance of the status quo, the panel ruled that the epa’s promulgation was an inappropriate interpretation of the statute.15 the chevron corporation 15 id.; 42 u.s.c. § 7502 (a)(2); 42 u.s.c. § 7502 (c)(2). 14 natural resources defense council, v. gorsuch, supra note 13. 13 42 u.s.c. § 7401; natural resources defense council, v. gorsuch, 685 f.2d 718 (1982). 12 for more detail on the bubble rule, see jack l landau, economic dream or environmental nightmare? the legality of the “bubble concept” in air and water pollution control, 8 environ. aff. (1980). 11 46 fed. reg. 16,280, 16,281 (1981). 10 saideman ellen, an overview of the bubble concept, 8 columbia j. environ. law (1982). 10 brandeis university law journal 2024-2025, volume 12 intervened and petitioned the supreme court to grant certiorari.16 writing for a unanimous supreme court against nrdc, justice stevens determined that, because congress did not articulate a clear meaning of the term “stationary source,” and because the epa’s bubble rule was not “arbitrary, capricious, or manifestly contrary to the statute,” the court should defer to the reasoned rulemaking of the epa.17 justice stevens’ opinion established a two-prong test that would become known as the chevron doctrine. under this doctrine, when a court reviews an agency’s actions, it must determine at chevron step one whether congress explicitly addressed the issue in question. if congress addressed the issue, the court does not defer to the agency and applies the statute as written.18 if congress did not directly address the issue, the court proceeds to determine at chevron step two whether the agency’s interpretation of the statute is “reasonable” and “permissible.”19 if the agency’s interpretation meets this standard, the court defers to the agency’s interpretation.20 following its publication, this two-pronged test became the hallmark of administrative law. under chevron, federal courts were instructed to recognize that congress, which generally lacks the expertise to address complex issues with finely detailed policy prescriptions, reasonably delegates rulemaking authority to agencies.21 this assumption is supported by congress’s role as a generalist body that enacts broad statutes outlining overarching policy goals (e.g., 21 alli orr larsen, becoming a doctrine, 76 fla. law rev., 27 (2024); catawba county, n.c. v. e.p.a., 571 f.3d 20 (2009) (explaining that “ambiguity… suggests a congressional intent to leave unanswered questions to an agency’s discretion and expertise.”). 20 id. at 844; catherine m sharkey, cutting in on the chevron two-step, 86 fordham law rev. (2018). 19 id. at 844. 18 id. at 842. 17 id. at 844. 16 chevron u.s.a., inc. v. nrdc, supra note 3. 11 brandeis university law journal 2024-2025, volume 12 promoting vaccinations or preventing pollution), while agencies are tasked with implementing these goals by drawing from their “experience with how a complex regulatory regime functions and with what is needed to make it effective.”22 in turn, these agencies, through painstaking administrative procedures, utilize their subject-matter competence to fill in the policy gaps left by congress.23 the chevron doctrine required judges who, like congress, often lack industry-specific expertise of complex issues, to defer to agencies’ reasonable construction of a statute.24 some opponents of chevron argue that it violates basic separation of powers principles because it could appear that the executive branch usurps both the legislative branch’s lawmaking authority and the judicial branch’s article iii charge to interpret statutes.25 such a reading of chevron is wrong. chevron upholds the constitution’s separation of powers by affirming congress’ policymaking authority, including its broad discretion to delegate rulemaking to administrative agencies within the executive branch that are charged with enforcing the law.26 meanwhile, the judiciary 26 elena kagan, presidential administration, 114 harv. law rev. 2376 (2001) (asserting that “presidential supervision of administration could 25 nathan alexander sales & jonathan h adler, the rest is silence: chevron deference, agency jurisdiction, and statutory silences, 2009 univ. ill. law rev. (2009); abigail moncrieff, reincarnating the “major questions” exception to chevron deference as a doctrine of non-interference (or why massachusetts v. epa got it wrong), 60 adm. law rev. (2008); randolph j may & andrew k magloughlin, nfib v. osha: a unified separation of powers doctrine and chevron’s no show, 74 s. c. law rev. (2022). 24 transcript of oral argument, loper bright enters. v. raimondo, 35–37 (2024). 23 rybachek v. u.s.e.p.a, 904 f.2d 1276 (1990) (emphasizing the importance of deferring to agency expertise when there are conflicting readings of a statute); sierra club, inc. v. bostick, 787 f.3d 1043 (2015) (underscoring the importance to defer when the technical expertise of an agency leads it to a conclusion “substantia[lly] bas[ed] in fact.”). 22 loper bright enterprises v. raimondo, supra note 6 at 10 (kagan, j., dissenting). 12 brandeis university law journal 2024-2025, volume 12 remains crucial in this dance of powers by ensuring that agency rulings remain within the confines of the relevant policy set forth by congress.27 notwithstanding chevron’s warning to the legislative branch that statutory ambiguity will be resolved “within the bounds of permissible interpretations” and its importance in maintaining americans’ health and safety, the conservative justices of the supreme court have deemed it unworkable and in need of replacement.28 to understand how the supreme court arrived at this juncture, it is imperative to interrogate how the mqd was the canary in the coal mine, signaling the death of chevron. iii. the fall of chevron some scholars point to the “major questions quartet” as the primary departure from chevron and adoption of the mqd.29 however, a closer look at the supreme court’s administrative jurisprudence reveals that the seeds for overturning chevron were sown by the “elephants in mouseholes” rule initiated in fda v. brown and williamson tobacco corp and crystallized in whitman v. american 29 mila sohoni, the major questions quartet, 136 harv. law rev. (2022). 28 scalia, supra note 27 at 517; loper bright enterprises v. raimondo, supra note 6 (kagan, j., dissenting). 27 antonin scalia, judicial deference to administrative interpretations of law, 1989 duke law j. 511 (1989) (explaining that when conducting administrative review, courts only need to determine whether “the agency has acted within the scope of its discretion.”); peter m. shane, chevron deference, the rule of law, and presidential influence in the administrative state, 83 fordham rev (2014) (showing that chevron requires courts to differentiate lawful from unlawful administrative acts that go beyond any plausible intent of congress.). operate to, contrary to much opinion, to trigger, not just react to, agency action[.]”); e. donald elliot, chevron matters: how the chevron doctrine redefined the roles of congress, courts and agencies in environmental law, 16 villanova environ. law j. (2005) (explaining that the executive, through agencies, is capable of making pertinent and effective policy as on-the-ground facts change.). 13 brandeis university law journal 2024-2025, volume 12 trucking association. this “elephants in mouseholes” rule existed within the chevron framework. it instructed courts to consider on rare occasions—along with the ordinary meaning, context, and structure of the statute—extratextual ideas of separation of powers and nondelegation.30 the newly anointed ultra-conservative supreme court, however, expanded this interpretation, asserting that any regulation approaching a politically motivated threshold of “too big” is an unconstitutional expression of regulatory power.31 thus began the end of chevron. iii.a the canary’s first warning in the 2000 case, fda v. brown, the court addressed the food and drug administration (fda)’s anti-smoking regulations. these rules were promulgated under the food, drug, and cosmetic act and aimed to curtail the sale, distribution, and advertisement of tobacco products.32 while acknowledging the serious public health issue of smoking-related illnesses in the united states, the court denied the fda the authority to regulate tobacco products. the court’s holding was partly based on the fda’s duty to ensure the safety and efficacy of the products it regulates, prohibiting the sale of those that would “present a potential unreasonable risk of illness or injury.”33 justice o’connor reasoned that because tobacco could never be used safely, the fda would be statutorily mandated to prevent the sale of tobacco entirely.34 34 fda v. brown & williamson tobacco corp., supra note 32 at 142. 33 21 u.s. code § 360f. 32 fda v. brown & williamson tobacco corp., 529 u.s. 120 (2000). 31 chad squitieri, who determines majorness?, 44 harv. j. law public policy, 495–497 (2021) (discussing how the mqd allows courts to “exercise its own political discretion to determine whether a policy question is major,” thus inviting the court into the political arena.); deacon and litman, supra note 4 at 1050–1052 (describing how the mqd encourages the courts to consider controversy generated by special interest groups to justify invalidating detested policies.). 30 deacon and litman, supra note 4, at 1040. 14 brandeis university law journal 2024-2025, volume 12 however, she found that congress explicitly forbade a tobacco ban, thus failing the agency’s claim at step one of chevron.35 justice o’connor emphasized that congress had devised a distinct regulatory scheme concerning the sale of tobacco products, “focus[ing] on labeling and advertising,” rather than restrictions.36 importantly for the justice, this scheme did not mention the fda, but delegated enforcement responsibility to the federal trade commission and federal communications commission.37 justice o’connor figured that by providing precise regulatory instructions to specific agencies not including the fda, congress intended to preclude the agency from regulating tobacco.38 fda v. brown illustrates a growing reluctance by the court to infer implicit delegations of power in cases involving “decisions of such economic and political magnitude” that could otherwise be reasonably justified by a plain reading of statutory text.39 justice o’connor argued that in such cases, courts should be skeptical as to whether congress delegated broad authority through ambiguous text. while it might be good policy to approach major agency rulings that congress has not explicitly addressed with a degree of caution, such a legal analysis lacks a clear constitutional or legislative basis. indeed, justice o’connor suggested that her decision was guided by a degree of “common sense,” which is hardly the rigorous legal standard required for interpreting complex statutory or constitutional questions.40 this “common sense” approach further undermines chevron’s view that congress 40 id. at 133; manning, supra note 7 at 410. 39 id. at 160. 38 id. at 130. it is important to note that the majority did not claim that the plain text of the statute precluded fda, rather their reasoning rested in a purposivist reading of extratextual sources. 37 id. at 149. 36 id. at 155–156. 35 id. at 148;156. 15 brandeis university law journal 2024-2025, volume 12 regularly makes implicit, and often major, delegations of authority through statutory silence.41 if one were to compare justice o’connor’s “common sense” understanding of congressional intent with actual statutory directives, one would find that the congressional review act (cra) authorizes congress to nullify agency rulemakings of which it disapproves.42 indeed, the cra explicitly details legislative procedures for reviewing “major” rules.43 given this, the absence of congressional disapproval for a rule issued under ambiguous statutory language could reasonably signal legislative approval—or at least acquiescence—that courts should respect. one year after fda v. brown, the supreme court continued to limit agency rulemaking by building on its burgeoning clear statement rule in american trucking. that case considered the constitutionality of the epa’s authority under §109(b)(1) of the clean air act (caa) to set national ambient air quality standards (naaqs) without considering the financial impacts of implementing such standards.44 textually, §109(b)(1) gives epa the authority to set naaqs, “the attainment and maintenance of which… are requisite to protect the public health.”45 justice scalia determined that the omission of economic considerations in §109(b)(1), and the inclusion of it in many other sections of the caa, unambiguously foreclosed the epa’s ability to consider any factors beyond public health.46 justice scalia determined that, unless congress explicitly stated otherwise, it is implausible that congress would demand, or even allow, the epa to consider costs that could “cancel[] the conclusions drawn from direct health effects.”47 such a reading of the statute would 47 id. at 469. 46 whitman v. american trucking associations, inc., supra note 44 at 467. 45 42 u.s.c. § 7409 (b)(1). 44 whitman v. american trucking associations, inc., 531 u.s. 457 (2001). 43 id. at (a)(ii). 42 5 u.s.c. § 801. 41 chevron u.s.a., inc. v. nrdc, supra note 3 at 843–844. 16 brandeis university law journal 2024-2025, volume 12 fundamentally alter the operating framework of the caa. if congress meant to require the consideration of costs, it knows how to write the words “cost-benefit analysis.”48 as justice scalia concisely put it, “congress… does not, one might say, hide elephants in mouseholes.”49 to understand american trucking’s relationship to the mqd, it must be read as a limitation of administrative powers. although the epa was not asserting that it could consider economic factors, the court concluded that the agency could not do so even if it wanted. had congress intended the epa to have such authority, it would have explicitly said so as it did elsewhere in the caa. in other words, the epa’s authority to set naaqs is not so broad that it can read the caa in a way that would fundamentally alter the regulatory framework established by congress. when harmonizing this principle with fda v. brown, it can be argued that, when administrative agencies issue rulings of significant political and economic magnitude to which congress did not speak, those rulings inherently disrupt the intended regulatory framework. simply put, any “major” agency rulemaking that can be read, textually or otherwise, as contradicting congressional intent would fail at chevron step one. american trucking and fda v. brown operate within chevron step one analysis.50 these rulings required courts to consider the breadth of the rulemaking in light of the agency’s charge from congress.51 if the agency’s rulemaking is broader than congress intended or spoke to, then it fails at step one. importantly, neither of the above cases address what would happen if the text of the statute is ambiguous and an agency 51 fda v. brown & williamson tobacco corp., supra note 32 at 159. 50 deacon and litman, supra note 4 at 1021. 49 whitman v. american trucking associations, inc., supra note 44 at 468. 48 entergy corp. v. riverkeeper, inc., 556 u.s. 208, 232 (2009) ( stevens, j., dissenting); american textile mfrs. inst., inc. v. donovan, 452 u.s. 490, 510 (1981) (stating that “when congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute.”). 17 brandeis university law journal 2024-2025, volume 12 rulemaking is not explicitly foreclosed by a direct congressional charge. nor do these cases discuss what would happen if congress intentionally wrote ambiguously to allow the agency to determine the best course of action within the prescribed regulatory framework and its stated goals. as demonstrated below, the court answers by shuffling the mqd between chevron step one, step two, and a new step zero, as well as by expanding the indicia for its application.52 this inconsistent application allowed the court to scrutinize not just what, but how federal agencies regulate. iii.b the canary’s coughing fit moving on to a set of cases that further lay the foundation for overturning chevron, judicial antipathy towards agency powers becomes more pronounced as the supreme court narrows the administrative state’s regulatory authority. these cases show how the court inconsistently invoked the mqd to circumvent otherwise precedent-bound agency deference.53 these cases demonstrate how the mqd increasingly became a “get-out-of-deference” free card, destabilizing the traditional chevron framework and eventually necessitating its elimination.54 in gonzales v. oregon, the supreme court ruled against a u.s. attorney general’s 2001 interpretive rule.55 this rule claimed that under the controlled substances act, the attorney general (ag) could revoke the licenses of medical professionals who prescribed or dispensed controlled substances for physician-assisted suicide, even in states where such practices were legal.56 the court determined that while the ag had the authority to add, remove, or reschedule 56 id. at 249–250. 55 gonzales v. oregon, 546 u.s. 243 (2006). 54 west virginia v. epa, supra note 5 at 28. (kagan, j., dissenting). 53 cass r sunstein, chevron step zero, public law leg. theory work. pap. (2005). 52 squitieri, supra note 31 at 475. 18 brandeis university law journal 2024-2025, volume 12 substances and ensure compliance, he did not have the authority to unilaterally decide the legality of medical practices.57 part of the analysis supporting this conclusion derived from congress’ delegation of medical policy decisions to the secretary of the department of health and human services (dhhs), rather than the ag.58 the court suggested that if the ag’s proposition were accepted, he would have the authority to decide “whether a physician who administers any controversial treatment could be” punished.59 this would make the ag, rather than the secretary of dhhs, the ultimate arbiter of permitted medical practices — a delegation too “broad and unusual” to be made through the implicit language of the controlled substances act.60 finally, the court noted in dicta that the controversial nature of physician-assisted suicide made the ag’s claim all the more suspect.61 gonzales exhibits two new factors materializing within the mqd’s framework. first, the mismatch between an agency’s actions and the powers delegated to it by congress; and second, the controversial nature of a regulation. the gonzalez court argued that the ag could not regulate medical uses of controlled substances, since his authority was limited to regulating abuses of controlled substances.62 on its face, this premise does not seem to disregard chevron’s reverence for an agency’s particular expertise. indeed, gonzales recognized that chevron is predicated on the assumption that agencies typically make decisions within their delegated domain by relying on experts in the relevant field.63 when an agency attempts to regulate an area in which it traditionally lacks subject-matter expertise, it 63 id. at 267. 62 id. at 270. 61 id. at 267. 60 id. at 267–268. 59 id. at 268. 58 id. at 274. 57 id. at 262. 19 brandeis university law journal 2024-2025, volume 12 becomes quite doubtful that congress would delegate that authority through ambiguous text.64 however, subsequent rulings applied this principle too expansively. while gonzales showed respect for dhhs’s expertise in medical care policy, recent cases — particularly alabama ass’n of realtors v. cdc and nfib v. osha — exemplify how the “agency mismatch” principle has become a tool to denigrate the expertise of agencies attempting to address multifaceted issues like climate change and covid-19.65 the court’s recognition of an “earnest and profound debate” over physician-assisted suicide in the country was insufficient on its own to find the ag’s actions unconstitutional.66 rather, the presence of moral controversy provided reason to doubt that congress had, through such vague language, authorized the ag to unilaterally prohibit physician-assisted suicide.67 as explained in part iv.c, these words, while not binding, foreshadow how some justices have come to undermine chevron deference and the administrative state by pointing to the presence of controversy, whether it be large or small, real or imagined.68 in utility air regulatory group v. epa, the court considered the legality of the epa’s decision to include greenhouse gasses under certain permitting provisions of the caa, particularly the “prevention of significant deterioration” (psd).69 the psd provisions require “major emitting facilities” 69 utility air regulatory group v. epa, 573 u.s. 302 (2014). the other provision at the heart of the case, title v, shares many of the same definitions and effects as the psd provisions, so for clarity's sake, only the psd provisions will be discussed. 68 deacon and litman, supra note 4 at 1063. 67 brianne j gorod, brian r frazelle & j alex rowell, major questions: an extraordinary doctrine for extraordinary cases, 58 wake for. law rev. 599, 619. 66 gonzales v. oregon, supra note 55 at 249. 65 thomas o mcgarity, the major questions wrecking ball, 41 va. environ. law rev. 1, 49–50 (2023). 64 id. at 268. 20 brandeis university law journal 2024-2025, volume 12 in “areas designated attainment or unclassifiable” to comply with emissions limitations and best practices.70 the caa defines “major emitting facilities” as stationary sources with the potential to emit 250 tons per year (tpy) of any air pollutant.71 recognizing that greenhouse gasses are emitted at much higher rates than other pollutants, the epa chose to enforce its interpretation only against facilities that emit at least 100,000 tpy of co2e.72 the court held that, even if the epa did not change the numerical definition of “major emitting facilities,” the caa would still preclude the epa from including greenhouse gasses in the psd provision. echoing its reasoning in brown, the court ruled that the epa is statutorily required to apply the 250 tpy threshold when establishing rules under the psd provisions. the epa conceded that this threshold would be inappropriate for greenhouse gasses, as it would mandate the regulation of millions of smaller sources. as in brown, such an outcome, though plausibly supported by the statute’s plain text, would be incompatible with the regulatory framework established by congress. the court reinforced this conclusion by requiring “clear congressional authorization” for agencies claiming “enormous and transformative” expansions of regulatory power.73 this requirement reflects the “elephants in mouseholes” rule articulated in american trucking. the court reasoned that the epa’s attempt to include greenhouse gasses in the psd framework, which traditionally regulated only a few major polluters, would fundamentally alter the statute’s scope. while the epa enjoys authority to regulate greenhouse gasses 73 id. at 324. 72 utility air regulatory group v. epa, supra note 69 at 309–310. co2e, or carbon dioxide equivalent, is a standard unit used to compare the emissions of different ghgs to co2 based on their global warming potential. 71 42 u.s.c. § 7479(1). 70 id. at 308. 21 brandeis university law journal 2024-2025, volume 12 under the caa, that authority was deemed insufficiently broad to justify such an extensive expansion of the psd provisions.74 the utility air framework extends the basic rationale of fda v. brown and american trucking. its holding being that, without clear congressional authorization, agency rulings of political and economic significance disrupt the intended regulatory scheme. the primary issue begins when the court states that it “expect[s] congress to speak clearly if it wishes to assign agency decisions of vast economic and political significance.”75 synthesizing this principle with american trucking, it follows that agencies cannot “discover” an unheralded power to regulate conferred through the “ancillary provisions” of statutes; they must find this power in explicit text.76 here, utility air establishes a new chevron carve-out whereby “ambiguous language cannot be invoked to allow an agency to exercise its authority in a sufficiently transformative way.”77 there are three major issues with this seemingly innocuous transformation: (1) how significant a rulemaking must be to require a clear statement from congress; (2) who determines when this threshold has been reached; and (3) what constitutional compulsion supports the court’s clear statement rule for “major regulations.” as the next section will show, the court answers this line of inquiry by arrogating to itself the power to “selectively 77 cass r. sunstein, chevron as law, 107 georget. law rev. 1613, 1677 (2019). 76 id.; whitman v. american trucking associations, inc., supra note 44 at 458. 75 utility air regulatory group v. epa, supra note 69 at 321. 74 massachusetts v epa, 549 u.s. 497 (2007) (granting epa authority to regulate ghgs.); cass r sunstein, there are two “major questions” doctrines, 73 adm. law rev. 475, 491 (2021) (arguing that the rationale in utility air “could easily have been used to justify the opposite result in massachusetts v. epa”. that argument is beyond the scope of this paper, but it is at least worth pointing out that the massachusetts court gave epa the authority to regulate ghgs, but the utility air court stripped it of substantial enforcement power as it relates to certain provisions of the caa.). 22 brandeis university law journal 2024-2025, volume 12 demand that explicit legislative language be used to delegate the authority to answer those questions that courts determine to be major.”78 the court’s synthesis of the above cases leads it to maximalist conclusions that encourage arbitrary judicial policymaking excused by an ambiguously-defined threshold of “political and economic significance.” iii.c the canary’s last gasps if the old mqd existed within the chevron framework, the “major questions quartet” exemplifies how the new mqd, enunciated in utility air, comes to function as a half-baked federalism canon and nondelegation doctrine that undermines basic assumptions of chevron.79 the quartet’s judicial power-grab further turns the court into a political actor, whereby questions of “political and economic significance” are not decided by legal reasoning but by a jurist’s policy preferences and world view.80 this power of “void for majorness” amounts to a political veto in which a jurist, for their own political and economic reasons, may determine that a policy is “too grand” to stand on ambiguous language.81 by applying this doctrine arbitrarily to administrative agencies, the court disrupts forty years of precedent that informed legislative processes and agency rulemaking, causing a sea-change in administrative law and ultimately the demise of chevron. as mentioned in part ii, chevron put congress on notice that ambiguous statutory text will be interpreted by the executive, whose agencies issue rules “within the bounds of permissible interpretation.”82 under chevron, the boundaries of 82 scalia, supra note 27 at 516. 81 id. at 503–509. 80 squitieri, supra note 31 at 496. (describing that by voiding laws on majorness grounds, courts “act similarly to the president, who for idiosyncratically held political reasons may veto a bill…”). 79 cass r. sunstein, supra note 77 at 1669; sohoni, supra note 29; alison gocke, chevron’s next chapter: a fig leaf for the nondelegation doctrine, 55 uc davis law rev. 955 (2024). 78 squitieri, supra note 31 at 495. 23 brandeis university law journal 2024-2025, volume 12 permissible interpretation are not set by the majorness of the resulting policy, but by a plain text reading of the statute.83 this analysis treats statutory ambiguities as delegating authority to agencies, giving them the flexibility to adjust rules as knowledge evolves and challenges change.84 the quartet undermines these assumptions that informed congress’ drafting of complex regulatory schemes, skewing outcomes against regulation and disrupting the legislative compromises that often signal broad delegation.85 the first three cases of the quartet considered whether different administrative agencies had the authority to prevent the spread of covid-19 through novel regulations.86 in alabama ass’n of realtors v. dhhs, the court held that the center for disease control and prevention (cdc) did not have the authority to prevent the spread of covid-19 by imposing a national eviction moratorium.87 in national federation of independent business (nfib) v. occupational safety and health administration (osha), the court held that because covid-19 did not pose an exclusively occupational risk, osha’s authority to protect workers from dangerous “agents” or “toxins” could not extend to a vaccine mandate.88 in biden v. missouri, the court agreed with the government’s assertion that the secretary of dhhs could set health and safety conditions, including a covid-19 vaccine mandate, for facilities receiving funding from medicare and medicaid.89 part of the rationale in the cases in which the government lost relied on a counter-chevron assumption of the 89 biden v. missouri, supra note 86. 88 nfib v. osha, supra note 86. 87 alabama ass’n of realtors v. dep’t of health and human services, supra note 86. 86 alabama ass’n of realtors v. dept. of health and human services, 594 u.s. ___ (2021); nfib v. osha, 595 u.s. __ (2022); biden v. missouri, 595 u.s. __ (2022). 85 sohoni, supra note 29 at 286; squitieri, supra note 31 at 505. 84 id. at 517-518. 83 id. 24 brandeis university law journal 2024-2025, volume 12 purpose of statutory ambiguity. the court failed to recognize that congress cannot foresee future problems and uses ambiguous language to ensure flexibility in agency regulations. instead, it assumed that provisions in decades-old statutes, never previously applied expansively, could not be so applied without a clear statement from congress.90 the court emphasized that neither the cdc nor osha had previously used their emergency rulemaking powers to pause evictions or effectuate a vaccine mandate.91 by contrast, in missouri, the court noted that the secretary claimed broader authority than before because the agency “never had to address an infection of this scale and scope.”92 although not cited, the only way to reconcile these disparate rationales is with the agency mismatch concept from gonzales. one could argue that the cdc and osha had never established such regulations because doing so would touch on matters beyond their subject-matter expertise. dhhs on the other hand, was reasonably expanding upon previous regulations for healthcare facility operations—something undoubtedly within its purview and expertise. this overly broad application of gonzales prevents agencies from adapting regulations as circumstances evolve. it further loads the dice against agencies trying to address multifaceted crises that touch on, but might not be fully encompassed by, their titular responsibilities.93 this raises a fundamental question about why federal courts should require a clear statement from congress to support an agency’s claim to regulate issues that involve, but are not fully encompassed by, the agency’s core 93 antonin scalia, common-law courts in a civil-law system: the role of united states federal courts in interpreting the constitution and laws, in a matter of interpretation: federal courts and the law 3, 26 (new ed. 2018). 92 biden v. missouri, supra note 86. 91 id. 90 alabama ass’n of realtors v. dept. of health and human services, supra note 86; nfib v. osha, supra note 86. 25 brandeis university law journal 2024-2025, volume 12 responsibilities. the court answers this by detaching the mqd from chevron and inconsistently attaching it to poorly articulated constitutional values of federalism and nondelegation. iii.c.1 federalist values in the cdc case, the court found that the agency’s actions encroached on typically state-regulated landlord-tenant relationships.94 instead of applying the federalism canon—which presumes that federal laws do not override state laws without a clear statement from congress—the court treated the disruption of state law as an indicator of political significance.95 by doing so, the court linked the federalism canon to the mqd, creating a superficial constitutional basis for requiring a clear statement from congress. by invoking federalist principles rather than applying an already established clear statement rule, the court justified its limitation of statutory text by associating one doctrine with another.96 this judicial sleight of hand allows the court to demand an unusually high level of statutory clarity, one that undermines congress’s authority to delegate regulatory powers to agencies.97 moreover, later cases show that federalism does not appear to be the primary justification for a presumption against major administrative powers; rather, it becomes one of a myriad of poorly articulated constitutional values used to justify the strangling of the administrative state.98 iii.c.2 nondelegation values the more often-discussed constitutional value connected to the mqd’s clear statement rule is that of 98 sohoni, supra note 29 at 283. 97 john f. manning, the supreme court, 2013 term foreword: the means of constitutional power, 128 harv. law rev. (2014). 96 sohoni, supra note 29 at 313. 95 id; manning, supra note 7 at 434. 94 alabama ass’n of realtors v. dep’t of health and human services, supra note 86 at 6. 26 brandeis university law journal 2024-2025, volume 12 nondelegation.99 the nondelegation doctrine derives from the legislative vesting clause of article i and “bars congress from transferring its legislative power to another branch of government.”100 on only two occasions, both in 1935, has the supreme court applied this doctrine to invalidate a statute.101 while its pedigree remains weak, the mqd today camouflages the reemergence of a nondelegation doctrine that provides the court with a framework to decide not just whether congress did delegate certain powers, but whether congress could do so.102 in a fashion similar to the court’s justification via association of constitutional values in the cdc case, justice gorsuch justified the application of the mqd in the osha case by merely associating the mqd with the seldom-invoked nondelegation doctrine.103 the justice explained that the nondelegation doctrine precludes congress from “hand[ing] off all its legislative powers to unelected agency officials,” while the mqd prevents agencies from “exploit[ing] some gap, ambiguity, or doubtful expression in congress’s statutes to assume responsibilities far beyond its initial assignment.”104 according to justice gorsuch, both doctrines “prevent government by bureaucracy supplanting government by the people.”105 notably, the main difference between these two theories is which branch of government is inappropriately extending its authority. the nondelegation doctrine polices “improper legislative delegations” from congress while the 105 id. at 6. 104 id. 103 nfib v. osha, supra note 86, at 5 (gorsuch, j., concurring). 102 id.; loshin and nielson, supra note 99 at 57; gocke, supra note 79 at 995–997. 101 cass r sunstein, nondelegation canons, 67 univ. chic. law rev., 322 (2000). 100 gundy v. united states, 588 u.s. 128 (2019). 99 sunstein, supra note 74; jacob loshin & aaron nielson, hiding nondelegation in mouseholes, 62 adm. law rev. (2014); gocke, supra note 79. 27 brandeis university law journal 2024-2025, volume 12 mqd polices “abuse[s] of delegated authority” by the executive.106 when considering the purported constitutional compulsions supporting justice gorsuch’s nondelegation argument, it becomes clear that his framework stands on even shakier constitutional grounds than the federalist principles supporting the outcome in the cdc case. unlike the federalism canon, the court has been unable to articulate a workable version of the nondelegation doctrine that demarcates when statutory ambiguity meant to be resolved by the executive becomes a prohibited delegation of legislative power.107 justice gorsuch’s theory purports to resolve this dilemma by asserting that any statutory ambiguity that results in a “major” policy is either an unconstitutional expression of agency powers (mqd) or an “unconstitutional delegation of legislative authority” (nondelegation).108 for the justice, this means that, unless the matter is wholly mundane or otherwise interstitial, congress cannot even expressly and specifically delegate decision-making authority to an administrative agency.109 this theory of both the mqd and nondelegation doctrine turns on the question of when exactly an agency policy is mundane and when it is “major.” as will be discussed in part iv, no consistent answer is readily available, as the court has issued “ad hoc, discretionary rulings” that “suffer from the appearance” and reality of jurists’ basing the outcome of a case on a knee-jerk reaction to personally detested or favored policies.110 110 sunstein, supra note 101 at 327; deacon and litman, supra note 4 at 1065–1069 (asserting that worldviews align closely with policy preferences “judges may be more inclined to perceive issues or policies as politically significant if the policies are opposed by the political party that appointed that judge.”). 109 gocke, supra note 79 at 996; gundy v. united states, supra note 100. 108 nfib v. osha, supra note 86, at 6 (gorsuch, j., concurring). 107 loshin and nielson, supra note 99 at 56. 106 may and magloughlin, supra note 25 at 271; gocke, supra note 79 at 994. 28 brandeis university law journal 2024-2025, volume 12 iv. the end of chevron iv.a the canary’s death up until this point, the mqd merely warned us of chevron’s death. as demonstrated in west virginia v. epa, the court did not listen to the warnings. instead of leaving the mqd behind and deferring to an agency, the court continued to plunge deep into the unnavigable mines of “majorness” until its new doctrine finally asphyxiated chevron. in west virginia v. epa, the court determined that the epa’s authority under section 111(d) of the caa was not so capacious as to allow for the obama-era clean power plan (cpp).111 the cpp adopted a “generation shifting” approach to greenhouse gas reduction, whereby power plants would need to shift “from higher-emitting to lower-emitting production” of electricity.112 rather than attempt to refine the contours of the mqd and explain the constitutional compulsions for the clear statement rule, the court’s opinion and justice gorsuch’s concurrence present a hodgepodge of ideas justifying the mqd. the opinion and concurrence attempt to justify the doctrine’s application and provide a broad framework for anti-regulatory judges to wage their war against the administrative state. this final section is composed of three parts. part iv.b will critique the court’s atextual justification for applying the mqd in west virginia. part iv.c will show how the opinion and concurrence instruct lower courts to rule against agency actions that judges personally find to be too political or too 112 id. at 705. 111 west virginia v. epa, supra note 5; 42 u.s.c. § 7411(d). not wholly relevant to this article, but still crucial for context, is the issue of standing in the case. the majority and dissent disagreed as to whether any party maintained standing in the case, especially given that an entire presidency and a half had lapsed since the cpp was initially put into place and stayed. furthermore, the biden administration claimed that it was not going to reinstate the cpp. indeed, justice kagan characterized the ruling as “an advisory opinion on the proper scope of the new rule epa is considering.” 29 brandeis university law journal 2024-2025, volume 12 costly. part iv.d will argue that the court embraced justice gorsuch’s version of separation of powers from nfib v. osha, thus making the mqd impossible to apply so long as chevron breathed. iv.b the (a)textual justification the court begins its justification for applying the mqd by characterizing section 111(d) of the caa as an “ancillary” and seldom employed provision of the statute.113 this characterization sets the rhetorical foundation for the rest of the court’s opinion. first, the court forwards a purposivist argument in textualist’s clothing, whereby it establishes an anti-regulatory hierarchy of statutory text in which ambiguous provisions executed through broad regulation are deemed “ancillary” or insufficient to support the agency’s ruling. second, the court determines that, because the epa had never interpreted section 111(d) in such an expansive manner, it is functionally prevented from doing so to address novel issues like climate change.114 finally, the court jettisons textualism and replaces it with a post-hoc anti-regulatory framework that allows the inactions of subsequent congresses to define the scope of statutes passed by a previous congress. as in american trucking, the depiction of certain provisions of statutory text as “ancillary” begs the question of how the court knows which provisions are unimportant “mouseholes” hiding regulatory elephants.115 the court answers by turning its analysis into a fraught search for statutory purpose.116 indeed, the court does not determine the size of the “mousehole” in section 111(d) by parsing through the language of the provision and situating it within the context of the caa, but by pointing to the remarks made by one 116 id. 115 loshin and nielson, supra note 99 at 45–46. 114 deacon and litman, supra note 4 at 1033. 113 id. at 703. 30 brandeis university law journal 2024-2025, volume 12 architect of the caa and the epa’s previous rulings pursuant to section 111(d).117 this form of statutory construction disregards the normative textualist theory that legislation is often “the result of ‘backroom deals’ and diverse individual compromises” rather than solely reflecting the views of a few cited legislators.118 the court’s framework further ignores justice scalia’s view that shifting agency interpretations are not indicative of an incorrect interpretation but that agencies change the law in light of new information and “within the limited range of discretion conferred by the governing statute.”119 both of these textualist presumptions would typically render legislative history and shifting agency interpretations irrelevant to statutory interpretation.120 notwithstanding its textualist commitments, the west virginia court misconstrued ambiguous text as being no more than a legislative afterthought and undeserving of meaningful textual analysis that would likely result in a policy disfavored by the majority.121 the third atextual justification for the mqd in west virginia relies on congress’s failure to pass comprehensive legislation addressing climate change despite knowing that greenhouse gas emissions pose an existential threat to humanity.122 this justification is incongruent with textualism, as it cites inactions of subsequent congresses as limiting the power of broad legislation passed by a previous congress.123 this justification also assumes that legislative inaction exclusively provides evidence of congressional disapproval, 123 deacon and litman, supra note 4 at 1062. 122 id, at 724. 121 west virginia v. epa, supra note 5 at 703. 120 id.; conroy v. aniskoff, 507, u.s. 511, 519 (1993). (scalia, j., concurring) (writing that “the greatest defect of legislative history is its illegitimacy. we are governed by laws, not by the intentions of legislators.”). 119 scalia, supra note 27 at 518–519. 118 loshin and nielson, supra note 99 at 52. 117 west virginia v. epa, supra note 5 at 703. 31 brandeis university law journal 2024-2025, volume 12 rather than evidence of acquiescence to agency rulemaking or a lack of expertise on exactly how issues should be regulated. as shown below, the atextualist justifications for applying the mqd in this case leads to results that appear to be, or are, arbitrary, inconsistent, politically motivated, and contradictory. iv.c the political instruction to understand how the mqd’s application in west virginia promotes arbitrary rulings, one needs to look no further than the list of possible indicia for “majorness” put forth by justice gorsuch in his concurrence. the five indicia for majorness that justice gorsuch lays out are poorly defined and can be interpreted in an infinite variety of ways.124 as the court has noted regarding criminal statutes, poorly defined and limitless rules fail to establish clear standards of enforcement, leading to arbitrary application.125 while this understanding of arbitrariness pertains to statutory enforcement rather than rulings made pursuant to unclear reasoning, the principle still stands. when one branch of the government, including the judiciary, establishes vague rules, it leads to inconsistent applications. this is concerning in the world of administrative law because vague rules and standards encourage judges to base decisions on their policy preferences. first, justice gorsuch suggests that policies of “profound political significance” may be implicated in mqd analysis.126 as shown above, this comes from fda v. brown and its progeny. then, justice gorsuch seems to expand this theory of majorness, citing gonzales to show that the presence of societal controversy should clue judges into the majorness of an agency’s ruling.127 this idea, in effect, allows controversies 127 id. 126 west virginia v. epa, supra note 5 at 743. 125 city of chicago v. morales, 527 u.s. 41, 49-50 (1999). 124 the five indicia of majorness include political controversy, economic significance, federalism, nondelegation, and agency mismatch. because the last three have already been fleshed out in part iii.c.1-c.2, the discussion here focuses on the first two indicia. 32 brandeis university law journal 2024-2025, volume 12 generated by an increasingly partisan and volatile political landscape to determine when courts stray from normative statutory interpretation.128 if one party achieves its goals through the legislature or executive, the opposing party need not worry, so long as it can generate sufficient controversy. this provides antidemocratic results, as the executive branch is barred from using regulation to “end an earnest and profound debate” and legislative inaction is interpreted as opposition to the challenged policy.129 furthermore, the issue of political controversy allows for judicial policy-making. a judge’s interpretation of what is sufficiently controversial turns on their political values and worldview, which often closely align with the party that appointed them.130 this results in an inconsistent adjudication of law, in which an individual judge’s political ideology, rather than objective modes of statutory interpretation like textualism, forms the basis for their rulings.131 closely related to the issue of political controversy is that of economic significance. both the majority opinion and justice gorsuch’s concurrence take issue with the hefty cost associated with the cpp.132 for the conservative justices, the fact that the cpp would result in industries shelling out billions of dollars in fines and compliance costs meant that it was major and required clear congressional authorization.133 this economic analysis is even more ripe for judicial policymaking when compared to the political controversy analysis. a policy does not need to result in the upending of entire industries to be considered economically significant, although that was a factually incorrect charge made against the epa. rather, it 133 id. 132 west virginia v. epa, supra note 5 at 715, 744. 131 id. at 1069. 130 deacon and litman, supra note 4 at 1065. 129 id. at 1060; west virginia v. epa, supra note 5 at 743. 128 deacon and litman, supra note 4 at 1051–1052. 33 brandeis university law journal 2024-2025, volume 12 must be deemed too expensive in the eyes of the presiding jurist. the economic analysis reeks of judicial policymaking, as it asks whether the economic impact is too significant in relation to the issue in question. this leads to politically motivated, or at least politically informed, weighing of economic factors. indeed, the conservative justices’ hostility towards the cpp was based on its potential to raise the price of production and home energy, both of which are gop talking points against the shift from nonrenewable to renewable energy.134 to be sure, the justices did not mention the price associated with inaction, which in west virginia would likely outweigh the costs of enforcement.135 no matter which way the analysis is sliced, any determination of majorness that asks for the price tag inevitably results in legislating from the bench, as it requires a jurist to choose between competing values and costs associated with a given policy. this is undeniably a policy determination, and it asks unelected judges to impress their own idiosyncratic economic views upon an electorate that cannot hold them accountable. notwithstanding the mqd’s opening to judicial policymaking, the conservatives on the court understand themselves to be issuing legal, rather than policy, decisions. this argument should be taken seriously. to be fair, in almost all cases before the court, the line between legal and political decisions is hazy. however, the problem of west virginia and the mqd is that the court reaches legal conclusions—e.g., that congress did not or could not delegate authority to a given 135 solomon hsiang et al., estimating economic damage from climate change in the united states, 356 science 1362 (2017); adam b. smith, u.s. billion-dollar weather and climate disasters, 1980 present (ncei accession 0209268), (2020). 134 west virginia v. epa, supra note 5 at 714; lisa friedman, a republican 2024 climate strategy: more drilling, less clean energy, the new york times, aug. 4, 2023; brian kennedy tyson cary funk and alec, what americans think about an energy transition from fossil fuels to renewables, pew research center (jun. 28, 2023). 34 brandeis university law journal 2024-2025, volume 12 agency—based on policy preferences—e.g., a policy is too expensive, controversial, and the like. the only way to justify such conclusions is by endorsing the anti-chevron view that the judiciary is the exclusive, rather than ultimate, interpreter of statutes. iv.d the canary dies the first three articles of the constitution lay out the separation of powers. the legislature makes the laws, the executive enforces the laws, and the judiciary interprets the laws. there are, however, nuances to this basic understanding. of relevance here is chevron’s view that statutory enforcement requires at least some degree of executive interpretation of vague statutory language. as discussed in part iii.c.2, justice gorsuch understands the mqd to protect against nondelegation issues by forbidding the executive from citing ambiguous statutory language to fill in major policy gaps. for justice gorsuch, any ruling made pursuant to ambiguous statutory language that results in policies affecting more than day-to-day operations would constitute a forbidden exercise of the executive’s enforcement power. while it remains unclear whether all of the conservative justices are prepared to join justice gorsuch in the most extreme application of that anti-regulatory posture, endorsing the justice’s reconceptualization of separation of powers in nfib v. osha is the only way for the conservatives on the court to coherently support the conclusions of west virginia and eventually loper bright.136 136 this article focuses on justice gorsuch’s framework of the mqd because it appears to be the dominating conceptualization. however, it remains worth noting that not all conservative justices agree that the mqd functions as a clear statement rule. indeed, justice barrett understands the mqd to support ordinary principles of communication. as cass sunstein writes, for justice barrett, “the mqd is relevant to what the best interpretation is, but if congress is best understood to have said ‘actually i meant that sort of [major policy],’ or perhaps better, ‘i meant the sort of [major policy] that the relevant agency deemed’ appropriate, then the fact 35 brandeis university law journal 2024-2025, volume 12 as mentioned in part iii.c.2, the mqd renders the chevron doctrine incompatible with principles of separation of powers. it does so by undermining chevron’s basic legal fiction that statutory ambiguities delegate regulatory authority to agencies who define vague terms to determine the scope of their regulatory power. the court’s framework in the mqd cases stipulates that only clear congressional authorization can be understood to grant agencies expansive powers.137 taken to its most extreme end, this understanding renders executive interpretations of ambiguous text antithetical to the entire federal project, and prevents administrative agencies from using their subject-matter expertise to fill in policy gaps left by congress. the court’s framework further turns chevron’s version of separation of powers on its head. first, it asserts that congress cannot divest itself of its legislative powers by telling an agency to adopt what the agency deems to be, for example, the “best,” most “economically feasible,” or “safest” policy.138 instead, congress must articulate policy prescriptions with an impractical level of specificity so that agencies know exactly what congress understands to be the “best,” most “economically feasible,” or “safest” policy. this framework has the deregulatory effect of kicking important issues to a congress that has often purposefully declined to determine exactly how issues should be regulated.139 139 mcgarity, supra note 65 at 37 (“it is beyond naïve to suggest that allowing federal courts to strike down consequential agency actions taken under fresh interpretations of old statutes will cause congress to suddenly spring into action and refresh those statutes or write new statutes to address newly emerging problems.”). 138 indeed, in west virginia, the cpp was promulgated pursuant to the epa’s interpretation of the ambiguous statutory phrase “best system of emissions reduction.” 137 west virginia v. epa, supra note 5 at 722. that a major question is involved is neither her nor there.” see cass r. sunstein, two justifications for the major questions doctrine, 76 fla. law rev. 251 (2024). 36 brandeis university law journal 2024-2025, volume 12 while purporting to give the electorate a chance to decide how it is regulated, this anti-chevron version of the balance of powers undemocratically dispossesses the executive of much of its duty to “take care that the laws be faithfully executed.”140 it does so by limiting the executive branch’s ability to act on issues where congress’s intent is not explicitly clear but can be reasonably gleaned from the text of the statute. this limitation undermines the executive’s duty to execute laws by restricting its ability to interpret and apply statutory provisions in light of new circumstances, advancing science, and novel policy needs.141 perhaps most problematic for chevron’s version of separation of powers is that the executive cannot resolve statutory ambiguities when they inevitably exist.142 rather, as chief justice roberts wrote in loper bright, it is the exclusive role of the judiciary to determine the “single, best meaning” of a statute.143 this means judges, who are not experts in much beyond law, decide what is the one “best,” most “economically feasible,” or “safest” policy.144 this is a maximalist judicial power grab that justifies legislating from the bench by claiming that the court’s legal expertise legitimizes its exclusive authority “over every open issue – no matter how expertise-driven or policy-laden – involving the meaning of regulatory law.”145 by anointing itself as the exclusive, rather than ultimate, interpreter of statutes, the supreme court rejects any need for agency deference, rendering chevron unworkable, contrary to the separation of powers, and in need of overturning. 145 id. at 3 (kagan, j., dissenting). 144 id. at 17–18 (“when the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the apa, is as always, to independently interpret the statute and effectuate the will of congress subject to constitutional limits.”). 143 loper bright enterprises v. raimondo, supra note 6 at 22. 142 west virginia v. epa, supra note 5 at 740; sunstein, supra note 102 at 323. 141 mcgarity, supra note 65 at 36. 140 u.s. const. art. 2, § 3, cl. 5. 37 brandeis university law journal 2024-2025, volume 12 v. conclusion over the past twenty years, the supreme court has transformed the major questions doctrine from a rarely used tool of statutory interpretation into a rigid clear statement rule, weakly grounded in the constitution. in doing so, the court undermined the foundational principles of chevron v. nrdc. most notably, the mqd cases reveal how the court disregarded chevron’s vision of the separation of powers and the appropriate disposition of ambiguous statutory text. as these two doctrines sat on increasingly diametrically opposed ends, the court’s desire to constrain administrative powers left overruling chevron as the only logical conclusion. this outcome was solidified with justice gorsuch’s reconceptualization of the separation of powers in osha v. nfib and the court’s endorsement of that approach in west virginia v. epa. after west virginia, so little remained of chevron deference that its overruling was essentially a formality. to be sure, the seemingly natural progression of mqd cases to chevron’s demise should not be mistaken as validation of the court’s approach. rather, it highlights the roberts court’s troubling approach to precedent. as justice kagan and legal commentators have observed, the court often erodes important precedents by selectively ignoring when they should be applied, then calling the original decision into question.146 this cycle continues until the court constructs enough self-justified reasoning to formally overrule the precedent. the mqd cases exemplify this manipulative approach to stare decisis, undermining the stability of bedrock legal principles. the court has attempted to frame its manipulation of precedent and stare decisis as a long overdue defense of its constitutional role, claiming in loper bright enterprises v. raimondo that overruling chevron safeguards distinctly 146 id.; richard l. hasen, the chief justice’s long game, the new york times, june 25, 2023. 38 brandeis university law journal 2024-2025, volume 12 “judicial” skills like statutory interpretation. chief justice roberts, in particular, has argued that this is simply the court “saying what the law is.”147 as this article makes clear, this justification is a smokescreen. the mqd cases — particularly justice gorsuch’s politics-laden definition of what constitutes a “major question” — reveal the court's repeated forays into policymaking. by deciding which issues qualify as “major” and dictating their resolution, the court encroaches on policymaking authority that belongs to the legislative and executive branches. now, without the judicial guardrail that was chevron, unelected judges are empowered to impose upon the electorate their subjective views on matters of vast political and economic importance. this invites judicial activism, where administrative policies become increasingly susceptible to arbitrary and politically motivated interference. this new era of statutory interpretation threatens to destabilize critical regulatory efforts, with potentially disastrous consequences for governance, environmental protection, and the public good. 147 loper bright enterprises v. raimondo, supra note 6 at 7. 39 miller manuscript: law journal: volume 12 brandeis university law journal 2024-2025, volume 12 ambiguities embedded in the systems of interstate compacts zachary miller1 the united states is noteworthy in that the federal government is the product of a union of autonomous states bound together by the constitution. the framers sought to concurrently insert the sovereignty of the states and the strength of the federal government into this binding document through a series of compromise measures. one of these compromise measures was the compact clause which outlines the parameters for the enactment of an interstate compact.2 presently, interstate compacts are legally both federal statutes enacted by congress and contracts entered into by the party states.3 existing case law and literature surrounding interstate compacts largely presupposes this duality. this article explores the circumstances that led to each of these characterizations and some problems posed by their continued usage, both individually and jointly. overview the possibility of states forging clandestine agreements with one another remains a perennial danger that the compact clause is designed to combat, but one it can never fully eradicate. congressional consent is the major mechanism for effectuating a defense against this threat. the framers created this system to mitigate the risk of state insurgency while preserving a degree of state sovereignty for interstate collaboration and achieving mutual policy goals. essentially, when two or more states uncover a shared interest, they can 3 stephen p. mulligan, interstate compacts: an overview, (2023), https://crsreports.congress.gov/product/pdf/lsb/lsb10807. 2 u.s. const. art. i, § 10, cl. 3; felix frankfurter & james m. landis, the compact clause of the constitution. a study in interstate adjustments, 34 yale law j. 685 (1925). see infra note 126 for a discussion of additional historical context for the enactment of the compact clause. 1 brandeis university undergraduate, class of 2025, brandeis university law journal, senior technical editor. 47 brandeis university law journal 2024-2025, volume 12 draft a compact and seek the consent of congress to allow them to ratify and execute the compact. while compacts have historically governed issues such as boundary disputes and water distribution agreements, in the twentieth and twenty-first centuries, compacts have grown to encompass more ambitious policy objectives.4 the compact clause is silent as to what congressional consent indicates, when consent is required, and what constitutes consent. given the range of subjects an interstate compact could address, congress’s role in this process has been viewed as advisory. congress’s power to provide consent has historically, therefore, been seen as independent of the stringent enumerated powers delegated to congress by the constitution.5 5 some legal and practical problems of the interstate compact, 45 yale law j. 324, 328 (1935). (“the essence of congressional consent is…a grant to the compacting states of permission to compact, and such consent does not make a compact a law of the union in any significant sense. congress' supervision of compact-making among the states is thus a political function, independent of congress' other enumerated powers.”) the former portion of 4 katherine m. crocker, a prophylactic approach to compact constitutionality, 98 notre dame l. rev. 1185, 1186-1189 (2023). (interstate compacts have been floated amongst both democrats and republicans in recent years to advance political goals. democrats formulated an interstate compact designed to combat climate change following president donald trump’s withdrawal from the paris accords. democratic governor phil murphy proposed an interstate compact to implement gun control policies in response to federal inaction following the 2018 parkland school shooting. democratic governor andrew cuomo explored an interstate compact to combat the coronavirus pandemic. conversely, republicans initiated an interstate compact in opposition to president barack obama’s immigration policies and to counteract the effects of the passage of the affordable care act.) an interstate compact has also been discussed to commit member states to allocating their electoral votes to presidential candidates who win the popular vote in their states (the national popular vote compact). this article does not discuss this particular compact and instead offers a generalized critique of the legal frameworks interstate compacts occupy. for an analysis of this compact in the context of compact law, see tara ross & robert m. hardaway, the compact clause and national popular vote: implications for the federal structure, 44 n.m. l. rev. 383 (2014). 48 brandeis university law journal 2024-2025, volume 12 first, this article will examine the role that congress has played in the formation and execution of compacts. this part of the article will culminate in the 1981 case cuyler v. adams, which held that compacts are acts of congress.6 this article will then examine the supreme court’s recent interstate compact opinion in the 2023 case of new york v. new jersey and its reliance on the “contract-law rule,” which posits that compacts can be governed by common-law contract principles.7 here, the article will analyze the application of contract law principles to compacts. finally, this article will demonstrate the inability of compacts to embody these classifications simultaneously by interrogating lingering questions posed by this judicial duality. i. the role of congress and the road to statutory status a. people v. central railroad: congress as a notary in 1870, the supreme court heard the case of people v. central railroad. the state of new york brought a complaint against the central railroad company for seizing “about 800 acres of land and water, and erecting docks, wharves, piers, and other improvements” without authorization from the government of new york.8 new york alleged that the corporation’s conduct violated a compact ratified between new york and new jersey, with the consent of congress in 1834, because the compact had placed the approval of the 8 people v. central railroad, 79 u.s. 455, (1870). see also the people v. central r.r. co. of n.j, 42 n.y. 283 (n.y. 1870). this section’s goal is to provide an abstract overview of this particular theory of compact law; rather than to provide the expansive chronology of case law, an endeavor left to subsequent sections of this article. for this reason, discussion of the history chronicled in infra note 38 is omitted here. 7 new york v. new jersey, 143 s. ct. 918 (2023). 6 cuyler v. adams, 449 u.s. 433 (1981). this excerpt has been abrogated by cuyler v. adams (see infra notes 6 & 38-39; part i, section d of this article), but this recognition of the independence of the compact supervision power remains largely intact. 49 brandeis university law journal 2024-2025, volume 12 undertakings within the purview of new york. conversely, the central railroad company argued that the compact placed the projects within the jurisdiction of new jersey, the entity from whom the corporation had received approval for its activities. the court of appeals ruled in favor of the corporation and interpreted the compact as granting discretion over these assets to new jersey.9 the case was appealed to the supreme court where new york contended that questions posed by interstate compacts were fundamentally ones of federal law, by virtue of their prerequisite acquisitions of congressional consent. new york argued this precluded the lower court from adjudicating the matter in the first place and that only the supreme court could examine the case. the supreme court used this case to decide whether compacts were simply agreements between states or if the consent of congress converted them into federal law. the supreme court chose the former option, that congressional consent did not make compact agreements federal law.10 as a result, state courts were understood to possess jurisdiction over the adjudications of compact matters and the court of appeals’ ruling was respected.11 11 one area where central railroad falls short is in its failure to explain why a state is obligated to respect the legislation and judicial proceedings of other states. specifically, central railroad was silent as to what rectification mechanisms might have existed if the lower court had found that the central railroad company had actually usurped property from new york. perhaps the supreme court implicitly believed that the full faith and credit clause of the constitution would have imbued new jersey with the obligation to respect and enforce the ruling of the new york court. this clause states that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” (u.s. const. art. iv, § 1, cl. 1). presently, compacts are confined to the federal court system and deemed to present federal questions which obviates this issue. see part iii, section c and its accompanying notes; infra notes 38 & 41 for an explanation of this shift. 10 id. 9 people v. central railroad, supra note 8 at 455-456. 50 brandeis university law journal 2024-2025, volume 12 the question of whether an interstate compact is transformed into an act of congress through the acquisition of congressional consent is important. the constitution requires that the states receive the consent of congress, but central railroad held that the core of a compact is the contractual agreement entered into by the states. this understanding of how congress factors into the development of compacts, espoused in central railroad, frames congress merely as a notary.12 congress providing its consent to a compact did not transform the compact into a matter of federal law. thus, congress was not the policy actor driving the compact and could not be perceived as having any investment in the compact’s execution aside from offering its consent.13 states handled the orchestration of the compact’s imperatives through state legislation and adjudications in state courts. similarly, when two individuals enter into a contract with one another, they are tasked with carrying out the obligations assigned to them under the agreement.14 a positive byproduct of central railroad’s jurisprudence, which prevents a compact from instantaneously becoming a matter of federal law, is that it ensures congress does not acquire legislative powers not afforded to the federal government by the constitution. states have an inherent series of reserved powers as a condition of their sovereignty that the 14 id. at 455-456; american society of notaries, notary conflict of interest, https://www.asnnotary.org/?form=conflictofinterest. 13 people v. central railroad, supra note 8 at 456. (“we think that…the question [in this case] arose under the agreement and not under any act of congress. the assent of congress did not make the act giving it a statute of the united states…the construction of the act…had no effect beyond giving the consent of congress to the compact between the two states.”). 12 a notary is someone legally authorized to officiate a contract to ensure the parties are on the same page. a notary cannot preside over the formation of a contract where they might have a personal interest. see generally national notary association, what is a notary public? https://www.nationalnotary.org/knowledge-center/about-notaries/what-is-anotary-public#:~:text=a%20notary%20public%20is%20an,exercise%20of %20significant%20personal%20discretion. 51 brandeis university law journal 2024-2025, volume 12 constitution does not explicitly delegate to the federal government. while there is ambiguity in where each entity’s domain begins and ends, state powers typically include matters more specific in scope. the federal government generally may not interfere with or take up reserved powers retained by the states.15 if the federal government was emboldened to complete these localized imperatives, federal power would be unnecessarily overextended and enlarged.16 however, congress can utilize its compact consent powers to consider a wide range of subject matters pertaining to the capacity of states to exercise their respective reserved powers.17 the 1918 case of virginia v. west virginia posed a complication to the central railroad framework.18 here, the supreme court held that congress’s compact consent power affords congress the ability to enforce and operate any given compact.19 19 id. at 601. (“the vesting in congress of complete power to control agreements between states, that is, to authorize them when deemed advisable and to refuse to sanction them when disapproved, clearly rested upon the conception that congress…was virtually endowed with the ultimate power of final agreement which was withdrawn from state authority and brought within the federal power. it follows as a necessary implication that the power of congress to refuse or to assent to a contract between states carried with it the right, if the contract was assented to and hence became operative by the will of congress, to see to its enforcement.”); id. at 605. (“[b]ecause of the character of the parties and the nature of the controversy, a contract approved by congress and subject to be by it enforced...full opportunity may be afforded to congress to exercise the power which it undoubtedly possesses.”). 18 virginia v. west virginia, 246 u.s. 565 (1918). 17 see supra note 5. 16 edward p. buford, federal encroachments upon state sovereignty, 9 va. law regist. 321 (1923); p.f., constitutional law: encroachment by treaty upon the reserved powers of the states, 8 cal. law rev. 177 (1920). 15 even the necessary and proper clause of the constitution, which empowers congress to do what is necessary and proper to achieve an objective, is confined to congress’s explicitly enumerated constitutional powers (u.s. const. art. i, § 8, cl. 18). 52 brandeis university law journal 2024-2025, volume 12 b. virginia v. west virginia: congress as an executor under west virginia, congress is a direct executor of interstate compacts. but if congress has the ability to enforce a compact’s execution, compacts cease to simply be a matter upon which two or more states have an agreement. when states come to congress to ratify an agreement, under the central railroad theory of compact law, the expectation is that those states will carry out the obligations of the compact. congress has certain abilities pursuant to its delegated powers, however, and these powers have historically been distinct from congress’s power to consent to the ratification of compacts. under these parameters, congress has traditionally been granted the discretion to consider compacts that stray outside the powers delegated to the federal government by the constitution.20 west virginia offered congress the unbridled power to ensure the operation of compacts if states fall short of meeting their contractual obligations. in this constitutional framework, a compact that pertains to powers not explicitly delegated to congress can be absorbed by congress. west virginia proclaims that congress can use compacts for policymaking and that congress can use powers reserved for the states if they cease to operate a compact.21 if a compact exists as an agreement between states, the states ought to have the autonomy to multilaterally withdraw from a compact that no longer serves their interests and to render any given compact obsolete and non-operational.22 a notary would not assume the duties of a contract and continue to operate under the contract’s parameters if the original signatories no longer sought to enforce the provisions of the contract. 22 see part ii for a more in-depth evaluation of the application of contract law principles to compacts and new york v. new jersey’s stance on state withdrawal from compacts. 21 infra note 44. 20 see supra note 5. 53 brandeis university law journal 2024-2025, volume 12 it is worth noting that historically congress has enshrined a retention of the right to alter, amend, or repeal its consent into the act that provided it.23 still, the compact which held the states to the same circumstantial arrangements could not be retroactively amended. the sole mechanism for states to rectify discrepancies in the original language of the compact would be to mutually agree to let an existing compact go dormant and to adopt a new one.24 west virginia’s framework, which allows congress to take up old compacts and consider their specifics, exacerbates this rigidity on the state level. thus, the west virginia opinion tacitly operates within a framework which presumes that congress is an executor of the compacts it consents to and that congress has a greater capacity to curate compacts than the states. this deference presents a potential conflict of interest for congress, as west virginia allows congress to determine which compacts congress greenlights while also empowering congress to inject itself into compacts as an executor. while west virginia may enable congress to overstep, west virginia’s underlying reasoning highlights a shortcoming in central railroad’s depiction of congress as a notary. a notary would not maintain an interest in the affairs of the parties to a contract they officiate, nor would they choose to officiate a contract on the merits of its outcomes. yet, congress remains invested in the operations of interstate compacts because the federalist system creates an existential contest for supremacy between the federal government and the states.25 25 federalist paper no. 1 (alexander hamilton). (“among the most formidable of the obstacles which the new constitution will have to encounter may…be…the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the 24 richard h. leach, the federal government and interstate compacts, 29 fordham law rev. 421, 426 (1961). 23 see generally part iii for a more in-depth evaluation of the ambiguities of congressional consent. congress authored these provisions because congress does not inherently possess the right to re-evaluate its consent retroactively. 54 brandeis university law journal 2024-2025, volume 12 the political process inextricably links states and the federal government in ways that do not exist between the parties to a contract and their notary.26 thus, west virginia employs a more accurate portrayal of congress than central railroad does. still, west virginia affords congress a tremendous amount of leeway to forward these interests, when some of these interests would be better left to the states to address. furthermore, west virginia’s jurisprudence leaves congress room to exploit its consent powers. this possibility was displayed in 1960 by the house judiciary committee under the leadership of chairman emanuel celler, a new york congressman who took an interest in the compact between new york and new jersey that established the port authority as an interstate agency.27 the port authority was an unpopular institution within the public sphere during this time.28 congressman celler introduced a resolution that would have required congressional consent for every new project the agency proposed. this resolution was controversial because the port authority had been operating within the parameters of its compact and its previous projects did not require congressional approval.29 29 id. 28 leach, supra note 24 at 436. 27 leach, supra note 24 at 435-436; an interstate agency or compact agency is “an agency of two or more states established by or pursuant to an agreement or compact approved by the congress, or any other agency of two or more states, having substantial powers or duties” 33 u.s.c. § 1362(2). 26 orie leon phillips, governmental powers, state and national, under our constitutional system, 36 mich. law rev. 1051 (1938). see part iii of this article for discussions of the federalist challenges posed by the current legal classifications of compacts and the ways in which the relationships between the different levels and branches of government converge to conceal salient legal remedies for compact related inquiries. power…they hold under the state establishments; and the perverted ambition of another class of men, who…will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.”) 55 brandeis university law journal 2024-2025, volume 12 when this resolution failed, celler sought to place investigations into the internal operations of compact agencies within the purview of the judiciary committee.30 celler’s imperatives were not shared by his colleagues, who nullified his efforts to maintain this strict construction of congressional consent.31 a proposed resolution to representative celler’s attempted federal encroachment was to establish a clearer adherence to virginia v. tennessee’s parameters for compact consent within congressional procedure.32 in 1893, this case evaluated what constituted congressional consent. the court found that compacts could be granted congressional consent implicitly and that, if a compact was not retroactively nullified by subsequent congressional actions, the compact could be presumed to possess the implied consent of congress.33 c. virginia v. tennessee: a medium for congressional participation virginia v. tennessee demonstrates that there are legitimate questions concerning the efficacy of congressional consent as a safeguard against compacts which may encroach upon the constitutional federalist framework. the court acknowledged that some compacts cannot be considered until 33 virginia v. tennessee, supra note 32 at 503. (“an agreement or compact as to boundaries may be made between two states, and the requisite consent of congress may be given to it subsequently, or may be implied from subsequent action of congress itself towards the two states, and when such agreement or compact is thus made and is thus assented to, it is valid.”) 32 virginia v. tennessee, 148 u.s. 503 (1893); leach, supra note 24 at 443. this suggestion was eventually adopted in u.s. steel v. multistate tax comm’n. for the full citation of this case and more on its role in this development, see infra note 92. 31 id. at 443. for more about this particular controversy and arguments raised during this time see: id. at 436-443; emanuel celler, congress, compacts, and interstate authorities, 26 law contemp. probl. 682 (1961); congress and the port of new york authority: federal supervision of interstate compacts, 70 yale law j. 812 (1961); congressional supervision of interstate compacts, 75 yale law j. 1416 (1966). 30 id. at 437. 56 brandeis university law journal 2024-2025, volume 12 they are fully realized and found that these compacts could elicit retroactive congressional consent. the court held that congressional consent is only required for agreements which encroach upon the “just supremacy” of the federal government, by finding that the word “compact” in the compact clause is noscitur a sociis.34 in an article celler published to elucidate his perspective on federal oversight of compact operations, he argued for narrowly applying virginia v. tennessee because the case dealt with a compact congress had already ostensibly provided with consent through prior legislation.35 while there is a practical rationale for the standard espoused by virginia v. tennessee, it is not in the best interest of public policy to have a compact take shape and be retroactively denied consent by congress. if the compact is nullified, this nullification would result in a waste of the resources consolidated by each state to fulfill its respective duties. furthermore, the legitimate interest in preserving the federal republic is inadequately forwarded by the implied consent doctrine. under virginia v. tennessee’s doctrine of implied consent, there may be times where a compact bears the imprimatur of congress despite the fact that congress has 35 celler, supra note 31 at 685. 34 id. at 519. (“looking at the clause in which the terms ‘compact’ or ‘agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the united states.”). a latin phrase meaning it is known by its associates, noscitur a sociis is a statutory interpretation technique that derives the meaning of an ambiguous word from the legislature’s use of associated words in the sentence. the “united states” is sometimes used by the court to refer to the country, and sometimes to monolithically refer to the federal government. see generally section d of this part and part iii of this article for a discussion of the difficulties the supreme court has had in deriving the nature and parameters of congressional consent from a practical and “political” standpoint and differentiating between the various branches and departments of the federal government. 57 brandeis university law journal 2024-2025, volume 12 never directly evaluated the compact. as a result, states can implement unconstitutional compacts unbridled by the safeguards embedded in prerequisite congressional deliberations. the court justified permitting states to enact unconstitutional compacts under the assumption that congress would subsequently learn of their unconstitutionality and dismantle them. it is dangerous to assume that congress can be fully aware of the parameters of a compact congress did not review. this is especially true when, under virginia v. tennessee, the only compacts congress is intended to review are ones which may encroach upon the supremacy of the federal government. if three individuals enter an agreement, it would be inequitable for two individuals to enter the agreement with direct consent; while one individual is subsumed into the agreement through implied consent without being able to formally review the agreement. it is especially inequitable when that individual can only withdraw their consent through subsequent actions that explicitly showcase their disinterest. in addition to its implementation of an implied consent doctrine, virginia v. tennessee established the “just supremacy” standard. this extrapolation is intriguing because it seeks to provide a consistent safeguard for state sovereignty by limiting the congressional consent prerequisite to agreements which can encroach on federal power. one could argue, however, that this remedy is inadequate even when congress is given the opportunity to review and consent to a compact. if the enactment of a compact which encroaches on federal power is only checked by congressional consent, congress can erroneously consent to a compact that jeopardizes the constitutional supremacy of the federal government. as previously stated, the west virginia case afforded congress the ultimate authority on the passage of a compact through its consent.36 but under the american system of government, it is 36 to effectuate the “ultimate power of final agreement” doctrine, the supreme court in west virginia countered the argument that it had 58 brandeis university law journal 2024-2025, volume 12 not the role of congress to interpret legal documents and assess their constitutionality; that power is associated with the judiciary.37 the quandary of whether congress ought to be thought of as an executor of or as a notary to interstate compacts was further occluded by the 1981 case of cuyler v. adams, where the supreme court solidified a transformation doctrine. the court found that any compact that acquires congressional consent and pertains to a matter appropriate for congressional legislation is transformed into federal law.38 cuyler’s 38 in cuyler v. adams, the court referred to this as the “law of the union” doctrine (see cuyler v. adams, supra note 6 at 439 n.7). this doctrine’s prudence had long been contested prior to its incorporation in cuyler (see supra note 5). the “law of the union” compact doctrine originated in pennsylvania v. wheeling & belmont bridge company, 54 u.s. 518, 566 (1851). in the 1851 case, the supreme court regarded the compact in contention as a law of the union because it amassed the sanction of congress. neither the parties nor the court in people v. central railroad acknowledged this precedent. this left the question of whether compacts were the “law of the union” without a clear answer for a substantial portion of american history. for an overview of this historical dilemma and a contemporary perspective on the law of the union doctrine prior to the court’s opinion in cuyler v. adams; see generally david e. engdahl, 37 federalist paper no. 51 (alexander hamilton & james madison); u.s. const. art. iii, § 2, cl. 1; marbury v. madison, 5 u.s. 137 (1803). in this case, the supreme court ruled that it could assess the constitutionality of laws and strike down unconstitutional ones. while this power is not enshrined in the constitution, this power known as “judicial review” has become a major norm of constitutional law. see infra note 126 for an additional explanation of this anomalous conflict between compact consent and judicial review. undermined the explicit delegation of original jurisdiction of interstate disputes to the court by the constitution (see infra note 99). west virginia v. virginia, supra note 18 at 603. (“[t]here [is not] any force in the suggestion that the existence of the power in congress to legislate for the enforcement of a contract made by a state under the circumstances here…is incompatible with the grant of original jurisdiction to this court to entertain a suit between the states on the same subject. the two grants in no way conflict, but cooperate and coordinate to a common end, that is, the obedience of a state to the constitution by performing the duty which that instrument exacts.”). 59 brandeis university law journal 2024-2025, volume 12 transformation doctrine fundamentally altered the legal status of interstate compacts, by dubbing them federal statutes and centralizing adjudications of compact disputes in the federal judiciary.39 39 cuyler v. adams, supra note 6 at 434. (“[w]here congress has authorized the states to enter into a cooperative agreement and the subject matter of that agreement is an appropriate subject for congressional legislation, congress' consent transforms the states' agreement into federal law under the compact clause, and construction of that agreement presents a federal question.”); id. at 438. (“although the court of appeals did not reach this constitutional issue, it held that it was not bound by the state court's result because the…interstate compact [is] approved by congress and is thus a federal law subject to federal rather than state construction. before reaching the merits of the…decision, we must determine whether that conclusion was correct. we hold that it was.”). construction of interstate compacts: a questionable federal question, 51 va. l. rev. 987 (1965). see infra note 127 for how engdahl’s analysis was factored into the opinions authored in cuyler v. adams. hinderlider v. la plata co., 304 u.s. 92 (1938) directly dealt with the repercussions of the conflicting doctrines of the 1851 opinion in wheeling and central railroad. in this case, the court was hesitant to concede that compacts were acts of congress but the court sought to afford itself jurisdiction over the matter (see engdahl at 998-1003). justice louis brandeis deemed hinderlider a question of federal common law to justify the federal bench’s usurpation of the case (hinderlider v. la plata co. at 110). this justification was particularly flimsy because that same year justice brandeis wrote for the court in erie railroad co. v. tompkins, 304 u.s. 64, 78 (1938) where he would proclaim that there is no general federal common law and state judicial and legislative authorities ought to be deferred to, by federal courts, in cases that do not deal with the constitution or acts of congress; cases that do not present a federal question. two years after hinderlider, the court would decide delaware river commission v. colburn (infra note 103) where the court would directly attempt to reconcile the discrepancy between central railroad and the court’s 1851 opinion in wheeling by overturning central railroad and holding that compacts presented federal questions as a result of their acquisition of congressional consent through federal statutes. for a more in-depth discussion of the court’s opinion in colburn and the development of the “federal question” doctrine in compact cases see part iii, section c of this article. ultimately, cuyler v. adams resolved this entire debacle by unequivocally ruling that compacts are federal statutes. however, as this article argues, the decision in cuyler has garnered mixed results. 60 brandeis university law journal 2024-2025, volume 12 d. cuyler v. adams: compacts as acts of congress the power that west virginia affords congress to upkeep compacts, coupled with cuyler, enables congress to usurp reserved powers for itself. west virginia’s framework allowed congress to use compacts as instruments for its own policymaking; cuyler deemed compacts federal statutes. these rulings disincentivize states from respecting their obligations under a compact because congress can assume a compact’s responsibilities on a state’s behalf. as previously mentioned, a primary motivation for the compact clause was the framers’ concern about states entering into clandestine agreements with one another. however, states can theoretically place a compact before congress with a mutual intention of abstaining from fulfilling the compact’s obligations. in this paradigm, congress will absorb the duties of these states and keep the compact in effect. this incentivizes states to relinquish their reserved powers and instead incentivizes states to afford congress powers the federal government was not explicitly delegated by the constitution.40 while cuyler only held that compacts pertaining to subjects appropriate for congressional legislation bear the imprimatur of federal law, presuming they meet the definition of a compact under virginia v. tennessee, the common takeaway has been that all compacts are federal law. in washington metro. area t.a. v. one parcel of land, the fourth 40 kevin j. heron, the interstate compact in transition: from cooperative state action to congressionally coerced agreements, 60 st john's law rev. 1, 23 (1985). (“if congress were permitted to create arrangements [with the prerogatives and objectives of compacts]…pursuant to its commerce power, the power of the states under the compact clause would essentially be nullified and they would be deprived of the element of state sovereignty specifically retained in the constitution.”). this section exclusively discusses the ramifications of the majority opinion authored in cuyler v. adams as it pertains to the statutory status of compacts. see part iii for more about the implications of cuyler coupled with the character of compacts as contracts. see infra note 127 for an overview of the dissenting opinion in cuyler. 61 brandeis university law journal 2024-2025, volume 12 circuit held that congressional consent delegates federal powers to those involved in a compact’s operation, rather than simply viewing cuyler as dubbing compacts federal law for interpretation purposes. this generalized the cuyler precedent beyond merely subject matters appropriate for federal legislation.41 it has even been posited that cuyler partly overturned virginia v. tennessee because cuyler framed congressional consent as the prerequisite for something being 41 washington metro. area t.a. v. land, 706 f.2d 1312 (4th cir. 1983). regarding the common takeaway being that even compacts with subject matters not appropriate for federal legislation still become federal law, see 1317 n.9. (“[s]tate agreements whose subject matter is appropriate for federal legislation…which do not threaten to increase the political power of the states at the expense of the federal government…that do…not receive congressional consent will not be invalidated for lack of consent, but a compact that is consented to by congress will thereby become federal law.”). on the question of federal prerogatives for compact enforcement, see 1318-1319. the fourth circuit grappled with the question of whether a compact is delegated federal power or if it is a document merely interpreted on the federal level because state courts would be unable to provide a neutral forum for compact dispute adjudication (see part iii, section c for a discussion of the evolution of compact interpretation and the development of the “federal questions” doctrine and see generally west virginia ex rel. dyer v. sims, infra note 115, for an overview of the centralization of compact disputes in the federal court system to maintain the impartiality of compact proceedings). ultimately, the fourth circuit held that congress could delegate federal powers to forward compact executions and to interstate agencies. the fourth circuit permitted a compact agency to nullify a provision in the maryland constitution because the compact agency was understood to have been empowered to do so by way of its attainment of congressional consent. by allowing the compact agency to act in a manner inconsistent with the constitution of a signatory state, the fourth circuit afforded compact agencies more power than the states that create them because a state cannot pass a law in conflict with its constitution. (see eichorn, infra note 42 at 1409.) on appeal, the supreme court declined to address the finding in this case. nevertheless, in new york v. new jersey (new york v. new jersey, supra note 7 at 924) the supreme court held that the fact that compacts are federal laws means compacts preempt “contrary state law.” 62 brandeis university law journal 2024-2025, volume 12 considered a compact, whereas virginia v. tennessee vested this evaluation in the subject matter of the compact and its impact on the just supremacy of the united states.42 this framework can pose a significant danger as polarization increases in congress, as the political makeup of congress can determine which compacts are approved.43 furthermore, if compacts are acts of congress then, congressional consent is a mechanism for congress to contemplate whether its own laws comply with the constitution. traditionally, the supreme court is the branch of government tasked with judicial review. in virginia v. tennessee, by interpreting congress’s consent power as one that requires congress to strictly scrutinize a compact, the supreme court abdicated its judicial review imperatives to congress. the cuyler doctrine does more than permit congress to circumvent constitutional checks placed on congress, however. prior to cuyler, there were already complications surrounding the procedure for providing consent to interstate compacts. compacts were rarely examined by all members of congress. instead, compacts were delegated to the committees that dealt with the subject matter of the compact. there were also ambiguities regarding whether congress could examine the merits of the compact or whether congress’s consent power exclusively pertained to its analysis of a compact’s effect on the federal structure of the union.44 there have also been times 44 with regard to these ambiguities, west virginia v. virginia holds “that the power of congress to grant or withhold assent to such contracts carries with it the duty and power to see to their enforcement when made operative by its sanction. this power is plenary, limited only by the general rule that acts done for the exertion of a power must be relevant and appropriate to the power exerted. as a national power it is dominant and not circumscribed by the powers reserved to the states.” (virginia v. west virginia, supra note 18 43 id. at 1395-1396. 42 see infra note 127; see also l. mark eichorn, cuyler v. adams and the characterization of compact law, 77 va. law rev. 1387, 1393-1394 (1991). 63 brandeis university law journal 2024-2025, volume 12 when congress has actively lobbied for a compact through consent-in-advance legislation, before compacts had been submitted for approval, which advocated for states to create them.45 the status of compacts as federal law creates ambiguities because congress could theoretically bypass constitutional limitations on its power with the enactment of a compact. but, before cuyler, a major issue stemmed from a paradigm that imposed an antithetical separation of powers issue. the lack of a focal point within congress led the branch to defer to executive branch agencies on the validity of certain compacts.46 while the integration of executive branch agencies may produce better policy outcomes and ensure that compacts are examined by those with subject-matter expertise, this integration presents a grave danger to the constitutional doctrine of separation of powers. if compacts are acts of congress, then two constitutionally detrimental scenarios can unfold. firstly, congress can defer to the executive branch to determine whether to offer its consent. this outcome is 46 id. at 428-430. this section emphasizes the separation of powers predicament posed by the integration of executive agencies into compact ratifications and the implications of conceptualizing compacts as federal laws from a federalist standpoint. for a broader discussion of the implications of encroachments upon separation of powers principles and compact issues concerning federalism, see part iii. 45 u.s. steel corp. v. multistate tax comm’n, infra note 92 at 485 (white, j., dissenting); leach, supra note 24 at 429. the compact at bar in cuyler v. adams was an example of such an instance, see infra note 106 for an overview of this relevant example of a compact consented to prior to the compact’s construction. at 566). as a result, congress is encouraged to evaluate policy issues and take an active role in compacts. whereas, virginia v. tennessee limits congressional discretion to matters that encroach upon the “just supremacy of the united states” which proffers a more hands-off approach to compact evaluations (see supra note 34). it was not until u.s. steel corp v. multistate tax comm’n that the court directly applied the “just supremacy” standard (see infra notes 92-93). but see cuyler v. adams, supra note 6 which would revive ambiguity surrounding what standard the court truly preferred and what standard ought to be deferred to soon after. 64 brandeis university law journal 2024-2025, volume 12 antithetical to the constitution because it enables the executive branch to make legislative considerations and allows for external actors to influence the development of a contract that the constitution explicitly limits to certain parties.47 secondly, this doctrine empowers states to formulate agreements that usurp prerogatives from congress as the federal legislative branch. it empowers states to potentially enact federal law and vests interstate compact agencies with the imprimaturs afforded to federal agencies without the procedural safeguards encased in congressional deliberations. this danger is heightened by the implied consent doctrine of virginia v. tennessee which, after cuyler, empowers states to enact federal laws without receiving the direct prerequisite consent of the federal legislature.48 thus, throughout the nineteenth and twentieth centuries, the nature of the relationship between congress and 48 eichorn, supra note 42 at 1405; washington metro. area t.a. v. land, supra note 41; some legal and practical problems, supra note 5 at 328. (“[m]ost compacts, even when they affect interstate commerce or some other federal province…have not been subjected to congress’ legislative deliberation[s]”). 47 for examples of compacts ratified with executive input, see id. at 430 (internal citations omitted). (“although the constitution mentions only the congress in connection with compacts, agencies in the executive branch have also come to have a number of relations with both compacts and compact agencies. congress itself has been responsible to some degree for bringing executive agencies into the picture…[i]n the eighty-sixth congress the senate committee on the judiciary asked the department of justice, the department of interior and the bureau of the budget for comments on the compact for a new boundary between arizona and nevada which the committee had before it for consent. and the house committee on public works, while considering the northeastern water and related land resources compact, solicited opinions from eight executive agencies which it felt might have an interest in the proposed compact.”). agency input is not the only way the executive branch has inserted itself into compact enactments. president franklin d. roosevelt vetoed the republican river compact in 1942 after congress consented to it. see generally: linda hein, fdr vetoes republican river compact, mccook gazette (october 12, 2001), https://www.mccookgazette.com/story/1046711.html. 65 https://www.mccookgazette.com/story/1046711.html brandeis university law journal 2024-2025, volume 12 the compacts it consents to has evolved. in people v. central railroad, the supreme court regarded congress as nothing more than a notary to compacts. in this way, congress had the opportunity to preview a range of compacts that states would then operate and enforce. in virginia v. west virginia, congress was afforded the capacity to see through the operation of compacts. west virginia provided congress a far larger role in the compact process than that of a notary and factored congress in as more of an executor. virginia v. tennessee obscured the role of congress in the process because not all compacts required congressional consent and compacts could sometimes receive the implied consent of congress. finally, cuyler v. adams stated that all compacts are matters of federal law. cuyler affords compacts a legal status equivalent to the statutory documents directly authored by congress. there is a major difference between being legally recognized as a contract’s notary, an executor of a contract, an author of a contract, or all three. nevertheless, the supreme court ascribes all of these roles to congress in interstate compact matters. concurrently, the court regards congress as the body afforded the power to evaluate a compact’s constitutionality.49 the devolving of all of these responsibilities onto congress is a result of the inherent ambiguity posed by the compact clause’s prerequisite mandate of congressional consent. the endowment of all of these roles upon congress is antithetical to the cultivation of prudent public policy and the safeguarding of constitutional norms. the court’s deference to congress to assess the constitutionality of compacts is largely unparalleled in constitutional law. virginia v. tennessee tasks congress with evaluating the impact of compacts on the federalist structure. in all other cases, the supreme court possesses judicial review and the imperative of preserving the dictates of the constitution. this is because the supreme 49 for further discussion of the complications of concurrent ascriptions, see part iii of this article. 66 brandeis university law journal 2024-2025, volume 12 court’s subject-matter expertise qualifies the court to make constitutional evaluations in a way congress cannot. furthermore, the separation of powers doctrine correctly recognizes that a conflict of interest is posed by allowing a legislature to review its own laws. under cuyler, compacts are laws of congress. there are no direct examples of improprieties resulting from this arrangement; nonetheless, the existence of these ambiguities poses detrimental consequences for the united states. these ambiguities further prove detrimental as a result of their entanglement with the perception of compacts as contracts and the supreme court’s ascription of contract law principles to compacts. in the next part, this article will use the court’s recent opinion in new york v. new jersey as a backdrop for demonstrating the ineffectiveness of arbitrating compact disputes with contract law principles. ii. compacts as de jure contracts a. new york v. new jersey: unilateral withdrawal for party states and the “contract-law rule” in 2023, the supreme court decided the case of new york v. new jersey. this case arose in 2018 when new jersey sought to unilaterally withdraw from a compact it had entered into with new york in 1953 that was designed to mitigate the spread of organized crime. the supreme court found that new jersey had the right to unilaterally withdraw from the compact. thus, the court held that any state can unilaterally withdraw from a compact which does not contain a set duration of time for its execution.50 the court held that compacts that impose active obligations, such as the exhaustion of labor and resources, have traditionally been understood to be governed 50 new york v. new jersey, supra note 7 at 920. see infra notes 71 & 134 and the accompanying references for more background about the circumstances of the case. 67 brandeis university law journal 2024-2025, volume 12 by the principles of contract law under a doctrine the court termed the “contract-law rule” for this case.51 finally, the court held that it was incumbent upon states to include language which expressly allows or prohibits withdrawal. the court reasoned that states clearly enumerating withdrawal terms would alleviate future confusion; and this decree countered new york’s contention that a ruling in new jersey’s favor would induce a slippery slope of states unilaterally withdrawing from compacts. in the absence of a specified duration of time, however, states retain this right to unilaterally withdraw from compacts.52 new york v. new jersey’s understanding of compacts, wherein compacts are differentiated on the basis of the activeness or passiveness of the obligations a compact carries, is useful for preserving the autonomy of a state to successfully unilaterally withdraw from a compact. this opinion’s deference to the “contract-law rule” is not firmly rooted in historical jurisprudence. while compacts may have been analogized to contracts throughout american history, in early supreme court jurisprudence, compacts were largely recognized as treaties. this initial view of interstate compacts posited that, upon the acquisition of congressional consent, states were restored to their full sovereignty under the parameters of any given compact to ensure its execution.53 53 gerald stapp, interstate compacts and the federal treaty power, 29 denver law rev. 211, 212-214 (1952). see generally rhode island v. massachusetts, 37 u.s. 657 (1838). 52 id. at 926. (“new york argues that allowing new jersey to withdraw would have sweeping consequences for interstate compacts generally. but…for any current and future compacts, states can propose language expressly allowing or prohibiting unilateral withdrawal if they wish to do so.”). 51 id. at 925. (“to be clear, the contract-law rule…does not apply to other kinds of compacts that do not exclusively call for ongoing performance on an indefinite basis—such as compacts setting boundaries, apportioning water rights, or otherwise conveying property interests.”). 68 brandeis university law journal 2024-2025, volume 12 this interpretation neglected the intent of the framers of the constitution to maintain federal hegemony in international relations and ensure a united front on the world stage.54 if this were the underlying conceit, it is unlikely that the framers would have even implemented the compact clause because the clause would have afforded congress a means of forfeiting the federal government’s supremacy in foreign policy.55 overall, the twentieth century observed a shift characterized by compacts becoming more active instruments of policy; this zeitgeist also likely served as the impetus for the shift to contract principles.56 so, where did new york v. new jersey get the “contract-law rule” from? new york v. new jersey cited the 2013 case tarrant regional water district v. herrmann to strengthen the presumption that interstate compacts ought to be construed as contracts governed by the principles of contract law.57 tarrant undergirded this assertion by citing the 1987 case texas v. new mexico.58 texas v. new mexico, in turn, cited a 1959 dissenting opinion authored by justice felix frankfurter in the case of petty v. tennessee-missouri bridge comm’n.59 in his dissent, justice frankfurter wrote that a 59 texas v. new mexico, 482 u.s. 124, 128 (1987) (“a compact when approved by congress becomes a law of the united states…but ‘[a] 58 tarrant reg'l water dist. v. herrmann, 569 u.s. 614, 615 (2013). (“because interstate compacts are construed under contract law principles… the court begins by examining the compact's express terms as the best indication of the parties' intent.”) (internal citations and quotation marks omitted). 57 new york v. new jersey, supra note 7 at 924. 56 congressional supervision of interstate compacts, supra note 31 at 1426 n.61; frederick l. zimmerman & mitchell wendell, new experiences with interstate compacts, 5 western political quarterly 258 (1952). 55 stapp, supra note 53 at 214. 54 federalist paper no. 3 (john jay). (“it is of high importance to the peace of america that she observe the laws of nations…[i]t appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies.”). 69 brandeis university law journal 2024-2025, volume 12 “compact is, after all, a contract. ordinarily, in the interpretation of a contract, the meaning the parties attribute to the words governs the obligations assumed in the agreement.”60 perhaps the incorporation of contract language was most prudent for the court to apply in new york v. new jersey. indeed, using vocabulary associated with the development of a contract is helpful, and this article has relied upon this framework to construct its analogies. in any case, this chronology demonstrates that the “contract-law rule” is not as entrenched in american jurisprudence as the court implicitly surmised in new york v. new jersey. it is important to assess the history of any given doctrine that a supreme court opinion reveres because if the opinion champions that outlook, the philosophy will continue to reverberate in american jurisprudence. in this matter, the doctrine of treating compacts like contracts is important because this doctrine supposes a correspondence between interstate compacts and the contracts entered into by individuals. while the contract doctrine may be more analogous to a compact than the treaty doctrine, this doctrine’s novelty is important to emphasize because continuing to entrench the doctrine into american jurisprudence can have detrimental effects on public policy. the potential drawbacks of the “contract-law rule” will be discussed below in the second section of this part. b. trump v. trump and the democratic caveat of the “contract-law rule” following the distribution of the opinion in new york v. new jersey, the case was cited in the 2023 case trump v. trump; this case was heard in the new york state supreme 60 petty v. tennessee-missouri bridge comm’n, 359 u.s. 275, 285 (1959) (frankfurter, j., dissenting). see part iii, section c for a more in-depth discussion of this case. the citation of this dissenting opinion is noteworthy against the backdrop of the duality discussed generally in part iii. compact is, after all, a contract.’ it remains a legal document that must be construed and applied in accordance with its terms.”) (internal citations omitted). 70 brandeis university law journal 2024-2025, volume 12 court in new york county.61 this case arose after president donald trump sued his niece, mary trump, for attempting to publish a book that cast him in a negative light by revealing personal details of their familial dealings. mary trump’s conduct allegedly violated the terms of a confidentiality agreement she had previously signed. one of the questions before the court in trump was whether this confidentiality agreement was terminable at will, as the confidentiality agreement contained no end date.62 at first glance, trump is an unusual case for a citation of an interstate compact dispute. however, this citation highlights the dangers of conceptualizing interstate compacts as contracts. mary trump’s attorneys argued that because new jersey was permitted to withdraw from its compact agreement in new york v. new jersey, the court was obligated to permit mary trump to withdraw from her confidentiality agreement. the court found that these cases were too incongruent for new york v. new jersey to be an applicable precedent to the facts of trump because new jersey’s compact obligations were actions, whereas the confidentiality agreement binding mary trump imposed an obligation of inaction and silence.63 it is noteworthy that the trump court’s sole consideration, regarding the applicability of new york v. new jersey, was the nature of each agreement’s impositions. if the obligations imposed upon new jersey were ones of inaction or if mary trump’s obligations were active in nature, perhaps the court would have used new jersey’s victory to assess mary trump’s options. it was this discrepancy, the passivity of the confidentiality agreement, that led the court to refrain from applying new york v. new jersey. the adverse underlying presumption here is that the principles that govern individuals and those that govern states are similar enough for courts to 63 id. at 778 n.9. 62 id. at 766-768, 777. 61 trump v. trump, 80 misc. 3d 765 (n.y. sup. ct. 2023). 71 brandeis university law journal 2024-2025, volume 12 sometimes apply them interchangeably.64 whether or not mary trump now wishes to unilaterally withdraw from the confidentiality agreement, she signed it. there is no denying that the mary trump who sought to withdraw from the confidentiality agreement is the same mary trump who signed the agreement at its inception. mary trump is a specific individual with the absolute ability to assess and scrutinize the agreement she enters. the signatories to any given interstate compact, however, are the states. unlike individuals, states are not inherently monolithic entities. rather, states are constructs which individuals create to settle their affairs in an orderly fashion.65 this fact creates complications when the inanimate idea of a state is tasked with serving as a signatory to an agreement. the state encompasses all of the local municipalities, corporations, and people who reside and operate within it. mary trump’s decision to sign a contract only inhibits her own autonomy. a state, by signing onto an interstate compact, inhibits the autonomy and liberty of its entire constituency. mary trump does not have to build a 65 john locke, concerning the true original extent and end of civil government, (1689). 64 the personhood of states was addressed in monell v. department of soc. svcs., 436 u.s. 658 (1978). this case assessed whether local governmental agencies could be held liable in accordance with a provision in the civil rights act of 1871 that explicitly contained the term “person(s).” that case assessed the peoplehood of states in a manner more narrow in scope than the evaluations of this section. additionally this section’s evaluations are distinct from those made in citizens united v. fec, 558 u.s. 310 (2010) for two major reasons. firstly, the unique longevity contained in the promise of a government juxtaposes the subject matter of this section from a corporation whose affairs occupy a comparatively brief duration of time. secondly, governmental actors are uniquely linked to the democratic will of the populace. whereas corporations, like individuals, perennially operate to advance their own interests without an equivalent direct mechanism of democratic accountability; nor do the imperatives of corporations bear democratic imprimaturs in a manner congruent to government. these factors, taken together, confine the evaluations of this section to the applicability of contract law principles to governmental actors in the context of interstate compacts. 72 brandeis university law journal 2024-2025, volume 12 coalition or reach a consensus to relinquish her own autonomy and sign an agreement. she would, however, have to obtain the consent of others to compromise their autonomy and sign an agreement on their behalf. given that a state is truly an amalgamation of entities with a plethora of interests, a state risks unduly inhibiting the autonomy of segments of its constituency when that state signs onto a compact that poses adverse consequences for the forwarding of those members’ interests. by equating the conditions of an interstate compact with those of a contract, the judicial system ascribes states a monolithic capacity to discern the merits of an agreement. a presumption of states as monolithic actors may impose no impediments on the autonomy of the entities within a state in the context of water distribution agreements, property rights matters, or border disputes. but, the principles of contract law and the presumption of transitivity explicitly arise in the case of the compacts which have the greatest capacity to inhibit the autonomy of the states and the entities which exist within the framework of the state.66 perhaps compacts are an instance where states relinquish aspects of their autonomy for a common interest. however, by framing the state as the signatory, courts create a paradox because ascribing a state the capacity to discern is inherently impossible. given that the state is a nonhuman entity and a union of a plurality of interests, there must be some body that courts are actually offering the power to make considerations on the merits of prospective compacts. if the state is the signatory and it is a monolithic personification of a population, perhaps the name of the state is truly a moniker for that state’s government. for the doctrine of transitivity to truly be applicable, however, the body that possesses the signatory prerogatives must remain intact throughout the duration of an agreement’s execution. while mary trump sought to withdraw from her agreement, she remained the same entity throughout 66 see supra notes 51-52. 73 brandeis university law journal 2024-2025, volume 12 the confidentiality agreement’s enforcement. the same is not true for a state government, which possesses compact signatory capabilities. an individual’s decision about signing a contract differs from a state’s decision about signing onto a compact because the entire constituency is impacted by a compact’s officiation. a source of pride in democratic societies is that constituents have a say in the composition of the government and the policy directions the elected government takes. the rigidity and perceived permanence of compacts prevents the public from exercising these rights and altering the trajectory of political affairs. while imposing contractual obligations upon states might be beneficial for ensuring obligations are upheld, there are tremendous drawbacks in empowering states to sign themselves onto indefinite agreements unbridled by the checks and balances of a democratic society.67 if public sentiments surrounding the continuity of a compact have shifted, democratic and federalist intuitions would point towards offering states the unilateral ability to withdraw to comply with the mandate of their voters. this interpretation of compact obligations, however, precludes state officials from unilaterally withdrawing from a compact that fails to comport with the democratic will of the people. ultimately, any particular governmental administration seeks to implement legislation or policy agenda items that will outlast them. this prerogative is an inherent aspect of civic engagement and service in government. perhaps this goal is inherently at odds with the democratic process’s commitment to flexibility and a system which consistently alters its course based on the will of the people. however, even if one were to argue that the interest in stable public policy ought to outweigh the interest in preserving this democratic check, this scenario offers little room for state governments to implement new policies in 67 jill elaine hasday, interstate compacts in a democratic society: the problem of permanency 49 fla. l. rev. 1, 7-8; 16 (1997). 74 brandeis university law journal 2024-2025, volume 12 response to progressions in the circumstances of the underlying problem that any given compact is enacted to solve.68 the compact in new york v. new jersey was enacted in 1953 to slow the spread of organized crime; new jersey sought to withdraw more than 60 years later. throughout this time, the composition of each state’s government underwent significant changes. furthermore, the nature of the issue did not remain stagnant, despite the continuity of the compact. yet the trajectory of state policies was immovably beholden to the pre-existing compact. this critique is not specific to interstate compacts and it is an issue that plagues any fledgling executive administration assuming office following the ratification of agreements and laws by their predecessors. interstate compacts can exist for longer periods of time than any given contract may exist between two individuals. there is no lifespan for a compact signed by theoretical entities in the same way that a contract between individuals ceases to be operational upon the death of one of the signatories. this truth is the result of the limited lifespans of humans and the regulatory influence of the democratic process, which consistently alters the composition of governments. in this way the state government, which possesses the prerogative to consider the compacts onto which a state becomes a signatory, cannot assess the validity of a compact that exists prior to the ascension of that particular administration. on the one hand, this framework offers compacts stability and continuity irrespective of changes in the ideological or governmental composition of one particular state. if an individual signed a contract and then immediately sought to withdraw after they changed their mind, the goods and services promised in the contract might not be delivered. on the other hand, there is an inherent difference between individuals and states that inhibits an equivalent perception of these signatories.69 69 new jersey v. new york, 523 u.s. 767 (1998). (clarifying a dispute regarding ellis island pursuant to a compact between new york and new 68 id. at 10. 75 brandeis university law journal 2024-2025, volume 12 the elimination of this system of indenturing state governments to the compacts entered into by their predecessors is a significant victory of new york v. new jersey. by allowing states the autonomy to unilaterally withdraw from an agreement that does not specify a set duration of time, the issue of indefinite compacts is obviated. the issue of state immortality highlights the inefficacy of equating the legal obligations of individuals and states. new york v. new jersey affords state governments the autonomy to determine their destinies regarding pre-existing compacts. ultimately, however, new york v. new jersey does not fully rectify this matter of indenturing state governments to pre-existing compacts. the supreme court addressed the slippery slope argument raised by new york, in defense of holding new jersey to the compact, by finding that states could be held to pre-existing compacts if a duration of time was specified within the terms of the compact or if withdrawal was expressly prohibited.70 while the delegation of this responsibility to include terms of withdrawal to states obviates any indefinite obligation based on an omission of withdrawal capabilities, this still may require subsequent gubernatorial administrations to oversee the completion of pre-existing compacts because of the continuity of the state as the signatory. there are policy merits to this framework because it ensures that a state continues to uphold its obligations to another state irrespective of the political whims of a particular gubernatorial administration. however, this landscape has the detrimental effect of insulating interstate compacts from the democratic process. the lack of a perfectly fitting analytical unit of measurement for interstate compacts speaks to the unique legal status of the states that undergird the united states of america. the states are not sovereign nations capable of treaty-making. simultaneously, they are not individuals capable of 70 see supra note 52. jersey enacted in 1834 that remained binding upon the party states in 1998 using common law contract principles.) 76 brandeis university law journal 2024-2025, volume 12 contract-making. the goal of the compact clause was to balance the supremacy of the federal government with the desire to offer states the autonomy to formulate agreements for forwarding shared interests. ultimately, this balancing act is extremely delicate and points to a deeper fragility which underlies the federalist structure of the united states. the first two parts of this article each dissected a distinct characteristic that the supreme court has imputed to interstate compacts. part i examined the jurisprudence surrounding congress’s role in the formation and execution of interstate compacts, and part ii examined the “contract-law rule” applied to interstate compacts. despite isolating these attributes from one another to explain them and their connections to interstate compacts, interstate compacts are legally an embodiment of both of these characteristics. this duality doctrine, however, obscures a clear roadmap for efficiently arbitrating interstate compact disputes. some of the major lingering questions over the character of compact law will be expounded upon below in the final part of this article. iii. the undynamic duality: compacts as federal statutes and contracts a. the duality and the rights of the federal government in interstate compact disputes this part of the article will discuss the various problems with the duality doctrine. this first section discusses the negative consequences the duality poses for states because their contractual disputes can be hampered by federal interests. virginia v. west virginia recognized congress as an executor while central railroad conceptualized congress as a notary. this discrepancy highlights a fundamental confusion regarding the status of interstate compacts and congress’s role in their development and execution. in tandem with this enigma exists the dual classification of compacts as federal statutes under cuyler, and as contracts entered into by party states. if congress can pick up the responsibilities of a compact and 77 brandeis university law journal 2024-2025, volume 12 maintain a compact’s operativeness, a compact is further juxtaposed in its legal status from a contract entered into exclusively by two or more parties. there is no expectation that a third party can continue to operate a contract after the signatory parties have opted to terminate it. but new york v. new jersey empowers states to withdraw from a compact and render the compact inactive. this highlights the inability of these attributes to harmoniously characterize a compact. while new york v. new jersey held that states can unilaterally withdraw from a compact, this opinion does not speak on whether congress can still restore a dormant compact. therefore, the west virginia problem of congress potentially usurping state prerogatives and unilaterally undertaking compact imperatives remains viable. perhaps the united states filing its own brief in new york v. new jersey in support of new jersey highlights a federal indifference to the maintenance of this particular compact.71 regardless, west virginia appears to remain controlling in the case of this power. along the same lines of this federal retention of the power to maintain a dormant compact, the federal government has been empowered to extend a compact dispute; despite the fact that compact disputes are contractual disputes amongst states. in 2024, the supreme court decided texas v. new mexico and colorado.72 this matter began in 2013 when texas sued colorado and new mexico for grievances accrued during joint participation in a compact.73 by 2024, the litigant states had reached a resolution to this legal battle and sought a consent decree74 from the court in accordance with the 74 a consent decree is enacted by a presiding court to approve a settlement agreement and bind the parties of a lawsuit to the settlement’s agreed-upon terms. the consent decree is a common law mechanism independent of the consent mechanisms of compact law. see black’s law dictionary (9th ed. 73 id. at 1761. 72 texas v. new mexico and colorado, 144 s. ct. 1756 (2024). this article was largely completed prior to the publication of this ruling. 71 brief for the united states as amicus curiae, new york v. new jersey, 143 s.ct 918 (2023). 78 brandeis university law journal 2024-2025, volume 12 settlement they had reached.75 the federal government, however, opposed the settlement agreement and argued against the court providing a consent decree.76 the federal government had an interest in the outcome of this dispute, and the continuity of the compact, because of the federal government’s obligations to the neighboring country of mexico and various indigenous tribes in the region.77 in 2018, in a prior ruling, the supreme court permitted the federal government to enter this particular dispute because the court recognized “distinctively federal interests” in the matter at bar.78 in the 2018 decision, the supreme court held that it was possible for the federal government to have interests in the execution of a compact independent from those of the states and permitted the federal government to insert itself into a compact dispute as a party. but, the 2018 opinion attempted to avoid creating a slippery slope whereby the federal government could invariably insert itself into compact disputes. the court clarified that: viewed from some sufficiently abstract level of generality, almost any compact between the states will touch on some concern of the national 78 texas v. new mexico, supra note 77. the supreme court had already published an opinion pertaining to this particular legal battle, since it began in 2013, by the time the court was tasked with considering a consent decree in 2024. to reach the determination made in the 2018 case, the court relied upon maryland v. louisiana, 451 u.s. 725, 746 n.21 (1981). 77 texas v. new mexico, 583 u.s. 407, 407–412 (2018); see generally: rachel reed, supreme court tackles water rights in the west in texas v. new mexico and colorado, harvard law school today, (march 13, 2024) https://hls.harvard.edu/today/supreme-court-tackles-water-rights-in-the-west -in-texas-v-new-mexico-and-colorado/. 76 id. 75 texas v. new mexico and colorado, supra note 72 at 1761. 2009) at 471. the supreme court was the body tasked with providing the consent decree in this matter because the court possesses original jurisdiction over interstate disputes (see infra note 99). also, the settlement agreement reached by the states was not an interstate compact. 79 brandeis university law journal 2024-2025, volume 12 government—foreign affairs, interstate commerce, taxing and spending. no doubt that is the very reason why the constitution requires congressional ratification of state compacts. but just because congress enjoys a special role in approving interstate agreements, it does not necessarily follow that the united states has blanket authority to intervene in cases concerning the construction of those agreements.79 in the 2024 case, the states argued that the federal government did not have standing to obstruct their attainment of a consent decree.80 the compacting states argued that the federal government did not have a compelling enough interest in the matter at bar to halt the consent decree because the compact was a water distribution agreement and the federal government was not a party who would be apportioned water.81 nonetheless, the court regarded the interests that justified the entrance of the federal government into the matter in 2018 as compelling enough for the court to consider the federal 81 id. 80 texas v. new mexico and colorado, supra note 72 at 1767. 79 texas v. new mexico, supra note 77 at 413. this justification is interesting because it neglects to mention the implied consent doctrine of virginia v. tennessee in its recounting of the congressional consent requirement. along these same lines, the 2018 majority opinion is interesting in its parallel to u.s. steel v. multistate tax comm’n (infra note 92 at 479 n.33). while the 2018 majority opinion does not cite u.s. steel, u.s. steel similarly conceded that any compact poses the capacity to touch a federal interest. u.s. steel held that the existence of a “federal interest” was irrelevant to whether a compact required congressional consent and instead emphasized “threats to ‘federal supremacy’” as a criterion distinct from that of the federal interest (see infra note 92); the 2018 majority opinion conceded that any compact can touch on a national concern but conjectured that this truth did not necessarily confer the right to intervene in any interstate dispute upon the federal government. as discussed in part i, section d of this article, cuyler may have shifted the metric of a compact to its acquisition of congressional consent rather than its impact on federal supremacy. nevertheless, the 2018 opinion makes use of u.s. steel’s framing device. 80 brandeis university law journal 2024-2025, volume 12 government’s opposition and deny the consent decree on the basis of the federal government’s grievances.82 justice neil gorsuch, who authored the 2018 case’s majority opinion, filed a dissenting opinion in the 2024 matter. justice gorsuch’s dissent argued that the majority’s conduct set a dangerous precedent by permitting the federal government to exercise unprecedented authority over interstate disputes, a constitutional mechanism the political branches of the federal government traditionally possessed no role in, by prolonging this case against the wishes of the litigating states.83 justice gorsuch argued that once the dispute between the states died, the original jurisdiction of the court died with it. the only course of action the court could have taken in this case, according to gorsuch, was dismissing the federal government’s claims without prejudice.84 this division amongst the ranks of the court poses an interesting dilemma as far as the duality is concerned. if a compact were exclusively a federal law, then the states would remain beholden to the federal government in a manner similar to any other law; the majority’s jurisprudence would unequivocally prevail.85 if a compact were exclusively a contract between party states, then justice gorsuch would be correct as contractual disputes cease and consent decrees are granted upon the acquisition of a consensus amongst the parties without examining the interests of nonparties. justice gorsuch would have been further vindicated because most other interstate original jurisdiction cases deal with state prerogatives and leave no room for input from the federal government.86 86 id. at 1772-1779 (gorsuch, j., dissenting). 85 id. at 1763. 84 id. at 1779 (gorsuch, j., dissenting). 83 id. at 1772 (gorsuch, j., dissenting). for an overview of original jurisdiction, see infra note 99; see generally sections b-d of this part for more about the delineation between the political and the constitutional and the role of compact cases as a convergence of these questions in the wake of the duality. 82 id. 81 brandeis university law journal 2024-2025, volume 12 compacts are anomalous in that they exist as an amalgamation of federal, interstate, and state political apparatuses. therefore, the duality doctrine and the legal character of compacts transcend the binary between the majority and dissenting opinions in the 2024 case because each faction of the court was only looking at half of the equation for adjudicating a compact dispute. even before the emergence of the duality, however, the supreme court inconvenienced states by enshrining the vantage point of the national government into interstate compact disputes. in the 1854 case florida v. georgia, despite confirming that the united states was not legally a party to the dispute, the supreme court invited the attorney general of the united states to an original jurisdiction dispute over a compact enumerating the boundary between two states.87 the court extended this invitation to the attorney general against the wishes of both of the party states so that the attorney general 87 florida v. georgia, 58 u.s. 478, (1854). notably, maryland v. louisiana, supra note 78, which the 2018 and 2024 opinions rely upon to support their integration of the federal government into the interstate proceeding, makes no mention of this historical event to support its finding that the federal government is entitled to make a case for “distinctively federal interests” in interstate original jurisdiction hearings. additionally, neither the 2018 nor the 2024 opinion mentions this historical fact about the florida v. georgia opinion. although justice gorsuch acknowledged the sometimes unconventional structure of original jurisdiction interstate hearings in his 2018 majority in dicta. “our role in compact cases differs from our role in ordinary litigation. the constitution endows this court with original jurisdiction over disputes between the states. and this court's role in these cases is to serve as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force. as a result, the court may, [i]n this singular sphere… regulate and mould the process it uses in such a manner as…its judgment will best promote the purposes of justice.” texas v. new mexico, supra note 77 at 412 (citations and internal quotation marks omitted). gorsuch noted that “[u]sing that special authority,” the court “sometimes permitted the federal government to participate in compact suits to defend ‘distinctively federal interests’ that a normal litigant might not be permitted to pursue in traditional litigation.” 82 brandeis university law journal 2024-2025, volume 12 could raise issues neither of the states wanted addressed.88 despite the fact that the intervention of the attorney general might have led to a settlement neither of the party states wanted, and the fact that this matter was a dispute between two states, the court felt that the attorney general’s attendance was vital to ensuring that federal interests were defended.89 if compacts are federal law, then it is reasonable to allow the federal government to be represented in compact disputes. but if compacts are also contracts, this poses a major impediment upon the ability of a compact dispute’s party states to procure expeditious and amicable settlements congruent with those awarded in traditional contractual disputes. thus, the duality imposes a legal methodology antithetical to the timely amelioration of compact disputes by hampering these contractual disputes with evaluations of the interests of nonparties. specifically, the supreme court has come to examine federal interests as a distinct factor in the court’s interrogations of interstate compact disputes because of the federal nature of compacts post-cuyler. the contractual characterization of compacts falls short because america’s federal system requires the supreme court to examine federal interests. the fate of the contract’s parties, therefore, resides in the external interests of nonparties; this would not be the case in other contractual disputes. concurrently, the statutory identification of compacts fails because of the stringent constitutional limitations placed on the court’s original jurisdiction in interstate cases. overall, the court’s conduct in florida v. georgia is also worthy of examination for its postulations of the nature of congressional consent, a lingering unresolved element of the compact clause. in this way, florida v. georgia further muddles compact clause jurisprudence as this next section will demonstrate. 89 id. at 1429-1430. 88 congressional supervision of interstate compacts, supra note 31 at 1429. 83 brandeis university law journal 2024-2025, volume 12 b. political vs. constitutional consent: the mystery of equity and the nature of congressional consent under the duality as a result of silence embedded in the compact clause, there are still lingering questions about the nature of congressional consent. if the criteria for congressional consent are policy-based then congress can be more readily regarded as a party, as it was in west virginia. if the criterion is simply ensuring states are on the same page to conduct their affairs, congress can be conceived of as a notary as it was in central railroad. if congressional consent is an evaluation of the constitutionality of the compact and its compliance with the federalist framework, as virginia v. tennessee’s just supremacy standard posits, then congress is tasked with considerations of constitutionality in its consent deliberations; despite the fact that the judiciary is otherwise entrusted with this kind of evaluation. the court affirmed in florida v. georgia that “a question of [the] boundary between states is…a political question, to be settled by [an interstate] compact made by the political departments of the government.”90 in this case, the court also opined that congressional consent “is obviously intended to guard the rights and interests of the other states, and to prevent any compact or agreement between any two states, which might affect injuriously the interest of the others.”91 in u.s. steel corp. v. multistate tax comm’n, the majority referred to these principles from florida v. georgia as dicta.92 in his dissent, however, justice byron white interpreted the principle of florida v. georgia as a binding truth in an attempt to neatly divide up interstate compact responsibilities 92 u.s. steel corp. v. multistate tax comm’n, 434 u.s. 452, 466 n.18. (1978). the majority opinion in this case is noteworthy for its expansion of the “just supremacy” standard and its contention that this standard is also applicable to compacts that create interstate agencies. see id. at 452–453. 91 id. 90 florida v. georgia, supra note 87 at 494. 84 brandeis university law journal 2024-2025, volume 12 between the courts and congress. justice white averred that “congress does not pass upon a submitted compact in the manner of a court of law deciding a question of constitutionality. rather, the requirement that congress approve a compact is to obtain its political judgment”.93 regardless of whether these elements of florida v. georgia were intended to be dicta or a compulsory roadmap for the evaluation of congressional consent, florida v. georgia highlights the weighty burdens the court imposes upon congress and congressional consent deliberations. florida v. georgia ostensibly tasks congress with evaluating equitability issues, in a compact, that have the potential of affecting non-signatory states by deeming these considerations “political.” irrespective of the complexity of the responsibility this theory delegates to congress and the ambiguity surrounding what distinguishes a “political” question from a “constitutional” one, this dichotomy is a commendable effort to distinctly define and characterize congressional consent. in the wake of the court’s opinion in cuyler and the emergence of the duality, however, this solution was diluted. this 93 id. at 486 (footnotes omitted). in this passage, justice white also stated that an interpretation of the compact clause that reads its mandate as one requiring states to seek “the political consent [of] congress affords that such consent may be expressed in ways as informal as tacit recognition or prior approval, that congress be permitted to attach conditions upon its consent, and that congressional approval be a continuing requirement.” as discussed in infra note 130, white’s conception of congressional consent as a “continuing requirement” is unsupported. additionally, his theory of congressional equitable oversight was nullified by the subsequent decision of the court in cuyler v. adams and the emergence of the duality; as well as by his failure to account for virginia v. tennessee’s implied consent doctrine in this aspect of his opinion. the implied consent doctrine is such that congress does not directly officiate every compact enacted to ensure they take an equitable form. justice white’s references to prior approval and tacit consent further demonstrate the instability of his proposal. nonetheless, white’s delegation of political oversight to congress and constitutional oversight to courts is worth discussing to decipher the nature of congressional consent. 85 brandeis university law journal 2024-2025, volume 12 dysfunctionality can be seen in the court’s 2010 opinion in alabama v. north carolina.94 according to alabama v. north carolina, congressional deliberations are also the sole venue where any equitability issues imposed upon a compact’s signatory states can be rectified. in alabama v. north carolina justice antonin scalia, writing for the court, declared that “an interstate compact is not just a contract; it is a federal statute enacted by congress. if courts were authorized to add a fairness requirement to the implementation of federal statutes, judges would be potent lawmakers indeed. we do not—we cannot—add provisions to a federal statute.”95 while the supreme court certainly cannot insert provisions into a federal statute, the court should still be able to adjudicate issues stemming from inequities in a contract and provide relief to any aggrieved parties. if compacts are a contract, then the states should be able to judicially redress grievances posed by the compact. however, despite the court’s concession that every contract imposes a duty of good faith and fair dealing upon the parties, the court has “never held that an interstate compact approved by congress includes an implied duty of good faith and fair dealing.”96 the fact that interstate compacts are an exception to this fundamental rule of contract-making further complicates conceptualizations of interstate compacts as contracts. alabama v. north carolina’s preclusion on equitable judicial intervention and judicial enforcement of an implied duty of good faith and fair dealing, safeguards largely guaranteed to parties in contract law, is a direct result of the court’s decision in cuyler. the court has rendered itself incapable of adjudicating and resolving inequities embedded in interstate compacts. in addition to this dilemma, the court demonstrated the incongruence of compacts and contracts on federalist grounds; the court deemed itself unable to read 96 id. at 351. 95 id. at 351–352. 94 alabama v. north carolina, 560 u.s. 330 (2010). 86 brandeis university law journal 2024-2025, volume 12 absent terms into an agreement of states.97 the court’s federalist objection highlights the incompatibility of contract law principles and interstate compacts. as, generally in contract law, courts are permitted to supplement agreements with incomplete or ambiguous terms by judicially filling these gaps to maintain the continuity and enforceability of the contract.98 it is the unique constitutional relationship between states, congress, and the courts that has led the court to deny states this recourse. yet, despite the court recognizing these structural conflicts of interest, the court remains the exclusive venue with original jurisdiction for arbitrations of interstate disputes.99 a court would not usually refrain from adjudicating a contract dispute because of who the notary was. but when it comes to interstate compacts, the court has abdicated its duty to equitably arbitrate interstate disputes because compacts are concurrently a contract between the party states and a federal statute; a contract between the parties and an imperative of the 99 alabama v. north carolina, supra note 94 at 344; u.s. const. art. iii, § 2, cl. 2. this constitutional provision explicitly delegates original jurisdiction of legal disputes between states to the supreme court; compact cases that are not intrinsically arbitrations of interstate disputes are heard throughout the federal court system, as a result of the evolution of the “federal question” doctrine highlighted in section c of this part. 98 u.c.c. § 2-204(3) (2002). 97 id. at 352. (“we are especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise were we to rewrite an agreement among sovereign states, to which the political branches consented.”) the court’s description of the branches who consent to compacts as “political” is noteworthy. in baker v. carr, 369 u.s. 186 (1962) the court provided some parameters for what a political question outside the court’s reach might look like. still, the term remains opaque in the context of compact law. in alabama v. north carolina, the court surreptitiously deemed questions of compact equitability “political” and pushed them squarely outside the domain of the court and into the custodianship of congress. the court delegated this responsibility, of ensuring equitability amongst the states, to congress despite the fact that the court possesses original jurisdiction for resolving interstate disputes (see infra note 99). 87 brandeis university law journal 2024-2025, volume 12 contract’s notary. this perception of congress as both an author and curator of compacts only emerged from the likening of compacts to congressionally-authored federal statutes in cuyler.100 thus, the duality doctrine is detrimental to the interests of party states and prevents the supreme court from performing its duties. this is especially disconcerting when one recalls the fact that the supreme court voluntarily absorbed compact disputes into the federal judiciary in a controversial maneuver in petty v. tennessee-missouri bridge comm’n. c. compacts as federal questions and the derivation of meaning under the duality people v. central railroad rejected the notion that compacts were federal laws and instead as contracts between the two states. central railroad did not regard compact disputes as federal questions and held that state courts could hear cases pertaining to them. as previously stated, new york v. new jersey’s “contract-law rule” is predicated on a chain of citations originating from justice frankfurter’s dissenting opinion in petty v. tennessee-missouri bridge comm’n, that a “compact is…a contract.” frankfurter’s ideological distance from the majority was a result of the majority’s finding that a compact dispute presented a federal question because of a compact and compact dispute’s interstate nature. justice frankfurter’s notion in petty, that the parties retain the ability to assign the meaning to the words that govern their obligations, stemmed from his desire to imagine compacts exclusively as contracts.101 101 petty v. tennessee-missouri bridge comm’n, supra note 60 at 285 (frankfurter, j., dissenting). (while justice frankfurter acknowledged that compacts presented a federal question, he argued that “a federal question 100 alabama v. north carolina, supra note 94. similar to justice white’s dissent in u.s. steel, this setup fails to account for the implied consent doctrine from virginia v. tennessee. this mechanism is such that congress does not actually serve as a curator of every compact, let alone serve as every compact’s author. 88 brandeis university law journal 2024-2025, volume 12 both justice frankfurter and the majority cite delaware river commission v. colburn’s holding that a compact presents a federal question.102 colburn overturned central railroad and held that a compact presents a federal question because a compact's congressional consent is bestowed through the enactment of a federal statute.103 it must be noted that colburn falls short because it fails to account for the fact that compacts could also be effectuated with implied consent under virginia v. tennessee in its emphasis on the prerequisite consent statute’s centrality; although colburn cited virginia v. tennessee to affirm its contention that “[t]he compact clause does not make the supreme court the final arbiter with respect to the interpretation of interstate compacts.”104 justice frankfurter argued that while colburn was correct in stating that congressional consent conferred a federal character to compact disputes, compacts concurrently possessed the intrinsic character of a contract. it would therefore appear that justice frankfurter’s definition of a compact, a contract where parties determine the meaning of the words, directly conflicts with cuyler.105 after cuyler, any effort of a single state to unilaterally alter the provisions of an 105 see supra notes 40 and 104. see also: reiser, infra note 109 at 1999. 104 id. at 423. a premise that was subsequently undermined by the regime discussed later in this section. 103 delaware river commission v. colburn, 310 u.s 419, 427 (1940). 102 id. at 277–280; 285 (frankfurter, j., dissenting). see supra note 38 for more details about the historical relationship between the localized approach perpetuated in central railroad and championed by frankfurter in petty with the federal “law of the union” doctrine concurrently promoted by the court in the 1851 wheeling opinion and in delaware river commission v. colburn (see infra note 103). while petty cited colburn, petty’s majority held that the interstate nature of compacts conferred a federal question to them, irrespective of the existence of a federal statute bestowing congressional consent. does not require a federal answer by way of a blanket, nationwide substantive doctrine where essentially local interests are at stake.”). 89 brandeis university law journal 2024-2025, volume 12 active compact–as congress can–risks encroaching upon the supremacy clause.106 under cuyler, compacts are understood to present federal questions because the compacts themselves are federal statutes. one justification for cuyler is that making compacts a matter of federal law ensures that there is a uniform interpretation and application of any given compact; cuyler unequivocally held that compacts would be dealt with as federal laws. but, in the case of contracts, different interpretations of the terms by the different parties do not inherently hinder the execution of the contract.107 hence justice frankfurter’s assertion that “in the interpretation of a contract, the meaning the parties attribute to the words governs the obligations assumed in the agreement.”108 furthermore, parties will typically specify within the contract which laws they wish to have govern the contract’s provisions.109 one of the reasons justice frankfurter articulated for his distance from the majority was that the party states had not given authorization to have their dispute heard in the federal court system, as the case arose because an individual had filed the suit against the compacting states.110 the eleventh 110 petty v. tennessee-missouri bridge comm’n, supra note 60 at 284–285 (frankfurter, j., dissenting). 109 eichorn, supra note 42 at 1406–1407; dana brakman reiser, charting no man's land: applying jurisdictional and choice of law doctrines to interstate compacts 111 harv. l. rev. 1991 (1998). 108 petty v. tennessee-missouri bridge comm’n, supra note 60 at 285 (frankfurter, j., dissenting). 107 eichorn, supra note 42 at 1406–1407. 106 bush v. muncy, 659 f.2d 402, 410–412 (4th cir. 1981). the supremacy clause (u.s. const. art. vi, cl. 2) affirms the supremacy of the federal government over the states. bush v. muncy is noteworthy because it adjudicated a lingering question of the interstate agreement on detainers, the compact at bar in cuyler that sparked the transformation doctrine. as noted on page 411 of bush v. muncy, congress approved the compact before states had ever drafted the compact’s language. nevertheless, the moment multiple states joined the compact, the compact became a matter of federal law and the supremacy clause prohibition took hold. 90 brandeis university law journal 2024-2025, volume 12 amendment to the federal constitution grants states immunity from lawsuits filed by the citizens of other states. one of the majority’s findings in petty was that, by signing onto the compact at bar, the signatory states had waived their immunity under this amendment. whereas, in justice frankfurter’s view, the suit could only reach the federal court system if the states individually authorized the suit to proceed.111 in deeming compact cases adjudications of federal questions, the majority in petty placed them squarely in the domain of federal courts; further eroding the foundations of central railroad.112 petty’s articulation of the federal nature of compacts would be carried over into the cuyler regime.113 thus, one area where the duality fails to forward expedient resolutions to interstate compact disputes is in its attempt to circumvent the issue of whether compacts present federal questions. by conceiving of compacts as federal statutes, one makes compact disputes the concern of federal courts exclusively. however, this relegation stifles the expeditious resolutions to compact disputes that could be reached as a result of the contractual character of compacts. in his dissenting opinion in petty, justice frankfurter analogized compacts to contracts to justify localizing control of compacts for states and to evade the “federal question” pronouncement. the majority in petty held that “the meaning of a compact is a question on which this court has the final 113 new york v. new jersey, supra note 7 at 920; reiser, supra note 109 at 1999. 112 petty v. tennessee-missouri bridge comm’n, supra note 60 at 278–280. see also: supra note 38. 111 id. at 275–279 for the majority’s rationale for the compact’s role as a waiver. until cuyler v. adams unequivocally deemed compacts federal questions, however, the question of whether a state waived their eleventh amendment protections by signing onto a compact was evaluated on a case by case basis. see frank p. darr, electric holding company regulation by multistate compact, 14. energy law j. 357, 366–368 (1993) and the cases cited therein. 91 brandeis university law journal 2024-2025, volume 12 say.”114 to reach this conclusion, the majority deferred to west virginia ex rel. dyer v. sims’ declaration that “[j]ust as this court has power to settle disputes between states where there is no compact, it must have final power to pass upon the meaning and validity of compacts.”115 the sims opinion was authored by frankfurter. he differentiated his dissenting opinion in petty from his majority opinion in sims by stating that sims was more narrow than how the majority sought to use it in petty; to confirm that all compact disputes should be arbitrated on the federal level because compacts fundamentally presented a federal question.116 regardless of which opinion correctly invoked sims, the issue of federal jurisdiction has been deleteriously rendered moot as a result of the duality. firstly, the debate over whether compacts present federal questions was superseded by the designation of compacts as federal statutes. secondly, while the federal court system has been made the domain of compact disputes, jurisdiction over derivations of the meaning of terms in a compact has been denied to both the parties and the court. as shown by alabama v. north carolina, the duality detrimentally altered compact law because the court cannot serve as the arbiter of a compact’s meaning without raising constitutional qualms for itself.117 the court effectively 117 see supra note 97. 116 petty v. tennessee-missouri bridge comm’n, supra note 60 at 284 (frankfurter, j., dissenting). 115 west virginia ex rel. dyer v. sims, 341 u.s. 22, 28 (1951). the central question in sims was whether a west virginia state court could impartially adjudicate a compact dispute arising between west virginia and its sister states. the supreme court held that the state court could not be permitted to be the arbiter of such a dispute and the court consolidated that authority inside the federal judiciary. this marked a further departure from the jurisprudence of central railroad wherein the supreme court deferred to the judgment of the new york state court of appeals. sims is also worth studying in the context of the dilemma the court faced in hinderlider v. la plata co. and the absorption of compact disputes into the jurisdiction of the federal bench (see supra note 38). 114 petty v. tennessee-missouri bridge comm’n, supra note 60 at 278. 92 brandeis university law journal 2024-2025, volume 12 rejected frankfurter’s roadmap for handling compacts like contracts by deeming compacts federal laws, but the court continues to analogize compacts to contracts when it is convenient as evidenced by the citation of frankfurter’s dissenting opinion in the post-cuyler era. concurrently, as shown in this section, the fact that jurisdiction over compact disputes now resides on the federal level means that party states cannot determine the meanings of the terms in the agreements they enter. while there has been an effort made to delineate between the responsibilities of congress and the court, the court has abdicated the prerogative it provided itself to derive meanings.118 thus, the duality proves further adverse to prudent public policy and expedient conflict resolution in its occlusion of who clarifies the meanings of the terms of a compact. one other matter that remains contentious in compact law is who can withdraw from a compact. this next section advocates extending this right to withdraw to congress using the framework espoused in previous sections. d. congress and the right to unilateral withdrawal whether congress is a party afforded the same prerogative to unilaterally withdraw, afforded to states by new york v. new jersey, remains unanswered. as previously explained, congress sometimes affords itself the ability to repeal its consent and alter a compact as a condition of its consent. congress has also occasionally limited its consent to a specified duration of time.119 while congress has historically had the opportunity to include language that permits its withdrawal of consent, there has never been an explicit judicial codification of this right. if congress is intended to be a party to a compact like states, then this exclusive prerogative of unilateral alterations poses an inequity because congress can alter the contents of a compact while individual states cannot. 119 heron, supra note 40 at 16. 118 see section b of this part. 93 brandeis university law journal 2024-2025, volume 12 the existence of this inequity further complicates the application of contract law principles to compact jurisprudence. regardless, at first glance, this privilege uniquely afforded to congress settles the query of whether congress can unilaterally withdraw its consent from a compact. if congress had to include these provisions to exercise this prerogative, congress did not intrinsically possess the right to withdraw its consent at will once a compact was ratified. instead, congress only retained this right when congress remembered to include these provisions. therefore, if a compact is silent on mechanisms of withdrawal at its ratification, one might deduce that congress withdrawing its consent is expressly forbidden. putting aside the fact that the implied consent doctrine means congress cannot always proactively codify these stipulations, this hypothesis is challenged by new york v. new jersey. one of new york’s arguments for binding new jersey to the compact was that there was a broader historical tradition of pre-1953 compacts remaining silent on unilateral withdrawal, but nonetheless being understood to forbid withdrawal. the court rejected this interpretation because several compacts ratified prior to 1953 contained provisions which explicitly prohibited member states from withdrawing. the court postulated that this language would have been unnecessary if, historically, a compact which was silent on withdrawal had presumptively been understood to forbid withdrawal.120 given this holding, congress ought to similarly be afforded the prerogative to withdraw consent from a compact which is silent on congressional withdrawal. in this way, congressional withdrawal conditions for consent can serve merely as recitations of a right congress invariably holds. there has been little jurisprudence assessing the constitutionality of the inclusion of consent withdrawal provisions. a federal court was tasked with adjudicating a question about the constitutionality of congressional conditions 120 new york v. new jersey, supra note 7 at 925-926. 94 brandeis university law journal 2024-2025, volume 12 for consent in tobin v. united states.121 this case arose from the controversies surrounding the port authority during the tenure of emmanuel celler as chair of the house judiciary committee. in tobin, the appellant argued that congressional consent was irrevocable once consent was provided because congressional consent irreversibly restored states to their full sovereignty to effectuate the obligations of any given compact.122 in this case, the court stated that no case existed which could affirm or dispute the notion that congress possessed a constitutional right to attach conditions related to repealing its consent; or alter the terms of a compact. ultimately, the court did not provide a definitive resolution to this discrepancy and limited its discussion of constitutional doctrine surrounding the compact clause and congressional conditionality. the court in this case did not wish to explicitly bestow this right upon congress because, by its own admission, the court had “no way of knowing what ramifications would result from a holding that congress has the implied constitutional power ‘to alter, amend or repeal’ its consent to an interstate compact.”123 the court in tobin also confessed that, if its opinion in tobin further addressed the retractability of congressional consent, the court had “[n]o doubt the suspicion of even potential impermanency would be damaging to the very concept of interstate compacts.”124 the underlying presupposition here is that the intention behind all interstate compacts is for them to serve as permanent agreements. perhaps the court in tobin was conflating impositional compacts with historical treaty compacts. regardless, new york v. new jersey would later undermine this assertion 124 id. 123 id. 122 id. at 273. (within this framework, the court in tobin clarified that the appellant meant “sovereign[ty] in the narrow sense of being free to conclude an interstate compact, not sovereign[ty] in the broad sense of being free of the constitution.”) 121 tobin v. united states, 306 f.2d 270 (d.c. cir. 1962). 95 brandeis university law journal 2024-2025, volume 12 through its formation of unilateral withdrawal mechanisms for states in compacts without a specified duration of time. the court in tobin stated that congressional inclusions of consent withdrawal provisions may have been permissible as an implied power. although the court cautioned that congress cannot confer a power that the federal government does not constitutionally possess upon itself, as a condition of its provision of consent. tobin’s declaration that congress cannot confer powers upon itself as a condition of congressional consent was supported by a citation of the case coyle v. smith. in coyle, the supreme court ruled that congress could not impose conditions relating to matters outside of its constitutional purview to provide states with consent for their objectives.125 while the majority opinion in cuyler omits any reference to tobin or coyle, cuyler overturns tobin because cuyler insulates compact consent from the jurisdiction of the coyle rule, while tobin subjects compact consent to the coyle rule.126 126 cuyler v. adams, supra note 6 at 439-40. (“the requirement of congressional consent is at the heart of the compact clause. by vesting in congress the power to grant or withhold consent, or to condition consent on the states' compliance with specified conditions, the framers sought to ensure that congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority. [see] frankfurter & landis,...[supra note 2 at] 694-695.”). the court’s citation of the seminal 1925 article is thought-provoking. on the cited pages, the 1925 article makes an argument about why congress is uniquely qualified to be making these consent judgments and attempting to address the issues dissected in section b of 125 coyle v. smith, 221 u.s. 559 (1911). coyle was adjudicated while oklahoma was seeking statehood. congress conditioned its consent to oklahoma’s admission into the union, as a state, upon oklahoma acquiescing to congress’s preferred location for oklahoma’s capital city. the supreme court ruled in favor of oklahoma which served as the precedent for the court in tobin to declare that “[i]f congress does not have the power under the constitution, then it cannot confer such power upon itself by way of a legislative fiat imposed as a condition to the granting of its consent.” 96 brandeis university law journal 2024-2025, volume 12 the transformation doctrine in cuyler undoubtedly poses a major divergence from the jurisprudence of coyle.127 if the transformation doctrine and the jurisprudence of cuyler means compacts are not subject to the coyle rule, congress cannot be accused of usurping powers the federal government was not delegated by incorporating conditional provisions into compacts that exceed congress’s delegated powers. this development creates a risk of congress potentially inserting unconstitutional conditions into compacts. therefore, this insulation of compacts from coyle’s controlling jurisdiction poses negative repercussions for those seeking a judicial curtailment of congress’s ability to usurp powers. but the exemption of compacts from the coyle rule is a positive 127 cuyler v. adams, supra note 6 at 452 (rehnquist, j., dissenting). (“[the transformation] proposition is…contrary to the established rule in other contexts. the most fundamental example was discussed in coyle v. smith…”). see generally id. at 450-455 for cuyler’s dissenting opinion. in this dissent, relying on u.s steel, future chief justice william rehnquist argued that the intent of the parties and the attainment of consent did not inherently convert state legislation into a compact as he believed the majority was suggesting. rehnquist instead sought to constrain the definition of a compact to the subject matter of the policy initiative and the policy initiative’s proximity to the federal government. justice rehnquist borrowed from engdahl, supra note 38, to advance his argument; though it is worth noting that engdahl’s article precedes u.s steel, in addition to preceding cuyler. for a broader analysis of rehnquist’s compact clause jurisprudence, see generally eichorn, supra note 42. this part. the 1925 article does not necessarily speak to the retractability or conditionality of consent here, instead merely addressing the intent of the framers to endow congress with the consent power. here, the 1925 article supposes that the consent mechanism was afforded to congress as a “republican transformation of the needed approval by the crown” to enter intercolonial arrangements under british law. the importation of this monarchical procedure coupled with the terseness of the compact clause likely created the anomalous ambiguities embedded in the nature and retractability of congressional consent in the case of interstate compacts. the situation was likely complicated further by the advent of judicial review and the formation of a dichotomy between political judgments and constitutional judgments as domains of the legislature and the courts, respectively. 97 brandeis university law journal 2024-2025, volume 12 distinction for those seeking a legalization of the retractability of congressional consent from compacts. if compacts are federal law, it would be logical to afford congress unique leeway to contemplate its consent in this area. the consent congress grants for admitting new states, into the union, mirrors the passive compacts states have historically entered. in this way, it is understandable that congress would not be afforded the capacity to withdraw its consent to statehood because that would pose tremendous implications for the status of a state’s sovereignty and the stability of political and social dynamics throughout the country. nonetheless changing circumstances in the underlying exigence of a compact, and the protective capabilities the compact clause was designed to enshrine, necessitate providing congress the right to retract its consent.128 new york v. new jersey affords states the capacity to unilaterally withdraw from active compacts, absent provisions pertaining to the duration of time a compact must remain intact, whereas states cannot easily withdraw from compacts that enforce boundary lines or map out water distribution.129 analogously, congress ought to be afforded a similar prerogative to withdraw its consent in situations where a compact has an active impact on the political sphere and the federalist system.130 130 in his article advocating increased federal control over compacts, supra note 36 at 685-686, congressman celler cited the case louisville bridge company v. united states 242 u.s. 409 (1917) to support the assertion that congress retains the right to periodically consider the status of its consent. louisville dealt with a contract between congress and a corporation rather than an interstate compact. as was the case in part ii, section b; the position of this article remains that laws governing individuals and corporations cannot inherently transitively be applied to states. in his dissent in u.s. steel corp. v. multistate tax comm’n, justice white cited celler as evidence the court had recognized that “congress must possess the continuing power to reconsider terms approved in compacts” (supra note 92 at 486 n.10). white also cited pennsylvania v. 129 see supra notes 51-52. 128 congress and the port of new york authority, supra note 31 at 816. 98 brandeis university law journal 2024-2025, volume 12 the supremacy of the federal government would certainly be threatened if congress could not withdraw consent from a compact and instead had to remain stagnant as states undertook policy objectives in interstate capacities for indefinite periods of time. furthermore, in the wake of the court’s decision in texas v. new mexico and colorado, there is even more of an impetus for the supreme court to rule that congress bears the right to withdraw its consent to a compact; irrespective of the nature of interstate compacts as contracts. ultimately, it is rational to enshrine a retention of the right to withdraw from compacts to congress in subsequent cases. just as a scenario in which states cannot withdraw from a compact or let a compact go dormant is dystopian, a scenario in which congress cannot withdraw its consent is dystopian. if the de facto and de jure reality is that compacts are contracts in contemporary jurisprudence, it would be illogical for courts to retain a preclusion on congress’s capacity to withdraw its consent. it is inequitable for some parties to retain the right to unilaterally withdraw from an agreement while others remain indefinitely bound to it. additionally, if compacts are acts of congress, congress should be permitted to evaluate whether compacts should continue to remain in effect. new york v. new jersey codifies a right to unilateral withdrawal for states; congress should be afforded a similar right to withdraw its consent. iv. conclusion the interstate compact is an anomalous facet of american constitutional law with a unique purpose and an wheeling & belmont bridge co., 59 u.s. 421, 433 (1855) (white erroneously listed the year of the 1855 wheeling decision as 1856 in his dissent). in the 1855 opinion, “[t]he question…[wa]s whether or not the [interstate] compact can operate as a restriction upon the power of congress under the constitution to regulate commerce among the several states” in the area of a compact’s domain. this is markedly different from a verdict on congress’s right to withdraw or modify the consent it provides to a compact. nevertheless, justice white’s discussion of this particular issue was dicta. this question remains in need of a definitive answer. 99 brandeis university law journal 2024-2025, volume 12 anomalous ratification process. as a result of the distinctiveness of compacts, a perennial issue in american history has been ascribing them a coherent body of law for judicial dispute resolution. in cuyler v. adams, the supreme court ruled that compacts are federal laws. at the same time, the supreme court has defined compacts as contracts between states eligible for adjudication using contract law principles. in new york v. new jersey, the court held that the “contract-law rule” permits states to unilaterally withdraw from compacts lacking a set duration of time or explicitly codified withdrawal mechanisms. presently, both cuyler v. adams and new york v. new jersey are binding precedent. therefore, compacts possess a dual status as contracts and statutes. this duality is ineffective for elucidating remaining ambiguities posed by the compact clause. the framers designed the constitution to limit the power of the national government by building the principles of federalism, democracy, and a separation of powers into their new nation.131 this article has demonstrated that each of these constitutional norms are threatened by the supreme court’s jurisprudence pertaining to the compact clause: the supreme court’s dual-conception of interstate compacts as state-based solutions to localized problems and as congressional policies challenges the principle of federalism. virginia v. tennessee held that not all compacts require the involvement of congress and that some could even attain the implied consent of congress. concurrently, cuyler declared that all compacts are federal law and virginia v. west virginia asserted that congress can intervene to ensure a compact is carried out. these cases, taken together, blur the lines between state and federal government and endanger the federalist checks which undergird the united states. the permanency of compacts juxtaposed with the impermanence of governmental administrations and the exigencies of their policy imperatives highlights the 131 see supra note 37. 100 brandeis university law journal 2024-2025, volume 12 incompatibility of the compact clause with democratic intuitions. this incompatibility with democratic values plagues compacts whether compacts are statutes, contracts, or both. it was not until new york v. new jersey that states were afforded the opportunity to unilaterally withdraw from obligation-imposing compacts to comport with the changing nature of policy issues and the mandates of voters.132 even so, the continuity of the cuyler doctrine means that states undertaking a compact are executing federal laws. thus, states withdrawals from compacts amount to states nullifications of federal law. in this way, the duality doctrine imposes tremendous strains on the constitutional and political infrastructure of the united states. even in alabama v. north carolina, where the court expressly worked to reach its decision in the manner that best comported with the duality, the court took no issue with the inclusion of a provision in the compact at bar permitting states to withdraw from the compact by enacting laws to repeal it.133 if a compact was merely a contract, then there would be no need to further examine the court’s apathy to this provision’s inclusion. but a compact is also a federal statute, and this provision invited a state to enact laws that discontinued the state’s participation in the execution of federal laws. if compacts were merely contracts, these measures would exclusively constitute withdrawals from contracts. since compacts are also statutes, these withdrawals are state nullifications of federal statutes.134 134 the court in alabama v. north carolina had the liberty to comment on the withdrawal provision despite its contention that courts could not alter 133 alabama v. north carolina, supra note 94 at 351-352. the court presupposed that north carolina could withdraw from the compact in this case and referred to the compact’s enumerated procedures for withdrawal as the basis for this presupposition. the court specifically assessed whether north carolina’s withdrawal was in “bad faith.” this was discussed in part iii, section b of this article; the court found that an interstate compact does not inherently confer a duty, upon the parties, to act in good faith. 132 see supra note 52. 101 brandeis university law journal 2024-2025, volume 12 as for the separation of powers doctrine, the supreme court has been reluctant to decide whether congressional consent is a political consideration or a constitutional one. under virginia v. west virginia and florida v. georgia, the consent power is policy-based and a political consideration; and under virginia v. tennessee, that power is constitutionally-based as shown by the just supremacy federal statutes. the precedent that the court in alabama v. north carolina relied on to make this determination held that “[o]nce congressional consent is given to an interstate compact as required by the compact clause, the compact is transformed into a law of the united states, and unless the compact is unconstitutional, no court may order relief inconsistent with its express terms.” texas v. new mexico, 462 u.s. 554, (1983) (emphasis added). a clear exception is outlined in this rule because a state effort to nullify a federal law—as compacts are—would amount to a violation of the supremacy clause of the constitution. (see supra note 106 for an overview of the supremacy clause.) but because of the duality’s concurrent conception of compacts as contracts, where withdrawal provisions are permitted, the court in alabama v. north carolina took no umbrage with these provisions irrespective of their dubious constitutional foundations. the court in new york v. new jersey expanded the right to withdrawal to compacts lacking expressly codified withdrawal provisions. see generally parts ii and iii of this article for a discussion of the impact of the new york v. new jersey decision in this light. the realities of any given compact’s dissolution may differ on the basis of a number of criteria, including whether a compact launched an interstate agency; nonetheless, this proliferation of compact withdrawal capabilities remains concerning as state initiations of withdrawals from compacts invariably constitute nullifications of binding federal statutes. former new jersey governor chris christie was initially hesitant to sign the bill commencing new jersey’s withdrawal from the compact, at bar in 2023’s new york v. new jersey, because he believed that such an action was in violation of federal law. governor christie ultimately signed the bill immediately prior to his departure from the governor’s office in 2018. christie’s reservation further demonstrates the ambiguities perpetuated by the duality and the negative repercussions the duality poses for governmental affairs. ryan hutchins, christie, reversing himself, signs bill to abolish waterfront commission, politico (january 15, 2018), https://www.politico.com/states/new-jersey/story/2018/01/15/christie-revers ing-himself-signs-bill-to-abolish-waterfront-commission-189692. 102 https://www.politico.com/states/new-jersey/story/2018/01/15/christie-reversing-himself-signs-bill-to-abolish-waterfront-commission-189692 https://www.politico.com/states/new-jersey/story/2018/01/15/christie-reversing-himself-signs-bill-to-abolish-waterfront-commission-189692 brandeis university law journal 2024-2025, volume 12 standard. while the policy-based doctrine poses federalist issues, the virginia v. tennessee approach poses separation of powers issues. virginia v. tennessee’s approach presumes congress has the capacity to make evaluations of the constitutionality of legislation by evaluating a compact’s impact on the constitutional system and the preservation of the federal government’s supremacy. while the supreme court is afforded original jurisdiction for interstate disputes in all other contexts, virginia v. tennessee uniquely positions deliberations surrounding the constitutionality of an interstate compact within the purview of congress. this framework affords congress discretion in a subject matter, evaluations of constitutionality, where congressional deference is not otherwise typically provided. additionally, virginia v. tennessee’s implied consent doctrine means that congress does not always even directly make these evaluations despite being tasked with them. in the wake of cuyler, this means states can enact laws of congress without the direct consent of congress. while these prerequisite evaluations have been reserved for congress, the court has consolidated jurisdiction over disputes surrounding active compacts in the federal court system. this was the result of delaware river commission v. colburn, west virginia ex rel. dyer v. sims, and petty v. tennessee-missouri bridge comm’n; these cases were decided during the 1940s and 1950s as part of a national shift favoring the interstate compact as a policy solution. these cases centralized interstate compact disputes on the federal level to adapt to the changing political landscape. after cuyler in 1981 and the emergence of the duality, however, this situation proved disastrous for those seeking expeditious judicial resolutions of contractual disputes under a compact. this is because the court cannot effectively balance both of the characteristics a compact embodies. in new york v. new jersey, the court veered too close to the contract view of compacts by enumerating withdrawal 103 brandeis university law journal 2024-2025, volume 12 privileges at the expense of the continuity of federal law. in texas v. new mexico and colorado, in 2024, the court veered too far in the direction of the statute characterization. the court granted the federal government the ability to prolong a dispute for which the compacting states had already reached an expeditious settlement. when the court tries to acknowledge both of these attributes, the court fails to deliver decisive jurisprudence as evidenced by the opinion in alabama v. north carolina. as stated, the court permitted the inclusion of a withdrawal provision in the compact at bar that amounted to a state nullification of a federal statute; but the court also rendered itself incapable of ensuring that compacts comport with contractual principles of equity and fair dealing because compacts possess the legal status of federal laws. thus, given the presence of these issues and the implications they continue to pose for american constitutional law and public policy, the frameworks surrounding interstate compacts pose ambiguities that require amelioration. 104 online version -volume 10, issue 2 brandeis university law journal spring 2023, volume 10, issue 2 dedicated to judah marans ’11 we are incredibly grateful to the brandeis law journal’s founder, judah, for creating this forum for discussion and learning in and around the legal field. his creation of the journal enables and empowers us to do our work and learn today. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. judah’s contribution to the brandeis community will forever be remembered and greatly appreciated. we are honored to continue this legacy and maintain this incredible and vibrant forum for legal discussion and debate. we extend our deepest sympathies to his family and friends throughout the brandeis community. may his memory be a blessing. mission statement the brandeis university law journal aims to provide brandeis university with the opportunity to contribute to discussions of law and law-related topics with the publication of undergraduate scholarship. we hope to aid in the furtherance of brandeis university’s motto of “truth even unto its innermost parts” through publishing rigorously researched articles and engaging in respectful, thoughtful, and insightful debates. this journal is both a publication and a constant work in progress as we are grounded in an undergraduate academic environment and constantly trying to learn, grow and improve. our journal provides a platform for intellectual growth and debate where academic scholarship can flourish. we focus on academic excellence, encouraging expressions of scholarship, and encouragement of educational purposes. disclaimer the contents of this publication do not necessarily reflect the views or stances of the brandeis university law journal association nor of the brandeis university or of any individuals or groups associated with either institution. 1 brandeis university law journal spring 2023, volume 10, issue 2 submissions our journal requires all submissions of articles and abstracts to be: 1) original and of concern to the brandeis community. 2) related to law and/or using legal reasoning. we welcome submissions for publication at any time. we highly encourage undergraduate scholarship. we will work with undergraduates interested in learning about legal writing, research, and scholarship to develop these skills. all those interested in involvement through writing, editing, or administrative roles are welcome. please send any questions, submissions, or inquires to deislawjournal@gmail.com and visit our website at https://brandeislawjournal.wordpress.com 2 mailto:deislawjournal@gmail.com https://brandeislawjournal.wordpress.com brandeis university law journal spring 2023, volume 10, issue 2 archive to access the brandeis university law journal archives and explore past and current issues, articles, as well as other relevant information, kindly visit the brandeis university library archives at: https://journals.library.brandeis.edu/index.php/blj or visit our website: https://brandeislawjournal.wordpress.com brandeis university law journal ©2023 issn: 22154-4468 e-issn: 2836-7251 3 https://journals.library.brandeis.edu/index.php/blj https://brandeislawjournal.wordpress.com brandeis university law journal spring 2023, volume 10, issue 2 brandeis university law journal spring 2023 volume 10 issue/no. 2 brandeis university law journal ©2023 editor-in-chief gonny d. nir copy chief emanuel (manny) glinsky operations manager publisher and treasurer noah risley peyton gillespie layout editor library liaison dalya koller noah levy faculty librarian faculty librarian wendy shook mark paris faculty advisor faculty advisor professor rosalind kabrhel professor daniel breen senior editors: daniel block, gianna bruno, lauren davis, maggie dipierdomenico, julia fair, peyton gillespie, emanuel (manny) glinsky, lauren lederer, gonny d. nir, sophia reiss, noah risley junior editors: athena bai, alyssa golden, eamonn golden, dalya koller, noah levy, tavorr vaxman-magid, hana miller, vishni samaraweera, naomi stephenson, ada wagar, paul weir 4 brandeis university law journal spring 2023, volume 10, issue 2 contents editor-in-chief’s letter......................................... 6 articles antitrust: what is it good for? the story of a failed merger between penguin random house and simon & schuster and its implications for the labor market, gonny nir...................................... 7 the russia-ukraine conflict: obstacles to accountability, allison weiner............................ 37 a game of telephone: the evolution of conspicuous service in new york state, zachary miller................................................................... 63 op-ed a restoration of voting rights & humanity, brandon samuels.................................................86 senior spotlight regulation: realities and possibilities, sophia reiss.....................................................................98 5 brandeis university law journal spring 2023, volume 10, issue 2 editor-in-chief’s letter dear reader, your executive board is proud to present the spring 2023 issue of the brandeis university law journal. in line with our journal’s mission, this issue features five undergraduate-penned articles exploring important legal questions. these articles reckon with issues from the international community’s capacity to hold nations accountable for potential war crimes to a historical review of new york state’s conspicuous service laws, and an op-ed advancing an original super-statute that restores voting rights to the formerly incarcerated. the brandeis university law journal is unique in two respects. it is the first, and remains among the only, law journals in the country that is unaffiliated with a law school; and it is written, edited, and published by undergraduate students. as i often find myself repeating to new readers: this is a local operation. this journal is produced by a body of dedicated undergraduates who voluntarily contribute their scarce time to advance brandeisian undergraduate scholarship in national discussions concerning the law. the production of this issue would not have been possible without the contributions of our authors. their hard work in writing these five articles and their willingness to routinely revisit their work over the course of our rigorous editing process is deserving of utmost praise. additionally, our dedicated team of editors, who have so generously lent their time and skill to edit these articles is vital to maintaining the quality of writing presented in the following pages. their contributions are invaluable, and the executive board is indebted to their hard work. the current members of the executive board are worthy of many thanks, as their work in making the operations of the journal run smoothly have made this transitional semester much easier than it may have otherwise been. subsequently, we wish to thank the former members of the executive board, especially our former editor-in-chief and copy chief, sophia reiss and lauren davis. we will miss your guiding hands and are ever aware that were it not for sophia’s determination, this journal may have never been revived. the executive board would also like to thank our faculty advisors, professors breen and kabrhel, whose expertise has been essential to keeping the journal faithful to its original mission established by judah marans. furthermore, we thank the student union’s allocation board for contributing the funds needed to publish our journal. lastly, on a personal note, i would like to thank my copy chief, emanuel glinsky. manny, you are my editorial-rock. i could not do this job without you. your dedication to our work, trust in my leadership, and willingness to always be candid have made me a better leader. thank you. sincerely yours, gonny d. nir editor-in-chief 6 brandeis university law journal spring 2023, volume 10, issue 2 antitrust: what is it good for? the story of a failed merger between penguin random house and simon & schuster and its implications for the labor market gonny d. nir1 for the last forty years, antitrust cases have largely been argued on the basis of consumer welfare. this basis has enabled firms to excuse practices–no matter how pernicious–if they can show that such practices reduce prices or increase the value of the goods and services they offer to consumers. in the fall of 2021, the department of justice filed a complaint which alleged that a proposed merger between penguin random house llc and simon & schuster inc. improperly stifled competition in the market for best-selling books and reduced author advancements within the same market. in december of 2022, the united states district court for the district of columbia enjoined the doj’s complaint. this article examines the threat that monopsonies present in labor markets; it argues that a shift in antitrust enforcers’ focus from the sell side of a market to its buy side can bolster economic output and empower the labor force. i. the details behind the proposed $2.2 billion deal in november of 2020, penguin random house (prh), a wholly-owned subsidiary of the german media mogul bertelsmann se & co., announced its bid to acquire simon & 1 brandeis university undergraduate, class of 2025, editor-in-chief of the brandeis university law journal. 7 brandeis university law journal spring 2023, volume 10, issue 2 schuster inc. (s&s) from its parent company viacomcbs inc.2 prh proposed to buy s&s for $2.175 billion, a reported “premium” against other bidders looking to purchase the prestigious publishing house.3 at the time of the acquisition’s announcement, prh—itself a product of a 2013 merger between penguin and random house—was, and remains to be, the largest book publisher in the united states.4 in its complaint filed in the district of columbia in november of 2021, the antitrust division of the department of justice recounted prh’s staggering extent of market share in us markets for best-selling books. the complaint uncovered that in the fiscal year of 2020, prh, through its ownership of 90 imprints,5 published over 2,000 new titles, amassing over $2.4 5 in the publishing industry, an imprint is a trade name of a smaller press that is owned by a larger publisher. imprints enable large publishers to create smaller “in-house” publishers that focus on specific genres or readership. for instance, penguin classics is an imprint of prh that specializes in printing classic works of literature. 4 julie bosman, “penguin and random house merge, saying change will come slowly,” the new york times, july 1, 2013. https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-an d-random-house-is-completed.html (accessed january 4, 2023). 3 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster,” the wall street journal, november 2, 2021. https://www.wsj.com/articles/justice-department-sues-to-block-penguin-ran dom-houses-acquisition-of-simon-schuster-11635866422?mod=article_inlin e(accessed december 28, 2022). 2 viacom cbs has, as of february 2022, merged with paramount inc., creating paramount global which is a subsidiary of national amusements inc.; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs,” the wall street journal, november 25, 2020. https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-bu y-simon-schuster-from-viacomcbs-11606268232?mod=article_inline (accessed december 27, 2022). 8 https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline brandeis university law journal spring 2023, volume 10, issue 2 billion in total revenue in the us market.6 consequently, as a report by the wall street journal found,7 between january and october of the same year, prh dominated sales in the market for printed books, accounting for 25 percent of all printed books sold in the us market.8 s&s, being the third-largest publisher in the united states,9 operates over 30 imprints in the us market. the company publishes over 1,000 new titles annually, leading it to amass over $760 million in revenues in 2020.10 from january to october of the same year, s&s accounted for 9.1 percent of printed book sales in the us market, with its sellers including some of the best-selling books of the year, such as mary l. trump’s memoir too much and never enough and john bolton’s the room where it happened: a whitehouse memoir.11 although the publishing house has enjoyed industry prestige for decades, it has recently garnered particular praise for its publishing streak of critically acclaimed political 11 benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 10 united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 8. 9 the second-largest publisher in the united states market is harpercollins, a subsidiary of news corp since 1987. harpercollins accounted for 11 percent of printed books sold in the us market in the fiscal year of 2020; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 8 in addition to its us presence, prh also operates 325 imprints in 22 countries; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 7 the journal is a wholly-owned subsidiary of news corp. 6 united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., case 1:21-cv-02886, united states district court in for the district of columbia: filed 11/02/2021, https://s.wsj.net/public/resources/documents/dojlawsuit1102.pdf (accessed december 27, 2022), 8. 9 https://s.wsj.net/public/resources/documents/dojlawsuit1102.pdf brandeis university law journal spring 2023, volume 10, issue 2 memoirs, award-winning biographies, and other best-selling works of non-fiction.12 subsequently, when the deal between two of the industry’s most influential publishing houses was announced, the antitrust division of the justice department (doj) quickly moved to block the merger. although the government’s swift action was not entirely surprising given the size of the proposed merger, the theories which the government deployed to block the deal did indeed come as a surprise to many.13 ii. the legal theories behind the case a. the consumer welfare standard the theories which the government deployed to argue against this merger notably depart from traditional antitrust arguments used before courts. for the last forty years, the use of the consumer welfare standard (cws) in the practices of law and economics has dominated, and therefore framed, debates over lawful mergers and acquisitions in courtrooms around the country. the cws is a measurement derived from market analyses which assesses whether actions that a firm(s) is apt to take within a given market—such as merging with a competitor—will raise prices, decrease economic output, or 13 in march of 2020, after viacomcbs announced its wish to sell s&s to another media company, s&s ceo jonathan karp, wrote to one of the publishing house’s best-selling authors,“i’m pretty sure that the department of justice wouldn’t allow penguin random house to buy us, but that’s assuming we still have a department of justice.” needless to say, as karp very quickly found out, we definitely still do have a department of justice and it was not pleased about the proposed merger; united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc, 6. 12 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 49. 10 brandeis university law journal spring 2023, volume 10, issue 2 suppress innovation within that market. the standard was developed by a group of economists and law professors at the university of chicago in the 1970s; it remains the dominant standard by which economists and antitrust lawyers assess whether the economic consequences incurred by consumers from a firms’ practices warrant government action.14 the cws is anchored by two premises: that buyers benefit from the lowering in cost of the goods or services they consume, and that buyers benefit from an increase in the value or quality of the products or services firms offer to them.15 the standard effectively illustrates where inefficiencies in a market may precipitate given a firm’s actions, but as former federal trade commissioner christine s. wilson wrote in a 2019 paper, “…if consumers are not harmed… antitrust agencies do not act.”16 under the cws, so long as the difference between what each consumer actually pays and their willingness to pay for a product or service is maximized, any actions that a firm may take, regardless of if those actions amount to the hyper consolidation of an industry or the loss of political autonomy among the populace, are excusable in court.17 under the cws, a challenged practice can only be defeated before a court were it to either raise the price that 17 wilson, “welfare standards underlying antitrust enforcement: what you measure is what you get,” 5. 16 wilson, christine s., “welfare standards underlying antitrust enforcement: what you measure is what you get,” luncheon keynote address at george mason law review 22nd annual antitrust symposium: antitrust at the crossroads? (arlington, va: united states of america federal trade commission, 2019), https://www.ftc.gov/system/files/documents/public_statements/1455663/wel fare_standard_speech_-_cmr-wilson.pd, 2. 15 robert bork. the antitrust paradox: a policy at war with itself (new york: free press, 1978). 14 the group most prominently consists of professors robert bork and richard posner from uchicago law and professor milton freedman of the stigler center at uchicago school of economics. 11 https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pd https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pd brandeis university law journal spring 2023, volume 10, issue 2 consumers would ordinarily pay for a good or service, or depress market-wide outputs for the products or services a market would otherwise provide to its consumers. however, in this case, the government’s theories to block prh and s&s’s merger did not rely on the cws. b. the government’s theory the doj argued that the proposed merger between prh and s&s would, in the market for best-selling books, i) disincentive publishers to offer superior editorial and marketing services to prospective best-selling authors whose publishing rights they hope to secure and,18 ii) depress the sum of advancements authors would receive for selling the rights to their books to a publisher19 a. therefore, reducing the number (and variety) of books published.20 notice that the real crux behind these arguments does not lie in a concern for the consumers of best-selling books, rather, the concern is primarily for the writers of best-selling books. these arguments are concerned with the laborers (i.e., the authors) in the market for best-selling books, notably, not the buyers of best-sellers. the sub-argument for the second major argument does account for the lessened volume and variety of materials buyers (i.e., readers) will encounter, but the subargument exists only in relation to the broader argument regarding author advances. advances are negotiated, up-front, 20 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 1. 19 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 2. 18 this is how publishers compete against each other. 12 brandeis university law journal spring 2023, volume 10, issue 2 quarterly21 payments that authors receive from a publisher upon waiving the publishing rights to a work and are an author’s primary source of revenue for a written work.22 hence, the sub-argument concerning a lessened quantity and variety of published material exists only in relation to the lessened wage authors would earn were this merger granted by the court. the arguments the doj made in its complaint were claims for the protection of a labor force, rather than a consumer block. in an ordinary antitrust case, the government is chiefly concerned with harms enacted upon a market when one firm gains substantial seller market power.23 in analyzing seller market power, the government’s chief suspicion lies with monopolies, and whether a merger of the proposed size of prh and s&s would monopolize an industry.24 however, in this case, the government was chiefly concerned with the status of a monopsony firm and its labor market power.25 arguments 25 benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 24 it should be noted here, that—in what is perhaps the most smirk-worthy distinction in law—it is not illegal for a firm to be a monopoly under the sherman act of 1890 (one of the two chief antitrust laws), but it is illegal for one firm to monopolize an industry. 23 market power refers to the ability of a single firm to raise the prices of its goods or services without losing sizable sales to its competitors; stevenson, betsey & wolfers, justin, principles of microeconomics 1st ed., (new york: worth publishers, 2021), chapter 14, section 14. 22 in the doj’s complaint, advancements were described as how authors “fund their writing and pay their bills.” united states department of justice, united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 2. 21 authors used to receive advancements in two payments. however, due to the consolidation of the publishing industry, publishers have been able to strike this schedule for payments because of increased leverage of authors’ literary agents. instead, because of their preference to pay less upfront, publishers prefer to spread the sum of an advancement over a series of quarterly payments made to authors for their work; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 45. 13 brandeis university law journal spring 2023, volume 10, issue 2 against monopolies are concerned with markets that are dominated by a single seller of a good(s) or service(s), whereas arguments against monopsonies are concerned with markets dominated by a single buyer of a good(s) or service(s). hence, the peculiarity of the government’s argument in this case is that its theory is concerned with a single buyer of labor in a market, rather than a single buyer of goods within that market.26 for the past half-century, the publishing industry has been subject to hyper-consolidation by five publishing houses (the big five): prh, harpercollins, s&s, hachette book group, and macmillan (named in descending order of market share).27 according to alexandra alter, a reporter for the new york times, such consolidation has “completely transformed the industry.”28 if one accepts the government’s argument, such consolidation enables the big five to adversely manipulate the conditions upon which they purchase their labor. this argument equates monopsonist harms to monopolist harms, looking to the labor rather than seller market to assess the damages of a merger. the argument advances that a firm the size of a consolidated prh and s&s can purchase its labor at a reduced cost without facing the risk of losing that labor to its competitors. the government argued that a firm with this extent of buying power in a given market is too big. this argument is only reached because of the argument that precedes it, one that is a more-traditional, pro-competition argument. the government’s first major argument, that the proposed merger would stifle competition between publishers 28 lauren hodges, christopher intagliata, & mary louise kelly, “federal judge blocks penguin random house from buying simon & schuster.” 27 lauren hodges, christopher intagliata, & mary louise kelly, “federal judge blocks penguin random house from buying simon & schuster,” npr, november 1, 2022, https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguinrandom-house-from-buying-simon-schuster, (accessed december 28, 2022). 26 rittenberg, libby & tregarthen, timothy. principles of microeconomics 2nd ed., (new york: flat world knowledge, 2008), ch. 14, section 14.1. 14 https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster brandeis university law journal spring 2023, volume 10, issue 2 to secure rights to a prospective best-seller, is much more in-line with traditional anti-merger arguments.29 this argument holds that a merger which would create a firm whose market share is nearly twice the size of its strongest competitor gives too much influence and control over the industry to one firm in a given market.30 such a firm, the government argues, could unfairly guide the trajectory of industry practices in their favor, reinforcing already high barriers of entry for new firms and choking existing competition among even the most prominent industry players.31 c. prh and s&s’s theoretical response in response to the government’s allegations, in their briefs to the court, prh and s&s reasoned that, i) a consolidated publishing house could have more leverage with associated retailers such as amazon and other large book distributors, ii) which would enable both authors and publishing houses to write and publish riskier material, print a greater quantity of content, and enlarge the house’s distributing capacity.32 in a statement for the journal, lorraine shanley, the president of market partners international, a consulting firm in the publishing industry, shared that the theory conveys that 32 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 31 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 5-6. 30 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 2. 29 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 11-17. 15 brandeis university law journal spring 2023, volume 10, issue 2 through its acquisition of s&s, prh could make s&s’s existing catalog more widely accessible for domestic and international markets,33 leading to higher sales for the “book behemoth.”34 the defendants argued that leverage against “the behemoth that has actually dominated the publishing industry for the past three decades [is] (and that dwarfs penguin random house—or prh/s&s, for that matter): amazon,”35 which enables publishers to take greater risks regarding what they publish. securing rights to a book, especially a prospective best-seller, is a risky and expensive process involving two traditional avenues: auctions or private negotiations.36 an author’s literary agent will hold an auction for the rights to a work, where publishers gather and place their bets for a book, hoping to out-bet their competitors by offering 36 initial bids at book-auctions among the big five can start from anywhere between $150,000 to $400,000, and catapult to well over $700,000. as publishers experience what is coined as “auction fever,” when their peers essentially validate their own senses regarding how much a book is worth. auction fever drives up the amount a book’s publishing rights are sold for, benefiting the author and their agent; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 11-14. 35 alex shephard, “the penguin random house-simon & schuster merger has been blocked. what now?” the new republic, november 3, 202, https://newrepublic.com/article/168444/penguin-random-house-merger-bloc ked, (accessed december 28, 2022). 34 chief executive of news corp, robert thomson’s words for the merger between prh and s&s. as was aforementioned, news corp owns harpercollins, which has since shown reinterest in acquiring s&s from viacomcbs following the failure of its merger with prh. such a merger would allot harpercollins and s&s an estimated 20 percent of market share in the us market for best-selling books. so, no self-interested irony on thompson’s end here; benjamin mullin & jeffrey a. trachtenberg, “penguin random house parent to buy simon & schuster from viacomcbs.” 33 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 16 https://newrepublic.com/article/168444/penguin-random-house-merger-blocked https://newrepublic.com/article/168444/penguin-random-house-merger-blocked brandeis university law journal spring 2023, volume 10, issue 2 a higher bid backed by superior marketing services such as book tours, day-time talk show appearances by the author, and other editorial perks that build public anticipation. these auctions are scenes of intense competition between rival publishing houses, making them crucial to authors looking to make a living off of their writing. because publishers know that it “[only] takes one passionate editor at another imprint to win that book away,”37 they are driven to offer more in advancements and perks to the author for publishing rights of the auctioned work. stephen king, the beloved fiction writer who publishes through s&s, testified at trial that under his understanding of the publishing industry, “consolidation makes it tougher and tougher for writers to find enough money to live on.”38 the average writer makes an estimated $20,000 annually from publishing their work, which, as mr. king rightly underscores, is “well below the poverty line.”39 literary agents also hold private, one-on-one negotiations with prospective publishers. even in these private sessions, however, publishers are cognizant of the fact that “i am negotiating exclusively, but i always have my competition in my rearview mirror,”40 as an agent’s foremost task is to secure the highest advancement with the best perks for their author. although there are “no other 40 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 13. 39 janwolfe and jeffrey a. trachtenberg, “trial ends in government challenge to penguin random house and simon & schuster merger.” 38 jan wolfe and jeffrey a. trachtenberg, “trial ends in government challenge to penguin random house and simon & schuster merger,” the wall street journal, august 19, 2022. https://www.wsj.com/articles/trial-ends-in-government-challenge-to-pengui n-random-house-and-simon-schuster-merger-11660932615?mod=article_inl ine (accessed december 27, 2022). 37 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 11. 17 https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline brandeis university law journal spring 2023, volume 10, issue 2 market inputs,”41 publishers will often preemptively offer agents a high advancement to entice them into doubting whether another publisher could match or exceed their offer.42 prh and s&s argued that the challenged merger would create a firm whose size can adequately ensure that authors are at liberty to write unconventional material which would otherwise not garner high advancements in an auction or private negotiation, thus increasing the quantity and variety of books which get published.43 this argument rests on the premise that backlists, which are books formerly purchased by a publisher that still earn a profit for every print, are profitable enough to negate any losses a publisher assumes by overpaying for a book’s publishing rights.44 although it should be noted here that a book “need not earn out its entire advance for a publisher to profit; publishers begin to profit at around 70 percent of earnout for most books.”45 prh, for example, has the largest backlist in the publishing industry, which is the “most significant”46 portion of its annual revenue. 46 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 16. 45 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 16 footnote 8. 44 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 16. 43 janwolfe and jeffrey a. trachtenberg, “trial ends in government challenge to penguin random house and simon & schuster merger.” 42 in these ways the market system, in publishing, is working exactly as it should. every good capitalist dreams of a market whose conditions are such that firms (publishers) must compete (via advancements) and innovate (through fashioning new editorial systems or offering more effective marketing strategies) to offer the best goods and services to its consumers (literary agents and their clientele) to gain customer loyalty and market share. perhaps there is hope for the market system, after all; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 13-16. 41 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 13. 18 brandeis university law journal spring 2023, volume 10, issue 2 midsize competitors confirm that publishers of the big five’s scale can take on riskier books or overpay for best-sellers because of this existing source of continual revenue.47 hence, the capital that the big five have enables them to entice authors to publish under their imprints, whilst covering any losses they may incur from a disappointing deal.48 if one accepts the defendants arguments, a firm the size of the proposed merger could empower authors to write more avant-garde material without fear that a publisher would decline to bid for the work due to the publisher’s doubts regarding whether the investment could be recouped. a consolidated firm has a larger distributive capacity which enables more books with unconventional themes or plots to circulate across markets. iii. the opinion of the court the case, which was heard before circuit judge florence y. pan in the united states district court for the district of columbia (d.c.),49 ultimately sided with the government. in an economic memorandum opinion, judge pan deduced that the merger between the defendants under section 7 of the clayton act, which in relevant part reads, “[that mergers and acquisitions whose effect] may be substantially to 49 judge pan assumed the former seat of now-justice ketanji brown jackson in the united states court of appeals for the district of columbia circuit on september 26, 2022; “florence y. pan,” district of columbia circuit, united states court of appeals, accessed january 11, 2022. https://www.cadc.uscourts.gov/internet/home.nsf/content/vl+-+judges+-+ fyp. 48 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, 16. 47 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 17-20. 19 https://www.cadc.uscourts.gov/internet/home.nsf/content/vl+-+judges+-+fyp https://www.cadc.uscourts.gov/internet/home.nsf/content/vl+-+judges+-+fyp brandeis university law journal spring 2023, volume 10, issue 2 lessen competition, or to tend to create a monopoly,”50 would likely “substantially lessen competition in the market for the publishing rights to anticipated top-selling books.”51 the opinion deployed two primary modes of analysis to reach its final judgment: the baker hughes burden test (1990) and the herfindahl-hirschman index (hhi). a. the baker hughes burden test the baker hughes burden test (or baker hughes as it will be referred to henceforth) is derived from the 1990 d.c. circuit court decision, united states v. baker hughes inc.52 the test is used to analyze whether a merger or acquisition between defendants would, in all likelihood, raise prices or produce anticompetitive effects in an affected market.53 baker hughes has a preliminary requirement that the government must fulfill as well as three subsequent steps:54 54 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22. 53 ordinarily, baker hughes is deployed to stop mergers or acquisitions on the sell-side of a given market. hence, its utility in mitigating the monopolization of industries. however, the government’s theory in this case is that “the combined defendants would exercise market power on the buy side of the publishing market, i.e., monopsony…. [but] the kinship between monopoly and monopsony suggest similar legal standards should apply to claims of monopolization and to claims of monopsonization”; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 21 footnote 13. 52 united states v. baker hughes inc., 908 f.2d 981, 982-83 (d.c. 1990). 51 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 80. 50 “the antitrust laws,” federal trade commission, accessed january 11, 2022. https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-l aws/antitrust-laws. 20 https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws brandeis university law journal spring 2023, volume 10, issue 2 i) at the outset, the government must point to the existence of a relevant market—followed by the three accompanying steps: a. by demonstrating excessive concentration within the relevant market, the test permits the government to “establish a prima facie55 case and a presumption of anticompetitive effects.”56 b. the burden then shifts to the defendants to show why non-ideal circumstances demonstrate that merely pointing to market concentration alone is not reliably indicative of the merger’s supposed anticompetitive effects. c. finally, if the defendants succeed in rebuttal, the burden shifts back to the government to ultimately persuade the court of the merger’s undesirable effects.57 the court found the government’s identification of the market for anticipated best-selling books in the us satisfactory in fulfilling the preliminary requirement for the baker hughes test. further, the court affirmed the government’s reasoning that hyper-consolidation within this market would result in “lower advances for authors of such books and less favorable contract terms”58 for the authors of best-sellers. at trial, the defendants confirmed the merger would result in “fewer books being published, less variety in the marketplace of ideas, and 58 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 23. 57 this so-called burden of persuasion remains with the government throughout the duration of the case; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22. 56 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 22. 55 meaning, on its face. 21 brandeis university law journal spring 2023, volume 10, issue 2 an inevitable loss of intellectual and creative output.”59 yet, the defendants contest that advancement sums would decrease following the merger. they argue that competition among existing publishers would go unaffected and that eventually, author advancements would actually rise because of the merged house’s increased access to capital and continuous revenue.60 defining a relevant market has two components: the government must identify the geographic market and the product market. in this case, both parties agreed that the relevant geographic market is that of publishing rights in the united states. however, the parties contested the boundaries of the product market.61 the government argued that the relevant product market at stake was that of publishing rights to anticipated best-selling books, being those that are expected to generate high revenue and produce a higher advancement for authors. following the government’s theory, the “targeted sellers against whom the merged defendants might lower the prices paid”62 are authors looking to sell rights to their works.63 63 it helps to understand that in the monopsony context, “[a] submarket exists when [buyers] can profitably [cut] prices to certain targeted [sellers] but not to others.” applied in this case, the submarket for best-selling authors could reasonably exist as—if one buys the government’s position—the consolidated parties could profitably cut the wages (i.e., the amount paid to authors in advancements) they pay to best-selling authors, but refrain to cut the wages of non-best-selling authors. united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 25. 62 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 25. 61 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 24. 60 refer to sub-section c of the second section in this article, pp. 7-10, for a detailed analysis of this rebuttal. 59 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 23. 22 brandeis university law journal spring 2023, volume 10, issue 2 the court primarily relied on qualitative practical indicia64 to outline the relevant product market.65 to draw the boundaries of the relevant product market, the court utilized the government’s threshold of a minimum of $250,000 (being the sum publishers pay in advances to prospective best-selling authors).66 the court found that books which meet this threshold, though only making up two percent of all book acquisitions in the us, account for 70 percent of advance spending by publishers.67 in the market for books which earn a minimum of $250,000 in advancements, the big five comprise 91 percent of the market share, while mid-to-small publishing houses make up the remaining nine percent. yet, in the market for books whose advancements are below the $250,000 threshold, the big five only hold 45 percent of the market share.68 such a difference between market share among the big five and mid-to-small sized publishing houses, alongside the common practice among publishers, that books which do receive advances at or above the threshold require the approval from senior members of the house, signal the probable existence of a submarket.69 in rebuttal, the defendants argued that defining a submarket by the price certain books garner for advances is 69 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 28. 68 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 27. 67 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 26. 66 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 26-33. 65 the court also engages with the “hypothetical monopsonist test” on pp. 40-43 of the memorandum opinion. although this discussion is worthy of further mention, it is beyond the reach of this article’s scope and page count. 64 a term derived from the supreme court’s 1962 case, brown shoe co. v. united states, 370 us 294, 325 (1962), used to describe signs or situations which render a hypothetical scenario likely. 23 brandeis university law journal spring 2023, volume 10, issue 2 insufficient to firmly establish the existence of a submarket of best-selling books. the defendants argued that “any correlation between advance level and expected sales shows only that books are ‘valued along a continuum.’”70 the court was unpersuaded by the rebuttal, underscoring that the $250,000 threshold serves as a necessary starting benchmark, which “’support[s] the appropriateness of regarding’ anticipated top-selling authors as a ‘distinct [seller] group’ that buyers can target.’”71 the court added that, in addition to the $250,000 threshold top-sellers typically meet, authors within this submarket have unique demands regarding the reputation of the publishers who distribute their books, the contract terms authors receive for working with particular houses, and the different competitive conditions these authors face due to the substantial share the big five control in the market for best-sellers.72 b. market concentration and hhi courts turn to analyses of market concentration to determine whether the effects of a merger or acquisition would substantially increase concentration within a given market. typically, markets comprised of many buyers and sellers—all 72 “it is precisely those specialized needs that make the authors of anticipated best-selling books vulnerable to targeting for price reductions. publishers of anticipated top-selling books know that such authors are not able to find adequate substitutes for publishing their books because of their unique needs and preferences. those publishers therefore can target authors of anticipated top-selling books for a decrease in advances (prices) because it is not as likely that such a price decrease will cause the publishers to lose a book”; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 36 and 33-34. 71 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 32. 70 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 32. 24 brandeis university law journal spring 2023, volume 10, issue 2 of which hold little to no market share or power—enjoy the greatest degree of competition. when there are relatively few firms competing amongst each other in a given market, coordinated behavior aimed at reducing output and raising profits above those of competitive thresholds is more common.73 in the 1963 decision united states v. philadelphia nat’l bank, the supreme court ruled that any merger or acquisition which results in a combined market share of at least 30 percent establishes a legal presumption that the merger likely violates section 7 of the clayton act.74 the court found that in the market for books at or exceeding the $250,000 threshold, prh holds 37 percent of the market share and s&s maintains 12 percent. conversely, in the market for books below the $250,000 threshold, that of non-best sellers, prh holds 16 percent, while s&s only hold 9 percent. consolidated, the two houses would hold a staggering 49 percent of the market for best-selling books, which is just over double the 24 percent market share that harpercollins, their direct competitor, would control.75 considering these statistics, it is important to note that rights to a book are sold to the highest bidder 93 percent of the time, while 60 percent of anticipated best-sellers (books that meet or exceed the $250,000 threshold) include a negotiated advancement sum.76 this means that not only do the rights to a best-seller often hinge on how much a publisher is willing to pay for them, but also that authors use this opportunity to amass the highest possible wage for their work. hence, the remaining 76 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 9. 75 hachette would own 10 percent, while macmillan would hold nine percent; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 44. 74 united states v. philadelphia nat'l bank, 374 us 321 (1963). 73 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 43. 25 brandeis university law journal spring 2023, volume 10, issue 2 small-to-medium independent publishers would only hold a 9 percent share of the submarket following such a merger. the court referred to the already “undeniable trend in consolidation”77 within the publishing industry, along with the substantial raise in market share the combined defendants would hold, to justify its presumption that anticompetitive effects would follow from a merger. to ground its final judgment on the post-merger effects of the market’s concentration, the court used the herfindahl-hirschman index (hhi), a measuring tool used by economists to evaluate the competitiveness of a market based on the number of firms and their size in a market. by summing the squared share of the market every firm holds within the market, the index provides an insightful analysis regarding the conditions of the market post-merger.78 in an hhi analysis, the figures of the post-merger hhi and the increase in the hhi from pre-and-post-merger indicate whether a merge or acquisition is detrimental to competition in a given market. any merger that increases the hhi of a given market by more than 200 points, with a post-merger hhi of over 2,500 is “presumptively anticompetitive.”79 in this case, the post-merger hhi would amount to 3,111 with an increase of 891 points.80 as the court noted, this is “well above the threshold required to trigger the [anticompetitive] presumption.”81 the court addended that in addition to this high market concentration, the merger would also likely harm authors by eliminating the 81 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 46. 80 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 46. 79 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 46. 78 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 45. 77 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 45. 26 brandeis university law journal spring 2023, volume 10, issue 2 yields82 of the direct competition between two of the most powerful publishers83 and increase the risk of coordinated anticompetitive conduct between the post-merger big four publishing houses.84 in settling its determinations regarding the detrimental effects to the best-seller submarket, the court concluded that a merger between prh and s&s would “distill the big five to a big four, with an overwhelmingly dominant top firm … controlling 49 percent of the market and dwarfing its nearest competitor. in the newly configured market, the top two firms … would have 74 percent market share,”85 making price leadership and coordination between firms a serious threat in an already highly consolidated market. iv. case conclusions & the decision’s implications a. the labor market the government’s victory in this case is not merely a win for the authors of best-selling books or small-to-medium sized publishing houses who compete with the big five. this victory could represent a pathway to strengthening labor protections through existing antitrust law. while the general public may not think of authors as traditional laborers for a slate of sociocultural reasons, writers are ultimately laborers. 85 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 61. 84 united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 48. 83 the government’s expert found that “prh is s&s’s closest competitor, and that s&s is a significant competitor to prh… if prh lowered advances, between 19 and 27 percent of its authors would divert to s&s; and that if s&s lowered advances, between 45 and 59 percent of its authors would divert to prh”; united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., 50. 82 editorial offerings and marketing techniques. 27 brandeis university law journal spring 2023, volume 10, issue 2 they participate in the labor market in the same capacity as every other worker in the greater labor force, and this case came down in their as well as the greater labor force’s favor. as former doj antitrust lawyer taylor owings told the journal, the case “demonstrates that the doj is going to test new theories in cases that focus on older industries … [this case is] an important one for setting an agenda in the labor space.”86 cases which advance enforcement actions against agreements between firms that restrain competition in labor markets is a significant drift away from the traditional consumer welfare notions of how antitrust law ought to be applied.87 the high-risk strategy is emerging as influential enforcers and scholars across the country are increasingly concluding that practices by firms which encroach upon workers’ ability to secure higher pay and better working conditions are, in fact, enforceable antitrust issues.88 a panel, hosted by new york university’s (nyu) school of law in may of 2022, saw scholars and enforcers discuss the challenges and prospects of bringing these kinds of cases before courts. professor steven c. salop of georgetown university law argued that the philadelphia national bank approach to labor 88 karen hoffman lent & kenneth schwartz,“expect aggressive antitrust enforcement and novel theories,” new york law journal, vol. 267, no. 89 (2022). https://www.skadden.com/-/media/files/publications/2022/05/expect_aggres sive_antitrust_enforcement_and_novel_theories.pdf. 1. 87 geoffrey a. manne, the president of the center for law and economics, told the journal in the response to the peculiar nature of the prh and s&s merger that, “labor markets just have not been the subject of much [antitrust] litigation”; jan wolfe, “key tests loom in 2023 for us antitrust enforcers,” the wall street journal, december 28, 2022. https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enfor cers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mo d=wtrn#cxrecs_s (accessed december 28, 2022). 86 brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 28 https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mod=wtrn#cxrecs_s https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mod=wtrn#cxrecs_s https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mod=wtrn#cxrecs_s brandeis university law journal spring 2023, volume 10, issue 2 restraints, which regards laborers as consumer-equivalences, blocks courts from balancing consumer benefits, such as lower prices, against labor harms, such as decreases in wages.89 such tactics appear viable even in the supreme court. in justice brett kavanaugh’s concurrence in ncaa v. alston (2021), he argued that defendants in antitrust suits ought not to be able to balance anticompetitive harms in one relevant market against the benefits deductible from another relevant market.90 kavanaugh wrote that “price-fixing labor is price-fixing labor. and price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”91 evidently, there are justices, even in the highest court, that may be receptive to these arguments. diana moss, president of the american antitrust institute, underscored at the nyu’s spring panel, that regulators’ “historic neglect”92 of the effect of firms’ anticompetitive practices in the labor market is a serious issue which requires immediate attention. moss advanced that this neglect has had depressive implications on the quantity of economic output and the liberty of workers within the labor force.93 in his most-recent book, how antitrust failed workers, professor eric posner94 of the university of chicago school of 94 in a simple twist of scholastic-fate, professor posner is the son of former-professor and judge of the ninth circuit, richard posner, who was 93 karen hoffman lent & kenneth schwartz, “expect aggressive antitrust enforcement and novel theories,” 3. 92 karen hoffman lent & kenneth schwartz, “expect aggressive antitrust enforcement and novel theories,” 3. 91 national collegiate athletic association v. alston et al., (2021), 43. 90 national collegiate athletic association v. alston et al., 594 us (2021). 89 professor salop’s areas of expertise include trade and regulation in the antitrust realm as well as law and economics, more broadly; karen hoffman lent & kenneth schwartz, “expect aggressive antitrust enforcement and novel theories,” 3. 29 brandeis university law journal spring 2023, volume 10, issue 2 law, argues that firms who are permitted to engage in monopsony behavior on the buy-side of markets, leading to an excessive increase in market concentration, create a loss in output and equity among workers within a given market.95 posner concludes that, contrary to the cws model, the savings in labor costs does not translate to lower prices for consumers. instead, these savings enrich employers and shareholders because the prices consumers pay are determined by frameworks of the product market, not the labor market.96 by exercising market power on the buy-side through purchasing inputs, such as goods & services and labor, at a reduced cost, employers are able to concentrate a market to maximize profits and cut wages without suffering losses. posner explains that market concentration enables a monopsony firm to pay workers wages between competitive and monopsony wages without losing this labor to other competitors because of its large holdings in the market. hence, workers must either accept the lessened wage, undergo expensive retraining, or retire.97 the options (or lack thereof) that workers in monopsony markets face ultimately hurt consumers and the economy as a whole because monopsony power enables firms to raise the prices of goods or services by reducing output or wages, just as in product markets. moreover, employers within a monopsonied market can more easily engage in explicit or implicit collusion to decrease output by further suppressing wages.98 by reducing labor costs through hiring fewer workers, and paying them less-than-competitive wages, consumers end up paying higher prices because of a decline in the production 98 posner, how antitrust failed workers, p. 77. 97 posner, how antitrust failed workers, 16-18. 96 posner, how antitrust failed workers, 23. 95 eric posner, how antitrust failed workers (oxford university press: cambridge, uk, 2021). 23 among the leading figures in the chicago school, and a voiceful advocate of the consumer welfare standard. 30 brandeis university law journal spring 2023, volume 10, issue 2 of goods and services labor monopsonists output. such actions not only reduce the number of workers willing and able to work for firms, but also reduce the quantity of economic output firms annually contribute to the american economy.99 b. antitrust as more than competition and lower prices for consumers on their podcast, capitalisn’t, from uchicago’s stigler center & booth school of business, economist luigi zingales and journalist bethany mclean discussed why we, as consumers, laborers, and citizens, should support robust antitrust enforcement. in an episode discussing the case, united states v. microsoft corp.,100 zingales and mclean advanced the following thesis: we should support antitrust regulation not necessarily because it benefits us economically. as in many cases, especially in the age of the information economy, antitrust regulations will not economically benefit citizens; but we should want these regulations because they are fundamental to securing our ideals of self-determination.101 cases such as the failed merger between prh and s&s show us that corporations which are permitted to grow, and then capture such an enormous share of a given market, pose a threat to the welfare of workers, the health of an economy, and, especially in this case, the liberty of citizens to think for themselves. 101 luigi zingales and bethany mclean, capitalisn’t, podcast audio january 14, 2021, https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitr ust-and-big-tech. 100 us v. microsoft corp., 253 f.3d 34 (d.c. cir. 2001). 99 eric posner, “the rise of the labor-antitrust movement,” competition policy international, november 29, 2021. https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitr ust-movement/ (accessed december 29, 2022). 31 https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/ https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/ brandeis university law journal spring 2023, volume 10, issue 2 the defendants in this case are two publishing houses who publish some of the most widely read and influential authors in the industry. prh publishes the obamas, john brown, and danielle steel, while s&s has published f. scott fitzgerald, bob woodward, and ernest hemingway. these are among the most influential writers and thinkers of modern thought. had publishers not provided the “venture capital”102 for these authors to write their ideas and circulate them through the public sphere, the country may have never been exposed to such critical material.103 to consumers, who are ultimately citizens, such a threat should not be dismissed. the power monopolists wield in labor markets have real consequences for the economic and intellectual autonomy of workers and ordinary citizens alike. the threat of a select few persons in private board rooms deciding who gets to circulate their ideas in the public sphere and under what conditions they may do so is not to be dismissed frivolously. who controls the basis upon which political, economic, and cultural issues are debated determines the trajectory of how those issues are settled in the public arena.104 if we claim to have deliberative, democratic ideals, then every citizen should have the opportunity to influence how these issues are presented and ultimately settled in the public sphere. the case between the government and prh and s&s demonstrates that we, as both consumers and citizens, must 104 à la foucault’s concept that it is not knowledge that is power, but rather, that power is knowledge; michel foucault, power/ knowledge: selected interviews & other writings, 1972-1977, ed. by colin gordon (new york: pantheon, books, 1980). 103 hence, diminishing the “breadth, depth, and diversity of our stories and ideas,” the remarks of assistant attorney general of the doj, jonathan kanter regarding the block of the merger between prh and s&s; brent kendall & jeffrey a. trachtenberg, “justice department sues to block penguin random house’s acquisition of simon & schuster.” 102 alex shephard, “the penguin random house-simon & schuster merger has been blocked. what now?” 32 brandeis university law journal spring 2023, volume 10, issue 2 come to think of antitrust as more than some brainy-economic area of law which only focuses on advancing consumer welfare. rather, we must come to conceive of it as a critical tool to bolster the strength of the broader economy and the health of our civic society. subsequently, antitrust enforcers must continue to ground their arguments in equating monopsony harms to monopoly harms to ensure that labor markets are competitive, productive, and ethical. 33 brandeis university law journal spring 2023, volume 10, issue 2 bibliography bork, robert. the antitrust paradox: a policy at war with itself. new york: free press 1978. bosman, julie. “penguin and random house merge, saying change will come slowly.” the new york times. july 1, 2013. https://www.nytimes.com/2013/07/02/business/media/ merger-of-penguin-and-random-house-is-completed.ht ml “florence y. pan.” district of columbia circuit. united states court of appeals. https://www.cadc.uscourts.gov/internet/home.nsf/conte nt/vl+-+judges+-+fyp. foucault, michel. power/ knowledge: selected interviews & other writings, 1972-1977. edited by colin gordon. new york: pantheon, books, 1980. hodges, lauren, intagliata, christopher, & kelly, mary louise. “federal judge blocks penguin random house from buying simon & schuster.” npr. november 1, 2022. https://www.npr.org/2022/11/01/1133375227/federal-ju dge-blocks-penguin-random-house-from-buying-simonschuster. hoffman lent, karen & schwartz, kenneth. “expect aggressive antitrust enforcement and novel theories.” new york law journal. vol. 267, no. 89 (2022). https://www.skadden.com/-/media/files/publications/20 22/05/expect_aggressive_antitrust_enforcement_and_n ovel_theories.pdf. kendall, brent & trachtenberg, jeffrey a. “justice department sues to block penguin random house’s acquisition of simon & schuster.” the wall street journal. november 2, 2021. https://www.wsj.com/articles/justice-department-sues-t 34 https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html https://www.cadc.uscourts.gov/internet/home.nsf/content/vl+-+judges+-+fyp https://www.cadc.uscourts.gov/internet/home.nsf/content/vl+-+judges+-+fyp https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline brandeis university law journal spring 2023, volume 10, issue 2 o-block-penguin-random-houses-acquisition-of-simon-s chuster-11635866422?mod=article_inline. mullin, benjamin & trachtenberg, jeffrey a. “penguin random house parent to buy simon & schuster from viacomcbs.” the wall street journal. november 25, 2020. https://www.wsj.com/articles/penguin-random-house-pa rent-near-deal-to-buy-simon-schuster-from-viacomcbs11606268232?mod=article_inline. posner, eric. how antitrust failed workers. oxford university press: cambridge, uk, 2021. posner, eric. “the rise of the labor-antitrust movement,” competition policy international, november 29, 2021. https://www.competitionpolicyinternational.com/the-ris e-of-the-labor-antitrust-movement/. rittenberg, libby & tregarthen, timothy. principles of microeconomics 2nd edition. new york: flat world knowledge, 2008. shephard, alex. “the penguin random house-simon & schuster merger has been blocked. what now?” the new republic. november 3, 2022. https://newrepublic.com/article/168444/penguin-rando m-house-merger-blocked. stevenson, betsey & wolfers, justin. principles of microeconomics 1st edition. new york: worth publishers, 2021. “the antitrust laws.” federal trade commission. https://www.ftc.gov/advice-guidance/competition-guida nce/guide-antitrust-laws/antitrust-laws. wilson, christine s. “welfare standards underlying antitrust enforcement: what you measure is what you get.” luncheon keynote address at george mason law review 22nd annual antitrust symposium: antitrust at the crossroads? arlington, va: united states of america federal trade commission, 2019. 35 https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/ https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/ https://newrepublic.com/article/168444/penguin-random-house-merger-blocked https://newrepublic.com/article/168444/penguin-random-house-merger-blocked https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws brandeis university law journal spring 2023, volume 10, issue 2 https://www.ftc.gov/system/files/documents/public_stat ements/1455663/welfare_standard_speech_-_cmr-wilso n.pdf. wolfe, jan. “key tests loom in 2023 for us antitrust enforcers.” the wall street journal. december 28, 2022. https://www.wsj.com/articles/key-tests-loom-in-2023-fo r-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx _testvariant=cx_168&cx_artpos=1&mod=wtrn#cxre cs_s. wolfe, jan and trachtenberg, jeffrey a. “trial ends in government challenge to penguin random house and simon & schuster merger.” the wall street journal. august 19, 2022. https://www.wsj.com/articles/trial-ends-in-governmentchallenge-to-penguin-random-house-and-simon-schuste r-merger-11660932615?mod=article_inline. zingales, luigi & mclean, bethany. capitalisn’t. podcast audio. january 14, 2021, https://www.capitalisnt.com/episodes/microsoft-1998-v s-google-2020-antitrust-and-big-tech. cases cited national collegiate athletic association v. alston et al., 594 us __ (2021). united states v. baker hughes inc., 908 f.2d 981, 982-83 (d.c. cir. 1990). united states v. bertelsmann se & co. kgaa, penguin random house, llc, viacomcbs, inc., and simon & schuster, inc., f.2d case 1:21-cv-02886 (d.c. cir. 2021). united states v. microsoft corp., 253 f.3d 34 (d.c. cir. 2001). united states v. philadelphia nat'l bank, 374 us 321 (1963). 36 https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pdf https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pdf https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pdf https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mod=wtrn#cxrecs_s https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mod=wtrn#cxrecs_s https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mod=wtrn#cxrecs_s https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testid=3&cx_testvariant=cx_168&cx_artpos=1&mod=wtrn#cxrecs_s https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech brandeis university law journal spring 2023, volume 10, issue 2 the russia-ukraine conflict: obstacles to accountability allison weiner105 the russia-ukraine conflict has left much of the international community increasingly concerned about violations of international law and the strength of the international legal system's ability to end impunity. with such a young international legal system, having yet to reach its 100th birthday, precedents are still fresh and being set with each new case. each investigation opened by the international criminal court (icc) encounters new uncharted territory. using legislation foundational to the modern international system, this article seeks to analyze and understand the unique impact of russian aggression against ukraine on the present-day system of international law. this evaluation provides a quasi-directive on how the international system can move forward in the fight against international impunity. i. introduction on february 24, 2022, russian armed forces invaded ukraine from multiple positions along the russian and belarusian borders.106 the invasion initiated over a year of hostilities between the two nations, with no end in sight as of this writing.107 the motivations of such an aggressive, extensive attack have been puzzling to many in the international community. the commitment of war crimes, as well as violations of international law, is of increasing concern 107 article was composed between february and march of 2023. 106 zinets, natalia, and aleksandra vasovic. “missiles rain down around ukraine.” reuters, february 24, 2022. https://www.reuters.com/world/europe/putin-orders-military-operations-ukr aine-demands-kyiv-forces-surrender-2022-02-24/ 105 brandeis university undergraduate, class of 2025. 37 https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/ https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/ brandeis university law journal spring 2023, volume 10, issue 2 as the war wages on. president vladimir putin’s continued reign over russia further exacerbates this concern, given the volatility he brings to the region and its impact on the international legal system of human rights and criminal prosecution. ultimately, the recent conduct of the russian federation continues to perplex the legal international community. though an “impulse for imperialism” emerging from russia is not necessarily unpredicted, scholars worldwide have deemed the invasion of ukraine “nonsensical,” thus, leading many in the international community to question its motivations.108 questions regarding why russian officials responsible for potential breaches of international law continue to hold positions of power remain unanswered. scholars are still attempting to understand the obstacles that have thus far prevented foreign entities from holding the russian government accountable. this article seeks to respond to these questions and provide a comprehensive understanding of the issues surrounding russian officials accountability under international law. ii. justification of the invasion with substantial russian aggression against ukraine beginning with the annexation of crimea, finalized in march 108 rieber, alfred. “russian imperialism: popular, emblematic, ambiguous.” the russian review 53, no. 3 (july 1994): 331–35, 332; guterres, antonio. “secretary-general’s remarks to press on the war in ukraine.” united nations, march 2022. https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretarygenerals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2am tyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3 nzc4oti2my41ljeumty3nzc4oti5nc4wljauma. 38 https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma brandeis university law journal spring 2023, volume 10, issue 2 2014, understanding the russian regime’s motivations is necessary to contextualize the 2022 invasion.109 prompted by euromaidan (also referred to as the ukrainian revolution of dignity), a collection of non-violent demonstrations in ukraine expressing pro-western sentiment, the annexation of the crimean peninsula was utilized as a means to shield russian separatists from alleged ukrainian aggression. when acting ukrainian president viktor yanukovych paused the signing of the european union (eu) association agreement to closer align ukraine with the eu, demonstrations across the territory emerged. these demonstrations protested the pause’s implications: hesitance to ally with europe coupled with the potential strengthening of relations with the neighboring russian federation.110 these protests, favoring stronger ties to the eu, initiated russian aggression and continue to contextualize the ongoing conflict between russia and ukraine. through euromaidan, vladimir putin and his inner circle of russian officials were able to exploit domestic nationalism and launch their moral justification campaign against ukraine. with cultural ties to world war ii so deeply ingrained in russian society, the kremlin effectively utilized the pro-western sentiment first expressed in ukraine during the revolution to pit russian citizens against their neighbors.111 utilizing the 111 often forgotten in the west is russia’s role in the conclusion of wwii and victory against the nazi party. however, domestically, russia’s efforts in the war have remained an incredibly strong point of pride. this has been fully integrated into russian society and strongly influences russian views of strength and bravery. veterans of the war are understood as the pinnacle of who a russian should strive to be. the nazi party is also considered a piece of western history considering the geographical positions of russia 110 zelinska, olga. “ukrainian euromaidan protest: dynamics, causes, and aftermath.” sociology compass 11, no. 9 (2017). 109 president of russia. “agreement on the accession of the republic of crimea to the russian federation is signed,” n.d. http://en.kremlin.ru/events/president/news/20604. 39 http://en.kremlin.ru/events/president/news/20604 brandeis university law journal spring 2023, volume 10, issue 2 legacy left by wwii, the kremlin effectively propagandized ukraine as a nazi puppet state under the control of the west, a strategy still applied today in the effort to justify the invasion.112 citing the western influence under which nazism developed and the colonial history of much of the western world, vladimir putin argues that the motions to align closer with europe, and thus, the west, invalidates the russian history and roots of many modern ukrainians. russian justification and propaganda have embellished the invasion as a second great patriotic war and redefined the nation of ukraine as a victim to nazism.113 taken together, the kremlin actively portrays the invasion of ukraine as a liberation rather than an intervention. iii. relevant legislation despite the ever-evolving state of international humanitarian law (ihl) and the innumerable list of treaties and statutes viable as a lens for investigation into russia, the scope of this article’s evaluation will focus on three integral pieces of international legislation: the charter of the united nations, the geneva conventions of 12 august 1949, and the rome statute. the charter of the united nations (un) forms the foundation of the international system, housing many of the rules and customs by which the international order operates. 113 arseniy, “nazism.” 112 the kremlin complex is located in moscow, russia and holds the president's main office and official residence. it is the central working venue of the presidential administration. however, it also operates as an international symbol of russian power and authority; kumankov, arseniy. “nazism, genocide, and the threat of the global west: russian moral justification of war in ukraine.” etikk i praksis--nordic journal of applied ethics, n.d. and the remainder of europe. with ukrainians advocating for much stronger allyship with europe, the kremlin began propagandizing ukraine as falling victim to western nazism. 40 brandeis university law journal spring 2023, volume 10, issue 2 the geneva conventions are a cornerstone in the institution of jus in bello, the permitted conduct of parties engaged in conflict.114 the conventions establish explicit regulations on permissible methods of warfare and the treatment of civilians, combatants, and prisoners. the rome statute is the founding document of the international criminal court (icc), the permanent international judiciary tasked with the criminal prosecution of those found in violation of international law. these three pieces of legislation establish a strong guide of possible violations committed in ukraine, as well as abridge what would otherwise be a complex nexus of international laws and regulations. a. the charter of the united nations signed in june of 1945, the un charter is fundamental to a contemporary understanding of international law and politics. establishing the basis for countless treaties, the charter instructs member countries on how to interact with one another and establishes the preliminary mechanics that the international organization uses to operate. in article 2, the un charter demands the recognition of all member states by member states.115 additionally, it obligates members to use “pacific means” in dispute settlement and prohibits the use of threat or force against the “territorial integrity or political independence of any state.”116 in addition to founding the united nations, the charter establishes the united nations security council (unsc), one of its several principal organs of which russia is a permanent 116 “charter of the united nations.” 115 “charter of the united nations and statute of the international court of justice.” united nations, june 26, 1945. 114 “international humanitarian law: answers to your questions.” international committee of the red cross, june 2020. 41 brandeis university law journal spring 2023, volume 10, issue 2 member and possesses subjective veto power.117 having currently cast nearly half of all vetoes in the unsc, russia has a strong precedent of unbridled veto usage, particularly in cases of genocide or war crimes; after several decades of relative silence, the russian federation reemerged as a central proponent of veto power when met with several unsc resolutions regarding syria.118 bound by their signature to the charter, members consent to the quasi-judicial status of the unsc and agree to execute, to the best of their ability, decisions and resolutions handed down by the council. the council is tasked with the maintenance of international peace and, due to their capability to refer international concerns to the icc, it is the primary vehicle through which the un and the court interact. the unsc is the most powerful of the principal organs, being the only one capable of creating legally binding orders to member countries. the presence of permanent members and their power to veto resolutions as they see fit further exemplifies the power of the council, isolating it from the general assembly and other organs with less cumulative power. 118 security council report. “un security council working methods: the veto,” december 2022. https://www.securitycouncilreport.org/un-security-council-working-method s/the-veto.php. 117 “charter of the united nations,” 18; it should be noted that the permanent members of the security council, and thus those given veto power were not selected arbitrarily. the un was designed just following wwii and deliberately granted greater influence to the allied powers, the victors of the war. however, the use of this veto power when reviewing potential resolutions to be adopted by the unsc is capricious. any of the five countries can veto a resolution for any number of reasons and they are not subjected to even a preliminary of justification for their choice. 42 https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php brandeis university law journal spring 2023, volume 10, issue 2 b. the geneva conventions of august 12th, 1949 the geneva conventions set the standard definition for war crimes as they are understood in ihl. with protections for wounded combatants, prisoners of war, and civilians caught in the crossfire of international conflict, the conventions codify several guidelines on the treatment of human beings during war time. the conventions consist of seven main bodies: four individual conventions and three additional protocols. considering both brevity and relevance, this analysis will exclusively address convention iv and protocol i. codifying the protections for civilians during war, convention iv addresses a multitude of civilian types in conflict and the protections guaranteed to them by the treaty. most notably, the protection of civilian hospitals and medical personnel, all children under the age of 15, women–specifically against any forms of sexual violence–, and the prohibitions of direct harm to any “protected persons” are listed in articles 18(a), 24, 27, and 32 respectively.119 protocol 1, “relating to the protection of victims of international armed conflicts,” further extrapolates on several ideas presented in convention iv and supplements areas the fourth convention may have missed, most prevalent being articles 48, 35, and 51.120 expanding on ideas presented in convention iv, article 35(b) prevents the deployment of weapons known to cause “superfluous injury and unnecessary suffering.”121 article 35(c) prohibits the use of warfare intended to cause widespread or severe damage to the natural environment.122 aiming to provide ample protections to 122 “protocols additional,” 30. 121 “protocols additional,” 30. 120 “protocols additional to the geneva conventions of 12 august 1949.” international committee of the red cross, august 12, 1949, 1. 119 “the geneva conventions of 12 august 1949.” international committee of the red cross, august 12, 1949. 43 brandeis university law journal spring 2023, volume 10, issue 2 civilians, article 48 prevents combatants from directing any operations against individuals or objects not-yet-distinguished as military.123 combatants are to assume civilian status until proven otherwise. arguably the most significant is article 51, which aims to provide complete and undeniable protections to civilians. 51(1) grants “general protection against dangers arising from military operations,” 51(2) prevents civilian populations or individuals from being the object of military attacks, 51(3) guarantees all protections to all civilians unless they join the military, and 51(4) entirely outlaws “indiscriminate attacks.”124 c. the rome statute establishing one of the several avenues for accountability to be evaluated, the rome statute is the founding document of the icc. tasked with the prosecution of individuals who have committed war crimes, crimes against humanity, the crime of genocide, and the crime of aggression, the icc is the only permanent international judicial body in the world with capacity to try world leaders for their atrocities. importantly, the statute establishes the standards for each of the crimes within the court’s jurisdiction. article 6 defines genocide as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to 124 “protocols additional,” 37. 123 “protocols additional,” 36. 44 brandeis university law journal spring 2023, volume 10, issue 2 prevent births within the group; (e) forcibly transferring children of the group to another group.125 article 7 outlines crimes against humanity as “any of the following acts when committed as a systematic attack directed against any civilian population: murder, forcible transfer, imprisonment, torture, sexual violence, or other inhumane acts of a similar character.”126 lastly, article 8 establishes war crimes as any grave breaches of the geneva conventions or “other serious violations of the laws and customs applicable in international armed conflict.”127 despite confusion surrounding the jurisdiction of the icc in the russia-ukraine conflict, article 12 outlines that with ukraine’s acceptance of icc jurisdiction in 2015, the court has the ability to prosecute any russian nationals convicted of statute violations committed on ukrainian territory.128 however, under article 15(5), the court is unable to charge individuals for crimes of aggression when these individuals are nationals of a non-member state.129 with respect to the crimes of genocide, crimes against humanity, and war crimes, any russian national found responsible for their commitment in ukraine since the 2015 declaration are eligible to be charged and tried by the icc. considering the role the court plays in ihl and criminal prosecution, jurisdiction is absolutely vital in overcoming obstacles to russian accountability. 129 “the rome statute," 10. 128 klimkin, pavlo. “declaration of the verkhovna rada of ukraine,” september 8, 2015; “the rome statute.” international criminal court, july 1, 2022. https://www.icc-cpi.int/sites/default/files/rs-eng.pdf. 127 “the rome statute,” 4-8. 126 “the rome statute,” 3-4. 125 “the rome statute,” 3. 45 https://www.icc-cpi.int/sites/default/files/rs-eng.pdf brandeis university law journal spring 2023, volume 10, issue 2 iv. international law violations in accordance with each of the preceding treaties, with evidence presented by various respected news outlets and the international independent commission of inquiry on ukraine (coi), and corroborated by a march 2023 icc arrest warrant for russian officials, it is evident that violations of international law are no longer speculatory. it should be noted that many of the crimes are outlawed by more than one treaty, subsequently leading to overlap, and specific criminal incidents will not be examined. the confirmation of violations of international law are vital, as accountability cannot be considered without a crime having been committed. a. coi on ukraine established by the united nations human rights council (unhrc), the coi issued its first report on war crimes in ukraine on october 12th, 2022. among offenses mentioned in the report, “war crimes, violations of human rights, and violations of [ihl],” were all found in ukraine.130 violations of protocol i of the geneva conventions include threats to use nuclear weapons, the launching of explosives far from the frontlines causing considerable civilian damage, the use of explosive weapons in civilian areas, indiscriminate attacks using explosives, frivolous attacks on civilians, and summary executions.131 breaching article 8(2) of the rome statute, the definition of war crimes, were the deployment of explosive weapons across civilian areas, 131 independent international, “report,” 6, 7, 8, 10. 130 independent international commission of inquiry on ukraine. “report of the independent international commission of inquiry on ukraine.” the united nations, october 18, 2022. https://www.ohchr.org/sites/default/files/2022-10/a-77-533-auv-en.pdf. 46 https://www.ohchr.org/sites/default/files/2022-10/a-77-533-auv-en.pdf brandeis university law journal spring 2023, volume 10, issue 2 forcible transfers, unlawful confinement, and inhumane treatment.132 violations of convention iv of the geneva conventions include the torture, ill treatment, and deliberate wounding of protected persons; the use of explosives in civilian areas; the deliberate endangerment of civilians; multiple commitments of sexual violence; and the lack of respect for the life of children.133 fundamentally, the grounds upon which russia waged war on ukraine lead to the violation of article 2 of the un charter. the annexation of crimea in 2014, the violent invasion of ukraine in february 2022, and the disingenuous referenda held in the kherson, zaporizhzhia, luhansk, and donetsk regions in september 2022 each violate the charter.134 they disregarded the obligation to pacific settlement, the mandated recognition of sovereignty, and the prohibition of threats or uses of force against territorial integrity or political independence of other states. b. war crimes regarding the war crimes, the first of several potential arrest warrants were issued by the icc in march 2023. the court officially issued an arrest warrant for president vladimir vladimirovich putin and russian commissioner for children’s rights, maria alekseyevna lvova-belova. putin and lvova-belova have both been charged with committing war 134 myers, steven, and ellen barry. “putin reclaims crimea for russia and bitterly denounces the west.” new york times, march 18, 2014. https://www.nytimes.com/2014/03/19/world/europe/ukraine.html; ellyatt, holly. “russian forces invade ukraine.” cnbc, february 24, 2022. https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html; ellyatt, holly. “fake referendums in occupied ukraine set the stage for annexation — and immense danger for ukraine.” cnbc, september 28, 2022. 133 independent international, “report,” 13, 14, 15, 16. 132 independent international, “report,” 6, 13, 13. 47 https://www.nytimes.com/2014/03/19/world/europe/ukraine.html https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html brandeis university law journal spring 2023, volume 10, issue 2 crimes, specifically the abduction, deportation, and forced transfer of children from occupied areas of ukraine. with ukrainian officials reporting as many as 8,000 children missing and transported to russia, the court asserts that both putin and lvova-belova had intimate knowledge of the alleged violation and bear individual responsibility.135 furthermore, the russian federation has been accused of forcibly deporting children to russia, implementing simple and rapid avenues to “citizenship,” and placing ukrainian children up for russian adoption.136 as this measure works to strip ukrainian children of their national and ethnic identities, the primary concern is its role as a potential step towards the ethnic cleansing and genocide of the ukrainian people. c. concluding notes to conclude this segment of the evaluation, it is vital to comprehend the meaning of these blatant violations. between the work of journalists and international investigations, it is undeniable that an array of war crimes and violations of ihl have been committed on ukrainian territory. even more so, the impact of these breaches on the ukrainian people have been unfathomable. the blood of thousands is on the hands of the russian government, critical infrastructure has been decimated, 136 deeb, shvets, and tilna, “how moscow.” 135 deeb, sarah, anastasiia shvets, and elizaveta tilna. “how moscow grabs ukrainian kids and makes them russians.” ap news, march 17, 2023. https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c 1ac7986d85ef6; international criminal court. “situation in ukraine: icc judges issue arrest warrants against vladimir vladimirovich putin and maria alekseyevna lvova-belova,” n.d. https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warra nts-against-vladimir-vladimirovich-putin-and. 48 https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6 https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6 https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and brandeis university law journal spring 2023, volume 10, issue 2 and millions have been displaced.137 regardless of whether vladimir putin and other russian officials are held accountable, ukraine will spend years, if not decades, recovering from the devastation left by putin's regime. v. obstacles to accountability contextually evaluating legal accountability pertaining to the russia-ukraine conflict implies three primary avenues, and subsequently, the obstacles within each: the unsc, the icc, and the role of free will within an anarchical system. the unsc’s ultimate purpose is the maintenance of international peace, while the icc’s is criminal prosecution; free will and its relationship with anarchy is integral to the most preliminary of understandings on international law and politics. a thorough evaluation of each within the context of the russia-ukraine conflict provides for a nuanced understanding of obstacles to accountability. a. the unsc russia holds one of the five permanent seats on the unsc and, as such, possesses veto power over any potential resolutions that come before the council.138 ultimately, this grants a great deal of freedom and impunity not only to russia, but to essentially any of the permanent members. prima facie, a step similar to that taken by the unhrc, the suspension of the russian federation seems to be in order. however, a suspension is neither judicially effective for 138 “charter of the united nations,” 18. 137 cooper, helene, eric schmitt, and thomas gibbons-neff. “soaring death toll gives grim insight into russian tactics.” new york times, february 2, 2023. https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.h tml. 49 https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html brandeis university law journal spring 2023, volume 10, issue 2 ukraine nor exactly plausible. a suspension would result in removal from the unsc, while an expulsion indicates the state’s removal from the entirety of the un. russia holding one of the five permanent seats on the security council makes both of these options virtually impossible due to any suspension or expulsion requiring all five security council seat sign offs, requiring russia to approve of their own ramifications. due to the impossibility of russian suspension or expulsion, it is clear that the un charter failed to consider the potentially dangerous ramifications of establishing the unsc in this way. ultimately, suspension of a member state from the council is not mentioned anywhere in the charter. however, the unsc and its permanent members are explicitly established by article 23(1).139 this indicates the necessity of an amendment to alter the permanent seats of the unsc in any way, shape, or form; which leads to article 108, mandating the approval of all five permanent council members to bring a proposed amendment into force.140 given that this requires russia to sign their own death certificate, removal from the unsc is not a presently viable option. regarding expulsion from the un altogether, it is a similarly grim situation. as stated in article 6, “a member of the united nations…may be expelled…upon the recommendation of the security council.”141 consistent with a potential suspension from the unsc, a complete expulsion would require russian approval. additionally, there is an argument to be made about the efficacy of an expulsion or suspension from un activities in bringing the russian federation to justice. due to the anarchical nature of the international order, and widely respected foundational principles like “consent of the governed,” a given nation can only be held responsible for violations of a treaty they have signed. russia cannot be held to 141 “charter of the united nations,” 8. 140 “charter of the united nations,” 69. 139 “charter of the united nations.” 50 brandeis university law journal spring 2023, volume 10, issue 2 un standards, penalized for violations of the organization’s charter, or legally bound by its mandates if it is no longer a member state. suspension from the unsc could very well lead to a voluntary exit from the organization, while an assembly-led expulsion would make accountability even more challenging. to fully evaluate the security council, it is crucial to consider the potential outcome had russia not vetoed the unsc resolution regarding their troops in ukraine, despite the situation's hypothetical nature. corroborated by the realist paradigm of international relations, a veto is merely a formal process of informing the other permanent members that a state does not intend to abide by a given resolution.142 in turn, russia’s veto of the february mandate, calling for moscow to remove all troops from ukraine, simply informs council members that it has every intention of keeping its troops in place. however, what if russia did not possess veto power? what if such a resolution was passed? realism asserts that hard power (i.e. military strength) is foundational to legitimacy. states act according to their own self-interest. hence, only military strength or threats can change such behavior. considering the atrocities committed in ukraine since then, it is fair to say that it would have taken enemy boots on the ground, actively pushing the russians out of ukrainian territory, to change the kremlin’s position. the un does not have enough coercive capacity on its own to enforce mandates by the unsc; it relies on the 142 one of the three paradigms of international relations, the realist paradigm stresses the importance of anarchy and hard power in the international order. anarchy refers not to chaos but to the lack of a universal, international governing body, and hard power refers to tangible resources, most often the economy and military strength. due to the size and strength of both the russian military and economy, the realist paradigm asserts that there is no force capable of coercing the kremlin to behave in a specific way. 51 brandeis university law journal spring 2023, volume 10, issue 2 manpower of its largest member states to keep the rest in line. the security council, an institution designed for the preservation of international peace, inherently awards impunity to the allied powers of wwii. the lack of checks on the power of permanent members breeds a power dynamic in which there is no method of enforcing punishment on the largest, and subsequently most powerful member states. the security council’s necessity to the functionality of the un elevates the status of the council. furthermore, the lack of independent un coercive capabilities only reinforces the idea first proposed in the peloponnesian war, that “the strong will do what they can and the weak suffer what they must.”143 b. the icc the icc is responsible for prosecuting individuals found in violation of international law. however, bureaucracy, enforcement mechanisms, and dwindling legitimacy hinder the abilities of the court to do so. bureaucracy generally slows various processes and those of the icc are no exception. despite not necessarily minimizing the courts physical capabilities to charge guilty russian officials, the bureaucratic processes by which the court operates can take years, if not decades. the international criminal tribunal for the former yugoslavia (icty) closed over ten years following their issuance of the final indictments.144 the icty was open for a total of twenty-four 144 zhou, han-ru. “the enforcement of arrest warrants by international forces.” journal of international criminal justice 4, no. 2 (2006): 202–18; legacy website of the icty. “icty marks official closure with moving ceremony in the hague.” archive. accessed november 29, 2022. 143 art, robert, and robert jervis. “anarchy and its consequences.” in international politics: enduring concepts and contemporary issues, 13th ed. pearson education, inc., 2016. 52 brandeis university law journal spring 2023, volume 10, issue 2 years and delivered a total of 161 sentences.145 there is no reason to presume an icc prosecution of putin and other responsible officials would take any less time. the pace at which these trials move guarantees that thousands of ukrainians would likely die before seeing any justice or reparations for all they have endured at the hands of russian officials. additionally, article 63(1) poses a large enforcement barrier to the icc because it obligates the court to have the suspect in custody prior to conducting the trial.146 it should be clarified that the following analysis in no way intends to make a statement on the rights awarded to individuals accused of a crime or assert that due process should be removed from the protocols by which the icc abides. however, lacking an independent law enforcement agency, this mandate objectively disrupts the court’s ability to bring those guilty of international atrocities to justice, and brings the legitimacy of the court into question. as seen with the icty, if the icc is forced to rely on multinational forces, the legitimacy of the court as an independent entity is questionable.147 with the icty, and the icc trial regarding darfur, sudan, the international community has illustrated hesitance to enforce arrest warrants issued by the court.148 in multiple cases, 148 sharp, walter. “international obligations to search for and arrest war criminals: government failure in the former yugoslavia.” duke journal of comparative and international law, 1997, 411–60; chazal, nerida. the international criminal court and global social control: international criminal justice in late modernity. routledge, n.d. accessed september 21, 2022; beginning in 2003, rebels in darfur, a western region of sudan, staged an insurrection against the sudanese government. they claimed the current regime disregarded the needs of the large non-arab population in darfur. over the course of several years the situation between the sudanese 147 zhou, “the enforcement of arrest warrants,” 202–18. 146 “the rome statute,” 31. 145 legacy website of the icty. “about the icty.” accessed november 29, 2022. https://www.icty.org/en/about. https://www.icty.org/en/press/icty-marks-official-closure-with-moving-cere mony-in-the-hague. 53 https://www.icty.org/en/about https://www.icty.org/en/press/icty-marks-official-closure-with-moving-ceremony-in-the-hague https://www.icty.org/en/press/icty-marks-official-closure-with-moving-ceremony-in-the-hague brandeis university law journal spring 2023, volume 10, issue 2 including those of yugolsavia and darfur, arrest warrants have gone unenforced by countries in which suspects were found.149 currently, a precedent has been established of nations’ complicity in the behavior of war criminals and reluctance to enforce arrest warrants. c. free will and anarchy the international system is fundamentally anarchic. both state and non-state actors operate within the law as they see fit. this seemingly lawlessness is in the absence of “will at national and/or international levels.”150 unfortunately, there is no global enforcement agency to ensure the cooperation of other nations. as such, within the context of the russia-ukraine conflict, little to no coercive action has been taken against russia. though sanctions have been employed, the lack of more aggressive coercive efforts (stronger military opposition) only reinforces the notion that the russian federation, as a relatively strong world power, enjoys impunity from the coercive capacity of other states and international forces. referencing the icc as understood in the previous section, an arrest warrant can, and likely will, go unfulfilled for years. with a precedent of international complicity, the responsibility to execute such a warrant now falls on the russian federation and its allies. the kremlin has already 150 morris, madeline. “international guidelines against impunity: facilitating accountability.” law and contemporary problems 59, no. 4 (1996): 29–39. 149 sharp, “international obligations,” 411-460; chazal, “international court and social control” military and the rebels escalated and was eventually referred to the icc by the unsc. this led to the issuance of an arrest warrant for omar al-bashir, the sitting president of sudan, for genocide, war crimes, and crimes against humanity. 54 brandeis university law journal spring 2023, volume 10, issue 2 dismissed the icc warrant for putin and lvova-belova, indicating its more than expected refusal to enforce it.151 however, the recent arrest warrant issued by the court certainly shrunk the world of vladimir putin; it prevents him from traveling to any major countries in the west as well as attending any summits of major world leaders. though putin will likely attend the 2023 g20 summit in india (as of the writing of this article), the presence of a russian delegation at important meetings going forward will likely hinge on the host country, and its status of allyship with the russian federation. the degree to which putin can interact with the rest of the international order will likely be inconsistent. though such irregular involvement in the international system will certainly reduce russia's role on the world stage and drain its ability to weigh in on policy, it will take time for these hindrances to show their full impact. when evaluating the known reasons for why russia has violated international law in such egregious ways, there are three primary factors to assess regarding why an international actor abides by a given rule or acts in accordance with an organization: (1) they fear the punishment of the enforcers, (2) the actor views the rule or mandate as within their own self-interest, or (3) the actor feels as though the rule or mandate is legitimate and ought to be obeyed.152 conversely, each one of these can be inverted to signify reasons as to why a given rule or organization is not obeyed by international actors. either (1) there is not a large enough coercive threat to force the actor into submission, (2) the rule is not within the actor’s own 152 hurd, ian. “legitimacy and authority in international politics.” international organization 53, no. 2 (1999): 379–408, 379. 151 reuters. “kremlin: icc warrants outrageous and unacceptable, but null and void for us,” march 17, 2023. https://www.reuters.com/world/europe/russia-warrant-against-putin-meanin gless-russia-does-not-belong-icc-2023-03-17/. 55 https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/ https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/ brandeis university law journal spring 2023, volume 10, issue 2 self-interest, or (3) the actor does not view the given mandate or body as legitimate and deserving of obedience. situations like the russia-ukraine conflict, or general international disobedience, occur when neither one, two, nor three are met. though a given international organization or mandate does not necessarily need all three, it is certainly clear that at least two of the three factors are necessary to guarantee the cooperation of actors. though the un has widespread legitimacy, its lack of coercive capacity alongside its clear opposition to russian interests has left the international body paralyzed. when viewing the reasons for international conflict specifically through the lens of the situation in ukraine, each tenet necessary for cooperation can be evaluated individually. it is evident that neither the un nor the icc independently possess an adequately strong coercive apparatus to either halt russia’s behavior or force a surrender to the court. the violations prohibiting the very conduct performed in ukraine clearly competes with the self-interest of the russian federation. further, none of the international bodies capable of holding russia accountable are viewed as legitimate by the russian federation to actively prevent atrocities from being committed. as mentioned previously, at least two of the three factors must be met for cooperation. however, there is an argument to be made that the regularity and magnitude of international disobedience comes from the lack of all three. no single international mandate or organization possesses coercive capacity, legitimacy, and self interest and it is possible that the lack of such an international institution is to blame for the frequency and scale at which international conflict occurs. increasing coercive efforts and capability seems to be the most efficient solution to improve the un’s capacity for resolution in the russia-ukraine conflict. however, it should be noted that coercion as a method of guaranteed cooperation is the least sustainable. coercion to motivate compliance requires excessive resources dedicated to surveillance and enforcement 56 brandeis university law journal spring 2023, volume 10, issue 2 and increases the likelihood of disobedience upon the halting of enforcement measures.153 due to the vast nature of the russia-ukraine conflict and the reduction in the likelihood of compliance without coercion in the future, increasing the coercive capacity is not a permanent solution to the problems offered by the situation in ukraine.154 fundamentally, the very nature of the international system is one of the greatest obstacles in ending impunity held by officials of world powers. the anarchy inherent to the international order only decreases the likelihood that russia, and other nations like it, can or will be held accountable for the atrocities they have committed. vi. concluding thoughts the preceding analysis aimed to synthesize a large portion of the existing information on the russia-ukraine conflict, specifically regarding the international law in question, the validity of claims that said international law has been violated since the february invasion, and the obstacles to bringing russian officials to justice. the icc, with the potential to hold russian officials accountable for their crimes, has opened an investigation. however, with limited resources and the lack of cooperation from the unsc, bound by russia’s veto power, the court will continue to face challenges and it is unclear if or when a trial will ever commence. just over a year into hostilities and the impact of the ongoing war has been insurmountable. with millions from the region displaced, an estimated 280,000 casualties, and over 30,000 civilian deaths, eastern europe will be recovering from the wreckage left by 154 hurd, “legitimacy and authority,” 385. 153 hurd, “legitimacy and authority,” 384. 57 brandeis university law journal spring 2023, volume 10, issue 2 this war for years.155 with each new case opened by the icc, new precedents are set; it is of the utmost importance that the international order commits to an agenda rooted in justice and ending impunity held by many world leaders. let the foregoing assessment serve as a directive not only on the recent conduct of the russian federation, but the obstacles in place hindering international heroes from bringing the nation to justice. 155 cooper, helene, eric schmitt, and thomas gibbons-neff. “soaring death toll gives grim insight into russian tactics.” new york times, february 2, 2023. https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.h tml. 58 https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html brandeis university law journal spring 2023, volume 10, issue 2 bibliography art, robert, and robert jervis. “anarchy and its consequences.” in international politics: enduring concepts and contemporary issues, 13th ed. pearson education, inc., 2016. “charter of the united nations and statute of the international court of justice.” united nations, june 26, 1945. chazal, nerida. the international criminal court and global social control: international criminal justice in late modernity. routledge, n.d. accessed september 21, 2022. cooper, helene, eric schmitt, and thomas gibbons-neff. “soaring death toll gives grim insight into russian tactics.” new york times, february 2, 2023. https://www.nytimes.com/2023/02/02/us/politics/ukrain e-russia-casualties.html. deeb, sarah, anastasiia shvets, and elizaveta tilna. “how moscow grabs ukrainian kids and makes them russians.” ap news, march 17, 2023. https://apnews.com/article/ukrainian-children-russia-74 93cb22c9086c6293c1ac7986d85ef6. ellyatt, holly. “fake referendums in occupied ukraine set the stage for annexation — and immense danger for ukraine.” cnbc, september 28, 2022. https://www.cnbc.com/2022/09/28/fake-referendums-in -ukraine-pave-the-way-for-annexation-and-escalation.ht ml. ellyatt, holly. “russian forces invade ukraine.” cnbc, february 24, 2022. https://www.cnbc.com/2022/02/24/russian-forces-invad e-ukraine.html. guterres, antonio. “secretary-general’s remarks to press on the war in ukraine.” united nations, march 2022. https://www.un.org/sg/en/content/sg/press-encounter/20 59 https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6 https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6 https://www.cnbc.com/2022/09/28/fake-referendums-in-ukraine-pave-the-way-for-annexation-and-escalation.html https://www.cnbc.com/2022/09/28/fake-referendums-in-ukraine-pave-the-way-for-annexation-and-escalation.html https://www.cnbc.com/2022/09/28/fake-referendums-in-ukraine-pave-the-way-for-annexation-and-escalation.html https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma.. brandeis university law journal spring 2023, volume 10, issue 2 22-03-22/secretary-generals-remarks-press-the-war-ukr aine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk 4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2am ty3nzc4oti2my41ljeumty3nzc4oti5nc4wljau ma. hurd, ian. “legitimacy and authority in international politics.” international organization 53, no. 2 (1999): 379–408. independent international commission of inquiry on ukraine. “report of the independent international commission of inquiry on ukraine.” the united nations, october 18, 2022. https://www.ohchr.org/sites/default/files/2022-10/a-77533-auv-en.pdf. international criminal court. “situation in ukraine: icc judges issue arrest warrants against vladimir vladimirovich putin and maria alekseyevna lvova-belova,” n.d. https://www.icc-cpi.int/news/situation-ukraine-icc-judg es-issue-arrest-warrants-against-vladimir-vladimirovich -putin-and. “international humanitarian law: answers to your questions.” international committee of the red cross, june 2020. klimkin, pavlo. “declaration of the verkhovna rada of ukraine,” september 8, 2015. kumankov, arseniy. “nazism, genocide, and the threat of the global west: russian moral justification of war in ukraine.” etikk i praksis--nordic journal of applied ethics, n.d. legacy website of the icty. “about the icty.” accessed november 29, 2022. https://www.icty.org/en/about. legacy website of the icty. “icty marks official closure with moving ceremony in the hague.” archive. accessed november 29, 2022. 60 https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma.. https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma.. https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma.. https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma.. https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2a1rdjbfo%2a_ga%2amtyxmdgzndk4mi4xnjy4nji5odg2%2a_ga_tk9bql5x7z%2amty3nzc4oti2my41ljeumty3nzc4oti5nc4wljauma.. https://www.ohchr.org/sites/default/files/2022-10/a-77-533-auv-en.pdf https://www.ohchr.org/sites/default/files/2022-10/a-77-533-auv-en.pdf https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and https://www.icty.org/en/about brandeis university law journal spring 2023, volume 10, issue 2 https://www.icty.org/en/press/icty-marks-official-closur e-with-moving-ceremony-in-the-hague. morris, madeline. “international guidelines against impunity: facilitating accountability.” law and contemporary problems 59, no. 4 (1996): 29–39. myers, steven, and ellen barry. “putin reclaims crimea for russia and bitterly denounces the west.” new york times, march 18, 2014. https://www.nytimes.com/2014/03/19/world/europe/ukr aine.html. president of russia. “agreement on the accession of the republic of crimea to the russian federation is signed,” n.d. http://en.kremlin.ru/events/president/news/20604. “protocols additional to the geneva conventions of 12 august 1949.” international committee of the red cross, august 12, 1949. rieber, alfred. “russian imperialism: popular, emblematic, ambiguous.” the russian review 53, no. 3 (july 1994): 331–35. reuters. “kremlin: icc warrants outrageous and unacceptable, but null and void for us,” march 17, 2023. https://www.reuters.com/world/europe/russia-warrant-a gainst-putin-meaningless-russia-does-not-belong-icc-20 23-03-17/. security council report. “un security council working methods: the veto,” december 2022. https://www.securitycouncilreport.org/un-security-coun cil-working-methods/the-veto.php. sharp, walter. “international obligations to search for and arrest war criminals: government failure in the former yugoslavia.” duke journal of comparative and international law, 1997, 411–60. “the geneva conventions of 12 august 1949.” international 61 https://www.icty.org/en/press/icty-marks-official-closure-with-moving-ceremony-in-the-hague https://www.icty.org/en/press/icty-marks-official-closure-with-moving-ceremony-in-the-hague https://www.nytimes.com/2014/03/19/world/europe/ukraine.html https://www.nytimes.com/2014/03/19/world/europe/ukraine.html http://en.kremlin.ru/events/president/news/20604 https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/ https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/ https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/ https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php brandeis university law journal spring 2023, volume 10, issue 2 committee of the red cross, august 12, 1949. “the rome statute.” international criminal court, july 1, 2022. https://www.icc-cpi.int/sites/default/files/rs-eng.pdf. zelinska, olga. “ukrainian euromaidan protest: dynamics, causes, and aftermath.” sociology compass 11, no. 9 (2017). zhou, han-ru. “the enforcement of arrest warrants by international forces.” journal of international criminal justice 4, no. 2 (2006): 202–18. zinets, natalia, and aleksandra vasovic. “missiles rain down around ukraine.” reuters, february 24, 2022. https://www.reuters.com/world/europe/putin-orders-mil itary-operations-ukraine-demands-kyiv-forces-surrende r-2022-02-24/. 62 https://www.icc-cpi.int/sites/default/files/rs-eng.pdf https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/ https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/ https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/ brandeis university law journal spring 2023, volume 10, issue 2 a game of telephone: the evolution of conspicuous service in new york state zachary miller156 this article discusses the evolution of how conspicuous service is regarded by trial courts in new york state. conspicuous service or “nail and mail service” is the process of nailing notice of an upcoming court hearing to a visible place on the property of a defendant. this article examines the legitimacy of this method of service as it pertains to money judgments in summary proceeding cases. i. explanation of new york state court system unlike in most states, the supreme court of new york state is the court, where most cases are first heard, with original jurisdiction. when cases are appealed from the state supreme court, they reach a level known as the appellate division. the appellate division is a system of four appellate courts, known as departments, which each preside over a separate section of the state. new york city is broken up between the first and second departments.157 the highest court in the state of new york is the court of appeals. new york state courts are currently bound by the civil practice laws and rules (cplr) and the real property actions and proceedings law (rpapl). prior to the adoption of the cplr, the courts were governed by the civil practice 157 lawrence k marks and janet difiore, new york state unified court system new york state courts an introductory guide, n.d.. 156 brandeis university undergraduate, class of 2025. 63 https://www.zotero.org/google-docs/?1ou2et https://www.zotero.org/google-docs/?1ou2et brandeis university law journal spring 2023, volume 10, issue 2 act (cpa). all of these statutes were ratified by the new york state legislature.158 ii. explanation of the process for affecting service when a plaintiff seeks to sue a defendant in a state court, the state court must acquire jurisdiction over the defendant. a petitioning party must hire a process server to deliver a respondent with notice of the actions the petitioning party is bringing.159 there are three major types of service a process server can provide. firstly, there is in-hand which directly serves the individual named in an action.160 secondly, a substituted service refers to notices that are served upon an individual, of the proper age and discretion, substituted to receive notice on behalf of the individual named in the action.161 substituted and in-hand services are sometimes jointly referred to as personal services. conspicuous service or “nail and mail” service are the final type of service. conspicuous service entails a process server affixing notice upon a conspicuous part of the respondent’s property and mailing a copy of the notice to the respondent’s last known residence.162 during the late nineteenth century and early twentieth century, all services, excluding in-hand service, were unconstitutional.163 in 1877, the united states supreme court heard the case of pennoyer v. neff. pennoyer, which was decided in the aftermath of the ratification of the fourteenth amendment. pennoyer held that the only way for a state court 163 dolan v. linnen. 162 dolan v. linnen. 161 dolan v. linnen. 160 dolan v. linnen (2003) 159 a process server is a third party licensed to serve a defendant with the notice. 158 “the cplr at fifty: its past, present, and future,” n.y.u journal of legislation & public policy 16, no. 3 (2013). 64 https://www.zotero.org/google-docs/?wohuxc https://www.zotero.org/google-docs/?wohuxc brandeis university law journal spring 2023, volume 10, issue 2 to gain jurisdiction over an individual without violating their due process rights was to serve them while they were physically present.164 the evolution of methods of service has had a wide range of implications for american jurisprudence. for a court to take any action directly impacting an individual, the court must first be granted jurisdiction over that individual. this process ensures that individuals have notice of their involvement in legal matters and can adequately prepare for legal proceedings. therefore, issues regarding the legitimacy of various methods of service have the capacity to affect all civil actions. this compendium specifically chronicles the evolution of statutory and common law regarding the role these forms of service play in summary proceeding cases in new york state. iii. explanation of a summary proceeding in 1820, the new york state legislature created summary proceedings, an expedited process that provided landlords with an easy means to retrieve possession of a property from tenants.165 prior to the implementation of this policy, a tenant’s decision to stop paying rent was insufficient for a landlord to terminate a lease. this deficiency would prompt landlords to insert clauses into their leases which allowed them to reenter the property if rent payments ceased.166 in 1924, an amendment to the civil practice act (cpa) sought to allow courts to award rent during summary proceedings. previously, landlords would have to commence a separate and costly action to collect rent. additionally, these separate proceedings were antithetical to the nature of 166 stephen ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent,” fordham urban law journal 15, no. 2 (1987): 48. 165 dolan v. linnen. 164 pennoyer v. neff (supreme court of the united states 1877). 65 https://www.zotero.org/google-docs/?5xgj9v https://www.zotero.org/google-docs/?5xgj9v https://www.zotero.org/google-docs/?5xgj9v https://www.zotero.org/google-docs/?5xgj9v brandeis university law journal spring 2023, volume 10, issue 2 summary proceedings, which were expedited hearings. these judgments, which award a landlord rent, are known as money judgments.167 iv. mcdonald and the conflict of law in the 1927 case of the matter of mcdonald v. hutter, the process server unsuccessfully searched for the tenants at their respective residences for in-hand service. the process server also unsuccessfully searched for another individual for substituted service. hence, the process server resorted to conspicuous service to serve the tenants.168 the lower court found that the language of the cpa amendment, its plain meaning and the typical definitions of the words, could not be construed to limit money judgments to in-hand service.169 the amendment did not specify any permissible or impermissible methods of service. therefore, conspicuous service could permissibly be used for a landlord to receive a money judgment.170 the case was appealed to the fourth department in 1929; the diligence of the server was undisputed when the case was appealed to the fourth department. the sole contention of the appellant was that the cpa only permitted a money judgment for in-hand service.171 the fourth department conceded that the language of the cpa was broad enough to encompass the interpretation of the lower court, but the court decided that the broadness of the statute’s language required it to assess legislative intent. the court believed that the legislature had only intended to allow money judgments for in-hand service based on the tradition of summons being 171 matter of mcdonald, 405. 170 matter of mcdonald v. hutter. 169 matter of mcdonald v. hutter, (county court niagara county 1927). 168 matter of mcdonald (4th dep’t 1929). 167 ressa family, llc v. dorfman, (2002). 66 brandeis university law journal spring 2023, volume 10, issue 2 delivered through in-hand service and from the precedent set in pennoyer.172 the major issue embedded in the fourth department’s opinion in mcdonald was balancing the intentions of the legislature in their 1924 amendment with the boundaries of constitutionality framed by pennoyer. these efforts to reconcile the perceived contradiction led the fourth department to reverse the lower court’s ruling, despite the department’s concession that the language was broad enough to convey the lower court's interpretation.173 mcdonald was largely unchanged until 1945 when pennoyer was overturned by the case international shoe company v. washington. in international shoe, the supreme court upheld substituted service as a form of service in compliance with due process. this effectively reversed the pennoyer rule, which only permitted in-hand service.174 after international shoe, the opinion in mcdonald should have been rendered moot. the constitutional concerns which formed the basis for the mcdonald ceased to exist under international shoe.175 additionally, in 1954, the cpa was amended to eliminate the requirement that due diligence be shown in attempting in-hand service before resorting to conspicuous service.176 the prerequisite standard became one of reasonable application, a more flexible threshold than due diligence. if a reasonable application proved fruitless, conspicuous service was permitted. the cpa amendment indicated a legislative intention to make conspicuous service a more readily available option to landlords and their process servers.177 these sentiments that the 177 dolan v. linnen. 176 matter of seagram sons v. rossi (1965). 175 dolan v. linnen. 174 international shoe co. v. washington, (supreme court of the united states, 1945). 173 matter of mcdonald, 406. 172 matter of mcdonald, 406. 67 brandeis university law journal spring 2023, volume 10, issue 2 legislature appeared to harbor are noteworthy as they pertain to subsequent judicial developments. v. mcdonald in the wake of international shoe the 1961 case of matter of raymond v. grotz is a noteworthy decision because it was decided in the aftermath of international shoe and the 1954 cpa amendment. in raymond, a process server was unable to find the tenants and resorted to conspicuous service.178 raymond found that service was consistent with the amended cpa, but the court maintained that personal service was vital for a money judgment. the court argued that mcdonald’s precedent was that money judgments could only be awarded for conspicuous service if a court order authorized it once it was shown that personal service was impossible. raymond chose to uphold mcdonald as a binding precedent.179 mcdonald was cited despite the constitutional restraints of pennoyer no longer binding the court in raymond. additionally, the due diligence prerequisite for conspicuous service had already eased the process during this time. raymond is notable because it was decided between the 1954 cpa amendment and the 1963 repeal of the cpa. during this formative period, raymond upheld mcdonald as binding and persuasive precedent. raymond deferred to mcdonald despite the pennoyer case, the basis of mcdonald, no longer being applicable.180 on september 1, 1963, the new york state legislature repealed and replaced the cpa with the new york civil practice laws and rules (cplr) and the real property actions and proceedings law (rpapl).181 when the cpa was 181 dolan v. linnen. 180 raymond, 926. 179 raymond, 926. 178 matter of raymond v. grotz, 926. 68 brandeis university law journal spring 2023, volume 10, issue 2 repealed, the statute interpreted by the fourth department in mcdonald ceased to be binding law. vi. mcdonald in the wake of the cplr the cplr permitted substituted service and conspicuous service when in-hand service could not be performed with due diligence, while the rpapl carried over the reasonable application standard from the 1954 amendment.182 two months after the repeal of the cpa, wayside homes v. upton was heard on november 26, 1963.183 wayside interpreted the rpapl as delegating the details of service for a money judgment to the cplr. wayside derived this from a provision in the rpapl which stated that, “service of the notice of petition and petition shall be made in the same manner as personal service of a summons.”184 in wayside, the process server engaged in substituted service.185 a notice of petition is the document a tenant is presented with to acquire jurisdiction in a summary proceeding. the court in wayside used this language to surmise that process servers delivering summary proceeding papers ought to be held to the same standard as one delivering a summons.186 thus, wayside adopted the cplr and decided that the rpapl was not the governing statute. at the time, the cplr’s standard for affecting substituted service or conspicuous service in a summons was due diligence. the court acknowledged that the server had complied with the rpapl, but that the server failed 186 wayside, 1087. 185 wayside, 1087. 184 wayside homes v. upton (1963). 183 interestingly, the case was initially supposed to be heard on monday november 25, 1963. but, courts were closed that day in commemoration of the assassination of president john f. kennedy on friday, november 22. so, the case was heard on november 26. 182 dolan v. linnen. 69 brandeis university law journal spring 2023, volume 10, issue 2 to comply with the due diligence required by the cplr.187 the landlord’s compliance with the rpapl was not enough to award a landlord a money judgment. this case is notable for its ruling that the principles in mcdonald remained binding and that a similar legislative intent undergirded all of these statutes. the legislative intent described by the court in wayside makes no mention of the 1954 cpa amendment which replaced the due diligence standard with one of reasonable application.188 in this amendment, the legislature indicated a desire to loosen the standard a server needed to meet to affect service. additionally, this understanding of the intent of the legislature fails to account for a section of the cplr which states that “[e]xcept where otherwise prescribed by law, procedure in special proceedings shall be the same as in actions, and the provisions of the civil practice law and rules applicable to actions shall be applicable to special proceedings.” 189 the rpapl is a statute intended to govern summary proceedings. since 1924, the intent of the legislature had been to merge actions for rent into summary proceedings to expedite the process on all fronts.190 even if the language equating summary proceedings and summons kept the process bound by the cplr, the legislature removed that language from the rpapl in 1965.191 this was significant because wayside’s ruling was predicated on the idea that these proceedings ought to mirror a summons.192 wayside incorporated the cplr because the court believed that this language removed money judgments from the 192 “substituted service--section 735 of the rpapl and section 308(3) of the cplr,” st. john’s law review 38 (may 1964). 191 arnold v. lyons, (march 2003). 190 matter of mcdonald. 189 dolan v. linnen, 324. 188 wayside. 187 wayside, 1088. 70 https://www.zotero.org/google-docs/?nf74hi https://www.zotero.org/google-docs/?nf74hi brandeis university law journal spring 2023, volume 10, issue 2 purview of the rpapl’s language.193 but, the omission of this language indicated an intent to insulate summary proceedings from the regiment of the cplr. that same year, matter of seagram sons v. rossi was decided.194 in seagram, conspicuous service and substituted service were used.195 in each instance, the process server made only one attempt at in-hand service. the court ruled that it is not necessary to show due diligence for in-hand service before resorting to conspicuous service or substituted service for a summary proceeding based on the rpapl.196 the court in seagram believed that the rpapl’s flexible requirements were an intentional attempt by the legislature to maintain a speedy process for landlords who sought to effectuate summary proceedings. conversely, the court in seagram pointed out that the cplr permitted the service of a summons through substituted service or conspicuous service only when due and diligent efforts to serve in-hand had failed.197 so, if a landlord does affect conspicuous service or substituted service without meeting the due diligence requirement, they are not entitled to a money judgment. seagram ruled that both substituted and conspicuous services required a preemptive exercising of due diligence in a server’s attempts to execute an in-hand service.198 seagram cited wayside and raymond as precedent for not awarding a money judgment for conspicuous service without the due diligence required by the cplr.199 seagram’s ruling is notable for its preservation of wayside’s due diligence prerequisite and its affirmation of the 199 seagram. 198 seagram, 428. 197 seagram, 428. 196 seagram, 428. 195 seagram, 428. 194 matter of seagram sons v. rossi, (1965). 193 wayside, 1089. 71 brandeis university law journal spring 2023, volume 10, issue 2 adoption of the cplr for assessing these kinds of cases. wayside’s adoption of the cplr had been rooted in language found in the rpapl which analogized notice of petitions and summons.200 the redaction of this language in 1965 no longer mandated that the service in summary proceedings mirror the service of a summons. therefore, it was no longer necessary to apply the standard of the cplr; instead courts should have subjected summary proceedings to the rpapl entirely.201 as a result, the legislature nullified the precedent set in wayside because wayside’s precedent was grounded in this language justifying the adoption of the cplr. however, seagram’s vindication of wayside was instrumental in maintaining an adherence to the cplr when assessing the viability of money judgments. in 1971, 1405 realty corp v. napier denied a money judgment as a result of a process server’s perceived lack of compliance with the cplr.202 in napier, there were two visits to the tenant’s home to affect personal service before resorting to conspicuous service. napier cites wayside and seagram as precedent for requiring a prerequisite showing of due diligence.203 napier cites mcdonald as precedent for how the method of service affects a landlord’s ability to win a money judgment.204 in napier, the court acknowledged that the process server complied with the rpapl’s mandates for the service of process, specifically conceding that these guidelines are easier to meet because of the nature of summary proceedings as expedited relief.205 yet, the court found that the process server had not complied with the cplr and so denied the money judgment. the court in napier should not have been applying 205 napier, 794. 204 napier, 794. 203 napier, 795. 202 1405 realty corp. v. napier, 795 (1971). 201 new york city v. wall street racquet club (1987). 200 wayside. 72 brandeis university law journal spring 2023, volume 10, issue 2 the cplr in the first place. by this point, seagram and wayside had been overturned by the legislature’s omission of the language equating summary proceeding notice with that of a summons.206 there is no further evidence to indicate that napier was appealed. the due diligence prerequisite for substituted services was removed from section 308 of the cplr in 1970. as a result of this amendment, in-hand service and substituted service were equated under one category of personal service.207 in the 1972 case fairhaven apartments v. dolan, a process server affected substituted service upon a tenant. the court ruled that this complied with the rpapl and the cplr. the court in fairhaven distinguished itself from the court in wayside based on the absence of a due diligence prerequisite for affecting substituted service.208 vii. ressa and dolan: taking judicial notice of the problem in the case ressa family llc v. dorfman, personal service was not used. ressa contended that the legislature never made any indication that the amalgamation of rpapl and cplr for summary proceedings was necessary.209 instead, the court in ressa argued that efforts to combine these two statutes is the result of a misunderstanding of the mcdonald rule. ressa found that the rpapl offers sufficient constitutional protections to tenants.210 ressa reasoned that the purpose of a summary proceeding is to provide expedited relief. therefore, it would be logical to ease the burden of 210 ressa, 321. 209 ressa, 320. 208 fairhaven apts. no. 6 v. dolan, (1972). 207 dolan v. linnen. 206 dolan v. linnen. 73 brandeis university law journal spring 2023, volume 10, issue 2 serving notice. ressa ultimately petitioned the legislature or another appellate court to overrule mcdonald. but, ressa’s ruling upheld mcdonald and decided that money judgments may only be awarded in the event of personal service. the court in ressa was a trial-level court and did not believe it had the ability to tamper with mcdonald without appellate jurisdiction or legislative prerogatives.211 ressa was decided in 2002 and shortly after, in january of 2003, dolan v. linnen was decided. in dolan, a process server made four attempts to serve the tenant in-hand. after these four attempts, the process server engaged in conspicuous service.212 dolan asserted that the legislative intent surmised in mcdonald had been abrogated by the legislature through subsequent statutory amendments. dolan advocated utilizing the cplr for assessing the legitimacy of conspicuous service. dolan advised awarding money judgments when conspicuous service met the due diligence standard in the cplr.213 following the decision of dolan in january 2003, in march of the same year, judge kenneth gartner, who presided over the ressa case, authored the decision in arnold v. lyons. arnold further elucidated ressa and responded to dolan. in arnold, tenants were served by conspicuous service. arnold awarded possession but denied the money judgment, citing ressa. arnold affirmed ressa’s assertion that the courts which sought to award money judgments for methods of service other than personal service misunderstood mcdonald. arnold described dolan as an opinion which adopts ressa’s historical analysis but which arrived at a diametrically opposed conclusion based on a narrow but crucial area of difference.214 arnold stated that ressa and dolan agree that the cpa, under which mcdonald was decided, has largely been adopted 214 arnold v. lyons, (march 2003). 213 dolan v. linnen. 212 dolan v. linnen, 303. 211 ressa, 323. 74 brandeis university law journal spring 2023, volume 10, issue 2 into the rpapl. both agree that mcdonald construed the legislature to have sought to limit delivery to personal service. arnold contended that ressa and dolan agreed that the decision in mcdonald stemmed from a desire to avoid a novel practice and avoid conflicting with pennoyer. arnold posited that ressa and dolan are in agreement that mcdonald’s methodology was flawed and that the court in mcdonald attempted to incorporate an unexpressed intent contrary to the plain meaning of the text. arnold affirmed that both ressa and dolan believe that mcdonald is no longer defensible on its original grounds.215 arnold concluded that the fundamental disagreement between ressa and dolan stems from their differing view of stare decisis, the legal principle that judges should adhere to precedent. ressa believed the courts must follow mcdonald, while dolan did not. arnold asserted that precedents involving statutory interpretation are entitled to a greater degree of stability. the judge in arnold argued that it is the legislature’s job to correct any misinterpretation of legislative intent. but, that courts with original jurisdiction do not have the capacity to influence these kinds of issues.216 arnold submitted that the legislature could have easily revised the rpapl to permit all forms of service for all benefits. the fact that the legislature still has not done that shows that mcdonald’s understanding of the legislature’s intentions remains. arnold contends that applying the rpapl as written might effectuate the intent of the legislature in 1924 but would fail to uphold the intent of the current legislature.217 since the arnold ruling, most courts have adopted the dolan rule. 217 arnold. 216 arnold, 15. 215 arnold, 6. 75 brandeis university law journal spring 2023, volume 10, issue 2 viii. adoption of the dolan rule: “evisceration” of mcdonald in the case of avgush v. berrahu, from october 2007, a process server attempted in-hand service on five separate occasions before resorting to conspicuous service.218 in the lower court, after the tenants failed to appear, the landlord was only granted possession. avgush found that the conduct of the process server met the reasonable application standard found in rpapl section 735.219 avgush also found that it would have satisfied the due diligence standard found in subsection 4 of section 308 of the cplr. this case cites dolan v. linnen as a precedent for awarding a money judgment after satisfying the due diligence standard necessary for conspicuous service under section 308 of the cplr.220 avgush acknowledges that the constitutional landscape has changed substantially since the ruling in mcdonald. the court ultimately awarded a money judgment. in december 2009, expressway village v. denman was decided. the lower court awarded possession but not a money judgment because the process server resorted to conspicuous service. the appeal raised the sole issue of whether a trial court in a summary proceeding can enter a money judgment when notice is served through conspicuous service.221 expressway states that the rule in mcdonald appears to be incorrect and speculates that the fourth department would no longer apply it. expressway cites avgush to show that an appellate court has rejected mcdonald and adopted the reasoning of cases like dolan.222 expressway posits that the absence of a similar ruling 222 expressway, 957. 221 expressway village, v. denman, 956 (2009). 220 avgush, 90. 219 avgush, 86. 218 avgush v. berrahu, 86 (2007). 76 brandeis university law journal spring 2023, volume 10, issue 2 in any other higher court allows the first and third departments to adopt avgush. expressway contends that if the fourth department wishes to preserve mcdonald, they can always reverse this decision.223 subsequent courts have denied that expressway overturned mcdonald because the county court of niagara county is a lower court than the fourth department.224 regardless, the dolan rule is the one that expressway adopted. the dolan rule adopted the policy of melding the rpapl and cplr and determining the viability of a money judgment based on whether conspicuous service was performed after a process server used due diligence to attempt personal service.225 but, with the dolan rule in place, the correct standard for these cases is still not being applied by judges. a contemporary example comes from the 2022 case li-seabrooks v. pimento where two attempts were made at personal service before the process server resorted to conspicuous service. the respondent argued that the process server did not exercise due diligence before resorting to conspicuous service. pimento holds the petitioner to the standard of due diligence and distinguishes this standard from the reasonable application standard under the rpapl. pimento states that one attempt inside normal working hours and one attempt outside normal working hours satisfies reasonable application, but no rigid standard can be prescribed for due diligence. the opinion cites dolan v. linnen’s finding that two attempts at personal service satisfy reasonable application but not due diligence. ultimately, the court ruled in the respondent's favor and denied a money judgment.226 226 li-seabrooks v. pimento (2022). 225 dolan v. linnen. 224 cornhill llc v. sposato (2017) 223 expressway. 77 brandeis university law journal spring 2023, volume 10, issue 2 ix. significance and implications american society is rooted in contracts, both implicit and explicit. these contracts are agreements predicated in conditions which compel each party to keep their word when a sensitive deal is made. when these contracts are breached, people ought to be able to look to the judicial system, and the due process rights enshrined within it, for an opportunity to defend their rights.227 in the case of landlord-tenant agreements, the tenant is offered the benefit of shelter by the landlord and the landlord is offered the benefit of rent by the tenant.228 the new york state legislature conceived the summary proceeding as a mechanism for affording landlords an expedited hearing when their rights under this contract were denied. through subsequent legislative amendments, these hearings became a forum for landlords to redress the loss of their contractual benefit because they could petition for a money judgment.229 at the root of this issue is the importance of allowing individuals to be compensated for situations where they are taken advantage of. while it is necessary to safeguard the liberties of tenants and ensure they can peacefully enjoy shelter, it is also important to safeguard the rights of a landlord when their property is occupied without their consent while they are not being duly compensated. the purpose of a summary proceeding is to right these wrongs when they occur and award landlords the money they are owed.230 however, 230ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” 229 matter of mcdonald v. hutter. 228 ross. 227ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” 78 https://www.zotero.org/google-docs/?md810a https://www.zotero.org/google-docs/?md810a https://www.zotero.org/google-docs/?md810a https://www.zotero.org/google-docs/?rcxijz https://www.zotero.org/google-docs/?uhuk7t https://www.zotero.org/google-docs/?uhuk7t https://www.zotero.org/google-docs/?uhuk7t brandeis university law journal spring 2023, volume 10, issue 2 new york state courts continue to deny this restitution to landlords on the basis of obsolete legal analysis. an analogy for this situation is a game of telephone.231 imagine a straight line of players in a game of telephone, the cases which deal with this issue in chronological order. the player tasked with formulating the message is the legislature. the legislature releases the message in the form of statutes. by passing a statute, the legislature passes along their message for courts to interpret. along the way, courts have misinterpreted and mistranslated the original message leading to confusion. a distinction between the legislative process and a game of telephone, however, is that higher courts impact how legislation is enacted and how courts rule on issues. the fourth department was faced with a difficult decision when the mcdonald case was appealed to them. summary proceedings were intended to be an expedited process for securing control of one’s property when a tenant ceased to pay rent. the 1924 cpa statute was intended to enjoin money judgments in this process to further expedite it.232 the fourth department recognized that the statute contained no enumeration of limitations contingent upon the method of service. simultaneously, pennoyer was a binding precedent which declared anything other than in-hand service unconstitutional. thus, the fourth department fabricated a legislative intent to avoid disrupting a tradition of recognizing in-hand service as the only legitimate form of service, as enforced by pennoyer.233 the mcdonald decision was rendered moot when pennoyer was overturned by international shoe. at this point, any constitutional qualms surrounding methods of service other than in-hand service were eviscerated.234 234 ressa. 233 matter of mcdonald. 232 matter of mcdonald v. hutter. 231 ressa. 79 brandeis university law journal spring 2023, volume 10, issue 2 furthermore, the cpa, which governed the mcdonald case, was repealed in 1963, yet wayside chose to cite mcdonald as a binding precedent for adjudicating cases pertaining to the rpapl.235 additionally, wayside opted not to submit to the rpapl as the governing statute and instead subjected summary proceedings to the more scrutinous cplr to award money judgments.236 ultimately, this subjected summary proceedings to a statute the legislature likely did not intend for them. wayside justified this by pointing to a sentence in the rpapl seeking to equate summary proceedings with summons, a process governed by the cplr. the court in wayside believed this was an indication the legislature intended for courts to adjudicate these cases, using the cplr.237 even if this was their initial intention, the legislature revised the rpapl in 1965 to omit this language.238 this action indicated a desire to keep summary proceedings within the parameters of the rpapl, yet courts continued to wrongfully assess these cases under the cplr.239 even ressa and arnold, which acknowledged this method of jurisprudence was incorrect, applied mcdonald and denied a money judgment for a case which did not involve personal service. the rationale was a desire to comport with the intentions of the current legislature. since the legislature could amend the rpapl to explicitly enumerate the permissible methods of service and did not, judge gartner believed that trial courts were still forced to uphold this ingrained practice.240 240 arnold. 239 napier. 238 “mcmanus v. condren,” all decisions, october 27, 2022, https://ir.lawnet.fordham.edu/housing_court_all/676. 237 wayside. 236 “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” 235 “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” 80 https://www.zotero.org/google-docs/?qiofgt https://ir.lawnet.fordham.edu/housing_court_all/676 https://www.zotero.org/google-docs/?qiofgt https://www.zotero.org/google-docs/?8dehrf https://www.zotero.org/google-docs/?8dehrf https://www.zotero.org/google-docs/?mwonle https://www.zotero.org/google-docs/?mwonle brandeis university law journal spring 2023, volume 10, issue 2 returning to the analogy of a game of telephone, a noteworthy distinction between the legislative process and a game of telephone is that the legislature can amend their statutes. this would be like a player sending new messages down the telephone line while other players are still trying to decipher the first message. in this way, courts are not bound by the legislature’s initial statute and should take subsequent revisions into consideration. even though judge gartner’s understanding of the rpapl is valid, he chose not to rule in accordance with this philosophy because he believed that the legislature did not convey any intention of ameliorating how courts adjudicated this matter.241 judge gartner argued that if he did not comport with mcdonald, he would be upholding the intent of the legislature in 1924, but not necessarily the contemporary legislative intent on this issue.242 judge gartner’s belief, however, discards all of the subsequent legislative developments between 1924 and the present day which indicated a desire to reform the process.243 throughout this time, it was courts that remained stagnant, not the legislature. the legislature engaged in periodic revisions designed to steer courts towards enforcing less stringent service requirements for summary proceedings. for example, after pennoyer, the cpa eliminated the due diligence prerequisite for a process server’s attempts to affect personal service before resorting to substituted service or conspicuous service.244 this development was ignored by raymond, which chose to defer to mcdonald.245 the legislature then repealed the cpa and overhauled the statutory framework with the cplr and the rpapl. in wayside, these developments were ignored and the case held that the same intent surmised by mcdonald 245 raymond. 244 dolan v. linnen. 243 dolan v. linnen. 242 arnold. 241 arnold. 81 brandeis university law journal spring 2023, volume 10, issue 2 undergirded these statutes.246 wayside pointed to the provision equating summons and summary proceedings in the rpapl to come to this conclusion.247 thus, the legislature removed this language from the statute entirely.248 yet, napier chose to follow wayside and maintained a framework which ignored subsequent legislative developments.249 ressa recognized the contradictions embedded in this saga, yet judge gartner believed that it was necessary to adhere to stare decisis.250 even after judge gartner witnessed dolan perpetuating the architecture of wayside, he refused to carve out a better path in arnold because he did not believe the legislature expressed a desire to see the rpapl govern summary proceedings.251 as a result of this series of mistranslations and misinterpretations of legislative intent, individuals have been robbed of their ability to be justly compensated for wrongs they faced at the hands of those who unjustly occupied their property. as evidenced by pimento, this mistake continues to occur in contemporary jurisprudence. this is antithetical to the legislative intent which undergirds summary proceedings.252 additionally, this fails to heed to the legislative intent to have summary proceedings be governed by the rpapl’s standard of reasonable application.253 yet, this practice has endured for over a century. in the time since this issue first emerged, there have been a variety of technological and social developments that have altered one’s capacity to 253 arnold. 252 ross, “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” 251 arnold. 250 arnold. 249 napier. 248 ressa. 247 wayside. 246 “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” 82 https://www.zotero.org/google-docs/?rhknaz https://www.zotero.org/google-docs/?rhknaz https://www.zotero.org/google-docs/?rhknaz https://www.zotero.org/google-docs/?riuj36 https://www.zotero.org/google-docs/?riuj36 brandeis university law journal spring 2023, volume 10, issue 2 gain information. despite these developments, the process for delivering notice of one’s involvement in legal proceedings has not evolved. 83 brandeis university law journal spring 2023, volume 10, issue 2 bibliography marks, lawrence k, and janet difiore. new york state unified court system new york state courts an introductory guide, n.d. “mcmanus v. condren.” all decisions, october 27, 2022. https://ir.lawnet.fordham.edu/housing_court_all/676. ross, stephen. “converting nonpayment to holdover summary proceedings: the new york experience with conditional limitations based upon nonpayment of rent.” fordham urban law journal 15, no. 2 (1987): 48. “substituted service--section 735 of the rpapl and section 308(3) of the cplr.” st. john’s law review 38 (may 1964). “the cplr at fifty: its past, present, and future.” n.y.u journal of legislation & public policy 16, no. 3 (2013). cases cited 1405 realty corp v. napier, 68 misc. 2d 793 (1971). arnold v. lyons, ny slip op 50766[u] (2003). avgush v berrahu, 17 misc 3d 85 (2007). city of new york v. wall st. racquet club, 136 misc.2d 405 (1987). cornhill llc v. sposato, 51 misc.3d 840, (2017). dolan v. linnen, 195 misc 2d 298 (2003). expressway village, inc. v. denman, 26 misc.3d 954 (2009). fairhaven apts. no. 6 v. dolan, 72 misc 2d 590 (1972). international shoe co. v. washington, 326 u.s. 310 (1945). li-seabrooks v. pimento, slip op. 22131 (2022). matter of mcdonald v. hutter, 130 misc. 631 (1927). matter of mcdonald, 225 app div 403 (1929). matter of raymond v. grotz, 31 misc. 2d 925 (1961). 84 https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://ir.lawnet.fordham.edu/housing_court_all/676 https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc https://www.zotero.org/google-docs/?zc07sc http://www.nycourts.gov/reporter/3dseries/2007/2007_27424.htm https://casetext.com/case/new-york-city-v-racquet-club https://casetext.com/case/cornhill-llc-v-sposato https://casetext.com/case/expressway-village-v-denman https://casetext.com/case/fairhaven-apts-no-6-v-dolan brandeis university law journal spring 2023, volume 10, issue 2 matter of seagram sons v. rossi, 45 misc. 2d 427 (1965). pennoyer v. neff, 95 u.s. 714 (1877). ressa family llc v. dorfman, 193 misc. 2d 315 (2002). wayside homes v. upton, 40 misc. 2d 1087 (1963). 85 brandeis university law journal spring 2023, volume 10, issue 2 a restoration of voting rights & humanity brandon samuels254 as a nation that has always touted its democratic principles, the united states of america restricts citizens’ right to vote. voter disenfranchisement laws particularly silence the voices of formerly incarcerated individuals. these laws often restrict or make it harder for formerly incarcerated americans to vote in federal and state elections. individuals who have fully completed their sentence continue to face voting obstacles beyond prison that non-incarcerated americans do not encounter. these laws hamper individuals who have completed their sentences and discriminate against the rights of formerly incarcerated people. this article questions why formerly incarcerated individuals are not eligible to enjoy the same voting rights as their fellow americans. to combat this unjust treatment, this article proposes an original super-statute: the voting rights restoration act. this novel proposal ensures that formerly incarcerated individuals will be respected under the law as equal citizens of the united states. i. a proposed statute: the voting rights restoration act a fundamental right that all americans are entitled to is the ability to participate in our nation’s democratic processes. however, there are numerous state laws that exclude millions of americans with past criminal convictions from voting in both state and federal elections.255 the voting rights restoration act seeks to address this anti-democratic injustice. 255 chung, jean, and amy fettig. “voting rights in the era of mass incarceration: a primer.” the sentencing project,3 sept. 2021, https://www.sentencingproject.org/publications/felony-disenfranchisementa-primer/. 254 brandeis university undergraduate, class of 2025. 86 https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/ https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/ brandeis university law journal spring 2023, volume 10, issue 2 this proposed statute is a super-statute because it addresses a fundamental aspect of national life: the ability for all americans to participate in democracy.256 super-statutes, such as the civil rights act of 1964 or the voting rights act of 1965, provide a broad pathway for citizens to exercise their fundamental rights that are enshrined in the constitution of the united states.257 the fundamental right to participate in our democracy is directly addressed under section 1 of the 14th amendment of the constitution which states, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”258 this amendment is particularly significant because it states that the laws of the united states, including voting laws, must be applied equally to all citizens.259 the voting rights restoration act reinforces the equal protection clause because it promotes the constitutional principle that every american citizen is entitled to vote in elections and that no state shall abridge this right. finally, the voting rights restoration act is a super statute because it would be a “landmark” of our law.260 not only does this proposed piece of legislation give practical 260 breen, “class lecture.” 259 u.s. const. amend. xiv, § 1. 258 u.s. const. amend. xiv, § 1. 257 breen, daniel. 221lgls: civil rights and civil liberties: legislative. 26 january. 2022, brandeis university, waltham. class lecture. 256 scholars william n. eskridge, jr. and john ferejohn define a super-statute as, “a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute” (1216); eskridge, william n., and john ferejohn. super-statutes , https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context =dlj 87 https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj brandeis university law journal spring 2023, volume 10, issue 2 effect to the equal protection clause, a core constitutional command, but it also restores the right to vote to every formerly incarcerated american. in summation, the voting rights restoration act pertains to the three criteria that define a super-statute; the legislation addresses a fundamental aspect of our national life, it gives effect to deeply held beliefs and aspirations, and it is a “landmark” in our law.261 the voting rights restoration act would also allow any individual who has completed a sentence in prison or jail to be eligible to vote upon release. further, the act would allow individuals who are on parole or supervised probation to exercise their right to vote in elections. states such as florida, alabama, arizona, and tennessee have adopted laws that have made restoration of voting rights “conditional on an individual’s payment of all restitution, fines, and fees.”262 formerly incarcerated individuals who are required to make monetary payments in order to exercise their right to vote encounter hindrances in fulfilling their civic responsibilities that are not encountered by non-incarcerated individuals. the sentencing project is a research and advocacy center that seeks to limit the decriminalization of youths and adults by undertaking an initiative to analyze laws related to voter disenfranchisement. the center estimates that almost 900,000 floridians are barred from voting, despite a 2018 referendum which guaranteed their restoration of voting rights.263 the proposed voting rights restoration act abolishes any law that requires former imprisoned to pay any restitution, fine, or fee to vote. the act of voting or exercising one’s voice in democracy should not be dependent on a monetary contribution. voting is an intangible mechanism that has no monetary function because it is both a freely guaranteed and not transferable right. instead, voting ought to be regarded as a 263 uggen et al., “locked out 2020.” 262 chung et al., “voting rights.” 261 eskridge, william n., and john ferejohn. super-statutes. 88 brandeis university law journal spring 2023, volume 10, issue 2 fundamental right that any citizen can freely exercise, regardless of income level or previous incarceration. the voting rights restoration act seeks to restore the right to vote for formerly incarcerated individuals while also enforcing the rule of law in a rational manner. when an individual violates the laws of the united states, they are subject to incarceration. a convicted individual forfeits many freedoms, including the right to vote, while they are incarcerated. therefore, the voting rights restoration act pertains to individuals who are no longer incarcerated as well as individuals who are in a period of parole.264 the application of this proposed statute depends on if the individual is imprisoned or has been released from incarceration. the proposed statute does not apply to individuals who are currently serving a prison sentence. while individuals relinquish their right to vote during their period of confinement and/or probation, this restriction should end upon the termination of a person’s sentence. after an individual completes their sentence, they have served their time and ought to be reintegrated back into a society where voting is a regular practice. lastly, the voting rights restoration act would be a federal law enacted by congress, meaning it is applicable to all 50 states and territories of the united states. ii. why the voting rights restoration act is needed the voting rights restoration act is needed today because it reflects the current call to combat the oppression of minority groups disproportionately affected by the criminal justice system.265 as it stands, disenfranchisement of voting 265 brennan center for justice, “criminal disenfranchisement laws.” 264 a great debate exists regarding if currently incarcerated individuals should enjoy the right to vote. while this issue is worthy of discussion, its breadth is beyond the scope of the voting rights restoration act and this article. 89 brandeis university law journal spring 2023, volume 10, issue 2 rights for formerly incarcerated individuals is widespread across the nation. the brennan center for justice, a nonprofit law and policy institute which seeks to hold american political institutions to account, states that “twenty-seven states bar community members from voting, simply on the basis of convictions in their past.''266 essentially, it does not matter the reason individuals have been incarcerated, the duration of their incarceration, or how they behaved while incarcerated; all that matters is that they were, for some time, and for some reason, incarcerated.267 the impact of these laws disenfranchising formerly incarcerated people has only intensified as “the number of people disenfranchised because of a felony conviction increased dramatically, rising from 1.17 million in 1976 to 6.1 million by 2016, just as mass incarceration and criminalization took hold in the u.s.''268 moreover, incarcerated individuals' disenfranchisement laws have a disproportionate impact on communities of color. as of 2020, the sentencing project found that “in seven states—alabama; florida; kentucky; mississippi; tennessee; virginia; wyoming—more than one in seven black adults are disenfranchised. in total, 1.8 million black citizens are banned from voting.”269 the significance of this statistic illustrates that voter disenfranchisement laws are specifically targeting black individuals from pursuing their constitutional right to participate in democracy. this is a pattern of social injustice that has plagued america since its founding. it is time to address voter disenfranchisement laws to ensure equality under the law for all american citizens. 269 uggen et al., “locked out 2020.” 268 chung et al., “voting rights.” 267 brennan center for justice, “criminal disenfranchisement laws.” 266 brennan center for justice, “criminal disenfranchisement laws.” 90 brandeis university law journal spring 2023, volume 10, issue 2 iii. a lineage of super statutes in general, the proposed super statute reflects a long history of fundamental american principles, which include democratic participation and equality under the law. at the core of american democracy is civic participation through regularly held elections.270 while the ability to vote is more accessible today than it was a century ago, there are clearly still limitations to voting rights for americans with past criminal convictions. there is a long history of americans fighting for more equal voting rights with the enactment of meaningful legislation.271 the passage of the voting rights act of 1965 represents the battle to make voting a more accessible and inclusive process.272 at the time of enactment, this 1965 statute abolished poll taxes and literacy tests. since its enactment, it has aimed to prevent any jurisdiction from abridging the right to vote on account of race and has required a preclearance requirement which bars specific jurisdictions from changing voting laws without approval from the united states attorney general or district court judgment.273 the voting rights act of 1965 prevented discriminatory voter suppression tactics, thereby giving more americans the chance to exercise their right to vote. similarly, the proposed voting rights restoration act seeks to make voting more accessible for previously incarcerated individuals by eliminating the obstacles that are prevalent in our current laws. congress tried to address racial discrimination in voting through the voting rights act of 1965, but criminal disenfranchisement remains an apparatus of oppression in a criminal justice system that disproportionately affects people of 273 breen, “class lecture.” 272 breen, “class lecture.” 271 breen, “class lecture.” 270 breen, “class lecture.” 91 brandeis university law journal spring 2023, volume 10, issue 2 color.274 for this proposed act to have a broad application to all previously incarcerated americans, it should be a federal law enacted by the united states congress. the hypothetical passage of the voting rights restoration act would illuminate america’s precious norms of democratic participation and equality under the law. since there is no existing federal legislation and individual states are adopting radically different voting laws, there is a great disparity in the voting rights that formerly incarcerated americans receive.275 part of this inconsistent application of criminal disenfranchisement laws stems from the supreme court of the united states’ decision in richardson v ramirez (1974). in this case, three men who had served time for felony convictions in california sued the state for the right to vote by alleging that the state’s policies denied them the right to equal protection guaranteed under the u.s. constitution’s 14th amendment.276 the court ruled in favor of california, stating that the equal protection clause does not prohibit disenfranchisement policies and that section 2 of the 14th amendment allows for states to deny voting rights “for participation in rebellion, or other crime.”277 however, the court’s interpretation of the equal protection clause in richardson is inconsistent with the court’s previous decision in harper v. virginia board of elections (1966) where the court found that “the equal protection clause is not shackled to the political theory of a particular era.”278 rather, it “draws much of its substance from changing social norms and evolving conceptions of equality.”279 the 279 tribe, laurence h. american constitutional law . (2nd ed.) ed., foundation press, 1988. 278 harper v. virginia bd. of elections, 383 u.s. 669 (1966). 277 richardson v. ramirez, 418 u.s. 42 (1974). 276 richardson v. ramirez, 418 u.s. 24 (1974). 275 chung et al., “voting rights.” 274 chung et al., “voting rights.” 92 brandeis university law journal spring 2023, volume 10, issue 2 court’s inconsistent reasoning on criminal disenfranchisement laws places more authority in the hands of state legislatures who continue to limit the rights of formerly incarcerated americans.280 this should be an incentive for a law that is nationally applicable by congress’ enactment as well as enforced by the department of justice. the proposed voting rights restoration act ought to be enacted federally so that every formerly incarcerated american can participate in the electoral process, regardless of the state in which they live. iv. a message to lawmakers while the hypothetical voting rights restoration act is a law for fundamental rights and equality, opponents of this legislation might label the statute as too “soft” on crime. lawmakers could argue that felons ought to be restricted from voting as a means of punishment for the crime(s) they committed.281 however, this article argues that it is redundant, cruel, and unjust to deprive formerly incarcerated persons of an essential right that all americans are entitled to after they have already been punished. additionally, if lawmakers want to prevent more crimes from occurring, they should endorse the voting rights restoration act. the proposed law reintegrates formerly incarcerated individuals back into their communities, preventing them from repeating their past mistakes. a sentencing project study concluded that “among individuals who had been arrested previously, 27 percent of non-voters were rearrested, compared with 12 percent of voters.”282 lawmakers should also support the proposed statute 282 uggen et al., “locked out 2020.” 281 clegg, roger. “there are good reasons for felons to lose the right to vote.” the heritage foundation. accessed may 26, 2023. https://www.heritage.org/election-integrity/commentary/there-are-good-reas ons-felons-lose-the-right-vote. 280 chung et al., “voting rights.” 93 brandeis university law journal spring 2023, volume 10, issue 2 because “a clear majority of u.s. residents support voting rights for citizens who have completed their sentence.”283 ultimately, the constituents of politicians are supportive of formerly incarcerated individuals exercising their democratic right to vote in elections, which should be an incentive for lawmakers to support this proposed super-statute. a 2018 pew research center survey titled “re-enfranchisement for those convicted of felonies” found that a majority of both democrats and republicans support re-enfranchisement.284 the survey demonstrates that there is a strong bipartisan sentiment regarding this issue, which is another reason why lawmakers ought to endorse the aforementioned act. before voting against the suggested voting rights restoration act, opposing lawmakers should reconsider their decision based on the law’s fairness, the positive impacts of prisoner reintegration, and the bipartisan support amongst americans for re-enfranchisement. in closing, the voting rights restoration act illuminates the fundamental american principle that every citizen should be able to vote. the proposed super-statute would not only seek to stop the disenfranchisement of formerly incarcerated individuals, but would also specifically aid communities of color who are disproportionately affected by the criminal justice system. the fight for expanding voting rights and criminal justice reform is not a new endeavor for lawmakers. in fact, the passages of the voting rights act of 1965, the first step act, and many other laws have enforced the ideas of civic 284 bialik, kristen. “how americans view some of the voting policies approved at the ballot box.” pew research center, pew research center, 2 oct. 2020, https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-so me-of-the-voting-policies-approved-at-the-ballot-box/. 283 uggen et al., “locked out 2020.” 94 brandeis university law journal spring 2023, volume 10, issue 2 participation and voting equality under the law. the voting rights restoration act seeks to promote these precious norms by nationally permitting formerly incarcerated people to vote once they have completed their sentence, are on parole, or are serving probation. this proposed legislation reflects civic republicanism and positive liberty in its efforts to make the democratic system a more inclusive, consistent, and accessible space for previously incarcerated people. now is the time for lawmakers to be brave and support a bill that will reinforce the united states’ commitment to a more equal and ethical criminal justice system.285 285 this op-ed was authored in the spring of 2022. as of 05/18/2023, senator benjamin l. cardin (d-md) introduced the democracy restoration act of 2023. senator cardin's act would restore voting rights to 5.8 million formerly-incarcerated americans; "s.1677 118th congress (2023-2024): democracy restoration act of 2023." congress.gov, library of congress, 18 may 2023, https://www.congress.gov/bill/118th-congress/senate-bill/1677; “democracy restoration act.” ben cardin u.s. senator for maryland: press release, 10 april 2014, http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:t ext=the%20democracy%20restoration%20act%20would,back%20living %20in%20their%20communities. 95 http://www.congress.gov/bill/118th-congress/senate-bill/1677?s=1&amp;r=106 http://www.congress.gov/bill/118th-congress/senate-bill/1677?s=1&amp;r=106 https://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities. https://www.congress.gov/bill/118th-congress/senate-bill/1677 http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities brandeis university law journal spring 2023, volume 10, issue 2 bibliography bialik, kristen. “how americans view some of the voting policies approved at the ballot box.” pew research center, pew research center, 2 oct. 2020, https://www.pewresearch.org/fact-tank/2018/11/15/how -americans-view-some-of-the-voting-policies-approved -at-the-ballot-box/. breen, daniel. 221lgls: civil rights and civil liberties: legislative. 24 january. 2022, brandeis university, waltham. class lecture. cardin, ben. “democracy restoration act.” ben cardin u.s. senator for maryland: press release, 10 april 2014, http://www.cardin.senate.gov/press-releases/democracy -restoration-act/#:~:text=the%20democracy%20restor ation%20act%20would,back%20living%20in%20their %20communities. chung, jean, and amy fettig. “voting rights in the era of mass incarceration: a primer.” the sentencing project, 3 sept. 2021, https://www.sentencingproject.org/publications/felonydisenfranchisement-a-primer/. clegg, roger. “there are good reasons for felons to lose the right to vote.” the heritage foundation. https://www.heritage.org/election-integrity/commentary /there-are-good-reasons-felons-lose-the-right-vote. “criminal disenfranchisement laws across the united states.” brennan center for justice, https://www.brennancenter.org/our-work/research-repor ts/criminal-disenfranchisement-laws-across-united-state s. eskridge, william n., and john ferejohn. super-statutes , https://scholarship.law.duke.edu/cgi/viewcontent.cgi?art icle=1108&context=dlj potyondy, patrick. “felon voting rights.” felon voting rights, 96 https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-some-of-the-voting-policies-approved-at-the-ballot-box/ https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-some-of-the-voting-policies-approved-at-the-ballot-box/ https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-some-of-the-voting-policies-approved-at-the-ballot-box/ http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=the%20democracy%20restoration%20act%20would,back%20living%20in%20their%20communities https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/ https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/ https://www.heritage.org/election-integrity/commentary/there-are-good-reasons-felons-lose-the-right-vote https://www.heritage.org/election-integrity/commentary/there-are-good-reasons-felons-lose-the-right-vote https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj brandeis university law journal spring 2023, volume 10, issue 2 https://www.ncsl.org/research/elections-and-campaigns/ felon-voting-rights.aspx. smith, ed. “marijuana deep dive: state policy updates.” marijuana deep dive | state policy updates, https://www.ncsl.org/bookstore/state-legislatures-magaz ine/marijuana-deep-dive.aspx. tribe, laurence h. american constitutional law . (2nd ed.) ed., foundation press, 1988. uggen, chris, and amy fettig. “locked out 2020: estimates of people denied voting rights due to a felony conviction.” the sentencing project, 13 aug. 2021, https://www.sentencingproject.org/publications/lockedout-2020-estimates-of-people-denied-voting-rights-dueto-a-felony-conviction/. legal documents and cases cited constitution of the united states. https://constitution.congress.gov/constitution/. harper v. virginia bd. of elections, 383 u.s. 663 (1966) “harper v. virginia bd. of elections, 383 u.s. 663 (1966).” justia law, supreme.justia.com/cases/federal/us/383/663/. richardson v. ramirez, 418 u.s. 24 (1974). “richardson v. ramirez, 418 u.s. 24 (1974).” justia law, supreme.justia.com/cases/federal/us/418/24/. "s.1677 118th congress (2023-2024): democracy restoration act of 2023." congress.gov, library of congress, 18 may 2023, https://www.congress.gov/bill/118th-congress/senate-bill/ 1677. 97 https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx https://www.ncsl.org/bookstore/state-legislatures-magazine/marijuana-deep-dive.aspx https://www.ncsl.org/bookstore/state-legislatures-magazine/marijuana-deep-dive.aspx https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/ https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/ https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/ https://constitution.congress.gov/constitution/ https://www.congress.gov/bill/118th-congress/senate-bill/1677 https://www.congress.gov/bill/118th-congress/senate-bill/1677 brandeis university law journal spring 2023, volume 10, issue 2 regulation: realities and possibilities286 sophia reiss287 modern communication technologies increasingly raise concern. this growing awareness prompts examination of the effectiveness of current regulation and consideration of possible changes. this article explores the possibility of using both previous american regulation and european regulation efforts as examples to frame improvements in communications governance. first, it evaluates the fairness doctrine and its role in regulation as part of the federal communications commission (fcc) and the current section 230 regulation. next, the article reviews proposed amendments and alternative pathways for regulation before providing a recommendation based on these regulatory schemes. i. introduction the supreme court heard two cases in early 2023 presenting questions of online speech regulation: gonzalez v. google and twitter v. taamneh.288 both cases were brought by the families of american victims of the 2015 terrorist attacks in paris. the families are suing the platforms for their role in allowing these terrorists to use their platforms in order to facilitate the attacks.289 these two cases reveal some of the 289 “twitter, inc. v. taamneh,” oyez, https://www.oyez.org/cases/2022/21-1496. 288 brian fung, “two supreme court cases this week could upend the entire internet | cnn business,” cnn, february 20, 2023, https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index. html. 287 brandeis university graduate class of 2023, former editor-in-chief of the brandeis university law journal. 286 this article is adapted from an essay recognized for the 2023 justice louis d. brandeis essay prize. 98 https://www.oyez.org/cases/2022/21-1496 https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html brandeis university law journal spring 2023, volume 10, issue 2 profound harms that social media can facilitate and challenges the status quo of current american regulation of online platforms. these cases illustrate how online hate and disinformation influence offline hate, violence, and distrust. the proliferation of social media platforms, especially the specialized platforms that appeal to those trafficking in conspiracies, allow people to fall deeper into the alternative reality of conspiracy theories, confirm their own implicit biases, and breed hate. since social media platforms are run by private companies, where users are private individuals operating within a relationship with these companies, regulation is limited. this is particularly challenging in the united states given that current communications governance limits legal liability and public regulation. current communications governance heavily depends on the initial expectations of technology and communications growth potential at the outset of these new technologies’ arrival on the marketplace. when the internet first began being marketed to the public, the u.s. government, specifically congress, understood that innovation should be encouraged and could have positive, far-reaching implications. the unimaginable possibilities and opportunities of the internet promised the longed-for progress and growth. the internet connects people, inspires innovation, broadens access, and provides information. the focus of early legislation was to encourage this growth. in considering new regulation, several tensions need to be balanced by legislators and regulators. the power and opportunity for change, growth, understanding, and constructive debate are fiercely protected by freedom of speech. there is no question that freedom of speech is a core value protecting, most centrally, political dissent.290 on the 290 whitney v. california (1927); tinker v. des moines independent school 99 brandeis university law journal spring 2023, volume 10, issue 2 other hand, speech has the power and potential to cause emotional pain, physical violence, social alienation, and conflict. these emotional, physical, and social harms must be considered and balanced against the value of freedom of speech. other harms exist as well, as speech and dissent can disrupt and even threaten governmental institutions. this online environment allows for us to have digital personas, versions of ourselves which exist online and are created from our digital actions and behavior. beyond the offline harms that online platforms enable, digital personas and one’s personal digital footprint can also be harmed. one definition of the verb “balance,” according to merriam webster, is “to bring into harmony or proportion” which speaks to a kind of equipoise and is the regulatory solution this article hopes to propose.291 this is vital because the idea of balance helps to achieve “harmony.” through careful weighing of the before-mentioned tensions, regulation of new technologies should enable creativity, innovation, and positive change, while mitigating the potential for harm. this article will propose a regulatory solution based on elements present in the fairness doctrine, section 230, proposed amendments, consumer protection laws, and regulatory strategies in europe like the gdpr. to do so, the article will first provide a background and history of each to delineate the components and precedence that can address the harms of social media that abound in our current digital climate. upon this background, an explanation of a few potential regulatory responses that are currently being debated and explored will be offered. finally, the paper will draw from the aforementioned regulations and responses to propose a new governance response which combines the benefits and best 291 “definition of balance,” february 22, 2023, https://www.merriam-webster.com/dictionary/balance. district (1969) 100 https://www.merriam-webster.com/dictionary/balance https://www.merriam-webster.com/dictionary/balance brandeis university law journal spring 2023, volume 10, issue 2 techniques of each of the reviewed regulations and proposed approaches. ii. background regulations a. fairness doctrine – previous regulation first, the former regulation system of the fairness doctrine must be examined. the fairness doctrine was created by the federal communications commission (fcc) in 1949 to regulate “the airwaves” as there was a “scarce supply” of stations that “were owned by the public, with tv and radio stations functioning as ‘public trustees.’”292 the fairness doctrine lasted until its repeal by the fcc in 1987 and required broadcasters to present opposing views on important issues of public interest.293 the notion that broadcasting licenses serve the public interest derives from the existence of limited bandwidth and the fcc’s role in granting licenses with the public’s participation. the fairness doctrine’s requirement of a well-rounded and fair portrayal serves the public interest.294 294 “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969),” justia law, https://supreme.justia.com/cases/federal/us/395/367/. 293 dan macguill, “did ronald reagan pave the way for fox news?,” snopes, january 26, 2018, https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/; “fairness doctrine,” ronald reagan, https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine; dylan matthews, “everything you need to know about the fairness doctrine in one post,” washington post (blog), august 23, 2011, https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-nee d-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cx zj_blog.html; kathleen ann ruane, “fairness doctrine: history and constitutional issues.” 292 tom rosentiel, “is the fairness doctrine fair game?,” pew research center (blog), july 19, 2007, https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game. 101 https://supreme.justia.com/cases/federal/us/395/367/ https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/ https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/ https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/ https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/ brandeis university law journal spring 2023, volume 10, issue 2 the doctrine specifically required “that every licensee devote a reasonable portion of broadcast time to the discussion and consideration of controversial issues of public importance.”295 the second component of the doctrine specified “that in doing so, [the broadcaster must be] fair – that is, [the broadcaster] must affirmatively endeavor to make … facilities available for the expression of contrasting viewpoints held by responsible elements with respect to controversial issues presented.”296 this required people on both sides not only to speak and express their opinions, but also to find the appropriate presenters to voice opposing viewpoints.297 while this may have enforced or enabled neutrality, or at least debate, it also could create false equivalencies, one of the concerns to be treated with caution for any discussions of reinstatement. the high efficacy appears clear throughout the fairness doctrine’s record and its continued support from the public and governmental institutions over the years until its removal. regardless of its exact impact, the technique of incorporating fairness and balance into a doctrine where reasonable viewpoints must be presented provides a potential model for future regulation. the fairness doctrine found support in congress and the supreme court. the supreme court unanimously upheld the fairness doctrine due to its focus on the public interest in the 1969 case red lion broadcasting co., inc. v. federal communications commission.298 in its decision, “[t]he court held that the fcc’s [f]airness [d]octrine regulations enhanced rather than infringed the freedoms of speech protected under 298 matthews, “everything you need to know about the fairness doctrine in one post”; “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969).” 297 ruane, “fairness doctrine: history and constitutional issues.” 296 ruane, “fairness doctrine: history and constitutional issues.” 295 ruane, “fairness doctrine: history and constitutional issues.” 102 brandeis university law journal spring 2023, volume 10, issue 2 the first amendment.”299 further, they wrote that “the ‘public interest’ in broadcasting clearly encompasses the presentation of vigorous debate of controversial issues of importance and concern to the public.”300 in 1987, however, the fairness doctrine met its demise. this came about after the fcc decided that “the fairness doctrine was no longer necessary given the changes that had taken place in the media environment” and had failed to prove its efficacy.301 while this may seem like definitive proof of its flaws, closer examination shows that may not be true. additionally, the fcc’s statement about the doctrine’s necessity can be questioned and the efficacy evaluation may have been biased and not thoroughly researched. the “1985 fairness report,” which the fcc relied on, was the first “‘empirical assessment as to the efficacy of this chosen regulatory mechanism to promote access by the public to the marketplace of ideas’” and included public comment from many as part of its review process.302 the report met criticism, including that it “lacked any systematic statistical analysis and relied too heavily on anecdotal examples by broadcasters.”303 subsequent to this report, governance changes were implemented to improve data-gathering practices and the accuracy of regulatory mechanisms.304 304 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select.” 303 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select.” 302 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select.” 301 “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select,” https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7c a191854511&v=2.1&it=r&ugroup=outside. 300 “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969).” 299 “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969).” 103 https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca191854511&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca191854511&v=2.1&it=r&ugroup=outside brandeis university law journal spring 2023, volume 10, issue 2 b. section 230 – current regulation the next section of this paper centers on section 230. first, this section will explore section 230’s historical and legislative context. second, the paper will examine the details of the law itself and congress’ motivations for putting section 230 in place. third, the practical implications and impact of section 230 will be evaluated in contrast to its development and textual priorities. section 230 came about through “[t]he communications decency act of 1996 (cda)” which “added section 230 to the communications act of 1934, generally protecting online service providers from legal liability stemming from content created by the users of their services.”305 the law itself explains congress’ original rationale for the law. both its findings and policy objectives will be examined later in greater depth.306 section 230 or “47 u.s.c. § 230” not only responded to the innovation of the internet, but attempted to resolve two prior conflicting cases.307 these cases, namely cubby, inc. v. compuserve, inc. and stratton oakmont, inc. v. prodigy servs. co, both dealt with message board content and the question of whether platforms are “publishers” of this content.308 the first case, “cubby v. compuserve (1991),” featured the defendant, compuserve, who maintained an information service which included special interest forms and found its way to court “[w]hen a columnist for one of the special-interest forums 308 “section 230.” 307 “section 230: legislative history,” electronic frontier foundation, september 18, 2012, https://www.eff.org/issues/cda230/legislative-history. 306 “47 u.s. code § 230 protection for private blocking and screening of offensive material,” lii / legal information institute, accessed march 25, 2023, https://www.law.cornell.edu/uscode/text/47/230. 305 kathleen ann ruane, “how broad a shield? a brief overview of section 230 of the communications decency act” (congressional research service, february 21, 2018). 104 https://www.eff.org/issues/cda230/legislative-history https://www.law.cornell.edu/uscode/text/47/230 brandeis university law journal spring 2023, volume 10, issue 2 posted defamatory comments about a competitor, the competitor sued compuserve for libel.”309 the u.s. district court for the southern district of new york, which heard the case, concluded that “compuserve could not be held liable as the columnist’s distributor because compuserve did not review any of the content on the forums before it was posted,” which meant they lacked “knowledge of the libel” and therefore “could not be held responsible for it.”310 the court wrote that “compuserve’s cis product is in essence an electronic, for profit library” which is “at the forefront of the information industry revolution,” and that allows individuals to have “instantaneous access to thousands of news publications across the world.”311 the court continued that “compuserve has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for compuserve to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”312 the second case, stratton oakmont inc. v. prodigy servs, co., happened four years after compuserve, in 1995, and featured the new york supreme court with a differing opinion on online platforms’ responsibility.313 the case involved prodigy, “a web services company” that “hosted online bulletin boards.”314 this case centered around actions prodigy took, namely when “prodigy moderated its online 314 “section 230.” 313 “section 230.” 312 cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991). 311 cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991), accessed march 25, 2023. 310 “section 230.”; castro, “overview of section 230.” 309 ashley johnson and daniel castro, “overview of section 230: what it is, why it was created, and what it has achieved,” february 22, 2021, https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-i t-was-created-and-what-it-has-achieved/; “section 230.” 105 https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/ https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/ brandeis university law journal spring 2023, volume 10, issue 2 message boards and deleted some messages for ‘offensiveness and ‘bad taste,’’’ which the court found made prodigy “akin to a publisher with responsibility for defamatory postings that made it onto the site.”315 given the multitude of posts on this platform, specifically “60,000 postings a day,” review of these for defamatory content would be quite a challenge.316 the first case, compuserve, appears to be a clearer and stronger application of precedents to a new technology. the court’s comparison between the information service at issue in the case and a library presents one type of interwoven relationships and control within the online sphere, which frames the information service provider as a very hands-off and structural type of internet operator. the second case, stratton v. prodigy, dealing with a platform that actively moderated its content while still maintaining a large amount of content typical of internet services, would be responsible despite no clear legal precedent providing a background for this conclusion. this led to a conflict where one platform, compuserve, would not be classified as a publisher, therefore void of any liability for the content on its platform, while another similar platform, prodigy, would be classified as a publisher, leading them to be held liable and responsible for the content on its platform. as a result, “section 230 had two purposes: the first was to ‘encourage the unfettered and unregulated development of free speech on the internet,’ as one judge put it; the other was to allow online services to implement their own standards for policing content and provide for child safety.”317 section 230 consists of six sections.318 section 230 starts with congress’ findings and the legislators framing of the context 318 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 317 “section 230.” 316 “section 230.” 315 “section 230.” 106 brandeis university law journal spring 2023, volume 10, issue 2 which inspired the law’s creation.319 congress explained the need for section 230 as arising out of “[t]he rapidly developing array of internet and other interactive computer services” which “represent an extraordinary advance in the availability of educational and informational resources to our citizens.”320 congress explained that the goals of section 230 were “to promote the continued development of the internet and other interactive computer services and interactive media…to preserve the vibrant and competitive free market… [and] to encourage the development of technologies that maximize user control over information.”321 through section 230(c), congress granted “protection for ‘good samaritan’ blocking and screening of offensive material,” meaning that anyone using the internet sphere would be treated automatically as being well-intentioned or as “good samaritans.”322 good samaritan laws rely on the concept of good public policy as being that which “limit[s] liability for those who voluntarily perform care and rescue in emergency situations.”323 the utilization of this principle in section 230 exemplifies its wider application, encompassing situations where limited liability is enforced. section 230 and the protections under the “good samaritan” header include “[n]o provider or user of an interactive computer service shall be held liable” given their “good faith to restrict access” to content.324 further, “the good samaritan law provides protection from claims of negligence for those who provide 324 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 323 brian west and matthew varacallo, “good samaritan laws,” in statpearls (treasure island (fl): statpearls publishing, 2023), http://www.ncbi.nlm.nih.gov/books/nbk542176/. 322 “47 u.s. code § 230.” 321 “47 u.s. code § 230.” 320 “47 u.s. code § 230.” 319 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 107 http://www.ncbi.nlm.nih.gov/books/nbk542176/ brandeis university law journal spring 2023, volume 10, issue 2 care without expectation of payment,” which provides an interesting contradiction when applied to section 230’s focus on “interactive computer service” providers and “information content provider[s],” who are monetizing their roles and actions.325 these providers are not considered “good samaritans.” despite this inherent contradiction, the liability shield within section 230(c)(1) removes these companies from liability “as publisher or speaker.”326 section 230 continues in (c)(2) to state that “[n]o provider or user of an interactive computer service shall be held liable on account of” their actions taken either, “to restrict access to…material… whether or not such material is constitutionally protected…[or]...to enable or make available to information content providers.”327 the first part “means online services are not liable for defamatory or otherwise unlawful content their users post.”328 in contrast, section 230(c)(2) “protects online services from liability for engaging in content moderation and enforcing their online standards” specifically for actions “‘taken in good faith.’”329 section 230(d) explains that providers should “notify such customers that parental control protections... [exist and] provide the customer with access to information identifying current providers of such protections.”330 this appears to indicate the legislator’s awareness that limited liability would result in children being left vulnerable absent these extra controls. section 230 has minimal effect on other laws.331 the definitions provide insight into how much the internet has 331 “47 u.s. code § 230.” 330 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 329 johnson and castro, “overview of section 230.” 328 johnson and castro, “overview of section 230.” 327 “47 u.s. code § 230.” 326 “47 u.s. code § 230.” 325 west and varacallo, “good samaritan laws.”; “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 108 brandeis university law journal spring 2023, volume 10, issue 2 developed since section 230 was implemented. section 230(f) defines the “[i]nternet,” “interactive computer service,” “information content provider,” and “access software provider.”332 the way the “interactive computer service” is defined is through a comparison to “services offered by libraries or educational institutions.”333 by continuing to uphold that image, serving in a similar way to libraries, allows these services to remain the subject of the limited liability that section 230 provides.334 section 230 also incorporates the way courts interpret and apply the law and its “[l]iability [s]hield.”335 section 230 is applied broadly due to the interactive computer service definition and the information content provider definitions.336 section 230 defines “interactive computer service” as “any information service, system or access software provider that provides or enables computer access by multiple users to a computer server.”337 first, the interactive computer service definition allows for the most broad liability shield which “[r]eviewing courts have interpreted [the liability shield] to cover many entities operating online, including broadband internet access service providers (e.g., verizon fios and comcast xfinity), internet hosting companies (e.g., dreamhost and godaddy), search engines (e.g., google and yahoo!), online message boards, and many varieties of online platforms.”338 338 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 337 “47 u.s. code § 230 protection for private blocking and screening of offensive material.” 336 ruane. 335 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 334 “47 u.s. code § 230.” 333 “47 u.s. code § 230.” 332 “47 u.s. code § 230.” 109 brandeis university law journal spring 2023, volume 10, issue 2 the second definition in its application covers “when [providers] disseminate others’ allegedly unlawful content, but not when they are wholly or partially responsible for the production of such content,” or when they are acting as an “information content provider.”339 as a result, it allowed business models to proliferate which all “rely on a wide variety of user generated content” including making possible “user reviews and comments” through “the liability protection offered by section 230.340 so far the courts presented with this question have decided that editing content does not change the content enough to remove the platforms’ protection under section 230’s liability shield.341 the court’s choice to interpret editing compared to other actions of the platforms helps frame how section 230 categorizes these online services as distinct from publishers or speakers.342 section 230 provides a liability shield for “traditional publishing functions” and editorial choices including publishing content and withdrawing such content.343 this aspect of section 230 protects platforms even when they remove content, which enables “those same websites to filter out violent, or graphic content, harassment, misinformation, hate speech, and other objectionable content, thereby creating a better user experience.”344 while this appears to obligate platforms or services to keep users safe, the other protection specifically from liability for the third-party content means that there is no obligation to filter content.345 the obligation does not necessarily create the protective 345 johnson and castro, “overview of section 230.” 344 johnson and castro, “overview of section 230.” 343 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 342 ruane. 341 ruane, “how broad a shield? a brief overview of section 230 of the communications decency act.” 340 johnson and castro, “overview of section 230.” 339 ruane. 110 brandeis university law journal spring 2023, volume 10, issue 2 environment it appears to and as a result, judicial interpretation makes clear section 230’s exact scope including the extent and limits of its protections. as applied, section 230 does not protect online platforms if they develop or induce illegal content, selectively repost content, breach contracts, fail to act in good faith, or fail to warn users of illegal activity hosted on their platform.346 further judicial interpretation has pointed to areas where section 230 is unclear, particularly in the face of a vast and new technology environment.347 this includes cases where algorithmic sorting was examined by the courts as it appears to be an unclear issue of immunity where algorithmic filters content particularly on social media platforms and searches.348 a district of columbia circuit court held that a “search engine’s tools did ‘not distinguish’ between different types of user content” and instead simply “translated all types of information, both legitimate and scam information, in the same manner.”349 overall, the practical implications and section 230’s legal interpretations result in an unregulated online environment where platforms maintain user agreements that hint to filters and where most content can be shared without repercussions. this environment raises questions about objectionable content that remains on their site, algorithms that spread this content, and the general growth and control of big tech. these questions and investigations are complex because section 230 assumes that online actors act in “good faith” and 349 brannon and holmes, “section 230: an overview.” 348 brannon and holmes, “section 230: an overview.” 347 valerie c brannon and eric n holmes, “section 230: an overview,” april 7, 2021, 58. 346 daniel castro and ashley johnson, “the exceptions to section 230: how have the courts interpreted section 230?,” february 22, 2021, https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-c ourts-interpreted-section-230/. 111 https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/ https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/ brandeis university law journal spring 2023, volume 10, issue 2 fully place the obligation for filtering content on the companies with no examination of how they do it or what content leaves and what content remains on the platforms. further, algorithms which are central to many platforms’ business models are not addressed by section 230. social media algorithms “can be defined as technical means of sorting posts based on relevancy” in which the content that the user sees is prioritized including, at times, based on usage of the platform.350 the way algorithms curate user experiences would most likely fall into “editorial decisions,” which platforms are expected to make in “good faith,” but the public often has limited information or awareness of how the algorithms work and change their experiences. this leaves people to deal with the consequences of the curated content without recourse, as the algorithms are made and run by the platforms who can hide behind section 230’s “liability shield.” lastly, the way big tech, the largest companies dominating the technology marketplace, grew and gained control over the online space was encouraged and enabled by section 230, but the consequences of their actions and algorithms and these companies’ relative power compared to that of users, regulators, and lawmakers may have been unforeseen. indeed, some even argue that the debate over section 230 has become a substitute for larger debates around speech and discussions about how a free marketplace of ideas can really function.351 further, these questions relate to who should be the ones’ deciding how this marketplace should 351 ovide, shira. “what’s behind the fight over section 230.” the new york times, march 25, 2021, sec. technology. https://www.nytimes.com/2021/03/25/technology/section-230-explainer.htm l. 350 maria alessandra golino, “algorithms in social media platforms,” april 24, 2021, https://www.internetjustsociety.org/algorithms-in-social-media-platforms. 112 https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html https://www.internetjustsociety.org/algorithms-in-social-media-platforms brandeis university law journal spring 2023, volume 10, issue 2 work, what happens in response to any harms that ensue, and who should be responsible.352 iii. potential responses a. proposed changes to section 230 – potential response 1 as a result of this unregulated technology and media environment, proposals abound for how to amend section 230 to fix its flaws to achieve its policy objectives. some proposed amendments make the liability protection conditional, others add “more exceptions” to the liability protection, in addition to more drastic proposals “to repeal section 230 entirely,” or “more incremental rollbacks.”353 internet companies joined the flurry of reform proposals with ideas of their own.354 the rationale for these reforms often goes along the lines of the need to regulate the vast power of big tech especially with regard to content removal and the impacts of algorithms on young people.355 these suggested reforms run counter to section 230 proponents, who argue for the law’s preservation as “its myriad benefits outweigh its few flaws,” especially given the law’s major role in creating the online world.356 one proposal is the platform accountability and consumer transparency act (pact act) which removes immunity for illegal content, and outlines procedures for 356 ashley johnson and daniel castro, “proposals to reform section 230,” february 22, 2021, https://itif.org/publications/2021/02/22/proposals-reform-section-230/. 355 brannon and holmes, “section 230: an overview.” 354 ovide, “what’s behind the fight over section 230.”; brannon and holmes, “section 230: an overview.” 353 ovide, “what’s behind the fight over section 230.”; valerie c brannon and eric n holmes, “section 230: an overview,” april 7, 2021, 58. 352 ovide, shira. “what’s behind the fight over section 230.” 113 https://itif.org/publications/2021/02/22/proposals-reform-section-230/ brandeis university law journal spring 2023, volume 10, issue 2 content removal.357 this proposal faced problems as it conflicts with the digital millennium copyright act (dmca) that addresses copyright law violations where the law “provides a ‘safe harbor’ to cover providers who remove content after being notified that the content may” be in violation.358 the pact act may also be changing since “both the dmca and the e-commerce directive [(a similar eu law)] have also been subject to debate and proposals for reform.”359 another proposal is the “stopping big tech’s censorship act” in which “providers and users may only claim immunity under section 230(c)(1) if a service ‘takes reasonable steps to prevent or address the unlawful use’ of the service’ or publication of such illegal content.”360 the case-it act also removes platform immunity, but opts for a different approach.361 the case-it act has “providers and users lose section 230(c)(1) immunity for a year if they engage in certain activities, including permitting harmful content to be distributed to minors, if the harmful content “‘is made readily accessible to minors’” without the existence or use of systems to prevent this from happening.362 another similar proposal is “the safeguarding against fraud, exploitation, threats, extremism, and consumer harms (safe tech) act,” which would not provide immunity for platforms’ “ads or paid content, civil rights law, stalking or harassment laws, wrongful death actions, or human rights violations abroad” and failures to take down content in response to a court order.363 this bipartisan proposal is supported by advocacy groups including the anti-defamation 363 johnson and castro, “proposals to reform section 230.” 362 brannon and holmes, “section 230: an overview.” 361 brannon and holmes, “section 230: an overview.” 360 brannon and holmes, “section 230: an overview.” 359 brannon and holmes, “section 230: an overview.” 358 brannon and holmes, “section 230: an overview.” 357 brannon and holmes, “section 230: an overview.” 114 brandeis university law journal spring 2023, volume 10, issue 2 league (adl) and muslim advocates.364 each of these content and activity carve-outs risk “over-enforcement” as they “require online services to determine what is legal or illegal,” and would likely lead them to remove grey area “to avoid liability.”365 this already took place in response to a similar carve-out for sex trafficking that passed in 2018.366 the over-enforcement resulted in a substantial share of material being removed that had no connection to sex trafficking harms.367 however, too many exceptions to section 230 would, in effect, repeal the law entirely.368 adding a multitude of exceptions to the liability shield would not only affect bad actors benefiting from illegal content, but platforms genuinely trying to prevent and remove illegal content.369 the ending support for internet censorship act would require companies of a certain size, or with a particular level of revenue, “to prove to the federal trade commission every two years that their algorithms and content moderation practices are politically neutral in order to receive section 230 liability 369 johnson and castro, “proposals to reform section 230.” 368 johnson and castro, “proposals to reform section 230.” 367 johnson and castro, “proposals to reform section 230.” 366 johnson and castro, “proposals to reform section 230.” 365 johnson and castro, “proposals to reform section 230.” 364 chris riley and david morar, “legislative efforts and policy frameworks within the section 230 debate,” brookings (blog), september 21, 2021, https://www.brookings.edu/techstream/legislative-efforts-and-policy-frame works-within-the-section-230-debate/; “muslim advocates applauds new bill to enact reforms to section 230,” muslim advocates, february 5, 2021, https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-billadding-reforms-to-section-230/; “adl supports reforming section 230 of the communications decency act to hold tech companies accountable, prioritize users and protect civil rights | adl,” accessed april 6, 2023, https://www.adl.org/resources/press-release/adl-supports-reforming-section230-communications-decency-act-hold-tech. 115 https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/ https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/ https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/ https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/ https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech brandeis university law journal spring 2023, volume 10, issue 2 protection.”370 this is most clearly akin to the fairness doctrine given its emphasis on balanced presentation.371 another proposal focuses on algorithms by limiting federal immunity from liability for technology companies when their platform’s algorithms recommend third party content that “cause physical or emotional injury.”372 other proposals encourage the creation of “[b]ehavioral [s]tandards” for “sufficiently responsible behavior and establish enforcement mechanisms that evaluate compliance (while navigating first amendment limits on government restriction of corporate speech).”373 this includes the online freedom and viewpoint diversity act, the earn it act, and a proposal by mark zuckerberg.374 lastly, repeals of section 230 are proposed to enforce accountability through liability and remove the protections of early innovations as it is no longer necessary to protect the early trial-and-error period of these companies. while there may be a concern that without section 230 free speech and exchanges of ideas online would be restricted, government action and restrictions would still be limited by the first amendment.375 further, the first amendment would provide background protections for speakers and publishers, like those offline, while there would be less consistent and vast immunity protections for the platforms.376 376 brannon and holmes, “section 230: an overview.” 375 brannon and holmes, “section 230: an overview.” 374 riley and morar, “legislative efforts and policy frameworks within the section 230 debate.” 373 riley and morar, “legislative efforts and policy frameworks within the section 230 debate.” 372 "h.r.5596 117th congress (2021-2022): justice against malicious algorithms act of 2021." congress.gov, library of congress, 18 october 2021, https://www.congress.gov/bill/117th-congress/house-bill/5596. 371 johnson and castro, “proposals to reform section 230.” 370 johnson and castro, “proposals to reform section 230.” 116 https://www.congress.gov/bill/117th-congress/house-bill/5596 brandeis university law journal spring 2023, volume 10, issue 2 b. consumer protection laws – potential response 2 although section 230 may appear as the only legal avenue through which platform regulation and the conversations around it is possible, there are other legal avenues through which online speech could be regulated to comply and fulfill the high expectations that these technology companies regularly set. for instance, these goals can be achieved through consumer protection laws; specifically, laws that prohibit unfair, deceptive acts and practices (udaps). such laws particularly focus on upholding the public interest as the core expectation behind these companies actions and treatment of their users. in addition to overseeing antitrust law, the federal trade commission (ftc) monitors consumer protection violations.377 while “section 5 does not define ‘unfair or deceptive acts or practices’” it does state that, “a practice is not ‘unfair’ unless it ‘causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”378 beyond the federal law and its enforcement through federal agencies, “[s]tates have crafted their own consumer protection laws based on a handful of model acts (including the ftc act)” which aim to protect consumers from unfair and deceptive acts and practices.379 these entities are all able to “bring similar lawsuits alleging 379 canzona, “i’ll know it when i see it.” 378 eric n. holmes, “unfair or deceptive acts or practices (udap) enforcement authority under the federal trade commission act” (congressional research service, november 4, 2022), https://crsreports.congress.gov/product/pdf/if/if12244. 377 “consumer protection laws,” lii / legal information institute, accessed april 10, 2023, https://www.law.cornell.edu/wex/consumer_protection_laws. 117 https://crsreports.congress.gov/product/pdf/if/if12244 https://www.law.cornell.edu/wex/consumer_protection_laws brandeis university law journal spring 2023, volume 10, issue 2 udap-based violations” to act in the public interest, as well as consumers or advocacy groups.380 in relation to social media regulation, consumer protection laws like udap provide an avenue for the public interest to be protected, given the special role these technology companies hold within society. as jack m balkin, knight professor of constitutional law and the first amendment at yale law school, notes, “[s]ocial media companies and search engines have social and moral obligations to the public” that arise out of their role in society.381 these companies often voluntarily categorize themselves as places “to promote public-spirited goals,” and therefore should “act according to public-regarding, professional norms.”382 given that their innovations often revolve around providing a space for positive developments like greater and stronger interconnection, access, and creativity; these companies, like other technology companies, provide a useful service to society. when these companies choose to frame themselves in this way, act to provide such services, and take on such obligations as those balkin discusses, they become legally obligated to hold themselves accountable to their own self-portrayal. the public should be able to expect that these companies are being honest with users and the public. the udaps do just that, holding the companies accountable to their public portrayal by prohibiting false promises and unfair and deceptive behavior. social media companies illustrate this as they often declare in congress how safe their platforms are and how they enforce their user agreements, while users and 382 balkin, “free speech is a triangle.” 381balkin, jack m., free speech is a triangle (may 28, 2018). columbia law review, 2018, forthcoming, yale law school, public law research paper no. 640, https://ssrn.com/abstract=3186205 380 holmes, “unfair or deceptive acts or practices (udap) enforcement authority under the federal trade commission act.” 118 https://ssrn.com/abstract=3186205 brandeis university law journal spring 2023, volume 10, issue 2 advocacy groups find that they still face the same unsafe behavior banned by these user agreements. the ftc and state attorneys general enforce consumer protection laws with regard to privacy and “[r]especting [c]onsumer [c]hoice” with respect to “[d]o-not-track settings on browsers which prevent advertisers from tracking consumers’ online activities.”383 consumer protection laws and udaps, in particular, already protect consumers from financial injury, but the vital question here is whether courts will see these laws as fit to protect consumers from online companies. in 2021, muslim advocates, a muslim civil rights advocacy group, sued facebook and facebook executives for deception over their actions relating to the content on the platform.384 the lawsuit, using the d.c. consumer protection procedures act, or the dc cppa, “allege[d] that facebook ha[d] exaggerated how aggressively it remove[d] hate speech” in violation of the law.385 facebook’s actions specifically violated the dc cppa, as it states that “it is illegal for a company to make material misrepresentations about a good or service in the district of columbia.” muslim advocates asked for facebook to either “[s]top lying, or have your actions conform to your statements.”386 importantly, muslim advocates’ assertions centered on the statements of facebook executives and the user agreement’s community standards that frame users’ expectations of safety on their platform. while 386 allyn, “muslim advocates has filed a lawsuit against facebook.” 385 allyn, “muslim advocates has filed a lawsuit against facebook.” 384 bobby allyn, “muslim advocates has filed a lawsuit against facebook,” npr, april 8, 2021, sec. religion, https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-l awsuit-against-facebook. 383 danielle keats citron, “the privacy policymaking of state attorneys general,” notre dame law review 92, no. 2 (december 2016), https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7c a484155772&v=2.1&it=r&ugroup=outside. 119 https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca484155772&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca484155772&v=2.1&it=r&ugroup=outside brandeis university law journal spring 2023, volume 10, issue 2 this method of using consumer protection laws is still being tested, given its efficacy and broad application elsewhere, it could provide a model for accountability and necessary enforcement to counteract failures to uphold one’s duty to serve the public interest. c. european union’s solutions – potential response 3 in this section, the paper turns to the european union because it stands out as a model given the promise shown in their active regulation of big tech with far-ranging impacts and strong popularity among the public.387 these impacts are apparent since when those companies are fined, they often improve their behavior and apply the changes required by the eu’s regulation worldwide for ease of operation.388 the popularity of these regulations, which will be explained in this paragraph, derives from how the regulatory laws themselves are written, which often give citizens more information and control with regard to their own data and experience.389 the european union seeks to meet the needs that arise out of these new technologies through a focus on privacy and data protection. the laws and regulation of privacy online, specifically data privacy protections, is known as the general data protection regulation (gdpr). the gdpr went into effect in 2018, after passing in 2016, in order to give companies and countries time to prepare for this robust legislation.390 the gdpr grew out of the right to privacy 390 “data protection in the eu,” june 4, 2021, https://commission.europa.eu/law/law-topic/data-protection/data-protection389 amaro, “how europe became the world’s top tech regulator.” 388 amaro, “how europe became the world’s top tech regulator.” 387 silvia amaro, “how europe became the world’s top tech regulator,” cnbc, march 25, 2021, https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds -top-regulator.html. 120 https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html brandeis university law journal spring 2023, volume 10, issue 2 codified in the 1950 european convention on human rights which states, “everyone has the right to respect for his private and family life, his home and his correspondence.”391 the gdpr is one of a series of new technology governance laws in which the eu worked to protect one’s right to privacy within legislation.392 the way the gdpr functions with its definitions, and specification of both the rights and requirements for companies, enables a clear and comprehensive application. the burden of proof is placed on the company fulfilling gdpr requirements.393 further, both national institutions within the european union member states and international institutions exist that help enforce the regulations of the gdpr.394 one example of these international institutions is the european data protection board (edpb) which is an independent regulatory body charged with maintaining “the consistent application of data protection rules throughout the european union” established by the gdpr and that includes representatives of the national entities, an eu supervisor, and non-voting involvement of the european commission.395 since the gdpr, the european union has continued to focus on technology and is creating “[t]he digital services 395 “data protection in the eu.” 394 “data protection in the eu,” june 4, 2021, https://commission.europa.eu/law/law-topic/data-protection/data-protectioneu_en. 393 “what is gdpr, the eu’s new data protection law?” 392 “what is gdpr, the eu’s new data protection law?” 391 “what is gdpr, the eu’s new data protection law?” eu_en; “regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/ec (general data protection regulation) (text with eea relevance),” 119 oj l § (2016), http://data.europa.eu/eli/reg/2016/679/oj/eng; “what is gdpr, the eu’s new data protection law?,” gdpr.eu, november 7, 2018, https://gdpr.eu/what-is-gdpr/. 121 https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en http://data.europa.eu/eli/reg/2016/679/oj/eng https://gdpr.eu/what-is-gdpr/ brandeis university law journal spring 2023, volume 10, issue 2 package” which includes both the “digital services act and digital markets act.”396 in addition to this package, more regulation is being worked on to govern artificial intelligence.397 the european commission states that “[t]he digital services act and digital markets act aim to create a safer digital space where the fundamental rights of users are protected and to establish a level playing field for businesses.”398 it appears to focus on the same kinds of companies as section 230, with a similar overarching goal. this prompts the question: what, if anything, is really different between section 230 and the eu’s efforts? perhaps the european union learned from the mistakes of section 230. their laws came later, allowing for a stronger understanding of the technologies at play.399 following their adoption in july 2022, these eu laws began taking effect by 17 february 2023, when the regulatory authorities categorized services into a size and type category that will frame the requirements that they need to meet.400 these newest pieces of regulation will be fully in place by 2024 and also include several checkpoints that technology companies need to meet along the way to ensure full compliance and incorporate accountability mechanisms.401 401 “the digital services act package | shaping europe’s digital future.” 400 “the digital services act package | shaping europe’s digital future.” 399 “the digital services act package | shaping europe’s digital future.” 398 “the digital services act package | shaping europe’s digital future,” february 9, 2023, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package. 397 “the digital services act package | shaping europe’s digital future,” february 9, 2023, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package; amaro, “how europe became the world’s top tech regulator.” 396 “the digital services act package | shaping europe’s digital future,” february 9, 2023, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package; amaro, “how europe became the world’s top tech regulator.” 122 brandeis university law journal spring 2023, volume 10, issue 2 the digital services act “proposed large fines for internet platforms like facebook, twitter [(now known as 𝕏)] and youtube if they do not restrict the spread of certain illegal content like hate speech.”402 this is similar to the gdpr’s large fines, which often make a big splash in the news.403 widely, “gdpr fines are used to fund public services,” a model that would likely be replicated with these newer regulations.404 these fines, while quite substantial, are applied taking into account the companies’ size and offense so as to remain proportional.405 for the gdpr, “[t]here are two tiers of penalties which max out at $20 million or 4% of global revenue (whichever is higher),” as well as enabling those harmed “to seek compensation for damages.”406 further, composition, explanation, and implementation of these regulations takes into account all of the players involved: individuals, the technology companies, business users, and society.407 in these regulations, the eu often requires compliance to be built into the structure of companies. for example, the gdpr outlines implementation of data security training, specifies the responsibilities of data protection within 407 “the digital services act: ensuring a safe and accountable online environment,” accessed april 13, 2023, https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/euro pe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-onlineenvironment_en. 406 “what is gdpr, the eu’s new data protection law?” 405 “what is gdpr, the eu’s new data protection law?” 404 “three years of gdpr.” 403 “three years of gdpr: the biggest fines so far,” bbc news, may 24, 2021, sec. technology, https://www.bbc.com/news/technology-57011639. 402 adam satariano, “big fines and strict rules unveiled against ‘big tech’ in europe,” the new york times, december 15, 2020, sec. technology, https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europ e.html. 123 https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en https://www.bbc.com/news/technology-57011639 https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html brandeis university law journal spring 2023, volume 10, issue 2 teams, and details data protection officer requirements for certain organizations.408 these regulations are met with what dessislava savova describes as “‘a real willingness and wide political support in the eu to set the highest global standards when it comes to tech regulations.’”409 she further notes that the digital services “‘package will be a real game changer’” as “‘[i]t will create a single regulatory framework and will set up a foundation of a strong cooperation and a new governance structure in the eu, with tangible enforcement mechanisms and important sanctions.’”410 further, the new york times notes that these regulations, along with some national ones, “helped reinforce europe as home to some of the world’s toughest policies toward the technology industry.”411 iv. new plan inspired by this history – this paper’s solution this section will present the pros and cons of each of the previously discussed regulations and how they could be combined in such a way that improves upon these regulatory schemes. first, this section will outline the positives of each regulatory method; second, it will address their limitations; third, it will offer a multipronged recommendation. 411 satariano, “big fines and strict rules unveiled against ‘big tech’ in europe.” 410 amaro, “how europe became the world’s top tech regulator.” 409 amaro, “how europe became the world’s top tech regulator.” 408 “what is gdpr, the eu’s new data protection law?” 124 brandeis university law journal spring 2023, volume 10, issue 2 a. favorable aspects of these regulations the fairness doctrine proved effective at instilling balance in regulatory schemes by encouraging technological innovation while safeguarding the public’s interest in being informed on issues of public concern and safety. broadcast stations developed within the fairness doctrine’s regulatory realm introduced and popularized these new technologies. at the same time, the supreme court endorsed the fairness doctrine’s role in promoting free speech and an informed public. section 230 attempted to balance and incorporate similar interests through a different mechanism. section 230 used an almost absolute liability shield that enabled online platforms and services to develop and grow tremendously. this enabled technology companies to create different strategies and approaches to content on their platforms, including algorithms. the section 230 reforms present promising solutions. consumer protection laws prove effective in other markets as they prevent misrepresentation and unfair treatment of consumers. the european union’s solutions promote accountability through massive fines and illustrate a strong protection-based approach. b. limitations of these regulations the fairness doctrine lacked enough meaningful buy-in from broadcasters as well as clear methods to maintain accountability as a regulation long-term because it became difficult to evaluate or prove its efficacy. section 230 failed at maintaining balance because the interpretation of the liability shield prevented technology companies from being held accountable. both the section 230 reforms and the consumer protection laws remain relatively untested within the online 125 brandeis university law journal spring 2023, volume 10, issue 2 environment and technology companies at large. there are many section 230 reforms proposed and many, while framed similarly, promote vastly different approaches. despite some gaining momentum recently, it is unclear when and how they would be applied. the european union’s solutions build more regulatory structures and focus on privacy, which distinguishes it from american regulations. further, the strict protection of freedom of speech existing in the united states is unparalleled elsewhere, including in the eu, so the eu’s solutions may not fit with american free speech absolutism. also, there may be concerns amongst united states legislators about stopping the growth of technology companies through strict regulation. c. the outlined recommendation from this background, the new proposal is one which welcomes regulation not as a hindrance to growth, innovation, and freedom, but as something that enables and protects it. an informed public’s access to information is no longer confined solely to news media. thus, regulations regarding who is informing the public and how they are being informed must expand its range to include the context of online platforms. the standard should be elevated from a basic level of protecting the ability to hear both sides of a matter to consumers being informed about their privacy, their safety, and the accountability of the platforms they are on. strong understandings of technology companies and how their products work must be incorporated into the background of the new proposed regulation. the fairness doctrine lacked this element as it failed to understand the practical approaches it encouraged broadcasters to take and the challenges that came with that approach. there must be a careful understanding of the interests, innerworkings, and 126 brandeis university law journal spring 2023, volume 10, issue 2 particular context of the technology companies to avoid pushback from the companies. following the fairness doctrine’s balanced approach to speech, new regulation should promote free speech through providing content-neutral regulation and not tell companies what to regulate, but how to regulate content: evenly and fairly. parts of the regulations mentioned above fit this proposed framework. for instance, one of section 230’s proposed reforms, the safe tech act, illustrates how comprehension of technology companies and true accountability can be built into an american framework. simply copying the effective methods of the european union’s regulation would not be ideal as the american context is just that: american. this distinction requires understanding and incorporation of respect for american ideals, including a broader protection for freedom of speech and the promotion of innovation. the eu’s privacy law, the gdpr, should be incorporated to a certain extent, as we generally lack privacy laws and data protection. this is already starting in california, but beyond incorporating the gdpr and other eu laws, our approaches could be inspired by theirs. our regulations could be more effective following the multipronged approach found in the european union’s regulations where rights are defined, expectations are outlined, compliance is formalized, compliance guidelines are clear, and meaningful fines are incorporated. together, the history and potential future of technology regulation show promise. regulation promoting both the public interest in tandem with encouraging innovation has existed previously and continues to exist. understanding the public interest, policy concerns, new technology, historical regulation, business impact, and the innovation and online environments is crucial to a successful and balanced regulatory approach. 127 brandeis university law journal spring 2023, volume 10, issue 2 bibliography “adl supports reforming section 230 of the communications decency act to hold tech companies accountable, prioritize users and protect civil rights | adl.” accessed march 27, 2023. https://www.adl.org/resources/press-release/adl-supports-r eforming-section-230-communications-decency-act-hold-t ech. allyn, bobby. “muslim advocates has filed a lawsuit against facebook.” npr, april 8, 2021, sec. religion. https://www.npr.org/2021/04/08/985475645/muslim-advoc ates-has-filed-a-lawsuit-against-facebook. amaro, silvia. “how europe became the world’s top tech regulator.” cnbc, march 25, 2021. https://www.cnbc.com/2021/03/25/big-tech-how-europe-b ecame-the-worlds-top-regulator.html. anand, meghan, kiran jeevanjee, daniel johnson, quinta jurecic, brian lim, irene ly, matt perault, et al. “all the ways congress wants to change section 230.” slate, march 23, 2021. https://slate.com/technology/2021/03/section-230-reform-l egislative-tracker.html. balkin, jack m., free speech is a triangle (may 28, 2018). columbia law review, 2018, forthcoming, yale law school, public law research paper no. 640, https://ssrn.com/abstract=3186205. bambauer, derek e. “how section 230 reform endangers internet free speech.” brookings (blog), july 1, 2020. https://www.brookings.edu/techstream/how-section-230-re form-endangers-internet-free-speech/. bbc news. “three years of gdpr: the biggest fines so far.” may 24, 2021, sec. technology. https://www.bbc.com/news/technology-57011639. brannon, valerie c, nina m hart, eric n holmes, and chris d 128 https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html https://ssrn.com/abstract=3186205 https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/ https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/ https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/ https://www.bbc.com/news/technology-57011639 https://www.bbc.com/news/technology-57011639 brandeis university law journal spring 2023, volume 10, issue 2 linebaugh. “update: section 230 and the executive order on preventing online censorship,” brannon, valerie c, and eric n holmes. “section 230: an overview,” april 7, 2021, 58. caitlin bassett. “section 230: what is it and why the controversy?” mind matters, august 8, 2010. https://mindmatters.ai/2021/08/section-230-what-is-it-andwhy-the-controversy/. castro, daniel, and ashley johnson. “the exceptions to section 230: how have the courts interpreted section 230?,” february 22, 2021. https://itif.org/publications/2021/02/22/exceptions-section230-how-have-courts-interpreted-section-230/. chung, andrew. “as u.s. supreme court weighs youtube’s algorithms, ‘litigation minefield’ looms.” reuters, february 17, 2023, sec. legal. https://www.reuters.com/legal/us-supreme-court-weighs-y outubes-algorithms-litigation-minefield-looms-2023-02-17 /. citron, danielle keats. “the privacy policymaking of state attorneys general.” notre dame law review 92, no. 2 (december 2016). https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis &id=gale%7ca484155772&v=2.1&it=r&ugroup=outsi de. cnn, by brian fung and tierney sneed. “supreme court hears gonzalez v. google case against big tech.” cnn. accessed february 25, 2023. https://www.cnn.com/business/live-news/supreme-court-g onzalez-v-google-2-21-23/index.html. cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991). accessed march 25, 2023. “data protection in the eu,” june 4, 2021. https://commission.europa.eu/law/law-topic/data-protectio n/data-protection-eu_en. 129 https://mindmatters.ai/2021/08/section-230-what-is-it-and-why-the-controversy/ https://mindmatters.ai/2021/08/section-230-what-is-it-and-why-the-controversy/ https://mindmatters.ai/2021/08/section-230-what-is-it-and-why-the-controversy/ https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/ https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/ https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/ https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/ https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/ https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/ https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/ https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca484155772&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca484155772&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca484155772&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca484155772&v=2.1&it=r&ugroup=outside https://www.cnn.com/business/live-news/supreme-court-gonzalez-v-google-2-21-23/index.html https://www.cnn.com/business/live-news/supreme-court-gonzalez-v-google-2-21-23/index.html https://www.cnn.com/business/live-news/supreme-court-gonzalez-v-google-2-21-23/index.html https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en brandeis university law journal spring 2023, volume 10, issue 2 “data protection in the eu,” june 4, 2021. https://commission.europa.eu/law/law-topic/data-protectio n/data-protection-eu_en. “definition of balance,” february 22, 2023. https://www.merriam-webster.com/dictionary/balance. electronic frontier foundation. “section 230: legislative history,” september 18, 2012. https://www.eff.org/issues/cda230/legislative-history. federal communication commission. fairness report, 1985. http://archive.org/details/fairnessreport. “finally, an interesting proposal for section 230 reform | wired.” accessed march 27, 2023. https://www.wired.com/story/section-230-reform-safe-tech -act/. fung, brian. “two supreme court cases this week could upend the entire internet | cnn business.” cnn, february 20, 2023. https://www.cnn.com/2023/02/20/tech/supreme-court-tech -platforms/index.html. gdpr.eu. “what is gdpr, the eu’s new data protection law?,” november 7, 2018. https://gdpr.eu/what-is-gdpr/. holmes, eric n. “unfair or deceptive acts or practices (udap) enforcement authority under the federal trade commission act.” congressional research service, november 4, 2022. https://crsreports.congress.gov/product/pdf/if/if12244. isd. “online civil courage initiative (occi).” accessed march 25, 2023. https://www.isdglobal.org/isd-programmes/online-civil-co urage-initiative-occi/. johnson, ashley, and daniel castro. “overview of section 230: what it is, why it was created, and what it has achieved,” february 22, 2021. https://itif.org/publications/2021/02/22/overview-section-2 30-what-it-why-it-was-created-and-what-it-has-achieved/. 130 https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en https://www.merriam-webster.com/dictionary/balance https://www.merriam-webster.com/dictionary/balance https://www.eff.org/issues/cda230/legislative-history https://www.eff.org/issues/cda230/legislative-history http://archive.org/details/fairnessreport http://archive.org/details/fairnessreport https://www.wired.com/story/section-230-reform-safe-tech-act/ https://www.wired.com/story/section-230-reform-safe-tech-act/ https://www.wired.com/story/section-230-reform-safe-tech-act/ https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html https://gdpr.eu/what-is-gdpr/ https://crsreports.congress.gov/product/pdf/if/if12244 https://crsreports.congress.gov/product/pdf/if/if12244 https://www.isdglobal.org/isd-programmes/online-civil-courage-initiative-occi/ https://www.isdglobal.org/isd-programmes/online-civil-courage-initiative-occi/ https://www.isdglobal.org/isd-programmes/online-civil-courage-initiative-occi/ https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/ https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/ https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/ brandeis university law journal spring 2023, volume 10, issue 2 “proposals to reform section 230,” february 22, 2021. https://itif.org/publications/2021/02/22/proposals-reform-s ection-230/. justia law. “red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969),” https://supreme.justia.com/cases/federal/us/395/367/. “justice department issues recommendations for section 230 reform,” june 17, 2020. https://www.justice.gov/opa/pr/justice-department-issues-r ecommendations-section-230-reform. lii / legal information institute. “47 u.s. code § 230 protection for private blocking and screening of offensive material.” accessed march 25, 2023. https://www.law.cornell.edu/uscode/text/47/230. lii / legal information institute. “consumer protection laws.” accessed april 10, 2023. https://www.law.cornell.edu/wex/consumer_protection_la ws. macguill, dan. “did ronald reagan pave the way for fox news?” snopes, january 26, 2018. https://www.snopes.com/fact-check/ronald-reagan-fairness -doctrine/. “mark zuckerberg, joe manchin, and isis: what facebook’s international terrorism lawsuits can teach us about the future of section 230 reform proquest.” accessed march 27, 2023. https://www.proquest.com/docview/2607798213?pq-origsi te=primo&parentsessionid=qy8kwub2j%2byn0ettx8qf udlpp8v4a8fonsvuhxfnc6a%3d. matthews, dylan. “everything you need to know about the fairness doctrine in one post.” washington post (blog), august 23, 2011. https://www.washingtonpost.com/blogs/ezra-klein/post/ev erything-you-need-to-know-about-the-fairness-doctrine-inone-post/2011/08/23/giqan8cxzj_blog.html. 131 https://itif.org/publications/2021/02/22/proposals-reform-section-230/ https://itif.org/publications/2021/02/22/proposals-reform-section-230/ https://itif.org/publications/2021/02/22/proposals-reform-section-230/ https://supreme.justia.com/cases/federal/us/395/367/ https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform https://www.law.cornell.edu/uscode/text/47/230 https://www.law.cornell.edu/uscode/text/47/230 https://www.law.cornell.edu/wex/consumer_protection_laws https://www.law.cornell.edu/wex/consumer_protection_laws https://www.law.cornell.edu/wex/consumer_protection_laws https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/ https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/ https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/ https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentsessionid=qy8kwub2j%2byn0ettx8qfudlpp8v4a8fonsvuhxfnc6a%3d https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentsessionid=qy8kwub2j%2byn0ettx8qfudlpp8v4a8fonsvuhxfnc6a%3d https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentsessionid=qy8kwub2j%2byn0ettx8qfudlpp8v4a8fonsvuhxfnc6a%3d https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentsessionid=qy8kwub2j%2byn0ettx8qfudlpp8v4a8fonsvuhxfnc6a%3d https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/giqan8cxzj_blog.html brandeis university law journal spring 2023, volume 10, issue 2 muslim advocates. “muslim advocates applauds new bill to enact reforms to section 230,” february 5, 2021. https://muslimadvocates.org/2021/02/muslim-advocates-ap plauds-new-bill-adding-reforms-to-section-230/. ovide, shira. “what’s behind the fight over section 230.” the new york times, march 25, 2021, sec. technology. https://www.nytimes.com/2021/03/25/technology/section230-explainer.html. oyez. “twitter, inc. v. taamneh,” (2023) https://www.oyez.org/cases/2022/21-1496. “paradoxes of media policy analysis: implications for public interest media regulation document gale academic onefile select,” n.d. https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis &id=gale%7ca191854511&v=2.1&it=r&ugroup=outsi de. rash, wayne. “lawmakers introduce bipartisan reforms making big tech liable as supreme court considers section 230.” forbes. accessed march 27, 2023. https://www.forbes.com/sites/waynerash/2023/02/28/sectio n-230-reforms-introduced-into-us-senate-and-house-of-rep resentatives/. regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/ec (general data protection regulation) (text with eea relevance), 119 oj l § (2016). http://data.europa.eu/eli/reg/2016/679/oj/eng. riley, chris, and david morar. “legislative efforts and policy frameworks within the section 230 debate.” brookings (blog), september 21, 2021. https://www.brookings.edu/techstream/legislative-efforts-a nd-policy-frameworks-within-the-section-230-debate/. rodrigo, chris mills. “facebook’s zuckerberg proposes 132 https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/ https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/ https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/ https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html https://www.oyez.org/cases/2022/21-1496 https://www.oyez.org/cases/2022/21-1496 https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca191854511&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca191854511&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca191854511&v=2.1&it=r&ugroup=outside https://go.gale.com/ps/i.do?p=eaim&u=mlin_m_brandeis&id=gale%7ca191854511&v=2.1&it=r&ugroup=outside https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/ https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/ https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/ https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/ http://data.europa.eu/eli/reg/2016/679/oj/eng http://data.europa.eu/eli/reg/2016/679/oj/eng https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/ https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/ brandeis university law journal spring 2023, volume 10, issue 2 conditional section 230 reforms.” text. the hill (blog), march 24, 2021. https://thehill.com/policy/technology/544707-facebooks-z uckerberg-proposes-conditional-section-230-reforms/. roeven, sanne. “exploring the history of section 230 of the communications decency act of 1996 – ballotpedia news.” accessed march 25, 2023. https://news.ballotpedia.org/2021/06/08/exploring-the-hist ory-of-section-230-of-the-communications-decency-act-of -1996/. ronald reagan. “fairness doctrine,” https://www.reaganlibrary.gov/archives/topic-guide/fairnes s-doctrine. rosentiel, tom. “is the fairness doctrine fair game?” pew research center (blog), july 19, 2007. https://www.pewresearch.org/2007/07/19/is-the-fairness-d octrine-fair-game/. ruane, kathleen ann. “fairness doctrine: history and constitutional issues,”———. “how broad a shield? a brief overview of section 230 of the communications decency act.” congressional research service, february 21, 2018. satariano, adam. “big fines and strict rules unveiled against ‘big tech’ in europe.” the new york times, december 15, 2020, sec. technology. https://www.nytimes.com/2020/12/15/technology/big-tech -regulation-europe.html. “the digital markets act: ensuring fair and open digital markets.” accessed april 13, 2023. https://commission.europa.eu/strategy-and-policy/prioritie s-2019-2024/europe-fit-digital-age/digital-markets-act-ens uring-fair-and-open-digital-markets_en. “the digital services act: ensuring a safe and accountable online environment.” accessed april 13, 2023. https://commission.europa.eu/strategy-and-policy/prioritie 133 https://thehill.com/policy/technology/544707-facebooks-zuckerberg-proposes-conditional-section-230-reforms/ https://thehill.com/policy/technology/544707-facebooks-zuckerberg-proposes-conditional-section-230-reforms/ https://thehill.com/policy/technology/544707-facebooks-zuckerberg-proposes-conditional-section-230-reforms/ https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/ https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/ https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/ https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/ https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/ https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/ https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/ https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en brandeis university law journal spring 2023, volume 10, issue 2 s-2019-2024/europe-fit-digital-age/digital-services-act-ens uring-safe-and-accountable-online-environment_en. “the digital services act package | shaping europe’s digital future,” february 9, 2023. https://digital-strategy.ec.europa.eu/en/policies/digital-serv ices-act-package. “the justice department unveils proposed section 230 legislation,” september 23, 2020. https://www.justice.gov/opa/pr/justice-department-unveilsproposed-section-230-legislation. totenberg, nina. “supreme court showdown for google, twitter and the social media world.” npr, february 21, 2023, sec. law. https://www.npr.org/2023/02/21/1157683233/supreme-cou rt-google-twitter-section-230. washington post. “perspective | the fairness doctrine won’t solve our problems — but it can foster needed debate.” february 4, 2021. https://www.washingtonpost.com/outlook/2021/02/04/fair ness-doctrine-wont-solve-our-problems-it-can-foster-neede d-debate/. west, brian, and matthew varacallo. “good samaritan laws.” in statpearls. treasure island (fl): statpearls publishing, 2023. http://www.ncbi.nlm.nih.gov/books/nbk542176/. wnyc studios. “how did talk radio get so politically lop-sided? | on the media.” accessed march 21, 2023. https://www.wnycstudios.org/podcasts/otm/episodes/talk-r adio-lopsided-on-the-media. cases cited cubby, inc. v. compuserve inc., 776 f. supp. 135 (s.d.n.y. 1991) gonzalez v. google llc, 598 u.s. __ (2023) 134 https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twitter-section-230 https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twitter-section-230 https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twitter-section-230 https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/ https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/ https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/ https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/ http://www.ncbi.nlm.nih.gov/books/nbk542176/ https://www.wnycstudios.org/podcasts/otm/episodes/talk-radio-lopsided-on-the-media https://www.wnycstudios.org/podcasts/otm/episodes/talk-radio-lopsided-on-the-media https://www.wnycstudios.org/podcasts/otm/episodes/talk-radio-lopsided-on-the-media brandeis university law journal spring 2023, volume 10, issue 2 red lion broadcasting co., inc. v. fcc, 395 u.s. 367 (1969) tinker v. des moines independent community school district, 393 u.s. 503 (1969) twitter, inc. v. taamneh, 598 u.s. ___ (2023) whitney v. california, 274 u.s. 357 (1927) eu codes cited the digital markets act: ensuring fair and open digital markets the digital services act: ensuring a safe and accountable online environment regulation (eu) 2016/679 of the european parliament and of the council of 27 april 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/ec (general data protection regulation) (text with eea relevance), 119 oj l § (2016). http://data.europa.eu/eli/reg/2016/679/oj/eng us codes cited "h.r.5596 117th congress (2021-2022): justice against malicious algorithms act of 2021." congress.gov, library of congress, 18 october 2021, https://www.congress.gov/bill/117th-congress/house-bill/5 596. lii / legal information institute. “47 u.s. code § 230 protection for private blocking and screening of offensive material.” accessed march 25, 2023. https://www.law.cornell.edu/uscode/text/47/230. lii / legal information institute. “consumer protection laws.” accessed april 10, 2023. https://www.law.cornell.edu/wex/consumer_protection_la ws. 135 http://data.europa.eu/eli/reg/2016/679/oj/eng http://data.europa.eu/eli/reg/2016/679/oj/eng https://www.congress.gov/bill/117th-congress/house-bill/5596 https://www.congress.gov/bill/117th-congress/house-bill/5596 https://www.law.cornell.edu/uscode/text/47/230 https://www.law.cornell.edu/uscode/text/47/230 https://www.law.cornell.edu/wex/consumer_protection_laws https://www.law.cornell.edu/wex/consumer_protection_laws https://www.law.cornell.edu/wex/consumer_protection_laws final copy: law journal: volume 11, annual issue brandeis university law journal 2023-2024, volume 11 mission statement the brandeis university law journal aims to provide brandeis university with the opportunity to contribute to discussions of law and law-related topics with the publication of undergraduate scholarship. we hope to aid in the furtherance of brandeis university’s motto of “truth even unto its innermost parts” through publishing rigorously researched articles and engaging in respectful, thoughtful, and insightful debates. this journal is both a publication and a constant work in progress as we are grounded in an undergraduate academic environment and constantly trying to learn, grow and improve. our journal provides a platform for intellectual growth and debate where academic scholarship can flourish. we focus on academic excellence, encouraging expressions of scholarship, and encouragement of educational purposes. 1 brandeis university law journal 2023-2024, volume 11 statement of neutrality the brandeis university law journal is an independent publication, managed entirely by undergraduate students, that functions as a neutral platform for the unrestricted circulation of community members’ views on legal matters. the views expressed in the journal do not necessarily reflect those of the journal’s executive board or its other authors and editors. 2 brandeis university law journal 2023-2024, volume 11 submissions our journal requires all submissions of articles and abstracts to be: 1) original and written by members of the brandeis community. 2) related to law and/or using legal reasoning. we welcome submissions from undergraduates for publication at any time. interest in involvement through writing, editing, or administrative roles is always welcome. please direct any queries to deislawjournal@gmail.com. archives to access the brandeis university law journal archives and explore past and current issues, please visit the brandeis university library archives at: https://journals.library.brandeis.edu/index.php/blj 3 mailto:deislawjournal@gmail.com https://journals.library.brandeis.edu/index.php/blj brandeis university law journal 2023-2024, volume 11 brandeis university law journal ©2024 issn: 22154-4468 e-issn: 2836-7251 4 brandeis university law journal 2023-2024, volume 11 brandeis university law journal©2024 fall 2023 & spring 2024 volume 11 executive board co-editor-in-chief co-editor-in-chief emanuel (manny) glinsky gonny d. nir content editor publisher and treasurer daniel block peyton gillespie layout editor library liaison alyssa golden noah levy editorial librarian archival librarian aimee slater wendy shook faculty advisor faculty advisor professor rosalind kabrhel professor daniel breen technical editors: ada rose wagar, alyssa golden*, casey shea dinkin, dalya koller, daniel block*, gabby grunfeld*, gonny d. nir*, emanuel (manny) glinsky*, noah levy*, peyton gillespie*, zachary miller* editorial board senior editors: julia fair, lauren lederer, noah risley, samara miller, tavorr vaxman-magid junior editors: adira muskat, alexis demircan*, alina nowakowski, anna ertischek, ariel schultz*, ava ferrigno, benjamin grimes, cameron chase, eamonn golden, eve polvay*, hannah golub*, hannah messinger, harry watkin fox*, james carven, kana goldstein*, kaylin ger*, koby gottlieb, madison sirois, maia katsnelson, maria antonio, max klein, momoca mairaj, sadie lieberman*, tehilla oami (*) indicates editor engaged in workshops and training to learn the bluebook: a uniform system of citations 5 brandeis university law journal 2023-2024, volume 11 contents letter from the editor-in-chief..........................................7 the bluebook: a uniform system of citation the israeli-hamas war: the legality of israel’s invasion of gaza under international law, koby gottlieb.............. 9 states of emergency: the history and legal ramifications, maia katsnelson...................................... 30 coverture: for the benefit of all man[kind], audrey kiarsis.............................................................................. 43 covid and the court: why the supreme court should not diffuse european speech restrictions into american law, brandon king...................................................................61 a proposal to reform the practice of solitary confinement, kaia minkin...............................................79 the development of privity of contract as the common law standard for product liability: an analysis of winterbottom v. wright, thomas v. winchester, and industrialization, harrison sugarman............................117 chicago manual of style 17th edition immigrant labor and civil rights in the united states, peyton gillespie............................................................. 134 “decisions we do not like”: flag desecration case law and the culture war, jack granahan.............................148 the psychedelic surge and its threats to native american communities, leora karoll........................................... 167 6 brandeis university law journal 2023-2024, volume 11 letter from the editor-in-chief dear reader, your executive board is proud to present the 2023-24 issue of the brandeis university law journal. this year has been one of many firsts for our journal. chief among these is the transition from a bi-annual to an annual publication. the following nine undergraduate-penned articles explore a range of legal issues: from the legal history of coverture and the precedent governing flag desecration to the legal protections needed to safeguard immigrant workers’ civil rights. this publication is indebted to our exceptional team of authors and editors. we are grateful to our gifted editorial team who consistently volunteer their finite time to edit submissions. the e-board is equally grateful to our authors who have devoted their time and care to revisiting their work over many arduous editing cycles. longtime readers may notice a new referencing style in some of this year’s articles. indeed, in a trailblazing initiative at the undergraduate level, the journal is adopting the bluebook: a uniform system of citation to conform to the citation system used by the legal profession and other academic legal publications. to accommodate this transition and support our authors, we allowed citations to be completed in either chicago 17th ed. or bluebook. the articles written in bluebook comprise the first half of the issue and those written in chicago comprise the second. we are appreciative of our government information & social sciences librarian, aimee slater, for lending so much of her time and expertise to enact this strenuous transition. the e-board extends its utmost gratitude to our faculty advisors, professors breen and kabrhel, for their invaluable expertise. their support has been instrumental in keeping the journal faithful to its original mission established by judah marans. we thank the student union’s allocations board for contributing the funds necessary to publish this issue. the journal’s e-board, which has grown to its largest size yet, is staffed by a team of gifted undergraduates who have dedicated many hours to the journal’s success. they are deserving of the utmost praise for their hard work and commitment. finally, i must thank my co-editor-in-chief, emanuel glinsky. manny, you’re among the most hard-working people i have ever met. your unwavering commitment to our shared project has pushed me to become a better and more accountable leader. you are the best teammate i have ever had; i wish you the best. sincerely yours, gonny d. nir co-editor-in-chief 7 brandeis university law journal 2023-2024, volume 11 the following articles are written in: the bluebook: a uniform system of citations 8 brandeis university law journal 2023-2024, volume 11 the israeli-hamas war: the legality of israel’s invasion of gaza under international law koby gottlieb1 the ongoing israeli-hamas war continues to cause untold human suffering, dominate media coverage, and attract the attention of international organizations. this article seeks to clarify normative controversy related to the legality of israel’s invasion of the gaza strip by using international legal norms regarding self-defense, terrorism, and sovereignty. using international legal theory and the expansion of customary law, as well as the politics between palestinian factions, the article finds that israel’s invasion is legal under current international law. i. roadmap about three months into the current israeli-hamas war, south africa brought genocide charges against israel in the international court of justice (icj).2 this article addresses some of the israeli arguments made during the court proceedings, especially those related to self-defense.3 it is 3 state of israel, application of the convention on the prevention and punishment of the crime of genocide in the gaza strip (south africa v. israel): verbatim record, (2023). 2 antónio guterres, secretary-general’s remarks to the security council on the middle east, (2024), https://www.un.org/sg/en/content/sg/speeches/2024-01-23/secretary-general s-remarks-the-security-council-the-middle-east; mat nashed, western coverage of israel’s war on gaza bias or unprofessionalism?, al jazeera, oct. 29, 2023, https://www.aljazeera.com/news/2023/10/29/western-coverage-of-israels-w ar-on-gaza-bias-or-unprofessionalism; republic of south africa, application instituting proceedings, (2023). 1 brandeis university, class of 2026. 9 https://www.un.org/sg/en/content/sg/speeches/2024-01-23/secretary-generals-remarks-the-security-council-the-middle-east https://www.un.org/sg/en/content/sg/speeches/2024-01-23/secretary-generals-remarks-the-security-council-the-middle-east https://www.aljazeera.com/news/2023/10/29/western-coverage-of-israels-war-on-gaza-bias-or-unprofessionalism https://www.aljazeera.com/news/2023/10/29/western-coverage-of-israels-war-on-gaza-bias-or-unprofessionalism brandeis university law journal 2023-2024, volume 11 important to first establish the theoretical framework governing self-defense, terrorism, and territorial sovereignty. this framework will then be applied to the present case of israel’s invasion of the gaza strip. after concluding these assessments, it will become clear that israel’s invasion on october 27, 2023, is legal according to international law. ii. introduction on october 7, 2023, hamas carried out a massacre in israel, killing about 1,200 people and abducting approximately 240 people.4 in the days following the massacre, hamas indiscriminately launched barrages of rockets towards israel. israel consequently launched retaliatory airstrikes. on october 27, israel began its ground invasion of the gaza strip.5 an in-depth evaluation of the actions on october 7 is not within the scope of this article; instead, this article evaluates the legality of israel’s invasion. acknowledging the difficulties of analyzing events during wartime, this article will only address one question—whether the invasion of the gaza strip was legal under international law—and not the legality surrounding the events that transpired during the invasion itself. this excludes any attempt to evaluate israeli conduct under international legal 5 israel pummels gaza with strikes as it expands ground operations, france 24, oct. 27, 2023, https://www.france24.com/en/live-news/20231027-israel-pummels-gaza-wit h-strikes-as-it-expands-ground-operations; arthur van coller, israel-hamas 2024 symposium qassam rockets, weapon reviews, and collective terror as a targeting strategy, (2024), https://lieber.westpoint.edu/qassam-rockets-weapon-reviews-collective-terro r-targeting-strategy/. 4 police say they’ve identified 859 civilian victims from october 7 massacre, up 16, the times of israel, nov. 14, 2023, https://www.timesofisrael.com/liveblog_entry/police-say-theyve-identified859-civilian-victims-from-october-7-massacre-up-16/. 10 https://www.france24.com/en/live-news/20231027-israel-pummels-gaza-with-strikes-as-it-expands-ground-operations https://www.france24.com/en/live-news/20231027-israel-pummels-gaza-with-strikes-as-it-expands-ground-operations https://lieber.westpoint.edu/qassam-rockets-weapon-reviews-collective-terror-targeting-strategy/ https://lieber.westpoint.edu/qassam-rockets-weapon-reviews-collective-terror-targeting-strategy/ https://www.timesofisrael.com/liveblog_entry/police-say-theyve-identified-859-civilian-victims-from-october-7-massacre-up-16/ https://www.timesofisrael.com/liveblog_entry/police-say-theyve-identified-859-civilian-victims-from-october-7-massacre-up-16/ brandeis university law journal 2023-2024, volume 11 principles, since any such inquiry would require an in-depth knowledge of classified information.6 iii. the right of self-defense the united nations charter is the foundational text of the organization, and it is binding upon all member states.7 article 2(4) of the charter enshrines the importance of refraining “from the threat or use of force against the territorial integrity or political independence of any state.”8 however, article 51 of the charter notes that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the united nations.”9 additional codification of self-defense can be found in united nations general assembly (unga) resolution 3314, which criminalizes state aggression from the perspective of international law and helps clarify the definition of an “armed attack” under article 51 of the charter.10 this resolution includes a few examples of acts of aggression, such as “invasion or attack by the armed forces of a state… or any military occupation, however temporary.”11 it is worth noting that the definition of “[s]tate” in this resolution “is used without prejudice to questions of recognition or to 11 definition of aggression, u.n. gaor (1974). 10 thomas bruha, the general assembly’s definition of the act of aggression, in the crime of aggression: a commentary, 142 (2016); report of the 1956 special committee on the question of defining aggression, (1956). 9 u.n. charter art. 51. 8 u.n. charter art. 2, para.4. 7 alfred verdross, general international law and the united nations charter, 30 royal institute of international affairs 342 (1954). 6 noam lubell, jelena pejic & claire simmons, guidelines on investigating violations of international humanitarian law: law, policy, and good practice, (2019), https://www.geneva-academy.ch/joomlatools-files/docman-files/guidelines %20on%20investigating%20violations%20of%20ihl_%20final.pdf. 11 https://www.zotero.org/google-docs/?broken=xloq8x https://www.zotero.org/google-docs/?broken=xloq8x https://www.zotero.org/google-docs/?broken=wo4pg9 https://www.zotero.org/google-docs/?broken=wo4pg9 https://www.geneva-academy.ch/joomlatools-files/docman-files/guidelines%20on%20investigating%20violations%20of%20ihl_%20final.pdf https://www.geneva-academy.ch/joomlatools-files/docman-files/guidelines%20on%20investigating%20violations%20of%20ihl_%20final.pdf brandeis university law journal 2023-2024, volume 11 whether a state is a member of the united nations,” meaning that self-defense against a state can also be legal if the united nations does not recognize that state, if that state is not a member of the united nations, or even if both are applicable.12 in addition to the charter and resolution 3314, the icj’s decision in the republic of nicaragua v. united states of america (1986) is also important in defining self-defense. in 1984, american military intervention in nicaragua caused the latter to launch legal proceedings at the icj the same year.13 nicaragua v. usa adds an additional condition for an act of aggression to justify the right of self-defense: these acts must be “classified as an armed attack rather than as a mere frontier incident.”14 the difference between an armed attack and a frontier incident is based on the “scale and effects” of the operation.15 the icj judgment furthers the importance of unga resolution 3314 by considering the resolution a document of customary international law.16 this decision changed unga resolution 3314 from a non-binding general assembly resolution to one that is binding upon all nations, as is the nature of customary international law.17 the right of self-defense against terror organizations is more complicated than the right of self-defense against a state; in fact, it may appear that unga resolution 3314 limits the 17 south west africa cases, icj 98 (1966); james crawford, brownlie’s principles of public international law 19–28 (9 ed. 2019). 16 id. 15 id. 14 case concerning military and paramilitary activities in and against nicaragua, icj 195 (1986). 13 carlos arguello gomez, request for the indication of provisional measures of protection submitted by the government of nicaragua, (1984), https://www.icj-cij.org/sites/default/files/case-related/70/9629.pdf; carlos arguello gomez, application instituting proceedings, (1984), https://www.icj-cij.org/sites/default/files/case-related/70/9615.pdf. 12 id. 12 https://www.zotero.org/google-docs/?broken=mawg9b https://www.zotero.org/google-docs/?broken=vs1ovl https://www.zotero.org/google-docs/?broken=vs1ovl https://www.icj-cij.org/sites/default/files/case-related/70/9629.pdf https://www.zotero.org/google-docs/?broken=93fxqw https://www.zotero.org/google-docs/?broken=93fxqw https://www.icj-cij.org/sites/default/files/case-related/70/9615.pdf https://www.zotero.org/google-docs/?broken=93fxqw brandeis university law journal 2023-2024, volume 11 right of self-defense to attacks from a state.18 in the interest of this article, it is imperative to define terrorism under international law, so that we can evaluate it according to international legal principles. according to the special tribunal for lebanon, terrorism has three elements: “perpetration of a criminal act… or threatening such an act; the intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; when the act involves a transnational element.”19 as previously noted, unga resolution 3314 claims that a state must be the body invading or attacking for it to be considered an act of aggression. in 2003, the general assembly requested that the icj investigate “the legal consequences arising from the construction of the wall being built by israel” in the west bank.20 the opinion of the court became known as the wall advisory opinion, and while it is only an advisory opinion, it carries normative weight.21 the wall advisory opinion (2004) recognized that “article 51 of the [un] charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one state against another state.”22 judge higgins, former president of the icj, offers a dissenting opinion, concluding that “there is, with respect, nothing in the text of article 51 that thus stipulates that self-defense is available only when an armed attack is made by a state.”23 23 id. at 33. (separate opinion of judge higgins) 22 legal consequences of the construction of a wall in the occupied palestinian territory, icj 139 (2004). 21 niccolò lanzoni, the authority of icj advisory opinions as precedents: the mauritius/maldives case, the italian review of international and comparative law (2022). 20 general assembly resolution es-10/14, (2003), https://www.securitycouncilreport.org/atf/cf/%7b65bfcf9b-6d27-4e9c-8 cd3-cf6e4ff96ff9%7d/icj%20areses1014.pdf. 19 the prosecutor v. ayyash et al., 85 (2011). 18 definition of aggression, u.n. gaor (1974). 13 https://www.securitycouncilreport.org/atf/cf/%7b65bfcf9b-6d27-4e9c-8cd3-cf6e4ff96ff9%7d/icj%20areses1014.pdf https://www.securitycouncilreport.org/atf/cf/%7b65bfcf9b-6d27-4e9c-8cd3-cf6e4ff96ff9%7d/icj%20areses1014.pdf brandeis university law journal 2023-2024, volume 11 professor vaughan lowe, author of numerous books on international law and professor of international law at the university of oxford, strengthens judge higgins’ view by arguing that “the source of [an] attack, whether a state or non-state actor, is irrelevant to the existence of the right” to self-defense.24 the opinions of both judge higgins and professor lowe carry a level of legal weight because the international court of justice’s statute recognizes that “judicial decisions and teachings of the most highly qualified publicists of the various nations” are means for determining law.25 based on their aforementioned qualifications, judge higgins and professor lowe demonstrate that they are, as stated by the icj, “highly qualified.”26 therefore, their opinions are significant for future evaluation, even though they are not binding. raising a further possibility for a right of self-defense, nicaragua v. usa states that if a state has “effective control of the military or paramilitary operations” of a terror organization while the terrorist organization is conducting acts of aggression, the state has a level of legal responsibility.27 moreover, un special rapporteur philip alston remarked that “a targeted killing conducted by one state in the territory of a second state does not violate the second state’s sovereignty if… the first, targeting, state has a right under international law to use force in self-defense under article 51 of the un charter, because … the second state is unwilling or unable to stop armed attacks against the first state launched from its territory.”28 this interpretation allows room for states to fight 28 philiip alston, report of the special rapporteur on extrajudicial, summary or arbitrary executions, 35 (2010). 27 case concerning military and paramilitary activities in and against nicaragua, 115. 26 judge dame rosalyn higgins; vaughan lowe, qc. 25 statute of the icj, 38(1)d, https://www.icj-cij.org/statute. 24 vaughan lowe, principles of international law on the use of force by states in self-defence, 22 (2005). 14 https://www.zotero.org/google-docs/?broken=mytmva https://www.zotero.org/google-docs/?broken=3x4dyr https://www.zotero.org/google-docs/?broken=gfovv7 https://www.icj-cij.org/statute https://www.zotero.org/google-docs/?broken=gfovv7 brandeis university law journal 2023-2024, volume 11 terror organizations in foreign territory without the explicit permission of the sovereign. another advancement in the right of self-defense relating to terror is represented by un security council resolution (unscr) 2249. the security council passed resolution 2249 in november 2015 as a means of combating the islamic state throughout the middle east and the wider world.29 this resolution “calls upon member states … to eradicate the safe haven [the islamic state of iraq and syria (isis)] have established.”30 importantly, the resolution uses the language “calls upon,” and these words are “exhortatory rather than mandatory language and … therefore, they do not purport to impose any legal duty on any state.” 31 given the lack of a legal duty on a state to eradicate isis, marc weller, professor of international law at the university of cambridge, argues that unscr 2249 “does not grant any fresh authority for states seeking to take action,” but rather that this ability has already existed within international customary law.32 dapo akande, professor of public international law at the university of oxford, and marko milanovic, associate professor in law at the university of nottingham, agree with the assessment that unscr 2249 “neither adds to, nor subtracts from, whatever authority” states already have in fighting terror.33 the language 33 dapo akande & marko milanovic, the constructive ambiguity of the security council’s isis resolution, blog of the european journal of international law (nov. 21, 2015), 32 arabella lang, legal basis for uk military action in syria, 8 (2015), https://www.voltairenet.org/img/pdf/cbp-7404.pdf. 31 legal consequences for states of the continued presence of south africa in namibia (south west africa) notwithstanding security council resolution 276, icj 114 (1971). 30 resolution 2249, (2015). 29 threats to international peace and security caused by terrorist acts, (2015), https://documents.un.org/doc/undoc/pro/n15/383/49/pdf/n1538349.pdf?toke n=s5uy6ull3akxofnvqa&fe=true. 15 https://www.zotero.org/google-docs/?broken=eesoas https://www.zotero.org/google-docs/?broken=eesoas https://www.zotero.org/google-docs/?broken=eesoas https://www.zotero.org/google-docs/?broken=uubz0y https://www.voltairenet.org/img/pdf/cbp-7404.pdf https://www.zotero.org/google-docs/?broken=uubz0y https://www.zotero.org/google-docs/?broken=rkaabx https://www.zotero.org/google-docs/?broken=rkaabx https://documents.un.org/doc/undoc/pro/n15/383/49/pdf/n1538349.pdf?token=s5uy6ull3akxofnvqa&fe=true https://documents.un.org/doc/undoc/pro/n15/383/49/pdf/n1538349.pdf?token=s5uy6ull3akxofnvqa&fe=true https://www.zotero.org/google-docs/?broken=rkaabx brandeis university law journal 2023-2024, volume 11 in unscr 2249 indicates that the right of states to attack terror regimes in foreign countries is not new, and that the resolution simply codified an established rule of customary international law that has been developing since the nicaragua vs. usa ruling.34 the majority of the academic discussion thus far relates to the right of self-defense against terror organizations and whether a terror organization is operating in another sovereign’s territory. therefore, discussions of what constitutes sovereign territory and the relevant principles for this conversation are essential. iv. sovereignty, elements of a state, and occupation article 2(1) of the un charter recognizes the idea of sovereignty of states through the principle of “sovereign equality” of nations.35 in the case concerning the frontier dispute between burkina faso and mali, the icj recognized the principle of uti possidetis juris (as possessing of law) as an aspect of customary international law. through this, the court recognized that the borders of post-colonial states could result “from mere internal administrative divisions” of the previous colonial ruler. in this court case, the previous colonial ruler was france with the former french territories of french upper volta, later burkina faso, and french sudan, later mali. the icj applied the principle of uti possidetis juris to establish the 35 united nations charter, 2(1) (1945), https://treaties.un.org/doc/publication/ctc/uncharter.pdf. 34 arabella lang, legal basis for uk military action in syria, (2015), https://www.voltairenet.org/img/pdf/cbp-7404.pdf; michael scharf, how the war against isis changed international law, (2016). https://www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils -isis-resolution/. 16 https://treaties.un.org/doc/publication/ctc/uncharter.pdf https://www.voltairenet.org/img/pdf/cbp-7404.pdf https://www.zotero.org/google-docs/?broken=mlyevp https://www.zotero.org/google-docs/?broken=mlyevp https://www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-resolution/ https://www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-resolution/ https://www.zotero.org/google-docs/?broken=eesoas brandeis university law journal 2023-2024, volume 11 border between burkina faso and mali based on the french colonial borders.36 notably, the case land and maritime boundary between cameroon and nigeria notes that “the fundamental principle of respect for frontiers inherited from colonization [is] uti possidetis juris” and other relevant commitments.37 other decisions, such as the land, island and maritime frontier dispute between el salvador and honduras, have also recognized the importance of uti possidetis juris.38 professor malcolm shaw, professor of international law at the university of leicester, has written that the principle of uti possidetis juris means that “a new state has the boundaries of the previous entity.” 39 the montevideo convention on the rights and duties of states (1933) is a document of customary international law that lays out the requirements for a state to be granted statehood according to international law.40 the convention enumerates that for a state to be considered a state under international law, it must have “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”41 41 montevideo convention on the rights and duties of states, 1 (1933). 40 dj harris, cases and materials on international law (6th ed. 2010). 39 malcolm shaw, international law 450 (9th ed. 2021). 38 land, island and maritime frontier dispute, icj (1992), https://www.icj-cij.org/sites/default/files/case-related/75/075-19920911-ju d-01-00-en.pdf. 37 the land and maritime boundary between cameroon and nigeria, icj 18d (1998), https://www.icj-cij.org/sites/default/files/case-related/94/094-19980611-ju d-01-00-en.pdf. 36 case concerning the frontier dispute, icj 21–22 (1986), https://www.icj-cij.org/sites/default/files/case-related/69/069-19861222-ju d-01-00-en.pdf. 17 https://www.icj-cij.org/sites/default/files/case-related/75/075-19920911-jud-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/75/075-19920911-jud-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/94/094-19980611-jud-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/94/094-19980611-jud-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/69/069-19861222-jud-01-00-en.pdf https://www.icj-cij.org/sites/default/files/case-related/69/069-19861222-jud-01-00-en.pdf brandeis university law journal 2023-2024, volume 11 v. palestine and the montevideo criteria there are two paths set out in international law—as previously explained—that israel could use to justify its invasion of gaza. the first is a determination that it benefits from a right of self-defense, and the second involves establishing a connection between previous customary law on terrorism and hamas, without relying on the doctrine of self-defense. although both judge higgins and professor lowe offer insight into the view that the right of self-defense may come from a non-state actor, in the interest of a strengthened argument, the remainder of the article will proceed on the basis of the majority’s reasoning in the international court of justice’s wall advisory opinion.42 under that reasoning, the right of self-defense outlined in article 51 of the un charter must be self-defense from a state. it is also worth mentioning that it does not matter whether the state is a member of the united nations per unga resolution 3314.43 the determining factor, therefore, is whether gaza is a state—which would include being part of a more comprehensive state—or not. there is considerable debate among legal scholars on whether to consider palestine a state under international law.44 within the pre-trial proceedings of an international criminal court case to determine whether palestine is a state, professor malcolm shaw claimed that “palestine is not a state according to international law as it does not conform with the 44 errol mendes, statehood and palestine for the purposes of article 12(3) of the icc statute. 43 definition of aggression, u.n. gaor (1974). 42 legal consequences of the construction of a wall in the occupied palestinian territory, at 33 (separate opinion of judge higgins); vaughan lowe, principles of international law on the use of force by states in self-defense, 22 (2005); legal consequences of the construction of a wall in the occupied palestinian territory, 139. 18 https://www.zotero.org/google-docs/?broken=zfttvf https://www.zotero.org/google-docs/?broken=zfttvf brandeis university law journal 2023-2024, volume 11 internationally recognized montevideo criteria.”45 however, in the same case, the opposition argued for a more lenient application of the montevideo criteria in determining whether palestine is a state, which could allow it to fulfill the definition.46 one way or another, however, in determining whether palestine is a state that includes gaza, one must deploy the montevideo principles.47 the first point, a permanent population, is easy to prove—the population of gaza in 2002 was about 1.1 million and about 2.1 million in 2023.48 however, it is trickier for a palestinian “state” in gaza to prove it has a defined territory in accordance with the second criteria. in demonstrating a defined territory, it must be shown that the “territory is both the object of the state’s right and the space within which its sovereignty and jurisdiction are exercised,” as accepted by professor shaw.49 therefore, it is important to definitely determine the de facto (based on the reality) and de jure (based on laws) ruler of gaza. the borders of the british mandate on may 14, 1948, included the gaza strip as delineated in an agreement between the ottomans and british-ruled egypt in 1906. this was further confirmed in a speech in 1925 by the british minister of state where he said that “the line dividing the territories under egyptian and turkish administration [was] defined in 1906 by 49 malcolm shaw, title to territory in africa: international legal issues (1986), 15. 48 the west bank and gaza: a population profile, (2002), https://www.prb.org/resources/the-west-bank-and-gaza-a-population-profile /; gaza strip, (2024), https://www.cia.gov/the-world-factbook/countries/gaza-strip/#people-and-s ociety. 47 montevideo convention on the rights and duties of states. 46 office of the prosecutor, situation in the state of palestine, https://www.icc-cpi.int/sites/default/files/courtrecords/cr2020_01746.pd f. 45 malcolm shaw, situation in the state of palestine, https://legal-tools.org/doc/p5ixh2/pdf/. 19 https://www.prb.org/resources/the-west-bank-and-gaza-a-population-profile/ https://www.prb.org/resources/the-west-bank-and-gaza-a-population-profile/ https://www.cia.gov/the-world-factbook/countries/gaza-strip/#people-and-society https://www.cia.gov/the-world-factbook/countries/gaza-strip/#people-and-society https://www.icc-cpi.int/sites/default/files/courtrecords/cr2020_01746.pdf https://www.icc-cpi.int/sites/default/files/courtrecords/cr2020_01746.pdf https://legal-tools.org/doc/p5ixh2/pdf/ brandeis university law journal 2023-2024, volume 11 a boundary commission and has not since been modified.”50 using the aforementioned principle of uti possidetis juris, the gaza strip de jure belongs to israel because the palestinians only made a declaration of independence in 1988, whereas israel did so on may 14, 1948, at the termination of the mandate.51 some may claim that egypt continued the colonization of gaza and therefore, the principle of uti possidetis juris cannot apply; however, this view is fundamentally wrong. only in february 1949, nine months after israel’s declaration of independence, did egypt officially gain control over gaza through an armistice agreement.52 but, this armistice agreement “is not to be construed in any sense as a political or territorial boundary,” meaning that under the principle of uti possidetis juris, egypt’s control of gaza has no effect on israel’s borders.53 furthermore, in 1979, egypt and israel signed a peace treaty whereby “the permanent boundary between egypt and israel is the recognized international boundary between egypt and the former mandated territory of palestine … without prejudice to the issue of the status of the gaza strip.”54 while this peace treaty recognizes a special status for gaza, this does not jeopardize the principle of uti possidetis juris. using this principle, israel could be the only inheritor of the 54 peace treaty between the state of israel and the arab republic of egypt, ii (1979). 53 id. at v(2). 52 armistice agreement between egypt and israel, (1949), https://documents.un.org/doc/undoc/gen/nl4/914/45/pdf/nl491445.pdf?toke n=oo9yv9lqmaevgipshd&fe=true. 51 palestinian national council declaration of independence, (1988), https://fmep.org/wp/wp-content/uploads/2015/01/pnc-declaration-of-indep endence.pdf; declaration of israel’s independence, (1948), https://avalon.law.yale.edu/20th_century/israel.asp. 50 xx reports of international arbitral awards: case concerning the location of boundary markers in taba between egypt and israel, 24–25, 114–116 (1988), https://legal.un.org/riaa/cases/vol_xx/1-118.pdf. 20 https://www.zotero.org/google-docs/?broken=zc06ai https://www.zotero.org/google-docs/?broken=zc06ai https://www.zotero.org/google-docs/?broken=cto8km https://www.zotero.org/google-docs/?broken=d4agak https://documents.un.org/doc/undoc/gen/nl4/914/45/pdf/nl491445.pdf?token=oo9yv9lqmaevgipshd&fe=true https://documents.un.org/doc/undoc/gen/nl4/914/45/pdf/nl491445.pdf?token=oo9yv9lqmaevgipshd&fe=true https://www.zotero.org/google-docs/?broken=d4agak https://fmep.org/wp/wp-content/uploads/2015/01/pnc-declaration-of-independence.pdf https://fmep.org/wp/wp-content/uploads/2015/01/pnc-declaration-of-independence.pdf https://avalon.law.yale.edu/20th_century/israel.asp https://legal.un.org/riaa/cases/vol_xx/1-118.pdf brandeis university law journal 2023-2024, volume 11 territory based on the preceding information and the fact that israel and egypt signed the peace treaty nine years before a palestinian declaration of independence.55 others argue that the israeli withdrawal from gaza in 2005 indicates a loss of israel’s de jure status over the gaza strip. however, the israeli cabinet resolution detailing the withdrawal never mentioned a loss of de jure status and maintained israeli operational capabilities within gaza.56 therefore, a palestinian state in gaza failed on this point—a defined territory—of the montevideo convention. the third criterion in the montevideo convention, the existence of a government, is also tricky to establish, especially within gaza. the challenges arise because the plo “has been recognized as the sole legitimate representative of the palestinian people” by the arab league.57 however, since 2006, hamas has been controlling gaza, and the plo, primarily controlled by the palestinian authority, has not been able to exercise its rule over gaza.58 a more accurate presentation would be to label it as controversial whether a 58 kali robinson, who governs the palestinians, (2024).; ian slesinger, the limits of control: technological agency, urban terrain, strategy and the state in the 2014 gaza war, political geography (2022); yezid sayigh, hamas rule in gaza: three years on, brandeis university crown center for middle east studies (2010). 57 salem barahmeh, the palestinians, the plo, and political representation: the search for palestinian self-determination, (2014), https://icsr.info/wp-content/uploads/2014/07/icsr_atkin-series_salem-bar ahmeh.pdf. 56 the cabinet resolution regarding the disengagement plan, (2004), http://www.mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revise d%20disengagement%20plan%206-june-2004.aspx; i acknowledge that israel does not claim sovereignty over gaza, however this does not make any substantive differences in israel’s de jure status over the territory. 55 palestinian national council declaration of independence, (1988), https://fmep.org/wp/wp-content/uploads/2015/01/pnc-declaration-of-indep endence.pdf 21 https://icsr.info/wp-content/uploads/2014/07/icsr_atkin-series_salem-barahmeh.pdf https://icsr.info/wp-content/uploads/2014/07/icsr_atkin-series_salem-barahmeh.pdf http://www.mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revised%20disengagement%20plan%206-june-2004.aspx http://www.mfa.gov.il/mfa/foreignpolicy/peace/mfadocuments/pages/revised%20disengagement%20plan%206-june-2004.aspx https://www.zotero.org/google-docs/?broken=cbvh89 https://www.zotero.org/google-docs/?broken=cbvh89 https://www.zotero.org/google-docs/?broken=cbvh89 brandeis university law journal 2023-2024, volume 11 palestinian state in gaza fulfills the third criterion due to the lack of a well-established government. the last point in the montevideo criteria is much easier to prove, irrespective of the controversial status of whether the plo or hamas governs gaza. the plo has observer status in the united nations and diplomatic representation in about ninety countries.59 hamas has definite relations with qatar and turkey and suspected relations with several other countries, thereby demonstrating its ability to enter into relations with foreign states.60 while not explicitly a document of customary law, the european political cooperation declaration on the recognition of new states in eastern europe and the soviet union states that unless a new state commits itself “to the rule of law … the community and its member states will not recognize” the state.61 this statement has led individuals such as tal becker, legal advisor for the israeli ministry of foreign affairs, and professor robbie sabel, professor of international law at the hebrew university of jerusalem, to believe that, “even if the palestinian entity were to meet those [montevideo] criteria, the illegality associated with its current unilateral claim to statehood demands that recognition be withheld.”62 the 62 tal becker, international recognition of a unilaterally declared palestinian state: legal and policy dilemmas, https://www.jcpa.org/art/becker2.htm.; robbie sabel, international law and the arab-israeli conflict i, 397 (2022); jeremy sharon, israel rejects 61 statement by an extraordinary epc ministerial meeting concerning the “guidelines on the recognition of new states in eastern europe and in the soviet union,” (1991), http://aei.pitt.edu/36871/1/a2880.pdf. 60 mirren gidda, hamas still has some friends left, (2014), https://time.com/3033681/hamas-gaza-palestine-israel-egypt/; henri barkey, turkey, the united states, and the israel-hamas war, (2023), https://www.cfr.org/article/turkey-united-states-and-israel-hamas-war. 59 general assembly resolution 3237, (1974). list of diplomatic missions in palestine & palestinian diplomatic missions abroad, https://www.embassy-worldwide.com/country/palestine/. 22 https://www.jcpa.org/art/becker2.htm https://www.zotero.org/google-docs/?broken=gg9y31 http://aei.pitt.edu/36871/1/a2880.pdf https://time.com/3033681/hamas-gaza-palestine-israel-egypt/ https://www.cfr.org/article/turkey-united-states-and-israel-hamas-war https://www.embassy-worldwide.com/country/palestine/ brandeis university law journal 2023-2024, volume 11 illegality that becker and sabel refer to is the violations of the oslo accords if the palestinians establish a palestinian state unilaterally. the oslo accords were a series of peace agreements between israel and the palestinian liberation organization (plo) in the 1990s.63 professor watson, former attorney-advisor in the u.s. department of state and professor of international law, regards the oslo accords as “binding international agreements.”64 unilaterally establishing a palestinian state would violate the portion of the oslo accords stipulating that the palestinian national “council will not have powers and responsibilities in the sphere of foreign relations,” which would be covered by israel. thus, unless israel gives explicit permission for a palestinian state, it would be illegal under the oslo accords.65 the oslo accords also state that “neither side shall initiate or take any step that will change the status of the west bank and the gaza strip.”66 the unilateral establishment of a palestinian state would clearly change the status of the territory that this state occupies. although the merits of a palestinian state fulfilling the montevideo criteria and whether a palestinian state is legal are unconvincing due to the aforementioned disagreement on this topic, it is still important to discuss the legality of israel’s invasion, assuming that a palestinian state exists in gaza. 66 israeli-palestinian interim agreement on the west bank and the gaza strip, chapter 5 article xxxi (7) (1995). 65 israeli-palestinian interim agreement on the west bank and the gaza strip, chapter 1 article ix (5)(a), chapter 3 article xvii (4) (1995). 64 geoffrey watson, the oslo accords: international law and the israeli-palestinian peace agreements (200ad), 101. 63 oslo accords, (2024), https://www.britannica.com/topic/oslo-accords. genocide claims at the hague, says south africa’s allegations “baseless,” jan. 12, 2024. 23 https://www.zotero.org/google-docs/?broken=fuwtae https://www.zotero.org/google-docs/?broken=gg9y31 https://www.zotero.org/google-docs/?broken=gg9y31 brandeis university law journal 2023-2024, volume 11 vi. the legality of israel’s invasion as previously explained, there are two possible palestinian sovereigns of gaza: hamas and the plo. first, assuming that hamas is the state sovereign of gaza, it does not matter that hamas does not have representation at the united nations nor official recognition as detailed in unga resolution 3314. one must classify hamas’ attacks on october 7th as an armed attack. hamas murdered about 1,200 israelis during this invasion, and hamas forces occupied specific locations within israel for at least twenty-four hours.67 moreover, the attacking forces reached over thirty kilometers into israeli territory, reaching israeli towns as far from the gaza border as ofakim.68 these attacks included about one thousand hamas fighters and the combined forces of about five different palestinian armed groups.69 moreover, in the first few hours of the hamas invasion, hamas fired about three thousand rockets at israel.70 as defined in the nicaragua case, this attack 70 emanuel fabian, idf: 9,500 rockets fired at israel since oct. 7, including 3,000 in 1st hours of onslaught, nov. 9, 2023, https://www.timesofisrael.com/liveblog_entry/idf-9500-rockets-fired-at-isra el-since-oct-7-including-3000-in-1st-hours-of-onslaught/. 69 daniel byman et al., hamas’s october 7 attack: visualizing the data, (2023), https://www.csis.org/analysis/hamass-october-7-attack-visualizing-data; abdelali ragad et al., how hamas built a force to attack israel on 7 october, (2023), https://www.bbc.com/news/world-middle-east-67480680. 68 gil lewinsky, bravery in ofakim: the civilians, police who thwarted hamas massacre plan, nov. 4, 2023, https://www.jpost.com/arab-israeli-conflict/gaza-news/article-771532. 67 tamsin westlake, an analysis of the 7th of october 2023 casualties in israel, (2023), https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-i n-israel-as-a-result-of-the-hamas-attack/; michael bachner & emanuel fabian, israel evacuates civilians from gaza-area towns as forces scour for remaining gunmen, the times of israel, oct. 9, 2023, https://www.timesofisrael.com/israel-evacuates-civilians-from-gaza-area-to wns-as-forces-scour-for-remaining-gunmen/. 24 https://www.timesofisrael.com/liveblog_entry/idf-9500-rockets-fired-at-israel-since-oct-7-including-3000-in-1st-hours-of-onslaught/ https://www.timesofisrael.com/liveblog_entry/idf-9500-rockets-fired-at-israel-since-oct-7-including-3000-in-1st-hours-of-onslaught/ https://www.csis.org/analysis/hamass-october-7-attack-visualizing-data https://www.bbc.com/news/world-middle-east-67480680 https://www.jpost.com/arab-israeli-conflict/gaza-news/article-771532 https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-in-israel-as-a-result-of-the-hamas-attack/ https://aoav.org.uk/2023/an-analysis-of-the-7th-of-october-2023-casualties-in-israel-as-a-result-of-the-hamas-attack/ https://www.timesofisrael.com/israel-evacuates-civilians-from-gaza-area-towns-as-forces-scour-for-remaining-gunmen/ https://www.timesofisrael.com/israel-evacuates-civilians-from-gaza-area-towns-as-forces-scour-for-remaining-gunmen/ brandeis university law journal 2023-2024, volume 11 is not “a mere frontier incident,” but a full-scale invasion, with ground forces assaulting numerous towns, combined with an air and rocket attack.71 therefore, assuming that gaza is a state governed by hamas, israel would have the right of self-defense. the other grounds for an israeli invocation of the right of self-defense does not depend on identifying a specific sovereign of gaza. rather, it depends on an analysis of laws governing state responses to terrorism. the first step is to apply the definition of terrorism to hamas. irrespective of the fact that over eight countries and the european union, have designated hamas as a terror organization, it is crucial to apply this definition according to international law as opposed to domestic law.72 for international law to consider an organization a terrorist organization, three criteria must be met: 72 el gobierno argentino incluirá al grupo hamás en la lista de organizaciones terroristas, frente a cano, dec. 23, 2023, https://frenteacano.com.ar/el-gobierno-argentino-incluira-al-grupo-hamas-e n-la-lista-de-organizaciones-terroristas/.; hamas to be listed in entirety as a terrorist organisation by australian government, abc news, feb. 17, 2022, https://www.abc.net.au/news/2022-02-17/hamas-palestinian-listed-as-terrori st-group-australia-government/100839262.; trudeau affirms support for israel in call with war cabinet member benny gantz, city news, nov. 16, 2023, https://toronto.citynews.ca/2023/11/16/no-canadians-on-updated-exit-list-fo r-the-rafah-border-crossing-hundreds-still-stuck/.; daniel boffey, eu court upholds hamas terror listing, the guardian, jul. 26, 2017, https://www.theguardian.com/world/2017/jul/26/eu-court-upholds-hamas-te rror-listing.; paraguay adds hamas, hezbollah to terrorism list, middle east monitor, aug. 20, 2019, https://www.middleeastmonitor.com/20190820-paraguay-adds-hamas-hezbo llah-to-terrorism-list/.; ashlyn messier, israel, australia, japan, uk, us, others have officially designated hamas a terrorist organization, fox news, oct. 13, 2023, https://www.foxnews.com/world/countries-designate-hamas-terrorist-organi zation. 71 case concerning military and paramilitary activities in and against nicaragua, 195. 25 https://frenteacano.com.ar/el-gobierno-argentino-incluira-al-grupo-hamas-en-la-lista-de-organizaciones-terroristas/ https://frenteacano.com.ar/el-gobierno-argentino-incluira-al-grupo-hamas-en-la-lista-de-organizaciones-terroristas/ https://www.abc.net.au/news/2022-02-17/hamas-palestinian-listed-as-terrorist-group-australia-government/100839262 https://www.abc.net.au/news/2022-02-17/hamas-palestinian-listed-as-terrorist-group-australia-government/100839262 https://toronto.citynews.ca/2023/11/16/no-canadians-on-updated-exit-list-for-the-rafah-border-crossing-hundreds-still-stuck/ https://toronto.citynews.ca/2023/11/16/no-canadians-on-updated-exit-list-for-the-rafah-border-crossing-hundreds-still-stuck/ https://www.theguardian.com/world/2017/jul/26/eu-court-upholds-hamas-terror-listing https://www.theguardian.com/world/2017/jul/26/eu-court-upholds-hamas-terror-listing https://www.middleeastmonitor.com/20190820-paraguay-adds-hamas-hezbollah-to-terrorism-list/ https://www.middleeastmonitor.com/20190820-paraguay-adds-hamas-hezbollah-to-terrorism-list/ https://www.foxnews.com/world/countries-designate-hamas-terrorist-organization https://www.foxnews.com/world/countries-designate-hamas-terrorist-organization brandeis university law journal 2023-2024, volume 11 a criminal act, intent to spread fear or coerce a national or international body to take or refrain from action, and transnationality.73 international criminal court prosecutor karim khan remarked that the cruelties that occurred on october 7th led him to have “reason to believe” that hamas’ actions are criminal in nature according to international law.74 non-state actors are bound by doctrines of customary international law, including the geneva conventions.75 hamas violated article iii of the 1949 geneva conventions through “murder … mutilation, cruel treatment and torture; taking of hostages” and more.76 they murdered over eight hundred civilians on october 7th, raped women, and kidnapped about 240 civilians and soldiers into gaza.77 experts at the combating terrorism center at west point have determined that hamas’ motivations before, on, and after october 7th are political, seeking to destroy the state of israel.78 moreover, u.s. president joe biden believes that hamas intended to disrupt israeli-saudi normalization with the 78 devorah margolin & matthew levitt, the road to october 7: hamas’ long game, clarified, 16 ctc sentinel (2023). 77 westlake; bethan mckernan, evidence points to systematic use of rape and sexual violence by hamas in 7 october attacks, the guardian, jan. 18, 2024, https://www.theguardian.com/world/2024/jan/18/evidence-points-to-system atic-use-of-rape-by-hamas-in-7-october-attacks.; police say they’ve identified 859 civilian victims from october 7 massacre, up 16. 76 the geneva conventions of 12 august 1949, iii. 75 tatiana londoño-camargo, the scope of application of international humanitarian law to non-international armed conflicts, vniversitas 207 (2015).; legality of the threat or use of nuclear weapons, icj (1996). 74 yael freidson, icc prosecutor calls oct. 7 hamas attack on israelis “serious international crimes,” haaretz, dec. 3, 2023, https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-c alls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3 069-da74-afce-b5f926bb0000. 73 interlocutory decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative charging, 85. 26 https://www.theguardian.com/world/2024/jan/18/evidence-points-to-systematic-use-of-rape-by-hamas-in-7-october-attacks https://www.theguardian.com/world/2024/jan/18/evidence-points-to-systematic-use-of-rape-by-hamas-in-7-october-attacks https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-calls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3069-da74-afce-b5f926bb0000 https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-calls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3069-da74-afce-b5f926bb0000 https://www.haaretz.com/israel-news/2023-12-03/ty-article/icc-prosecutor-calls-oct-7-hamas-attack-on-israelis-serious-international-crimes/0000018c-3069-da74-afce-b5f926bb0000 brandeis university law journal 2023-2024, volume 11 said attack, indicating that hamas had political goals.79 these points answer the second and third criteria for terrorist organizations. using violence for political purposes fulfills the second criterion; the de facto rulers of israel and the gaza strip are different, thus making hamas’ attacks within the de facto sovereign territory of israel, a transnational event.80 given that hamas is a terrorist organization under international law, one can use the customary international law of unsc resolution 2249 to prove the legality of israel’s invasion.81 since it is legal under international law for one state to attack terror organizations outside of their state, one can also focus on un special rapporteur philip alston’s aforementioned comments on targeted killings in the territory of another state if that state is “unwilling or unable to stop armed attacks against the first state launched from its territory.” 82 while the israeli invasion is not a targeted killing, this reasoning may help to establish grounds on which to build a legal case to prove the legality of israel’s invasion.83 benjamin netanyahu, the prime minister of israel, and other israeli defense officials have clearly stated that israel’s ultimate goal in launching the invasion is the elimination of hamas, which is in line with customary international law.84 84 chris brown, after more than 3 months of fighting, even small victories for israel are elusive, cbc, jan. 20, 2024; https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~: text=have%20been%20elusive.-,war%20aims,a%20news%20conference% 20on%20saturday; matt gutman, israeli defense minister predicts 2 more months of war, then “mop up,” abc news, dec. 6, 2023, 83 lang. 82 alston, 35. 81 resolution 2249. 80 yezid sayigh, hamas rule in gaza: three years on, brandeis university crown center for middle east studies (2010). 79 hamas attack aimed to disrupt saudi-israel normalization, biden says, oct. 20, 2023, https://www.reuters.com/world/middle-east/hamas-attack-aimed-disrupt-sau di-israel-normalization-biden-2023-10-20/ 27 https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~:text=have%20been%20elusive.-,war%20aims,a%20news%20conference%20on%20saturday https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~:text=have%20been%20elusive.-,war%20aims,a%20news%20conference%20on%20saturday https://www.cbc.ca/news/world/israel-war-goals-unachieved-1.7087509#:~:text=have%20been%20elusive.-,war%20aims,a%20news%20conference%20on%20saturday https://www.zotero.org/google-docs/?broken=ubiabv https://www.zotero.org/google-docs/?broken=ubiabv https://www.reuters.com/world/middle-east/hamas-attack-aimed-disrupt-saudi-israel-normalization-biden-2023-10-20/ https://www.reuters.com/world/middle-east/hamas-attack-aimed-disrupt-saudi-israel-normalization-biden-2023-10-20/ brandeis university law journal 2023-2024, volume 11 some may argue that based on the international court of justice wall advisory opinion, israel does not benefit from a right of self-defense because israel does not recognize a palestinian state. hence, the argument may go, the invasion is not legal.85 however, this ruling is not fully relevant because the ruling was decided well before the development of the customary doctrine on dealing with terrorism in 2015, and the remarks by special rapporteur philip alston in 2010. this new evidence demands a fresh understanding of israel’s rights in dealing with terror.86 vii. conclusion based on current standing international laws and rules governing conflict, it is apparent that israel’s invasion of gaza on october 27, 2023 is legal under international law. since gaza is not part of a palestinian state, israel does not benefit from the traditional understanding of self-defense. however, recent expansions in customary international law, as well as the opinions of special rapporteur philip alston, legally substantiate israel’s invasion of gaza, even if gaza is not a state in the traditional sense. although israel’s invasion may be legal under international law, this article makes no comment on the legality of israel’s conduct during the war. this war has harmed thousands of israelis and palestinians. moreover, there is no clear end in sight.87 hopefully, this article can aid those seeking to understand the legality of israel’s invasion by 87 police say they’ve identified 859 civilian victims from october 7 massacre, up 16; mounting death tolls in gaza, war could take months wsj, the jerusalem post, dec. 25, 2023, https://www.jpost.com/israel-hamas-war/article-779421. 86 resolution 2249, 17.; alston, 35. 85 legal consequences of the construction of a wall in the occupied palestinian territory, 139. https://abcnews.go.com/international/israeli-defense-minister-predicts-2-mo nths-war-mop/story?id=105377308. 28 https://www.jpost.com/israel-hamas-war/article-779421 https://abcnews.go.com/international/israeli-defense-minister-predicts-2-months-war-mop/story?id=105377308 https://abcnews.go.com/international/israeli-defense-minister-predicts-2-months-war-mop/story?id=105377308 brandeis university law journal 2023-2024, volume 11 showing that it is legal under current understandings of international law regarding self-defense. 29 brandeis university law journal 2023-2024, volume 11 states of emergency: the history and legal ramifications maia katsnelson88 emergencies happen globally on a daily basis, underscoring the pivotal role of governmental responses in managing these situations. the extent of a government's ability, specifically its executive branch, to respond to an emergency can be a determining factor in disaster mitigation and future government stability. in the us, the power of the executive branch has been a longstanding issue, evident in the founders' aim to limit it and prevent a new monarchy in the early republic. despite their intentions, this article highlights the significant increase of executive branch authority during times of emergencies. to explore the historical and legal foundations of state of emergency jurisprudence, this article details how this concept developed across europe, but more specifically in the united states. lastly, further reforms to the doctrine as it is practiced in the united states are proposed. i. introduction pages upon pages of history books describe catastrophes: wars, disease, famine, and terror. human suffering is thereby processed, recounted, cataloged, and taxonomized. this article addresses what often becomes occluded in retrospection, namely the immediate response to emergencies, rather than the eventual outcome. the expansion of governmental power in the aftermath of a disaster is the subject of this investigation. the concept of a “state of emergency” has existed for centuries without consensus on the limit of government power 88 brandeis university undergraduate, class of 2026. 30 brandeis university law journal 2023-2024, volume 11 during such times.89 cornell’s legal dictionary defines the legal concept as “a government declaration stating that because of some crisis, the normal workings of political and social life are suspended in the given jurisdiction. a state of emergency may alter government operations, order specific action by individuals, and suspend regular civil rights.”90 states of emergency have recently come to the forefront of the news cycle due to events such as the covid-19 pandemic, the war in ukraine, and, most recently, the october seventh terror attacks by hamas militants on israel. this article addresses how the u.s. and european countries have grappled with questions such as: what constitutes a state of emergency, which constitutional procedures and personal liberties can a government suspend, and how long can a state of emergency last? this article also proposes a mechanism by which congress can place necessary limits on executive power during states of emergency and proposes narrowing the definition of the concept. ii. historical perspective a. europe modern invocations of states of emergency originate from the legal traditions of democracies in nineteenth-century western europe.91 the concept traces back to the ancient roman practice of designating an auctoritas, a dictator, in times of external attack or rebellion within the republic.92 the auctoritas had the power to grant or suspend laws and operate 92 id. 91 scott p sheeran, supra note 89. 90 state of emergency | wex |u.s.law | lii / legal information institute, https://www.law.cornell.edu/wex/state_of_emergency (last visited nov 26, 2023). 89 scott p sheeran, reconceptualizing states of emergency under international human rights law: theory, legal doctrine, and politics, 34. 31 https://www.law.cornell.edu/wex/state_of_emergency https://www.law.cornell.edu/wex/state_of_emergency brandeis university law journal 2023-2024, volume 11 outside the potesta (the normal binding power of law).93 in the eighteenth and nineteenth centuries, european states began to codify this roman tradition into modern law. the french revolution constituted the most prominent european event that worked to establish the modern understanding of states of emergency. the french revolutionaries proposed the idea of suspending the constitution in response to a great danger.94 subsequently, in 1848, the second french republic created a new article for its constitution, which formalized the definition of a “state of siege.”95 the post-enlightenment definition was, therefore, born in a short-lived democratic historical moment. historically, states of emergency have often been swiftly followed by dictatorships, human rights abuses, and the breakdown of constitutional government. the twentieth century saw a proliferation of states of emergency, especially during the world wars.96 governments worldwide took extraordinary measures, from rationing to censorship, to address wartime challenges.97 however, this era also witnessed 97 id. 96arend lijphart, emergency powers and emergency regimes: a commentary, 18 asian survey 401 (1978). 95 the second french republic is defined by britannica as the republic established after the revolution which lasted from 1848-1852; agamben, giorgio, “the state of exception” (kevin attell trans., univ. of chi. press 2005) (2003). article 14 of the constitution granted the government the power to “make the regulations and ordinances necessary for the execution of the laws and the security of the state'' and the acte additional to the constitution first mentioned a “state of siege”; sheeran, scott p. “reconceptualizing states of emergency under international human rights law: theory, legal doctrine, and politics” michigan journal of international law, vol. 34, issue 3, pp. 491-557. 94 giordanengo, davide “the state of exception”, june 21, 2016, https://www.e-ir.info/pdf/63909. 93 botha, marc “review: untitled”, review of: state of exception by giorgio agamben, kevin attell, oxford literary review, vol. 31, no. 2, pp. 255-259. 32 https://www.e-ir.info/pdf/63909 brandeis university law journal 2023-2024, volume 11 state of emergency misuse, with some regimes using the doctrine to justify the suppression of political opposition.98 notably, the breakdown of constitutional government in the weimar republic, germany 1918, was partly due to the abuse of states of emergency declarations.99 article 48 of the weimar constitution described the emergency powers of the president, stating that the president protects against great threats with “measures necessary to reestablish law and order, if necessary using armed force and including the suspension of a particular and limited set of rights.”100 the drafters of the weimar constitution attempted to prevent a situation in which a ruler could take advantage of the state of emergency laws, but these attempts failed. article 48 was invoked approximately 250 times throughout the relatively brief lifetime of the weimar republic.101 once adolf hitler and the nazi party rose to power, they suspended all articles of the weimar constitution pertaining to personal liberties.102 weimar politicians had made a major mistake–they had “normalized” emergencies. it was all the easier therefore for nazi’s to end constitutional norms entirely. b. the united states the united states played a key role in establishing states of emergency as a feature in the modern rule of law. since president abraham lincoln’s administration and his suspension of habeas corpus during the civil war, u.s. history 102 id. 101 sheeran, scott p. “reconceptualizing states of emergency under international human rights law: theory, legal doctrine, and politics” michigan journal of international law, vol. 34, issue 3, pp. 491–557. 100 the reich constitution of august 11th 1919 (weimar constitution) with modifications, psm data, http://www.zum.de/psm/weimar/weimar-vve.php. 99 id. 98 id. 33 http://www.zum.de/psm/weimar/weimar-vve.php brandeis university law journal 2023-2024, volume 11 is riddled with instances of executive use of emergency powers.103 the alien and sedition acts of 1798 were a defining moment in the codification of emergency powers. although a formal state of emergency was not declared at the time, the united states stood on the brink of the quasi-war with france, a limited naval conflict centered on american trading rights.104 the federalist government of the time, afraid the democratic-republic criticism of federalist policies would endanger the war effort and that ‘aliens’ who were subjects of foreign enemies would sympathize with the french during the conflict, passed four laws known as the alien and sedition acts.105 the president at the time, john adams, criminalized criticism of his party through these acts, specifically through the sedition act.106 freedom of the press was the main freedom curtailed by the sedition act which stated that: “if any 106 the alien and sedition acts (1798) | constitution center, https://constitutioncenter.org/the-constitution/historic-document-library/deta il/the-alien-and-sedition-acts-1798 (last visited dec 6, 2023); avalon project an act in addition to the act, entitled "an act for the punishment of certain crimes against the united states, https://avalon.law.yale.edu/18th_century/sedact.asp (last visited dec 6, 2023). 105 alien and sedition acts (1798), national archives (2021), https://www.archives.gov/milestone-documents/alien-and-sedition-acts (last visited dec 6, 2023). 104 the quasi-war with france (1798 1801), uss constitution museum, https://ussconstitutionmuseum.org/major-events/the-quasi-war-with-france/ (last visited dec 6, 2023). 103 habeas corpus ad subjiciendum | wex |u.s.law | lii / legal information institute, https://www.law.cornell.edu/wex/habeas_corpus_ad_subjiciendum (last visited nov 28, 2023)., defined as ““that you have the body to submit to” in latin. it is also known as the “great writ” and is a writ that is directed to someone detaining another person to inquire as to the legality of the detention; declared national emergencies under the national emergencies act | brennan center for justice, https://www.brennancenter.org/our-work/research-reports/declared-nationalemergencies-under-national-emergencies-act (last visited nov 28, 2023). 34 https://constitutioncenter.org/the-constitution/historic-document-library/detail/the-alien-and-sedition-acts-1798 https://constitutioncenter.org/the-constitution/historic-document-library/detail/the-alien-and-sedition-acts-1798 https://avalon.law.yale.edu/18th_century/sedact.asp https://www.archives.gov/milestone-documents/alien-and-sedition-acts https://ussconstitutionmuseum.org/major-events/the-quasi-war-with-france/ https://www.law.cornell.edu/wex/habeas_corpus_ad_subjiciendum https://www.law.cornell.edu/wex/writ https://www.law.cornell.edu/wex/detain https://www.brennancenter.org/our-work/research-reports/declared-national-emergencies-under-national-emergencies-act https://www.brennancenter.org/our-work/research-reports/declared-national-emergencies-under-national-emergencies-act brandeis university law journal 2023-2024, volume 11 person shall write, print, utter or publish [...] any false, scandalous and malicious writing or writings against the government of the united states, [...], or to excite against them, or either or any of them, the hatred of the good people of the united states, or to stir up sedition within the united states, [...] shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”107 this is a clear restriction of first amendment free speech and an expansion of executive power during a time of national emergency, although it was not considered as such by president adams in 1798. these acts and the subsequent sedition act trials led to a sharp increase in criticism of the federalist party and contributed to their defeat in 1800.108 when thomas jefferson won the presidency in 1800, the acts expired and he pardoned those convicted under them.109 there were other instances in the past 200 years which include the suspension of habeas corpus under president lincoln, the espionage act of 1917 and the amendment to title i of the act the sedition act of 1918 which curtailed free speech rights during war-time.110 additionally, president franklin delano roosevelt declared an unlimited national emergency in may of 1941.111 111 radio address announcing an unlimited national emergency. | the american presidency project, https://www.presidency.ucsb.edu/documents/radio-address-announcing-unli mited-national-emergency (last visited feb 11, 2024). 110 espionage act of 1917 and sedition act of 1918 (1917-1918) | constitution center, national constitution center – constitutioncenter.org, https://constitutioncenter.org/the-constitution/historic-document-library/deta il/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918 (last visited feb 11, 2024). 109 the alien and sedition acts (1798) | constitution center, supra note 106. 108 alien and sedition acts (1798), supra note 105. 107 id. 35 https://www.presidency.ucsb.edu/documents/radio-address-announcing-unlimited-national-emergency https://www.presidency.ucsb.edu/documents/radio-address-announcing-unlimited-national-emergency https://constitutioncenter.org/the-constitution/historic-document-library/detail/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918 https://constitutioncenter.org/the-constitution/historic-document-library/detail/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918 https://www.zotero.org/google-docs/?broken=8aangs brandeis university law journal 2023-2024, volume 11 in 1976, the u.s. congress passed the national emergencies act (nea), which created a time limit on existing declared states of emergency.112 it also included termination methods for a state of emergency, such as the “automatic termination of national emergency upon its anniversary every year, if the president does not act to renew it.”113 the nea aimed to formalize the process of declaring and renewing the state of emergency.114 iii. legal framework a. constitutional provisions modern constitutions often contain provisions for states of emergency.115 for instance, the u.s. constitution allows for the suspension of habeas corpus “when in cases of rebellion or invasion the public safety may require it.”116 this principle was called into question in 2001 after the terror attacks on september eleventh, 2001. on november twelfth, 2001, president george w. bush issued a military order to protect the united states from terrorist attacks, terrorists, or those in any 116 u.s.const., article 1, section 9. 115 states of emergencies: part i, harvard law review, https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/ (last visited mar 5, 2024). “over 90% of constitutions in force today include emergency clauses that allow the government to step outside of the ordinary constitutional framework and to take actions that would not otherwise be permitted.” 114 michael greene, national emergencies act: expedited procedures in the house and senate, february 21, 2023. 113 emergency powers | wex | us law | lii / legal information institute, https://www.law.cornell.edu/wex/emergency_powers (last visited nov 26, 2023). 112 50 usc ch. 34: national emergencies, https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi on=prelim (last visited nov 26, 2023). 36 https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/ https://www.law.cornell.edu/wex/emergency_powers https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim brandeis university law journal 2023-2024, volume 11 way affiliated or suspected to be affiliated with al-qaeda.117 the government could detain and try those suspected of being affiliated with al-qaeda without applying “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the united states district courts.”118 this order led to a landmark case, hamdan v. rumsfeld, in 2006, which raised questions about the limits on executive power.119 in the case, salim ahmed hamdan was captured by militia forces in afghanistan and turned over to the u.s. military, after which he was transferred to the guantanamo bay military detention center.120 in april of 2004, hamdan petitioned for a writ of habeas corpus in federal district court. however, before the court could rule on his petition, a military tribunal designated him as an enemy combatant.121 the district court granted hamdan’s petition and ruled that he must be allowed a hearing to determine his status as a prisoner of war under the third geneva convention before he could be tried by a military tribunal.122 this decision was reversed by the circuit court of appeals for the district of columbia with the rationale that the geneva convention could not be enforced by federal courts and that the military tribunals were authorized by congress and were therefore not unconstitutional.123 the supreme court held, in a 5-3 decision, that the bush administration’s attempt to try a prisoner of war (the plaintiff) by a military commission was outside the bounds of 123 id. 122 id. 121 hamdan v. rumsfeld, supra note 119. 120 peter j. spiro, hamdan v. rumsfeld. 126 s.ct.2749, 100 am. j. int. law 888 (2006). 119 hamdan v. rumsfeld, oyez, https://www.oyez.org/cases/2005/05-184 (last visited nov 28, 2023). 118 id. 117 president issues military order, https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011 113-27.html (last visited nov 26, 2023). 37 https://www.oyez.org/cases/2005/05-184 https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011113-27.html https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011113-27.html brandeis university law journal 2023-2024, volume 11 executive powers and violated the constitutional rights of the plaintiff.124 this decision imposed a clear limit on emergency executive authority. however, this constraint was soon disregarded when congress passed the military commissions act (mca) in 2006, eliminating the right of habeas corpus to prisoners at guantanamo bay and other detainment facilities.125 b. powers granted to government during emergencies the united states constitution does not detail any extraordinary executive powers in times of emergency or war. however, many scholars believe that the framers implied these powers by creating an executive branch that is more efficient than the legislative branch.126 for this reason, congress passed the nea, granting the president 123 statutory powers during a declared emergency—ensuring that during a national emergency, decisions could be made quickly and efficiently to protect the nation.127 seven years later, the supreme court's decision in immigration and naturalization service v. chadha emphasized a check to emergency executive power by restating the traditional position that congress can not veto an administrative decision with a majority vote, a two-thirds 127 executive powers are a national emergency harvard political review, https://harvardpolitics.com/executive-powers-emergency/ (last visited nov 26, 2023). 126 emergency powers, supra note 113. 125 legal resources | intelligence committee, https://www.intelligence.senate.gov/laws/military-commissions-act-2009-tit le-xviii-national-defense-authorization-act-fiscal-year-2010 (last visited nov 28, 2023). 124 office of the solicitor general | hamdan v. rumsfeld brief (merits) | united states department of justice, (2014), https://www.justice.gov/osg/brief/hamdan-v-rumsfeld-brief-merits (last visited nov 27, 2023); hamdan v. rumsfeld, united states reports, june 29, 2006; ncc staff, “ hamdan v. rumsfeld: applying the constitution to guantánamo prisoners”, june 19, 2017. 38 https://harvardpolitics.com/executive-powers-emergency/ https://www.intelligence.senate.gov/laws/military-commissions-act-2009-title-xviii-national-defense-authorization-act-fiscal-year-2010 https://www.intelligence.senate.gov/laws/military-commissions-act-2009-title-xviii-national-defense-authorization-act-fiscal-year-2010 https://www.justice.gov/osg/brief/hamdan-v-rumsfeld-brief-merits brandeis university law journal 2023-2024, volume 11 majority is required in order to override executive power.128 although this ruling established a greater balance between executive and legislative powers, it still did not impose a significant enough limit of executive power. this “legislative veto” that was reinforced for the nea following the chadha decision, has led to a situation where it is nearly impossible to collect enough votes to block declarations of emergencies.129 individual states in general have their own separate laws relating to states of emergency. in times of crisis, the governor has the power to declare a state of emergency, at which point executive powers are increased. however, state legislatures generally have relatively strong checks on executive power, even in exigent circumstances.130 for example, state laws on executive authority cannot be changed by an executive order, and legislatures can create firm limits on executive power.131 these widespread checks demonstrate that bulwarks against growing executive power are a crucial 131 id. 130 legislative oversight of emergency executive powers, https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emerg ency-executive-powers (last visited nov 26, 2023). 129 trust the process: how the national emergency act threatens marginalized populations and the constitution—and what to do about it, n.y.u. review of law & social change (2020), https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-e mergency-act-threatens-marginalized-populations-and-the-constitution-andwhat-to-do-about-it/ (last visited mar 5, 2024). 128 immigration and naturalization service v. chadha, united states reports, june 23, 1983. this case called into question a section of the immigration and nationality act which allowed either house of congress to suspend the deportation rulings of the u.s.attorney general. the constitutional question was whether the separation of powers doctrine was violated by authorizing a veto of executive power from only one house of congress. the decision was 7-2, the court held that the immigration and nationality act did in fact violate the constitution. the consequences of this were that congress essentially needed a two-thirds majority to override executive power because a simple majority in both houses would be vetoed by the president. 39 https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emergency-executive-powers https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emergency-executive-powers https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/ https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/ https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/ https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-emergency-act-threatens-marginalized-populations-and-the-constitution-and-what-to-do-about-it/ brandeis university law journal 2023-2024, volume 11 component of preserving the necessary balance of power between the arms of the government of a constitutional republic. iv. proposed reforms during times of crisis, a fine line must be walked by the executive branch as to the extent of its powers. however, without proper limits and regulations on executive emergency powers, there is no guarantee that the executive branch will limit its powers. “as long as the two elements [law and life] remain correlated yet conceptually, temporally, and subjectively distinct ... their dialectic [...] can nevertheless function in some way. but when they tend to coincide in a single person, when the state of exception, in which they are bound and blurred together, becomes the rule, the juridico-political system transforms itself into a killing machine.”132 the dangers of an unlimited government cannot be understated. our current system allows for a situation in which the president seizes considerable power under the guise of protecting the nation against an emergency.133 to address this problem, congress ought to create a set definition, and/or series of conditions, for declaring a state of emergency. this would remedy the potential concern that the executive branch can declare an emergency during a non-emergent situation. however, defining such a broad concept is a difficult feat and congress would have to create and pass a law that defines and 133 executive powers are a national emergency harvard political review, supra note 127. 132 agamben, giorgio, “the state of exception” (kevin attell trans., univ. of chi. press 2005) (2003), 86. 40 brandeis university law journal 2023-2024, volume 11 narrows emergency powers. some disasters are completely unexpected and cannot be anticipated in such a way. in such a case, there should be a condition that congress must approve of the determination of a state of emergency. this would prevent unnecessary renewals of states of emergency and ensure that our rulers cannot take liberties with emergency powers. v. conclusion a potentially dangerous situation is created when the executive branch is granted an exceeding amount of power during any national emergency. the argument that this discretion increase is necessary as it expedites a usually lengthy decision-making process during circumstances in which time is often finite, willfully ignores the threat of unrestrained presidential power. regardless of conditions, unchecked executive power is a threat to democracy. delineating between necessary and superfluous power in times of calamity is a difficult job, but one the american legislature must take head-on, considering the history of rampant abuse of emergency executive power.134 the 100-plus powers granted to the president during a declared state of emergency include giving the president the power to deploy u.s. troops to any foreign country, take over domestic communications, and seize american bank accounts.135 these powers are enormously broad and, without proper oversight, 135 elizabeth goitein, joseph nunn, “emergency powers”, brannan center for justice, https://www.brennancenter.org/issues/bolster-checks-balances/executive-po wer/emergency-powers. 134 states of emergencies: part i, harvard law review, https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/ (last visited mar 5, 2024). 41 https://www.brennancenter.org/issues/bolster-checks-balances/executive-power/emergency-powers https://www.brennancenter.org/issues/bolster-checks-balances/executive-power/emergency-powers https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/ brandeis university law journal 2023-2024, volume 11 can easily be abused by over-ambitious politicians.136 although the nca exists as a sort of safeguard, it is not strong enough to place adequate restrictions on emergency executive powers—mainly because it fails to define what qualifies as an emergency.137 the nca grants a president the power to declare a state of emergency simply by signing an executive order. although the law creates a semi-time limit for these powers, it allows the president to renew the state of emergency status indefinitely.138 the checks and balances put in place by the founding fathers must be protected from erosion. separation of powers is key to maintaining a limited executive branch, without which there is a danger of dictatorial power. the current legislative framework, while designed with the intention of swift and decisive action in times of crisis, also fails to ensure an equilibrium between executive agility and legislative oversight. such a balance is crucial not only for safeguarding democratic principles, but also for maintaining public trust in governmental institutions. the development and implementation of stricter guidelines and definitions of states of emergency would serve as a vital step toward mitigating the risk of abuse. the ultimate goal should be the creation of a framework that allows for the effective management of crises while simultaneously protecting the democratic freedoms and liberties of the united states. 138 50 usc ch. 34: national emergencies, https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi on=prelim (last visited nov 26, 2023). 137 id. 136 trust the process: how the national emergency act threatens marginalized populations and the constitution—and what to do about it, supra note 129. 42 https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&edition=prelim brandeis university law journal 2023-2024, volume 11 coverture: for the benefit of all man[kind] audrey kiarsis139 coverture was a central facet of 18th and 19th-century jurisprudence and legal thinking. coverture stipulated that upon entering into a marriage contract, the legal identity of a wife would be entirely subsumed by that of her husband. at a time when the courts, both state and federal, often functioned as agents of marginalization, coverture was presented as a system intended to protect and provide for the very women it legally incapacitated. this paper examines the motivations behind coverture, how it perpetuated a patriarchal society devoid of female socio-political mobility, and its practical consequences in legal precedent and doctrine. i. introduction william blackstone writes in his 1769 commentaries on the laws of england: by marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and {...} is said to be {...} under the protection and influence of her husband {...}; and her condition during her marriage is called her coverture.140 140 sir william blackstone, renowned 18th century english legal scholar and philosopher, upon whose writings the u.s. constitution was heavily based; william blackstone, commentaries on the laws of england, volume 1: a facsimile of the first edition of 1765-1769 15 (1979), https://press.uchicago.edu/ucp/books/book/chicago/c/bo3636418.html (last visited nov 30, 2023). 139 brandeis university undergraduate, class of 2025. 43 https://press.uchicago.edu/ucp/books/book/chicago/c/bo3636418.html https://press.uchicago.edu/ucp/books/book/chicago/c/bo3636418.html brandeis university law journal 2023-2024, volume 11 this “coverture” was a facet of the common law until the mid-late 19th century. at its core, coverture was the absorption of the complete legal identity of a wife into that of her husband. by modern legal standards, this may appear drastic; however, coverture prevailed throughout american law for decades, with roots in english common law.141 legislators, judges, and lawyers who were instrumental in perpetuating this practice often justified it based upon the assumed ineptitude of women.142 such assumptions regarding female ineptitude were enough to warrant that their care be placed solely in the hands of one better equipped to guide and manage them throughout their life.143 however, the question regarding whether coverture was enacted and maintained with the best interests of women in mind, namely their reproductive and homemaking capacities, remains unclear. as distressing as it may be, one must consider if coverture was merely wielded as a tool by which a disingenuous patriarchy could keep women in a state of permanent subjugation and legal incapacitation. while outright discrimination against women on the basis of sex alone would be blatantly unconstitutional by today’s standards, the law could very well have provided an alternative avenue to perpetuate such subjugation. under the guise of due process, and with foundations in both 18th century english legal doctrine and american jurisprudence, subjugation was lent a measure of constitutionality, allowing proponents to surmount objections of arbitrariness and discrimination.144 this paper begins by exploring 19th century legal documents and court opinions detailing how coverture was treated by the judges and legal professionals that put it into 144 blackstone, supra note 140. 143 id. 142 barnes’ lessee v. irwin, 2 u.s. 199 (1793), justia law, https://supreme.justia.com/cases/federal/us/2/199/ (last visited dec 6, 2023). 141 blackstone, supra note 140. 44 https://supreme.justia.com/cases/federal/us/2/199/ brandeis university law journal 2023-2024, volume 11 practice, followed by an examination of writings from some of the philosophical and feminist minds who argued against it. court opinions and legal documents lay the groundwork for establishing the true intentions behind coverture and its supporters by providing a sample of the rationale shared in its defense. the writings to follow, those authored by the very women subject to coverture’s limitations, will hold a mirror to the preceding justifications and reveal whether or not they conveyed the purported benefits. in seeking answers to these questions of intent and legality, special attention is paid to court cases, judicial opinions, and articles by legal scholars and professionals, as these are the few perspectives properly informed on the law with an adequate grasp of its history and nuances. upon the conclusion of these examinations, it ought to be apparent that the true impacts of coverture were not in the interest of women, nor were they ever intended to be. rather, coverture was a re-packaging of patriarchal values and white, upper-middle class, male socio-political dominance, designed to pass as constitutional legislation under the guise of american legal doctrine.145 ii. the fragility of the feminine coverture was first formally conceptualized by blackstone, in book the first: chapter the fifteenth: of husband and wife of his commentaries on the laws of england, yet he offers little decisive explanation as to why such a system not only exists but is needed in the first place. fortunately, surviving texts serve to illustrate the thoughts of philosophical and legal scholars on the subject of coverture and 145 review of the law of infancy and coverture; traités du contrat de mariage, de la puissance du mari, du contrat de la communauté, et du douaire, pothier, 26 northam. rev. 316 (1828), https://www.jstor.org/stable/25102704 (last visited dec 6, 2023). 45 https://www.jstor.org/stable/25102704 brandeis university law journal 2023-2024, volume 11 the female sex at various points throughout the 18th and 19th centuries. john stuart mill, widely considered to be the greatest english-language philosopher of the 19th century,146 wrote on this very subject.147 he, like many during the 18th and 19th centuries, wholeheartedly believed that women belonged in a place of total subjugation and dependence upon men.148 this is especially evident in his 1870 pamphlet entitled the subjection of women, where he writes: it had been decided, on the testimony of experience, that the mode in which women are wholly under the rule of men, having no share at all in public concerns, and each in private being under the legal obligation of obedience to the man with whom she has associated her destiny, was the arrangement most conducive to the happiness and well being of both.149 mill asserts that the state most conducive to the satisfaction of men and women alike is the latter’s complete dependence upon, and allegiance to, the former. while coverture is not mentioned outright in this passage, this allusion to a “legal obligation of obedience” is clear. specific words such as “mode” and “arrangement” are effective stand-ins for coverture. by using these allusions in place of the term itself, mill’s word choice serves to soften the impact of an otherwise clinical and harsh term, which conjures to mind all manner of oppression. his further inclusion of the phrase “on the testimony of experience” lends this excerpt a sense of authority 149 id. at 3. 148 john stuart mill, the subjection of women (1870), https://jstor.org/stable/60244766 (last visited nov 30, 2023). 147 id. 146 christopher macleod, john stuart mill, in the stanford encyclopedia of philosophy (edward n. zalta ed., summer 2020 ed. 2020), https://plato.stanford.edu/archives/sum2020/entries/mill/ (last visited dec 6, 2023). 46 https://jstor.org/stable/60244766 https://plato.stanford.edu/archives/sum2020/entries/mill/ https://plato.stanford.edu/archives/sum2020/entries/mill/ brandeis university law journal 2023-2024, volume 11 beyond the academic, by citing real-world experience rather than philosophy or legal doctrine. for all these reasons, mill’s writing champions coverture as an institution in service of the people, and one desired by them as conducive to their general quality of life. this pamphlet is certainly later in time than the height of coverture-related legal discourse, as by the mid to late 19th century, coverture was slowly being phased out of the courtroom.150 that being said, it serves as an excellent example of the pervasive mindset that the subjugation of women, specifically in a legal sense, would facilitate the happiness and well-being of men and women alike.151 mill’s explanation is one affirming that by subjugating women, and giving men complete dominion over them, society would be preserved in its most natural, pleasant state. mill was a philosopher, not an attorney, judge, or legal scholar. his perspective on coverture is helpful when establishing a more general explanation of the issue, but it falls short of reliable legal doctrine or precedent. to that end, court cases dealing with coverture offer unique insight into the legal rationale behind decisions regarding the rights of women. in the 1793 pennsylvania supreme court case barnes’s lessee v. irwin, et al., chief justice m’kean wrote a majority opinion regarding the right of women to give away property acquired prior to entering their coverture.152 in keeping with the trend thus far, justice m’kean stipulated “by the maxims and rules of the law she is disabled, as having no will of her own.”153 here, m’kean identifies the “maxims and rules of the law” as the source of women’s disability, demonstrating the 153 id. 152 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142. 151 mill, supra note 148. 150 marriedwomen and the law: coverture in england and the common lawworld, (2013), https://www.jstor.org/stable/j.ctt32b7jq (last visited dec 6, 2023). 47 https://www.jstor.org/stable/j.ctt32b7jq brandeis university law journal 2023-2024, volume 11 manner in which the legal system was blatantly used as a tool to deprive women of portions of the basic rights and autonomy enjoyed by the opposite sex. m’kean goes on to offer an explanation for this facet of common law, stating, “[t]he reason or ground of a wife’s being disabled {...}, is, from her being under the power of the husband, not from want of judgment, as in the case of an infant, or idiot.”154 m’kean here makes a crucial, and telling admission; it is not some mental or physical handicap that demands the legal subjugation of women, rather it is a product of the dominance allotted to a husband upon entering into the contract of marriage.155 the implication of this is that coverture was not, in fact, a condition rendered for the protection of women from themselves, as would be warranted in the case of an inherently vulnerable individual like a child or disabled person. rather, this condition is an artificial one, arising solely from the legally recognized dominance of men. “artificial” in this context is descriptive of coverture as a fabrication. coverture was fabricated for women in the sense that it would never have arisen naturally by virtue of any general defect in the constitution of women, it had to be forcibly created and assigned a purpose by a legal system desiring a measure of control over them.156 the 1864 case of drury v. foster further illustrates the true nature of coverture. the u.s. supreme court was tasked with determining if a deed signed by mrs. foster was enforceable without the added signature of her husband.157 in the opinion delivered by justice nelson, he opened with the acute observation that coverture “exist[s] by statute and the common law for her protection, in consideration of her 157 drury v. foster, 69 u.s. 24 (1864), justia law, https://supreme.justia.com/cases/federal/us/69/24/ (last visited dec 6, 2023). 156 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142. 155 id. 154 id. at 202. 48 brandeis university law journal 2023-2024, volume 11 dependent condition, and to guard her against undue influence and restraint.”158 the inclusion of words relating to protection and guarding indicate that coverture was, at the very least, presented as existing for the sake of women. however, nelson’s opinion identifies the marriage contract, “her dependent condition,” as the primary justification for a woman’s condition under coverture. this is made evident by his inclusion of the phrase “in consideration of,” which can be taken to mean as a result of, or because of.159 to rephrase nelson’s writing in simpler terms, he acknowledges that coverture exists because of the condition of women as dependent upon men. nelson’s sentiment was similar to that expressed by m’kean. both opinions establish that coverture was not solely intended to protect women and their interests, nor was it an institution necessarily arising from the nature of women themselves.160 rather, it was an effective tool employed to keep men in power and to keep women as the helpless subjects of their totalitarian control.161 the arbitrary deprivation of the rights of women would have been deemed brazenly unconstitutional, so those wishing to maintain this authority needed a pretext in which to ground it, and a legitimate avenue through which they could exercise it. as the previous cases have demonstrated, this pretext was found in the ineptitude of women themselves, demanding a level of protection contingent upon their domination by men. the law provided the ideal avenue through which to carry out this “necessary” oppression, as it lent the legitimacy of any other hallowed legal doctrine of american jurisprudence. 161 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142 at 202; drury v. foster, 69 u.s. 24 (1864), supra note 157 at 33. 160 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142 at 202; drury v. foster, 69 u.s. 24 (1864), supra note 157 at 33. 159 id. 158 id. at 33. 49 brandeis university law journal 2023-2024, volume 11 iii. challenges to coverture arise the preceding cases certainly indicate that the condition of coverture was more a product of male dominance than a necessary means of protecting women. such verdicts, however, are by their very nature, tailored to the individual case at hand. to answer questions regarding coverture as it pervaded both the legal sphere and society as a whole, sources containing broader reasoning are essential. to supplement the opinions of barnes’s lessee v. irwin, et al. and drury v. foster, one must draw from 18th and 19th century sources that discuss the issues posed by coverture in light of more general public discourse, beyond the scope of the courtroom. an excellent touchstone that offers context within which one can better place and interpret justice m’keen and nelson’s opinions is the april 1828 issue of the north american review. in a piece entitled “the law of infancy and coverture,” author peregrine bingham explores societal standards and perceptions for and of so-called civilized women. within the first few paragraphs, bingham notes coldly that “a spirit [men], {...} has too often presided over the formation of the laws, which fix the rights and obligations of woman in the social scheme.”162 bingham’s inclusion of the phrasing relating to the frequency of instances of oppression indicates his distaste for the role men have long played in regulating the place of women, both in society and under the law. bingham goes on to describe the place of women in various cultures, and upon reaching what he considers the most civilized world, europe, he points to the equality european women have as something for americans to strive towards. it is evident that bingham himself believes women to be 162 review of the law of infancy and coverture; traités du contrat de mariage, de la puissance du mari, du contrat de la communauté, et du douaire, pothier, supra note 145 at 316. 50 brandeis university law journal 2023-2024, volume 11 inherently deserving and capable of enjoying the same rights and freedoms as men when he writes that “just equality with the other sex, which the sober and rational pursuit of their common felicity requires she should possess.”163 by including language such as “sober,” “rational,” and “common,” bingham acutely emphasizes how straightforward and indisputable this stance ought to be.164 he thereby insists that the rights of women are nothing short of undeniable and should be treated as such by any individual with the capacity for rational thought and reasoning. bingham concedes that if the rights of women were to be left solely to a competition of physical strength, women would surely lose.165 this is an interesting point, that because men have the power to bestow and deny the rights of women, largely as they see fit, it becomes something that reflects well on the men that do, and appreciated by the women that benefit.166 put simply, if women are at the mercy of men from a purely physical standpoint, every action taken by men to benefit women is one taken not out of necessity, but out of generosity.167 a generous act is commonly understood to be a commendable one on the part of the giver, and something worthy of gratitude on the part of the recipient. by framing the capacity to bestow rights upon women as a gift, bingham portrays the act of granting women such privilege as socially desirable and in good taste.168 these sentiments, taken together, demonstrate bingham’s belief that women are perfectly capable of, and deserving of, exercising rights. 168 id. 167 id. at 316, 317. 166 review of the law of infancy and coverture; traités du contrat de mariage, de la puissance du mari, du contrat de la communauté, et du douaire, pothier, supra note 145. 165 id. 164 id. 163 id. at 317. 51 brandeis university law journal 2023-2024, volume 11 despite his evident belief in the capacity of women to occupy a position in society on par with that of men, bingham asserts that the promises of men to improve the status of women are oftentimes performative and done in the interest of securing said “gift and its acceptance,” which “are alike honorable to humanity.”169 seeing as these promises are applauded as honorable, there is little incentive to fulfill them, as the desired effect of garnering praise has already been achieved. given this stance, it is unsurprising that bingham pointedly states, “the disabilities incident to a married woman are not designed for her benefit and protection; but for the security of her husband.”170 this directly answers the question posed at the outset of this paper—was coverture a system for preserving the best interests of women, or was it merely a tool employed to keep women in a state of permanent subjugation, and legal incapacitation, thus furthering the interests of men? bingham is convinced of the latter, as is evidenced by his stance that coverture was never enacted for the benefit or protection of women, but rather for that of her husband.171 unlike the opinions of justice m’keen and nelson, bingham’s conclusion that coverture was for the benefit of men alone was reached not in the narrow legal context of a specific court case, but through careful consideration of what the author had experienced in everyday life. his reflections on the civilized world, as well as his recognition of the performative inclinations of men, are illustrative of a perspective shaped by the broader influences of society and dynamic socio-political affairs.172 it is this broad perspective that fleshes out the narrow ones offered in barnes’s lessee v. irwin, et al. and drury v. foster, providing a framework in which to better contextualize them. bingham’s “the law of infancy and coverture” serves 172 id. at 318, 319. 171 id. 170 id. at 332. 169 id. 52 brandeis university law journal 2023-2024, volume 11 as but one example of the growing defiance of coverture and the limitations it posed upon women. while bingham’s writings are certainly invaluable for the purpose of framing and expanding upon relevant court opinions in light of broader social contexts, they are limited by the perspective of their author, a man, to whom the regulations of coverture did not apply. the voices of women, the true victims of this legal means of systematic oppression, are integral to understanding its real-life consequences. to that end, the following writings come from female authors, sharing their thoughts on an institution they themselves were subject to, with or without their consent. judith sargent murray was a preeminent female essayist and early proponent of women’s equality during the late 18th century.173 in 1790, murray penned an article entitled “on the equality of the sexes,” for an edition of the massachusetts magazine.174 in this article, murray challenges long-held assumptions regarding her sex, quipping, “suffer me to ask, in what the minds of females are so notoriously deficient, or unequal.”175 she continues, may not the intellectual powers be ranged under these four heads – imagination, reason, memory and judgment. the province of imagination hath long since been surrendered to us, and we have been crowned and undoubted sovereigns of the regions of fancy. invention is perhaps the most arduous effort of the mind; this 175 id. at 132. 174 judith murray, on the equality of the sexes., digital.library.upenn, https://digital.library.upenn.edu/women/murray/equality/equality.html (last visited dec 6, 2023). 173 kerri alexander, biography: sarah moore grimké, nationalwomen’s historymuseum, https://www.womenshistory.org/education-resources/biographies/sarah-moo re-grimke (last visited dec 6, 2023). 53 https://digital.library.upenn.edu/women/murray/equality/equality.html https://www.womenshistory.org/education-resources/biographies/sarah-moore-grimke https://www.womenshistory.org/education-resources/biographies/sarah-moore-grimke brandeis university law journal 2023-2024, volume 11 branch of imagination hath been particularly ceded to us, and we have been time out of mind invested with that creative faculty.176 here, murray is describing how the female mind is uniquely capable. by referencing categories of intellect often attributed to women, such as being “fanciful” and overly imaginative, murray reclaims them as pillars of one form of “intellectual power”—imagination. this, in turn, is a reclamation of the very traits identified by cases such as barnes’s lessee v. irwin, et al. and drury v. foster as justifications for the existence of coverture. by doing so, murray reframes these alleged deficiencies of women as strengths.177 this resultantly negates the need for coverture arising from her position under the dominance of the husband as described by justice m’kean and her condition of dependence upon him as described by justice nelson.178 in place of these justifications, murray’s writings indicate that the obligation to provide protection and benevolent influence described by blackstone was not so much born of necessity, as for the security of the position of the husband as concluded by bingham.179 in short, murray’s writings identify the aforementioned characteristics of women as strengths of the mind and character. given the numerous justifications of coverture as contingent upon these characteristics as weaknesses, murray’s reframing of them necessitates a different justification.180 it is here that the recurrent idea of coverture being used as a tool benefitting the dominance of men seems the only viable explanation in their stead. 180 murray, supra note 174 at 132, 133. 179 blackstone, supra note 140. 178 barnes’ lessee v. irwin, 2 u.s. 199 (1793), supra note 142. 177 id. 176 id. at 132, 133. 54 brandeis university law journal 2023-2024, volume 11 murray does concede certain shortcomings common to her sex, but here too she identifies men as the party at fault, rather than the women themselves.181 when it comes to knowledge and education, for example, she points to the fact that women cannot reasonably be expected to possess any significant measure of the former without proper access to the latter.182 in murray’s own words, “are we deficient in reason? we can only reason from what we know, and if an opportunity of acquiring knowledge hath been denied us, the inferiority of our sex cannot fairly be deduced from thence.”183 women have long been condemned as irrational, prone to fit and fancy, and as such, unfit for aspects of life demanding critical thought and reasoning. murray offers a logical explanation: women cannot exercise sound reason if they are denied the opportunity to learn when and how to do so.184 that is, if men are able to keep women from educating themselves on reason and its proper uses, then women cannot be expected to be reasonable. it is not the fault of women that they have been denied the chance to learn and expand their knowledge, it is merely a consequence of the patriarchal and misogynistic society that prevailed during the 18th and 19th centuries.185 women were relegated from a young age to realms of domesticity, which excluded any manner of higher education.186 since women were handicapped in such a manner, their full intellectual potential could never truly be reached. the rest of society would have to pass judgment upon women who had been unfairly stunted by reduced opportunities for self-improvement and learning.187 187 id. at 133. 186 id. at 132, 133. 185 id. 184 id. 183 id. 182 id. 181 id. at 133. 55 brandeis university law journal 2023-2024, volume 11 continuing on the topic of education, murray illustrates her point with a poignant observation: may we not trace [judgement’s] source in the difference of education, and continued advantages? {...} how is the one exalted, and the other depressed, by the contrary modes of education which are adopted! the one is taught to aspire, and the other is early confined and limited. as their years increase, the sister must be wholly domesticated, while the brother is led by the hand through all the flowery paths of science. grant that their minds are by nature equal.188 the above quote is evidence that, like bingham, murray contends that women have the capacity for rational thought and intelligence equal to that of men. however, from a young age that capacity is cultivated in males, and stunted in females, leaving women at an increasingly large disadvantage as both sexes age.189 murray’s perspective on the issue is unique. she herself is a woman, and is thus better equipped to speak on the topic than most philosophical and legal writers of the time (as, needless to say, the vast majority were men). murray went through life knowing firsthand what it was to be viewed and treated as a second-class citizen, deprived of opportunities equal to those of men. this firsthand experience is key, as her writing comes from experience, rather than speculation. this is evident from her repeated use of the words “we,” us,” and “our,” whereby she includes herself in the women whose fate has been so constricted by men.190 the perspective of women on coverture and their own alleged disabilities is invaluable. to that end, the writings of sarah m. grimké, renowned 18th century abolitionist and 190 murray, supra note 174. 189 id. 188 id. 56 brandeis university law journal 2023-2024, volume 11 women’s rights advocate, offer themselves up as an ideal companion to those of judith sargent murray.191 in an 1837 letter addressed to her sister entitled “legal disabilities of women,” grimké laments and systematically proposes solutions to the numerous laws that existed solely to restrict the rights and legal identities of women.192 the opening lines of this letter echo the sentiments expressed hitherto, there are few things which present greater obstacles to the improvement and elevation of woman to her appropriate sphere of usefulness and duty, than the laws which have been enacted to destroy her independence, and crush her individuality; laws which, although they are framed for her government, she has had no voice in establishing, and which rob her of some of her essential rights.193 like murray, grimké asserts that the distinct lack of equality between women and men is a direct result of laws that have limited the independence and identity of the former.194 that is to say women, given the proper chance through education, are perfectly capable of the self-improvement proposed by grimké.195 murray and grimké wholeheartedly believe women to possess capabilities equal to those of men, though both agree that their sex has been unjustly hindered in this pursuit by the laws and restrictions imposed by the latter. moreover, the “laws” to which grimké attributes the oppression of women, she also condemns as merely contrived 195 grimké, supra note 192. 194 id. 193 id. at 1. 192 sarah m. grimké, 30_letter_xii_legal_disabilities_grimke.pdf, civics online, http://www.civics-online.org/library/formatted/texts/grimke.html (last visited jan 21, 2024). 191 alexander, supra note 173. 57 http://www.civics-online.org/library/formatted/texts/grimke.html brandeis university law journal 2023-2024, volume 11 for their benefit.196 grimké’s comment that these laws “are framed for her government” speaks to the central question of coverture. these laws, of which coverture was essentially an performative amalgamation used the prevailing belief in the dependencies and vices of the “fairer sex” as an excuse to secure male power.197 the inclusion of the word “framed” suggests the laws were presented as being in the best interest of women, but were, in reality, a way by which the law and courts could deny women many of their most fundamental rights.198 suffice to say, the courts did not have the best interests of women in mind and chose, on numerous occasions, to uphold their legal yoke by men. recalling one sentiment shared by murray, it is men who have prevented women from expanding their knowledge. thus, any judgments passed on the intelligence of the female sex are flawed, as they are based on the functioning of stunted minds rather than educated ones.199 grimké appears to share in her observation that women had been systematically made ignorant by men such that the former lacked the proper knowledge and confidence to challenge the decrees of the latter.200 in combination with this, and in keeping with the prevailing mindset of the time, women were thought of as being “placed completely in the hands of a being subject like herself to the outbursts of passion, and therefore unworthy to be trusted with power.”201 in this manner, women were both denied knowledge and autonomy directly, and taught they lacked the basic capacity to make use of either. however, like murray, bingham, and m’kean, grimké, too, rejects this assumption, finding no fault with the intellectual powers of 201 id. at 3. 200 grimké, supra note 192 at 1. 199 murray, supra note 174 at 132, 133. 198 id. 197 id. at 1. 196 id. 58 brandeis university law journal 2023-2024, volume 11 women themselves.202 instead, she echoes the sentiments expressed hitherto, rejecting the notion that the laws and doctrines consolidated under coverture were, in truth, intended for the betterment and protection of womankind.203 grimké decidedly concludes that, “the laws which have generally been adopted in the united states, for the government of women, have been framed almost entirely for the exclusive benefit of men, and with a design to oppress women, by depriving them of all control over their property, is too manifest to be denied.”204 there can be no doubt that women of the time, those best equipped to speak on the true nature and implications of the coverture that afflicted them, did not view it as a state intended for their protection, nor one warranted by the nature of their sex. rather, coverture was established and perpetuated as an instrument of their own oppression, rendered unto them, heedless of their objections, by the very men sworn to guard and shepherd them. iv. conclusion after close examination of case law, legal commentaries, scholarly publications, and the writings of prominent female thinkers, an indisputable set of historical facts has emerged which recounts the repressive nature of coverture. the works of blackstone and mill serve to illustrate the mindset and rationalizations of those in support of the coverture of women, chiefly that it is a condition deemed necessary for the protection of women and one under which society will be the most stable. this is a sentiment echoed by nelson in drury v. foster as well. the cases of drury v. foster and barne’s lessee v. irwin, however, demonstrate that in practice, at least in the realm of the courts, coverture was more 204 id. at 4. 203 id. 202 id. at 3, 4. 59 brandeis university law journal 2023-2024, volume 11 contingent on the husband and the state of marriage itself, rather than any disabilities or deficiencies found inherent within women. to expand upon this idea, bingham, murray, and grimké concur that coverture was a condition arising from the relationship of women to men, rather than the state of women themselves. furthermore, they identify it as one knowingly tailored for the benefit of men and the protection of their assumed superiority, at the expense of women and their intellectual and legal opportunities. hence, it may be concluded that coverture was never a product of the needs of women as inferior beings. any such inferiority referenced at the time was demonstrably either entirely absent or merely manufactured by a system of imposed ignorance created by men. in all, this article has described how coverture was a scheme intended to subjugate women and deprive them of their legal identity. in doing so, coverture’s true purpose was to elevate men to a status far above women, thus protecting mens rights and ensuring their dominance. by perpetuating such a system, american jurisprudence not only allowed for the patriarchy to extend itself into the legal sphere, but also actively endorsed it. 60 brandeis university law journal 2023-2024, volume 11 covid and the court: why the supreme court should not diffuse european speech restrictions into american law brandon king205 speech constitutes an immense power which, at its best, can lead to open dialogue that creates the opportunity to achieve positive political and social change. at its worst, the freedom to speak can precipitate hate speech and violence. across the world, the standards governing free speech are not necessarily the same. this article aims to analyze the constructs of free speech in both europe and the united states. to this end, this article concerns two major questions: should the united states adopt legislation to combat hate speech in line with the digital services act which the european union previously enacted; and should this be enacted via the supreme court’s opinion in murthy v. missouri, a case analyzing possible infringement of free speech by the federal government on social media sites. this article discusses the nature of how and which comparative law principles and jurisprudence should be diffused into judicial opinions written by u.s. judges. as well as why this issue is not one that should be handled by the courts, especially through the diffusion of european authored regulations on speech. in february 2020, covid-19 emerged as the worst pandemic in almost a century.206 hospitals were overwhelmed, store shelves were emptied, masks were mandated, and the 206 please note, murthy v. missouri is an ongoing case currently pending a decision in the united states supreme court. any perspectives or interpretations provided in this article have been completed as of april 2024 and may be subject to alteration pending the court's decision. 205 brandeis university undergraduate, class of 2026. 61 brandeis university law journal 2023-2024, volume 11 global economy came to an abrupt halt.207 globally, to pursue prudent public health measures at the time, masks were worn, social distancing mandates were enacted, and individuals were forced to make hard decisions. decisions such as attending funerals of loved ones over zoom and kids attending classes online rather than in person, all in an effort to stop the spread. across the world, many individuals followed protocols aimed at preventing the virus’ spread, while others, contrary to the advice of the united states center for disease control at the time, did not.208 subsequently as time went on, the unity of the nation exhibited at the start of the pandemic transitioned into polarized partisanship, with staunch opposition to policies such as mask and vaccination mandates.209 nowhere was this opposition to covid-19 policies more evident than on social media. over time, governments across the world, particularly the united states government, came to understand the risks associated with social media during a pandemic.210 in response to misinformation regarding covid-19 which circulated across social media and the negative impacts of this misinformation on the nation; the biden administration initiated communications through both electronic and physical 210 hichang cho et al., the bright and dark sides of social media use during covid-19 lockdown: contrasting social media effects through social liability vs. social support, 146 comput. hum. behav. 107795 (2023). 209 lu he et al., why do people oppose mask wearing? a comprehensive analysis of u.s. tweets during the covid-19 pandemic, 28 j. am. med. inform. assoc. jamia 1564 (2021). 208 judy stone, public pushes back on cdc’s plan to weaken infection control, forbes, https://www.forbes.com/sites/judystone/2023/08/25/public-pushes-back-oncdcs-plan-to-weaken-infection-control/ (last visited jan 9, 2024). 207 kate li, mona al-amin & michael d. rosko, early financial impact of the covid-19 pandemic on u.s. hospitals, 68 j.healthc. manag. 268 (2023). 62 https://www.forbes.com/sites/judystone/2023/08/25/public-pushes-back-on-cdcs-plan-to-weaken-infection-control/ https://www.forbes.com/sites/judystone/2023/08/25/public-pushes-back-on-cdcs-plan-to-weaken-infection-control/ brandeis university law journal 2023-2024, volume 11 means with social media companies such as facebook, x (formerly known as twitter), and google via the white house, office of the surgeon general, and department of justice.211 through these communications, the biden administration urged social media companies, often by threat of future government scrutiny and antitrust prosecution, to take down and/or “shadow ban” certain posts and accounts.212 the biden administration’s goal as shown by the majority opinion issued in the united states’ fifth court of appeals in the case of missouri v. biden, the prior name for murthy v. missouri currently pending in front of the united states supreme court, was to limit the dissemination of covid-19 misinformation via platforms’ internal algorithms, as well as to limit the reach of the accounts of influential individuals who were deemed by the administration to be spreading covid-19 misinformation.213 as a result of these requests, many social media companies began a widespread crackdown on misinformation, often utilizing data provided to them by executive agencies.214 in response to this crackdown, a group of plaintiffs, including the state of missouri, sued the biden administration in federal court, alleging that the administration coerced social media platforms into censoring certain social media content. plaintiffs alleged that these actions amounted to the state suppression of speech and at times “prior restraint,” violating the first amendment’s freedom of speech clause.215 in response, the united states court of appeals for the fifth circuit issued a ruling in favor of the plaintiffs, stating that the biden 215 id. 214 id. 213 id. 212 id. 211 biden v. missouri, 595 u.s. (2022), https://supreme.justia.com/cases/federal/us/595/21a240/ (last visited dec 5, 2023). 63 https://supreme.justia.com/cases/federal/us/595/21a240/ brandeis university law journal 2023-2024, volume 11 administration, both directly and through executive agencies, “coerced and significantly encouraged the platforms to moderate content … unlawfully violating the plaintiffs (first amendment) rights.”216 covid-19 misinformation was not just a domestic issue, but a global one, affecting nearly every country in the world, including those within the european union (eu). in response to the rise in misinformation through social media channels, the eu parliament on july 5, 2022 enacted the digital services act (dsa). the legislation set january 1, 2024 as the date on which affected companies had to begin complying with the legislation.217 in this enactment, the eu set forth a comprehensive list of regulatory procedures to control the spread of misinformation, hate speech, terrorist propaganda, as well as specific provisions relating to the suppression of content during times of emergency. the legislation also established penalties for companies not in compliance, including a fine of up to six percent of a company’s global revenues, and the barring of the company from operating in eu countries for a period determined by an independent commision.218 through the case of murthy v. missouri, the supreme court has the opportunity to incorporate aspects of comparative law, by adopting ideals of other nations' laws into the laws of the united states, as the court has done in the past 218 sweeping eu digital misinformation law takes effect, legal dive, https://www.legaldive.com/news/digital-services-act-dsa-eu-misinformation -law-propaganda-compliance-facebook-gdpr/691657/ (last visited dec 21, 2023). 217 the digital services act package | shaping europe’s digital future, https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package (last visited dec 21, 2023). 216 id. 64 https://www.legaldive.com/news/digital-services-act-dsa-eu-misinformation-law-propaganda-compliance-facebook-gdpr/691657/ https://www.legaldive.com/news/digital-services-act-dsa-eu-misinformation-law-propaganda-compliance-facebook-gdpr/691657/ https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package brandeis university law journal 2023-2024, volume 11 with cases such as roper v. simmons.219 though uncommon, the practice of adopting the ideals of other nations' laws into the laws of the united states is not unprecedented for the us supreme court; in fact, the landmark decision in roper v. simmons referred to international sources of law, including the united nations convention on the rights of the child, in order to articulate how the eighth amendment’s cruel and unusual punishments clause bars the sentencing to death of a minor found guilty of a capital offense.220 in his opinion in roper v. simmons, justice kennedy not only utilized the laws of western european nations that bar the execution of minors, but he also compared the united states to nations deemed “international pariahs'' in the 1990s, including iran, pakistan, saudi arabia, yemen, nigeria, the democratic republic of congo, and china.221 as shown by this example, it is not unprecedented for the united states supreme court's jurisprudence to reference the laws and doctrines of other nations. utilizing this precedent, this paper will analyze three major questions regarding the implementation of other nations’ laws in the legal system of the united states.222 1) under what circumstances should the supreme court or lower courts utilize laws and or cases from other nations in their deliberation of cases? 2) in the case of murthy v. missouri, should the supreme court incorporate the ideals or principles of the eu’s dsa in its jurisprudence of this case? 222 john marshall, murray v. the charming betsey, 6 u.s. 64 (1804), justia law, https://supreme.justia.com/cases/federal/us/6/64/ (last visited mar 30, 2024). 221 id. 220 id. 219 roper v. simmons, 543 u.s. 551 (2005), https://supreme.justia.com/cases/federal/us/543/551/ (last visited dec 21, 2023). 65 https://supreme.justia.com/cases/federal/us/6/64/ https://supreme.justia.com/cases/federal/us/6/64/ https://supreme.justia.com/cases/federal/us/543/551/ https://supreme.justia.com/cases/federal/us/543/551/ brandeis university law journal 2023-2024, volume 11 3) what is a potential counter argument to this type of jurisprudence? i. circumstances in which united states’ courts should utilize the laws and cases of other nations “courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”223 in the united states, courts impose checks on the elected bodies of government in accordance with their interpretation of the constitution. while the supreme court was created by article 3 section 1 of the constitution, its role in government was not fully realized until the landmark opinion of marbury v. madison.224 in this opinion, chief justice marshall lays out the judiciary’s role to review the constitutionality of acts from other branches of government through judicial review.225 while the courts may have the power to determine the constitutionality of legislative acts, they cannot act in a legislative capacity. this inability is the primary argument against the usage of foreign laws and cases in the deliberation of cases in american courts.226 in a democratic system, laws are passed by the people's representatives based on the interests and goals of 226 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 225 john marshall, marbury v. madison, 5 u.s. 137 (1803), https://supreme.justia.com/cases/federal/us/5/137/ (last visited dec 21, 2023). 224 the constitution of the united states: a transcription, national archives (2015), https://www.archives.gov/founding-docs/constitution-transcript (last visited dec 5, 2023). 223 the avalon project : federalist no 78, https://avalon.law.yale.edu/18th_century/fed78.asp (last visited dec 21, 2023). 66 https://supreme.justia.com/cases/federal/us/5/137/ https://www.archives.gov/founding-docs/constitution-transcript https://avalon.law.yale.edu/18th_century/fed78.asp brandeis university law journal 2023-2024, volume 11 those affected by the enacted laws.227 therefore, it is argued that courts should not base their decisions on the laws and cases of other nations. looking at the current case at hand, the decision in murthy v. missouri has no bearing upon the citizens of eu countries, the organization which enacted the dsa; furthermore, the representatives of the american people were not party to the passage of the dsa, and therefore legislative actions enacted by the eu should have no bearing on american courts. in the case of roper v. simmons, justice kennedy presents a comprehensive argument for the barring of the death penalty for minors. the opinion applies previous case law, conducts an analysis of states that barred the practice, and examines the psychological and biological differences between minors and adults.228 these arguments alone would have sufficiently demonstrated that the imposition of the death penalty on minors violated the eighth and fourteenth amendments.229 however, justice kennedy goes further in his opinion, bringing in the laws and practices of other nations to determine if a punishment is cruel or unusual. by mentioning the laws and practices of other nations to justify his opinion, justice kennedy grossly misstepped his authority and weakens the strength of his argument.230 in his opinion, justice kennedy references article 37 of the united nations convention on the rights of the child, which prohibits capital punishment for crimes committed by individuals under the age of eighteen.231 justice kennedy 231 general assembly resolution 44/25, convention on the rights of the child, ohchr (1989), 230 id. 229 id. 228 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 227 overview rule of law | united states courts, https://www.uscourts.gov/educational-resources/educational-activities/overv iew-rule-law (last visited dec 21, 2023). 67 https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law brandeis university law journal 2023-2024, volume 11 specifically mentions how every nation has ratified the treaty, with the exception of the united states and somalia.232 he uses this fact to further his point that most of the world has outlawed capital punishment for juveniles, and thus, the cruel and unusual punishment clause of the eighth amendment should apply in this case.233 this rationale is a blatant overstep of separation of powers; and should not have been used in the opinion. the united states constitution is clear about the procedure of ratifying treaties, as article 2 section 2 of the constitution states that the president “shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.”234 the judicial branch of government is not mentioned in this section of the constitution and plays no role in negotiating and ratifying treaties, therefore should not incorporate laws or beliefs set forth by international treaties in which the united states is not a signatory nation. furthermore, justice kennedy reads into the rest of the world banning capital punishment for minors (with the exception of the united states and somalia) as a clear example of times changing, and the world now viewing capital punishment for minors as a cruel and unusual punishment, thus he argued that the united states should follow suit.235 on the contrary, the fact that the united states senate did not ratify this treaty, speaks louder than the treaty’s ratification by a large majority of the world. by referencing the actions of other legislatures in ratifying this treaty as a motive for baring the practice of imposing capital punishment against juveniles, justice kennedy places greater value on the 235 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 234 the constitution of the united states, supra note 224. 233 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 232 id. https://www.ohchr.org/en/instruments-mechanisms/instruments/conventionrights-child (last visited jan 9, 2024). 68 https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child brandeis university law journal 2023-2024, volume 11 will of other nations’ legislatures, values, and people over that of the american congress, the american constitution, and most importantly, the american people. congress did not ratify article 37 of the united nations convention on the rights of the child, and this failure to ratify is the best proof that the american people as a whole were not in favor of departing from the imposition of capital punishment for juveniles on the federal level. given the evolving standards of the eighth amendment and his belief on the will and actions of other nations rather than his own, justice kennedy decided to override this implicit articulation by congress.236 in general, courts should avoid applying the laws and cases of other nations in their jurisprudence of cases, with one exception. since the act of creating law is vested in the legislature, lawmakers have immense freedom to craft laws given constituent needs, as long as such laws are in line with the constitution. given this freedom, legislatures are free to derive ideas from various sources, one such source can be other nations.237 a congressperson is free to look at the laws and policies of other nations and decide if it could benefit the united states. that legislator must then go through the process of proposing a bill which diffuses the laws and policies of another nation. the bill must then be passed by the house of representatives and the senate, and subsequently signed by the president.238 if a legal case arises before a court regarding the meaning of this new law which was passed incorporating the 238 the legislative branch, the white house, https://www.whitehouse.gov/about-the-white-house/our-government/the-leg islative-branch/ (last visited apr 3, 2024). 237 toni johnson, congress and u.s. foreign policy, council on foreign relations, https://www.cfr.org/backgrounder/congress-and-us-foreign-policy (last visited jan 9, 2024). 236 id. 69 https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/ https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/ https://www.cfr.org/backgrounder/congress-and-us-foreign-policy brandeis university law journal 2023-2024, volume 11 laws and policies of another nation.a court who decides to utilize legislative intent as a means to decide what the true intention of the law is could examine the diffused law or policy from the country of origin which served as inspiration for the act of congress. while the courts should be free to look at the laws and policies of other nations in order to establish legislative intent, the court should only take the lessons learned from the other countries' laws and policies in an advisory capacity. if there are better means of finding legislative intent, those means should take priority over the other countries’ cases and enactments. ii. should the supreme court incorporate the ideals or principles of the dsa in their decision on murthy v. missouri? applying the principles articulated in the prior question, the supreme court should not incorporate the ideals or principles of the eu’s dsa in their decision of murthy v. missouri. courts in the united states, as referenced in question i, should not apply the laws and doctrines of other nations in their jurisprudence of cases in the us.239 in fact, applying foreign law to this case necessitates condemnation in even stronger terms than did justice kennedy’s use of international examples as applied in roper v. simmons.240 in the case of roper v. simmons, one could argue for an international consensus, excluding the united states and somalia, in regards to the imposition of capital punishment against minors.241 it cannot be argued that the same international consensus exists in regards to deciding the appropriate regulations to curb misinformation in the age of social media, as this issue is very 241 general assembly resolution 44/25, supra note 231. 240 roper v. simmons, 543 u.s. 551 (2005), supra note 219. 239 cornell law school, jurisprudence, lii / legal information institute, https://www.law.cornell.edu/wex/jurisprudence (last visited jan 9, 2024). 70 https://www.law.cornell.edu/wex/jurisprudence brandeis university law journal 2023-2024, volume 11 new and there has been far less time for consensus to emerge than there was in the case of capital punishment for juveniles. while as argued prior, such consensus should not impact the jurisprudence of american courts, this lack of consensus serves to differentiate between the cases of roper v. simmons and murthy v. missouri. some, such as justice kennedy, have made the argument that comparative principles must be diffused into the united states jurisprudence in regards to roper v. simmons. this same argument cannot be made for murthy v. missouri, given the lack of an international consensus on the issue, as the international consensus which existed in regards to capital punishment for minors, which was a core aspect of justice kennedy’s opinion, does not exist in regards to the american interpretation of governmental intrusion on free speech. the first amendment of the united states constitution—and subsequent interpretations by the courts—have endowed the us with some of the strongest protections for the freedoms of speech and expression in the world.242 with particular reference to europe, almost every country within the eu can be described as a western democracy with certain protections for free speech.243 however, many members of the eu have freedom of speech laws which are not nearly as strong or go as far as those in the united states. for example, in germany, an eu member state, section 130 of the german criminal code bans “incitement to hatred and insults that assault human dignity against people based on their racial, national, religious or ethnic 243 id. 242 alex gray, freedom of speech: which country has the most?, world economic forum (2016), https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-com parison/ (last visited jan 9, 2024). 71 https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-comparison/ https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-comparison/ brandeis university law journal 2023-2024, volume 11 background.”244 this law has been used to prosecute individuals who publicly deny the holocaust, as well as those who distribute nazi propaganda both on and offline.245 laws like this undoubtedly would be deemed unconstitutional in the united states, as freedom of speech is a fundamental concept strictly enforced by the supreme court.246 given that the restrictions imposed by the dsa would constitute a content based restriction, a restriction on speech imposed by the government that regulates speech on the basis of the content that the speech entails.247 the doctrine of strict scrutiny applies in which the government is required to demonstrate a compelling state interest, as well as a narrowly tailored least restrictive approach, to any legal limitations imposed in the form of content based restrictions.248 one of the most famous cases in regards to content based restriction on speech is the case of cohen v. california.249 in this case, paul robert cohen entered the corridor of a court room wearing a jacket which stated “fuck the draft”, in reference to the draft associated with the 249 cohen v. california, oyez, https://www.oyez.org/cases/1970/299 (last visited apr 1, 2024). 248 strict scrutiny, supra note 246. 247 content based regulation, lii / legal information institute, https://www.law.cornell.edu/constitution-conan/amendment-1/content-based -regulation (last visited mar 30, 2024). 246 strict scrutiny, lii / legal information institute, https://www.law.cornell.edu/wex/strict_scrutiny (last visited mar 30, 2024). 245 germany: constitutional court upholds free speech restriction in banning public support of former nazi regime, library of congress, washington, d.c. 20540 usa, https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constit utional-court-upholds-free-speech-restriction-in-banning-public-support-offormer-nazi-regime/ (last visited apr 3, 2024). 244 dan glaun, germany’s laws on antisemitic hate speech and holocaust denial, https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hatespeech-nazi-propaganda-holocaust-denial/ (last visited jan 9, 2024). 72 https://www.oyez.org/cases/1970/299 https://www.law.cornell.edu/constitution-conan/amendment-1/content-based-regulation https://www.law.cornell.edu/constitution-conan/amendment-1/content-based-regulation https://www.law.cornell.edu/wex/strict_scrutiny https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constitutional-court-upholds-free-speech-restriction-in-banning-public-support-of-former-nazi-regime/ https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constitutional-court-upholds-free-speech-restriction-in-banning-public-support-of-former-nazi-regime/ https://www.loc.gov/item/global-legal-monitor/2009-11-20/germany-constitutional-court-upholds-free-speech-restriction-in-banning-public-support-of-former-nazi-regime/ https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/ https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/ brandeis university law journal 2023-2024, volume 11 vietnam war ongoing at the time.250 he was subsequently arrested for violating section 415 of the california penal code which criminalizes “maliciously and willfully disturbing the peace or quiet of any neighborhood or person … by … offensive conduct.”251 when this case was ruled on by the supreme court of the united states, justice john harlan wrote one of the most famous majority opinions in the courts history stating, “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. … the constitution leaves matters of taste and style so largely to the individual.”252 as demonstrated by the strong opinion written by justice harlan, california had no good reason to enforce this statute, given that the statement on paul cohen’s jacket was speech, california did not have a compelling state interest that was threatened by his use of explicit terminology.253 this case is demonstrative of the many differences in the legal interpretations of free speech in the united states versus europe. given this difference in the levels of speech protections, it is clear that fundamental cultural, constitutional, and legal differences exist between the us and eu countries. these divisions would make any attempted implementation of the dsa, within the opinion of murthy v. missouri, to go against the court's established precedent on this issue. this is due to the first amendment concerns that would make any implementation of the dsa not only controversial, but also raise additional constitutional questions, given the 253 strict scrutiny, supra note 246. 252 cohen v. california, supra note 249. 251 cohen v. california, global freedom of expression, https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/ (last visited apr 3, 2024). 250 vietnam lotteries, selective service system, https://www.sss.gov/history-and-records/vietnam-lotteries/ (last visited apr 3, 2024). 73 https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/ https://www.sss.gov/history-and-records/vietnam-lotteries/ brandeis university law journal 2023-2024, volume 11 high level of scrutiny the supreme court takes regarding regulations of speech, especially ones that are content based. third, the issue of misinformation being spread via social media, and particularly the power of large tech companies in the united states, is a topic that is discussed often in congress.254 many hearings have taken place between members of congress and the chief executive officers’ of major tech companies. many members of congress have also advocated in favor of many ideas to curb the power of big tech, including the targeting of misinformation to vulnerable users.255 if the supreme court were to rule in the case of murthy v. missouri based on the principles of the dsa, they would severely limit the ability for members of congress to impose regulations on big tech. this would be due to the court implementing the principles of the european dsa in a manner that would likely interfere with the ability of american legislators to pass legislation which best serves the american public. iii. counter argument to this method of jurisprudence? while freedom of speech is one of the most fundamental rights in the united states, many point to the rise of hate online hate speech and misinformation such as foreign adversaries attempts to influence the american electorate through digital means, as a rationale for why the united states government should implement a european-style approach to 255 house approves antitrust bill targeting big tech dominance | ap news, https://apnews.com/article/2022-midterm-elections-technology-business-lob bying-congress-6e49cfc65668b99c633647898d114a8b (last visited jan 9, 2024). 254 a. b. c. news, congress grills tech ceos in wide-ranging hearing on monopoly, political bias, china and more, abc news, https://abcnews.go.com/technology/ceos-amazon-apple-facebook-google-fa ce-congressional-antitrust/story?id=72034939 (last visited jan 9, 2024). 74 https://apnews.com/article/2022-midterm-elections-technology-business-lobbying-congress-6e49cfc65668b99c633647898d114a8b https://apnews.com/article/2022-midterm-elections-technology-business-lobbying-congress-6e49cfc65668b99c633647898d114a8b https://abcnews.go.com/technology/ceos-amazon-apple-facebook-google-face-congressional-antitrust/story?id=72034939 https://abcnews.go.com/technology/ceos-amazon-apple-facebook-google-face-congressional-antitrust/story?id=72034939 brandeis university law journal 2023-2024, volume 11 combating misinformation online.256 furthermore, concerned citizens may conclude that if the legislative and executive branches of government cannot figure out how to combat these issues, the supreme court ought to do it unilaterally. the government has a duty to target misinformation online; the country does not benefit from external actors posting misinformation during elections and times of national emergencies.257 this is a major issue that requires major government action in order to promote the public good. however, the public good must be weighed against individuals’ civil liberties in regards to the first amendment. this issue must be treated appropriately under our current system of government, in accordance with current precedent concerning government regulations regarding speech. the fact that congress has not acted in a major way regarding the rise in misinformation online, is indicative of the fact that no general consensus has formed in regards to the best way to target the problems associated with misinformation.258 it is not the role of the judicial system to impose upon the american people a solution to a problem of which other branches of government have not solved yet. this would be vastly in contradiction with the democratic process. instead, 258 gabriel sanchez & keesha middlemass, misinformation is eroding the public’s confidence in democracy, brookings, https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-c onfidence-in-democracy/ (last visited mar 30, 2024). 257 oecd, transparency, communication and trust: the role of public communication in responding to the wave of disinformation about the new coronavirus, oecd, https://www.oecd.org/coronavirus/policy-responses/transparency-communic ation-and-trust-the-role-of-public-communication-in-responding-to-the-wav e-of-disinformation-about-the-new-coronavirus-bef7ad6e/ (last visited mar 30, 2024). 256 russian interference in 2016 u.s. elections, federal bureau of investigation, https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-election s (last visited mar 30, 2024). 75 https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-confidence-in-democracy/ https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-confidence-in-democracy/ https://www.oecd.org/coronavirus/policy-responses/transparency-communication-and-trust-the-role-of-public-communication-in-responding-to-the-wave-of-disinformation-about-the-new-coronavirus-bef7ad6e/ https://www.oecd.org/coronavirus/policy-responses/transparency-communication-and-trust-the-role-of-public-communication-in-responding-to-the-wave-of-disinformation-about-the-new-coronavirus-bef7ad6e/ https://www.oecd.org/coronavirus/policy-responses/transparency-communication-and-trust-the-role-of-public-communication-in-responding-to-the-wave-of-disinformation-about-the-new-coronavirus-bef7ad6e/ https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-elections https://www.fbi.gov/wanted/cyber/russian-interference-in-2016-u-s-elections brandeis university law journal 2023-2024, volume 11 congress must be the one that passes a bill into law which addresses the issues of misinformation online, which the president must then sign. if congress chooses to implement a european-styled dsa approach to that legislation, that is entirely permissible, as congress is free to derive ideas from a variety of sources, including other nations. additionally, the issue regarding misinformation on social media, especially during elections and public health emergencies, is a complex political issue. in times of emergency, congress and the executive branch, which unlike the federal courts is directly answerable to the american people, must take the lead over the judicial branch of government in solving this complex issue. the role of congress is to identify problems, research the best ways to solve the problems, and build a consensus strong enough to allow the passage of a bill to deal with the problems.259 this process is purely political and must take into account the views of citizens throughout the nation through their representatives in order to build a consensus and step forward. in contrast, the supreme court's role is to review laws and balance them with constitutional principles in order to make sure that the law does not conflict with the civil liberties and rights afforded to the american people by the constitution.260 the supreme court’s role is not to engage in the political process, and therefore, the court should not apply the laws and doctrines of other nations, in what would effectively be a legislative capacity, by implementing the dsa and the european principles of free speech through their ruling in murthy v. missouri. even if one were to assert that the 260 about the supreme court | united states courts, https://www.uscourts.gov/about-federal-courts/educational-resources/abouteducational-outreach/activity-resources/about (last visited mar 30, 2024). 259 about congress | u.s. capitol visitor center, https://www.visitthecapitol.gov/explore/about-congress# (last visited mar 30, 2024). 76 https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about https://www.visitthecapitol.gov/explore/about-congress# brandeis university law journal 2023-2024, volume 11 implementation of a dsa type law in the united states would bring more public good than harm, its enactment must go through proper channels of government via the people's representatives, not forced through by an unelected assortment of nine justices. the act of balancing goods and harms is a classic legislative function and as the nine justices of the court are not tasked with the political process of legislating bills into law, the issue of combating misinformation online is a political issue that requires a legislative solution, not a judicial one.261 those who support the dsa may argue that countries within the eu such as germany are strong democracies, often with less polarized electorates than the united states; therefore, given the polarized nature of the united states, a court should step in to implement a dsa-styled approach to regulate free speech protections in order to guard against misinformation and the dangers that can come from it. it is important to note that from speech comes power, and power has the possibility of leading to tyranny and abuse. free speech, by nature, is a double-edged sword, which at times it can be used for good in order to defend the rights of the minority and offer necessary criticism to individuals in power without fear of prosecution.262 on the other hand, the allowance of absolute free speech can lead to rhetoric designed to enthrall hate groups, leading towards violence.263 while the dark side of free speech may be dangerous and one may not like what someone else says, the law must protect the other person’s right to speak freely and if the roles were reversed, the 263 daniel byman, how hateful rhetoric connects to real-world violence, brookings, https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-w orld-violence/ (last visited mar 30, 2024). 262 genevieve lakier, the first amendment’s real lochner problem, univ. chic. law rev. 261 the court and constitutional interpretation supreme court of the united states, https://www.supremecourt.gov/about/constitutional.aspx (last visited feb 5, 2024). 77 https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-world-violence/ https://www.brookings.edu/articles/how-hateful-rhetoric-connects-to-real-world-violence/ https://www.supremecourt.gov/about/constitutional.aspx brandeis university law journal 2023-2024, volume 11 same dynamics would apply. in conclusion, the supreme court should not utilize the laws of other nations in their jurisprudence of cases in the united states, with the exception of the accepted use of such laws and cases in order to establish legislative intent when relevant. additionally, in the case of murthy v. missouri, the supreme court should not diffuse the principles of the dsa within their jurisprudence of the case. by doing such, the court would impede the separation of powers between the judicial and legislative branches of government, severely impacting the legislature’s ability to create policy and law tackling misinformation online, as the court would be forcing laws upon the american people that they did not put in place on themselves, through their elected representatives. in summary, the supreme court should decide the case of murthy v. missouri based upon current precedent regarding the first amendment, including relevant us case law, and the close nexus test.264 264 state action doctrine and free speech, lii / legal information institute, https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-d octrine-and-free-speech (last visited apr 3, 2024). 78 https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech https://www.law.cornell.edu/constitution-conan/amendment-1/state-action-doctrine-and-free-speech brandeis university law journal 2023-2024, volume 11 a proposal to reform the practice of solitary confinement kaia minkin265 solitary confinement is a desolate prison within the penitentiary itself. extreme isolation in a cell barely equipped to house human life manipulates the psyche of the prisoner and works to achieve a dehumanizing experience in the name of the penological interest of the state. it is common for individuals in solitary confinement to endure decades alone in windowless cement rooms the width of a king-sized bed, listening to the echoing cries of other inmates. while some policymakers and correction officers argue that the practice of solitary confinement for extended periods maintains the safety of staff and the other prisoners, the harmful mental toll taken on the inmate is an inappropriate bargain against the protections demanded by the eighth amendment for law enforcement to take. the eighth amendment to the united states constitution states: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”266 the cruel and unusual component of the eighth amendment is shrouded in ambiguity, as what it means for a punishment to be cruel is anything but obvious. in order to establish a “cruel and unusual punishment” violation of the eighth amendment, the appellate must demonstrate: an “objectively, sufficiently serious act or omission resulting in the denial of necessities; a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety; and that he has exhausted the prisoner-grievance system and that he has petitioned for relief 266 u.s const. amend. vii § 2. 265 brandeis university undergraduate, class of 2025 79 brandeis university law journal 2023-2024, volume 11 under article 138, ucmj.”267 studies delineating a link between the experience of social pain and an adverse impact on the mental well-being of incarcerated individuals have been perpetually replicated. the results confirm the detrimental consequences of living in isolation. the harm incurred by an inmate, derived because of prolonged isolation, manifests in emotional, cognitive, and psychosis-related symptoms.268 solitary confinement was designed to encourage inmates to feel proper repentance, but a shift in paradigm has led to a devastating, exacerbated psychological impact on mentally ill.269 social isolation, idleness, and lack of control over aspects of daily life—all phenomena maximized by the practice of solitary confinement—incite rapid, dramatic psychological deterioration in inmates with mental illness. this mental deterioration, including maladaptive social tendencies and socially inept behaviors, can also manifest as extreme acts of self-harm or suicide.270 in one indiana supermax facility, wabash valley correctional facility secured housing unit, a prisoner with mental illness committed suicide by self-immolation, and another man choked himself to death with a washcloth.271 a mentally ill adolescent incarcerated in a new york supermax facility told washington post reporter ian kysel she attempted to hang herself within the first 24 hours of 271 karin grunden, man found hanging in cell at wabash valley correctional facility, terre haute tribune-star, oct. 1, 2003. 270 id, at 8. 269 aclu (2014) the dangerous overuse of solitary confinement in the united states, briefing paper american civil liberties union. available at: https://www.aclu.org/sites/default/files/assets/stop solitary_briefing_paper updated_august_2014.pdf?source=post_page at 6. 268 shalev, s. (2008). the health effects of solitary confinement. in sourcebook on solitary confinement. retrieved from http://solitaryconfinement.org 267 first principles: constitutional matters: cruel and unusual punishment, https://www.armfor.uscourts.gov/digest/ib4.htm. 80 https://www.aclu.org/sites/default/files/assets/stop_solitary_briefing_paper_updated_august_2014.pdf?source=post_page https://www.aclu.org/sites/default/files/assets/stop_solitary_briefing_paper_updated_august_2014.pdf?source=post_page http://solitaryconfinement.org https://www.armfor.uscourts.gov/digest/ib4.htm brandeis university law journal 2023-2024, volume 11 solitary confinement.272these few instances, among the thousands of stories that exist, encapsulate the severe psychological trauma affecting mentally ill individuals in solitary confinement. extensive social neuroscience research on the impact of environmental and social deprivation on the brain exists as another avenue of challenging the constitutionality of solitary confinement.273 the results of this research attest to the vital importance of social interaction and stimulating environment on brain function, as studies have revealed brain deterioration imparted by isolation in restrictive housing units within only a couple of days.274 despite overwhelming evidence of the social pain induced through solitary confinement, the supreme court refuses to recognize that this mental harm caused is sufficiently “cruel” to be considered a violation of the eighth amendment.275 with these standards in place, the court has been generally unwilling to recognize that the psychological harm incurred from extreme isolation is sufficient to constitute a violation of the eighth amendment.276 the court’s neglect of the generalized demand for effective clinical support for mentally ill individuals suffering in isolation units stems from two fundamental discrepancies pertaining to basic human needs. the first is a tendency to dismiss social interaction as a basic human necessity, as 276 coppola, supra note 273. 275 claire a. nolasco et al., construing the legality of solitary confinement: analysis of united states federal court jurisprudence, am. j. crim. j. (2018). doi: https://doi.org/10.1007/s12103-018-9463-5 274 id. 273 federica coppola, the brain in solitude: an (other) eighth amendment challenge to solitary confinement journal of law and the biosciences (2019) 272 ian kysel, solitary confinement makes teenagers depressed and suicidal. we ... the washington post (2015), https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-co nfinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/ 81 https://doi.org/10.1007/s12103-018-9463-5 https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-confinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/ https://www.washingtonpost.com/posteverything/wp/2015/06/17/solitary-confinement-makes-teenagers-suicidal-we-need-to-ban-the-practice/ brandeis university law journal 2023-2024, volume 11 deprivation of human needs is interpreted in terms of concrete physical demands such as nutrition and sanitation.277 this myopic interpretation disregards psychological health as a human need and highlights the immense underestimation of the adverse mental effects of isolation. the ethical dimension of cruelty in punishment remains important within the parameters of basic human needs, and underpins the argument that current solitary confinement conditions meet the “substantial risk of physical harm” stipulation of the objective prong of the conditions standard. the mental, physical, and physiological harms imposed by the conditions of solitary confinement are on par with physical risk involved in starvation and sleep deprivation.278 therefore, although the harm of socio-environmental deprivation may translate into mental deterioration, the damage to the confined individual’s psyche is ultimately due to physical harm to the brain similar to the damage done by starvation.279 as aristotle notably wrote in the politics, “a social instinct is implanted in all men by nature.”280 over two thousand years later, the disciplines of neuroscience and behavioral psychology have produced immense empirical data establishing that the human psyche is biologically rooted in the need to be connected.281 this social connection is as critical to a truly human life as food and water is to survival, and mentally ill or cognitively impaired individuals in solitary confinement should be afforded this fundamental need. eliminating all social and environmental stimulation of 281 coppola, supra note 273. 280 aristotle, politics 5 (benjamin jowett trans., 1999) 279 bennion, elizabeth (2015) "banning the bing: why extreme solitary confinement is cruel and far too usual punishment," indiana law journal: vol. 90: iss. 2, article 7. https://www.ncbi.nlm.nih.gov/pmc/articles/pmc6813937/#fn223, 278 id. 277 id. 82 https://www.ncbi.nlm.nih.gov/pmc/articles/pmc6813937/#fn223 brandeis university law journal 2023-2024, volume 11 incarcerated individuals is to deprive them of a basic human need and to impose a substantial risk of neurological, physiological, and psychological deterioration. complete isolation involved in current solitary confinement practices risks inflicting unnecessary suffering, characterized by debilitating, and potentially permanent consequences. a punishment that entails unwarranted and possibly permanent damage through deprivation of basic human necessities fails to meet contemporary standards of societal decency, and should not be institutionalized in practice. the court has stated that the interpretation of the “cruel and unusual punishment” aspect of the eighth amendment changes in tandem with the knowledge of an evolving society, and a civilized society should not tolerate the infliction of unnecessary pain on another human being.282 the second reason for this neglect is the dualistic perception of harm endorsed in principle by u.s. law.283 this entails the separation of physical harm from mental suffering, creating a hierarchy of pain in which mental suffering is subjective and less important than physical ailments. as a result of this distinction, social interaction falls outside of the spectrum of constitutionally protected human needs. this has led courts to dismiss cases of mental harm without evidence of physical distress.284 this judicial deference and unwillingness of the court to intervene in the methods of inmate discipline and introduce uniform regulations to mitigate psychological harm incurred from solitary confinement was exemplified in the case of scarver v. litscher.285 in this case, the seventh circuit acknowledged that the plaintiff, who was repeatedly banging his head against the walls of his cell, had endured substantial psychological distress 285 scarver, 434 f.3d 972, at 976. 284 id. 283 coppola, supra note 273. 282 trop, 856 u.s. 86, at 101. 83 brandeis university law journal 2023-2024, volume 11 as a result of placement in solitary confinement. however, in 2006, the supreme court remained hesitant to interfere with correctional management in prisons and deferred to the prison administration to defend a legitimate penological interest in enforcing solitary confinement.286 often, judicial analysis of whether a punishment is cruel and unusual lacks scrutiny of the conditions of supermax facilities.287 supermax prisons do not have a single definition, but their essence is complete social isolation, deprivation of all environmental stimulation, and enforced idleness.288 these qualities of an impoverished social environment are enforced only upon the individuals held in solitary confinement within one of these facilities. the supreme court defined the foundation of the penological evaluation of solitary confinement conditions as the “effect upon the imprisoned”289 and that “deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary.”290 this tendency of courts to show deference to state prison officials risks the penological interests of prison administrations superseding the well-being of incarcerated individuals. the supreme court has stated that constitutional protections relating to the conditions of confinement derive from the acknowledgment that inmates retain the dignity inherent in all humans.291 additionally, the court has established that only “extreme deprivation” adequately supports a condition of confinement claim, and this requirement is met when the socio-environmental deprivation 291 brown v. plata, 563 u.s. 493, 510 (2011) 290 johnson v. california, 543 u.s. 499, 511 289 rhodes, 452 u.s. 337, at 364. 288 david c fathi, the new asylum: supermax as warehouse for the mentally ill prison legal news (2007), https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm ax-as-warehouse-for-the-mentally-ill/ 287 id. 286 coppola, supra note 273. 84 https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-supermax-as-warehouse-for-the-mentally-ill/ https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-supermax-as-warehouse-for-the-mentally-ill/ brandeis university law journal 2023-2024, volume 11 of solitary confinement denies “the minimal civilized measure of life’s necessities.”292 therefore, the punishment of extreme isolation deprives a human of basic human needs. it involves the infliction of unnecessary pain, and is therefore incompatible with the concept of human dignity as it exists in civilized society today. inmates who endure substantial mental harm within prison conditions are further burdened by the subjective prong of proving that prison officers were indifferent to their suffering.293 this subjective prong of the conditions standard refers to the prison official’s culpable state of mind and the requirement of proof that substantial risk to an inmate’s health and safety was disregarded.294 the decision of farmer established the parameters of the prison official’s culpability, as the court held that deliberate indifference is equivalent to subjective recklessness.295 while this test of deliberate indifference remains individualized to each solitary confinement case, the court in farmer also recognized that some risks of harm are objective such that “a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”296 the challenge of proving prison official’s knowledge of the incurred mental harm became instrumental in cases regarding solitary confinement conditions, and establishing this deliberate indifference may rely on circumstantial evidence that the risk was known and ignored. proving the deliberate indifference of prison officials constitutes an obstacle to challenging objectively harmful conditions of supermax facilities, particularly in cases 296 id, at 842 295 farmer, 511 u.s. 825, at 839 294 id. 293 coppola, supra note 273. 292 rhodes, 452 u.s. 337, at 347 85 brandeis university law journal 2023-2024, volume 11 involving mentally ill incarcerated individuals.297 due to the lack of mental health training for prison officials, prison administrations may avoid liability by claiming to have no knowledge of the symptoms or risks of mental illness.298 this creates the perverse incentive for prison staff; subpar knowledge of mental illness facilitates an avoidance of constitutional responsibility as this condition stands. in light of the questionability of the subjective prong condition in solitary confinement litigation, the court should consider if the condition of extreme social isolation itself is sufficient to warrant a presumption of intentional disregard of prison administrations. the personal testimonies of incarcerated individuals confined in restrictive cells paired with the research of the psychological harm imposed by prolonged social isolation demonstrates the need for reevaluation of what qualifies as an essential condition of human life. the court should place more emphasis on social interactions among incarcerated individuals and the prison staff, and introduce regulations for solitary confinement which comport with constitutionally afforded protections for mentally ill inmates. recent state reforms provide new insight into the impact of reforming solitary confinement and show a consensus that recognizes the need for change.299 299 jessica sandoval, j. (2023, march). how solitary confinement contributes to the mental health crisis. national alliance on mental illness. https://www.nami.org/blogs/nami-blog/march-2023/how-solitary-confin ement-contributes-to-the-mental-health-crisis#:~:text=among%20many% 20other%20mental%20health,of%20an%20acute%20mental%20illness. 298 lori marschke, proving deliberate indifference: next to impossible for mentally ill inmates, valp. u. l. rev. 487 (2004) 297 coppola, supra note 273. 86 https://www.nami.org/blogs/nami-blog/march-2023/how-solitary-confinement-contributes-to-the-mental-health-crisis#:~:text=among%20many%20other%20mental%20health,of%20an%20acute%20mental%20illness https://www.nami.org/blogs/nami-blog/march-2023/how-solitary-confinement-contributes-to-the-mental-health-crisis#:~:text=among%20many%20other%20mental%20health,of%20an%20acute%20mental%20illness https://www.nami.org/blogs/nami-blog/march-2023/how-solitary-confinement-contributes-to-the-mental-health-crisis#:~:text=among%20many%20other%20mental%20health,of%20an%20acute%20mental%20illness brandeis university law journal 2023-2024, volume 11 i. arguments against unlimited use of solitary confinement through testimonial accounts, hundreds of inmates in solitary confinement have attested to the devastating cognitive effects of isolation, such as perceptual distortions and hallucinations, increased anxiety and depression, fantasies of revenge on society, and other aspects of mental pain.300 the effects of isolation also manifest in decreased cognitive function, as a decline in brain activity was found in inmates incarcerated in solitary confinement for only seven days.301 when the only social stimulation available is sporadic conversations with guards and officers, sentiments of humiliation and meaninglessness compound to damage the mental well-being and neurological health of the prisoner. technological advancements such as video surveillance and virtual platforms of communication have eliminated even that fleeting human contact, facilitating a method of further isolation that was unforeseen in the earlier stages of prison development.302 for example, in decades past, individuals in solitary confinement were able to regularly see and interact with human guards as they made their rounds. as technology developed and was integrated into the surveillance mechanisms of supermax prisons, even fleeting social contact is revoked for inmates in solitary confinement. in a 2007 study conducted by the red cross, the clinical impacts of isolation in solitary confinement were compared to those of physical torture, revealing similarities in negative psychological and 302 david c fathi, the new asylum: supermax as warehouse for the mentally ill prison legal news (2007), https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-superm ax-as-warehouse-for-the-mentally-ill/ 301 paul gendreau, n.l. freedman, g.j.s. wilde & g.d. scott, changes in eeg alpha frequency and evoked response latency during solitary confinement, 79 j. of abnormal psychol. 54, 57–58 (1972) 300 coppola, supra note 273. 87 https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-supermax-as-warehouse-for-the-mentally-ill/ https://www.prisonlegalnews.org/news/2007/jul/15/the-new-asylum-supermax-as-warehouse-for-the-mentally-ill/ brandeis university law journal 2023-2024, volume 11 physiological reactions.303 the socio-environmentally deprived conditions of isolation cells bear a devastating toll on the psychological well-being of those they confine. hardened by psychological and physical abuse by prison administrations maximizing control of an individual, inmates have expressed suicidal ideation merely for the chance of an escape.304 correctional officers frequently misuse physical restraints and chemical agents as disciplinary measures, and the isolated nature of solitary confinement units render detection of staff abuse much more difficult.305 the apathetic attitude of prison administrations to this mistreatment facilitates its practice, and the negative psychological effects of social deprivation are further intensified with this abuse. as stated by a california state prison psychologist in 2002, “it’s a standard psychiatric concept, if you put people in isolation, they will go insane. . . . most people in isolation will fall apart.”306 the claim that solitary confinement cells harbor only the “worst of the worst,” most threatening criminals who were convicted of heinous crimes or assaulted other inmates while incarcerated does not realistically reflect the practice of solitary confinement. mentally ill individuals are disproportionately represented in restrictive housing facilities, and prison officials across the u.s. fill solitary confinement cells with inmates who pose any difficulty to management, whether that be a violation of minor prison rules or launching a lawsuit against the prison 306 human rights watch, ill-equipped: u.s. prisons and offenders with mental illness 149 n. 513 (2003). 305 reyes, supra note 303. 304 calloway, k. (2023, february 27). i spent 16 months in solitary confinement and now i’m fighting to end it: aclu. american civil liberties union. https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi nement-and-now-im 303 dr. hernàn reyes, the worst scars are in the mind: psychological torture, 89 int’l rev. red cross 591, 607 (2007) 88 https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confinement-and-now-im https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confinement-and-now-im brandeis university law journal 2023-2024, volume 11 administration.307 if prison administration guidelines upheld this exclusivity and supermax facilities were restricted to only the most predatory, solitary confinement cells would stand virtually empty.308 nationwide data documenting the use of solitary confinement in prisons in the u.s. estimates that as of july 2021, 48,000 individuals are confined in their cells for at least twenty two hours a day for a minimum of fifteen days.309 while this statistic has decreased from the 100,000 individuals housed in solitary confinement in 2014, the population of inmates confined in restricted housing among the two million individuals in state and federal prisons is massively unbalanced.310 a 2003 report based on data from state prisons throughout the u.s. by human rights watch found one-third to one-half of inmates in solitary confinement cells to be mentally ill.311 cognitively impaired and mentally ill individuals who struggle to comprehend and abide by strict prison regulations without treatment garner reputations as troublesome inmates, and are cast aside in solitary confinement cells.312 this facilitates a destructive cycle in which mentally ill inmates are misinterpreted as willfully defiant by under-trained prison staff and are subjected to prolonged periods of disciplinary 312 fathi, supra note 302. 311 zoltan lucas, locking down the mentally ill the crime report (2010), https://thecrimereport.org/2010/02/18/locking-down-the-mentally-ill/ 310 wendy sawyer & peter wagner, mass incarceration: the whole pie 2023 prison policy initiative (2023), https://www.prisonpolicy.org/reports/pie2023.html (last visited dec 9, 2023). 309 correctional leaders association, nationwide report finds reduction in reported use of solitary confinement yale law school (2022), https://law.yale.edu/yls-today/news/nationwide-report-finds-reduction-repor ted-use-solitary-confinement#:~:text=time%2din%2dcell%3a%20a,for %2015%20days%20or%20more. 308 fathi, supra note 302. 307 aclu supra note 269, at 9. 89 https://thecrimereport.org/2010/02/18/locking-down-the-mentally-ill/ https://www.prisonpolicy.org/reports/pie2023.html https://law.yale.edu/yls-today/news/nationwide-report-finds-reduction-reported-use-solitary-confinement#:~:text=time%2din%2dcell%3a%20a,for%2015%20days%20or%20more https://law.yale.edu/yls-today/news/nationwide-report-finds-reduction-reported-use-solitary-confinement#:~:text=time%2din%2dcell%3a%20a,for%2015%20days%20or%20more https://law.yale.edu/yls-today/news/nationwide-report-finds-reduction-reported-use-solitary-confinement#:~:text=time%2din%2dcell%3a%20a,for%2015%20days%20or%20more brandeis university law journal 2023-2024, volume 11 segregation in solitary confinement cells.313 this “willful defiance” perceived by the prison administration is unfounded, as the psychological damage inflicted by the conditions of solitary confinement alongside pre-existing mental illness compromises the cognitive and affective abilities of the inmates.314 these cognitive and affective capacities are what contribute to logical reasoning and decision-making, and solitary confinement promotes the further atrophy of inmate ability to comprehend and respond to the emotions of others. the maladaptive psychological processes and anti-social behavior patterns identified as risks of confinement in isolation units will continue to comprise the individual's social functioning, and the rehabilitation process intended in solitary confinement is rendered ineffective. inmates with poor mental health are more susceptible to conflict within the prison community and demonstrate increased rates of misconduct and assault. this increases the existing threat to inmates and law enforcement within the prison walls, as complete social isolation of mentally ill inmates only exacerbates symptoms of psychiatric distress.315 along with compromised security, rampant mental illness among inmates demands more from already scarce resources, increasing the limited budgets of correctional facilities to offset the pressure put on correctional officers in deprived prisons.316 the alternative solution to prison security maintenance relies on mitigation of the most oppressive features of supermax facilities. this step toward reform has been found to be effective. for example, a state prison in washington 316 kim kideuk, becker-cohen miriam, serakos maria. 2015. the processing and treatment of mentally ill persons in the criminal justice system. washington, dc: urban institute. 315 lucas, supra note 311. 314 william heirstein et al., responsible brains: neuroscience, law, and human culpability 222–24 (2018). 313 lucas, supra note 311. 90 brandeis university law journal 2023-2024, volume 11 experienced a dramatic decrease in violence and the use of punitive force following increased staff interaction with inmates and introduction of communal activities.317 the overproduction and overuse of supermax facilities, or prisons containing solitary confinement housing units, has also led to fiscal consequences for the entire federal prison institution.318 supermax facilities are three times more expensive to build and operate compared to maximum-security prisons. this fiscal strain was evident in a 2009 study revealing that criminal correction spending exceeded budget growth in all areas of federal and state spending except for medicaid.319 when mentally ill inmates are held in an overcrowded prison system that is simultaneously seeking to occupy expensive solitary confinement cells, these individuals are often transferred to isolation housing.320 the argument that placing certain inmates in solitary confinement protects other prisoners and officers from danger is cast into grave doubt by the fact that their complete seclusion from other inmates further impairs mental and social capabilities, increasing their risk of misconduct.321 isolation exacerbates inmates’ existing mental illnesses and increases the threat posed to the rest of the prison community.322 only five percent of inmates housed in solitary confinement remain there permanently, and thus facilitating effective reentry into the 322 edgemon, t. g., & clay-warner, j. (2019). inmate mental health and the pains of imprisonment. society and mental health, 9(1), 33–50. https://doi.org/10.1177/2156869318785424 321 aclu supra note 269, at 9. 320 id. 319 solomon moore, study shows high cost of criminal corrections, n.y. times, mar. 3, 2009, at a13. 318 fellner jamie. 2006. “a conundrum for corrections, a tragedy for prisoners: prisons as facilities for the mentally ill.” washington university journal of law & policy 22:135–44 317 rhodes, at 192–193. 91 https://doi.org/10.1177/2156869318785424 brandeis university law journal 2023-2024, volume 11 greater prison population is essential.323 the american psychological association reports that forty-five percent of federal prisoners experience mental health issues. furthermore, with over two million people incarcerated in the united states, a tremendous number of mentally ill inmates suffer in an environment devoid of psychological treatment.324 the extreme security measures maintained in supermax units render adequate therapy sessions and mental health assessments unavailable. intensified security measures entail being fed through a slot in a door, denial of physical or social contact, and a lack of access to medical services afforded to inmates within the greater prison population.325 the only available therapy for individuals in solitary confinement cells consists of conversations through a steel door, surrounded by other prisoners and officers.326 the inability to receive intimate and personal therapy in solitary confinement makes the available treatment largely ineffective. the withholding of effective therapy to inmates with mental illness in supermax facilities, coupled with the devastating impact of social isolation lays bare the substantial argument that solitary confinement of mentally ill inmates violates the eighth amendment.327 those that argue this suggest that ensured 327 id. 326 aclu supra note 269, at 9. 325 sandoval, supra note 299. 324 taylor, e. (n.d.). mental health and reentry: how court services offender agency meets the challenge of mental health community supervision. https://cops.usdoj.gov/html/dispatch/05-2022/mental_health_reentry.html#: ~:text=approximately%20half%20the%20people%20in,path%20for%20pri soners%20returning%20home. 323 timothy hughes & doris james wilson, reentry trends in the united states, u.s. department of justice, office of justice programs, bureau of justice statustics (2004), available at http://www.bjs.gov/content/pub/pdf/reentry.pdf (reporting that 95% of all state prisoners will eventually be released). 92 https://cops.usdoj.gov/html/dispatch/05-2022/mental_health_reentry.html#:~:text=approximately%20half%20the%20people%20in,path%20for%20prisoners%20returning%20home https://cops.usdoj.gov/html/dispatch/05-2022/mental_health_reentry.html#:~:text=approximately%20half%20the%20people%20in,path%20for%20prisoners%20returning%20home https://cops.usdoj.gov/html/dispatch/05-2022/mental_health_reentry.html#:~:text=approximately%20half%20the%20people%20in,path%20for%20prisoners%20returning%20home http://www.bjs.gov/content/pub/pdf/reentry.pdf brandeis university law journal 2023-2024, volume 11 psychological decline of mentally ill prisoners paired with a lack of treatment renders the practice of total social isolation cruel and unusual as understood in the context of the eighth amendment. as aforementioned, to establish a “cruel and unusual punishment” violation of the eighth amendment, the appellate must demonstrate: an “objectively, sufficiently serious act or omission resulting in the denial of necessities; a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety; and that he has exhausted the prisoner-grievance system and that he has petitioned for relief under article 138, ucmj.”328 the human neurobiological demand for social interaction is complemented by environmental stimulation, both contributing to proper brain function and behavior. thus, the social and environmental stimulation deprived in solitary confinement is to deprive incarcerated individuals with the conditions necessary for physiological brain function, and thus the very nature of themselves. in acknowledging the vital importance of human interaction and environmental stimulation is an implication that forcing inmates into six by eight feet cells in complete isolation is sufficient per se to deprive them of basic human needs.329 courts have endorsed the view that solitary confinement conditions are legitimate as long as they guarantee the same basic necessities afforded to the general prison population.330 however, this notion of equivalence disregards the fact that extreme socio-environmental isolation is the condition that renders the difference between solitary confinement and confinement in the general prison. extreme isolation deprives inmates in solitary confinement of a biological based need that is provided to the general prison population, and social interaction should be regarded as a basic need rather than a 330 hutto 437 u.s. 678, at 686. 329 coppola, supra note 263. 328 first principles: constitutional matters: cruel and unusual punishment, https://www.armfor.uscourts.gov/digest/ib4.htm 93 https://www.armfor.uscourts.gov/digest/ib4.htm brandeis university law journal 2023-2024, volume 11 mere privilege. with the vast amount of evidence attesting to the harmful psychological effects of solitary confinement, the detriment to larger policy goals of prisons has become a pertinent topic of conversation. as a result, a reevaluation of the legitimacy of current solitary confinement practices is now in progress.331 federal courts have called into question whether the placement of mentally ill inmates in restrictive housing constitutes cruel and unusual punishment.332 the u.s. senate held its first congressional meeting to discuss the use of isolation measures in prisons in june 2012 and discussion is ongoing.333 several other influential organizations, such as the american civil liberties union, american bar association, and national alliance of mental illness, also vouch in opposition to the use of solitary confinement.334 since 2021, state-level efforts to regulate use of solitary confinement have increased with two hundred fifty-eight pieces of proposed legislation filed across forty-one states, the majority seeking to wholly eliminate some of the aforementioned components of the practice.335 alongside state reform efforts and discussion of the depravity of solitary confinement conditions within federal courts, nationwide polling data demonstrates widespread bipartisan support for restrictions on the practice of complete isolation in prisons.336 this evidence of limited political resistance minimizes deterrence for legislation, and functions as the foundation for constructive reform. legislators and advocates for the regulation of solitary confinement practices are poised for genuine improvement, but some prison 336 id. 335 sandoval, supra note 299. 334 id. 333 bennion, supra note 279. 332 id. 331 sandoval, supra note 299. 94 brandeis university law journal 2023-2024, volume 11 administrations and a widespread judicial hesitancy to interfere with prison security deter change. corrections officers and policy makers who consider solitary confinement an effective strategy to promote order in the prison system maintain that the potential benefits of solitary confinement to the individual inmate, other inmates, and prison staff counterbalances the adverse effects linked with stays in isolation.337 this stance of penological interest is implicitly supported by the court’s exercise of judicial deference to solitary confinement management and condition regulations which prison officials deploy.338 despite the lack of established criteria to assess the penological interest of a prison in solitary confinement litigation, courts often have “deferred to prison officials when they claim that a particular condition or treatment is necessary.”339 this notion posits that prison administrations and officials, who lack required mental health training, have a more accurate sense of which individuals are in need of additional psychological treatment.340 maintaining this skewed perspective on the expertise of prison officials creates a considerable barrier in solitary confinement litigation cases where conditions of isolation pose a risk of substantial harm which should trigger eighth amendment protections. if an inmate without psychological illness is isolated in confinement, the harm to their psyche resulting from a solitary holding cell is enough to induce mental impairment.341 recent studies delineate the lasting detrimental effects of solitary confinement on the mental status of the individual, corroborating the notion that solitary confinement leads to the 341 taylor, supra note 314. 340 lea johnston, conditions of confinement at sentencing: the case of seriously disordered offenders, 63 cath. u. l. rev. 625, 626 (2014) 339 rhodes, 452 u.s. 337, at 364. 338 id. 337 coppola, supra note 263. 95 brandeis university law journal 2023-2024, volume 11 development of acute mental disorders.342 these mental disorders often manifest among incarcerated individuals as difficulties with impulse control, feelings of hostility and mania, and severe anxiety and depression.343 individuals without documentation of previous mental illness are found to become symptomatic with ranging severity after just brief stays in solitary confinement, and the negative psychological impact of isolation affects post-release outcomes of inmates.344 the persisting detriment inflicted by extended time in isolation can be fatal. research identifies a correlation between time spent incarcerated in restrictive housing and an increased risk of death within the first year following release.345 individuals previously incarcerated within solitary confinement units are overall twenty-four percent more likely to die within the first year after release, including seventy-eight percent greater risk of suicide within that demographic.346 the psychological and physical destitution induced through confinement in supermax sections of prisons not only fuels a disproportionately high rate of mental illness and self-harming tendencies compared to the general prison population, but also manifests in other symptoms, including social isolation, loss of identity, and sensory hypersensitivity.347 mental illness originating from an 347 reiter k, ventura j, lovell d, augustine d, barragan m, blair t, chesnut k, dashtgard p, gonzalez g, pifer n, strong j. psychological distress in solitary confinement: symptoms, severity, and prevalence in the united states, 2017-2018. am j public health. 2020 346 id. 345 corcoran, supra note 343. 344 dean, j., & june 16, 2020. (2020, june 16). short stays in solitary can increase recidivism, unemployment. cornell chronicle. https://news.cornell.edu/stories/2020/06/short-stays-solitary-can-increase-re cidivism-unemployment. 343mary corcoran, effects of solitary confinement on the well being of prison inmates applied psychology opus, https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitary-confinement -on-the-well-being-of-prison-inmates/ 342 sandoval, supra note 299. 96 https://news.cornell.edu/stories/2020/06/short-stays-solitary-can-increase-recidivism-unemployment https://news.cornell.edu/stories/2020/06/short-stays-solitary-can-increase-recidivism-unemployment https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitary-confinement-on-the-well-being-of-prison-inmates/ https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitary-confinement-on-the-well-being-of-prison-inmates/ brandeis university law journal 2023-2024, volume 11 inmate’s experience in solitary confinement further prevents them from a successful reentry into society, ultimately posing an even greater impact on the larger population.348 amongst the chilling accounts of solitary confinement published, kiana calloway details his devastating experience of entering “camp j.”349 camp j is a louisiana prison noted for its severe lockdown units, and calloway was confronted with this stark image of what the rest of his life would be like when he entered the prison at only seventeen years of age in 2019.350 entering louisiana state penitentiary, calloway was sentenced to solitary confinement for twenty-three hours a day for sixteen months. struggling to retain his humanity under the torturous “23 and 1” regime, he languished in an environment constructed to maximize control over the individual and minimize the sense of self. amidst the twenty-three hours a day spent within the perpetually lit cell, calloway describes a single hour where a phone call or shower was permitted.351 deprived of educational or vocational programs, inmates are reduced to sitting in their cells listening to the anguished cries of neighboring prisoners who are also suffering the effects of long-term solitary confinement.352 testifying on the consequences of prolonged isolation, calloway states, “it’s been 22 years since my time in solitary and 8 years since my release from prison, but i still have flashbacks and nightmares. even when i’m with someone else, i find myself secluded in 352 id. 351 id. 350 id. 349 calloway, k. (2023, february 27). i spent 16 months in solitary confinement and now i’m fighting to end it: aclu. american civil liberties union. https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confi nement-and-now-im 348 taylor, supra note 324. jan;110(s1):s56-s62. doi: 10.2105/ajph.2019.305375. pmid: 31967876; pmcid: pmc6987940. 97 https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confinement-and-now-im https://www.aclu.org/news/prisoners-rights/i-spent-16-months-solitary-confinement-and-now-im brandeis university law journal 2023-2024, volume 11 my own mind. i call it being psychologically incarcerated.”353 calloway, who maintains his innocence, was initially convicted on two counts of first degree murder by a non-unanimous jury, receiving two life sentences without the possibility of parole and was immediately confined in a supermax facility. however, calloway received an additional trial once it was revealed that the initial judge prohibited him from calling certain witnesses and neglected to require the prosecution to turn over two witness statements. his sentence was reduced to thirty four years in the general prison population.354 kiana calloway is now an advocate for the voice of the experience (vote) organization, a foundation created in new orleans by formerly incarcerated individuals, that strives for the reformation of the louisiana department of corrections disciplinary procedures in prison.355 the complete prohibition of access to education in the name of discipline is another manifestation of the ineffective policies surrounding solitary confinement in u.s. prisons. alongside the development of psychological and physical conditions from complete isolation, the increase in suicide rates and self-harm of inmates in solitary confinement has been repeatedly acknowledged and verified. dr. stuart grassian, a practicing psychologist on the faculty of harvard medical school for over twenty five years, encapsulates the devastating psychiatric effects of solitary confinement by citing 355 frances madeson et al., louisiana hunger strikers already in solitary are being brutally punished truthout (2021), https://truthout.org/articles/louisiana-hunger-strikers-already-in-solitary-arebeing-brutally-punished/ (last visited nov 28, 2023). 354 hutchinson, p. (2023, november 28). louisiana considers education access for the incarcerated including those on death row. news from the states. https://www.newsfromthestates.com/article/louisiana-considers-education-a ccess-incarcerated-including-those-death-row#:~:text=one%20task%20forc e%20member%2c%20kiana,count%20of%20feticide%20in%201997. 353 id. 98 https://truthout.org/articles/louisiana-hunger-strikers-already-in-solitary-are-being-brutally-punished/ https://truthout.org/articles/louisiana-hunger-strikers-already-in-solitary-are-being-brutally-punished/ https://www.newsfromthestates.com/article/louisiana-considers-education-access-incarcerated-including-those-death-row#:~:text=one%20task%20force%20member%2c%20kiana,count%20of%20feticide%20in%201997 https://www.newsfromthestates.com/article/louisiana-considers-education-access-incarcerated-including-those-death-row#:~:text=one%20task%20force%20member%2c%20kiana,count%20of%20feticide%20in%201997 https://www.newsfromthestates.com/article/louisiana-considers-education-access-incarcerated-including-those-death-row#:~:text=one%20task%20force%20member%2c%20kiana,count%20of%20feticide%20in%201997 brandeis university law journal 2023-2024, volume 11 testimony from an individual confined in california’s pelican bay state prison.356 by 2011, pelican bay had showcased widespread, unregulated utilization of isolation in segregated units for over a decade, affecting approximately forty-five percent of inmates.357 the incarcerated individual described in dr. grassian’s testimony, lacking previously documented psychiatric disorders, emerged from restrictive housing afflicted with severe mental illness arising from the trauma he endured. dr. grassian states that the individual became “overtly psychotic and suicidal.”358 at one point, the inmate resorted to writing a suicide note in his own blood and confessed to the doctor, “i'm tired of people talking in my head. i was mentally clear before . . . sometimes i get so confused, i don't even know what's going on.”359 through research and personal contact with many formerly and currently incarcerated individuals, dr. grassian established a specific psychiatric disorder called security housing unit (shu) syndrome, giving a name to the distress arising from periods in solitary confinement.360 the practice of prolonged solitary confinement manifests as a psychological detriment to those it confines, having the power not only to aggravate pre-existing mental illnesses but to create them. in 2017, the department of justice guidelines recognized that extreme isolation causes mentally ill inmates' already fragile psychiatric conditions to decline, which led to the launch of reform bills that advocated for limiting the use of 360 sandoval, supra note 299. 359 id. 358 id. 357 tiana herring, the research is clear: solitary confinement causes long-lasting harm prison policy initiative (2020), https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ (last visited nov 28, 2023). 356 aclu, supra note 269. 99 https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ brandeis university law journal 2023-2024, volume 11 solitary confinement in american prisons.361 fueled by the recognition of the substantial risk of psychological harm imposed by solitary confinement practices, a profusion of bills were introduced between 2018 and 2023.362 these bills aimed to create reporting and oversight mechanisms to increase transparency of the inner workings of incarceration and regulate solitary confinement through legislation. however, only 29 states enacted these bills.363 while ideas for reform circulate to regulate the practice, solitary confinement, as a form of security maintenance, in lieu of mental health treatment must be eliminated. although maintaining order and safety within the prison and psychological treatment for mentally ill inmates are not mutually exclusive, the current practice of punitive isolation without access to psychological therapy does not achieve the goal of security. moreover, restricting the use of solitary confinement is linked to a decline in prison misconduct.364 corroborating this phenomenon, a reduction in the number of inmates in solitary confinement has resulted in a decline in prison violence in michigan.365 when all isolation cells rates of violence in mississippi prisons plummeted by seventy percent when all isolation cells were removed.366 366 terry a. kupers et al., beyond supermax administrative segregation: mississippi’s experience rethinking prison classification and creating 365 jeff gerritt, pilot program in up tests alternatives to traditional prison segregation, detroit free press, january 1, 2012, available at www.frep.com/fdcp/?unique=1326226266727. 364 aclu, supra note 269. 363 banning torture: legislative trends and policy solutions for restricting and ending solitary confinement throughout the united states, unlock the box campaign, january 2023. 362 sandoval, supra note 299. 361report and recommendations concerning the use of restrictive housing. the united states department of justice. (2017, march 13). https://www.justice.gov/archives/dag/report-and-recommendations-concerni ng-use-restrictive-housing 100 http://www.frep.com/fdcp/?unique=1326226266727 https://www.justice.gov/archives/dag/report-and-recommendations-concerning-use-restrictive-housing https://www.justice.gov/archives/dag/report-and-recommendations-concerning-use-restrictive-housing brandeis university law journal 2023-2024, volume 11 theories supporting the use of solitary confinement emphasizes its capacity to deter future crime among inmates, however, empirical evidence in supermax prisons does not comport with this notion. when comparing the recidivism rates of inmates released from solitary confinement versus the normal prison population, there is an increased risk of recommitting a violent crime among those confined in isolation.367 this increased risk of recidivism is largely rooted in the adverse psychological symptoms imposed by confinement in isolation cells, and present risk factors for socially dysfunctional behaviors.368 alongside its failure to decrease risk of recidivism, solitary confinement oppresses rehabilitation by removing the possibility of positive relationships with other perpetrators and the rest of society. this self-reform based on relational processes is stunted, and inmates in solitary confinement are unable to reintegrate into society as law-abiding and self-sufficient individuals. with the devastating impacts of complete isolation units on psychological well-being being so well-documented, every federal court has been confronted with the question of whether or not placing individuals with mental illness in solitary confinement is cruel and unusual punishment in violation of the eighth amendment.369 despite the formal position statement released by the american psychiatric association stating that inmates afflicted with mental illness should never be confined in restrictive housing units without access to additional clinical support, the practice continues.370 courts endorse the notion that solitary confinement is not cruel and unusual punishment as long as its provisions of nutrition 370 id. 369 aclu, supra note 269, at 12. 368 id. 367 coppola, supra note 273. alternative mental health programs, 36 crim. just. & behav. 1037, 1041 (2009). 101 brandeis university law journal 2023-2024, volume 11 and shelter do not differ from those provided to the general prison population.371 implicit in that precedent is the failure to recognize that extreme social isolation is the fundamental difference in condition between solitary confinement and the general prison population. housing an inmate in supermax deprives inmates of a fundamental need that normal confinement facilitates, and social interaction should be acknowledged as a human necessity, not a mere privilege.372 the proposed policy restrictions on isolated confinement do not prevent the devastating consequences of the inmates’ experience in restrictive housing cells on psychological health. continued access to psychiatric treatment in conjunction with therapy and programs supporting rehabilitation should be demanded of federal and state institutions alike. yet, repeated court mandates have not led to an established and protected right to psychological treatment for mentally ill inmates in solitary confinement.373 inmates are sentenced to live in insufferable confines with no treatment nor codified rights. the rights afforded to inmates in the general prison population include contact with other inmates, participation in programming and communal activities, and visitations.374 solitary confinement strips inmates of those opportunities and the benefits of social interaction. access to therapy and psychiatric treatment in prison is incredibly stunted, as three in five inmates do not receive 374 andreea matei, solitary confinement in us prisons urban institute (2022), https://www.urban.org/sites/default/files/2022-08/solitary%20confinement %20in%20the%20us.pdf. 373 nami. (2023). mental health treatment while incarcerated. national alliance on mental illness. https://www.nami.org/advocacy/policy-priorities/improving-health/mental -health-treatment-while-incarcerated. 372 coppola, supra note 273. 371 hutto 437 u.s. 678, at 686. 102 https://www.urban.org/sites/default/files/2022-08/solitary%20confinement%20in%20the%20us.pdf https://www.urban.org/sites/default/files/2022-08/solitary%20confinement%20in%20the%20us.pdf https://www.nami.org/advocacy/policy-priorities/improving-health/mental-health-treatment-while-incarcerated https://www.nami.org/advocacy/policy-priorities/improving-health/mental-health-treatment-while-incarcerated brandeis university law journal 2023-2024, volume 11 appropriate mental health treatment while incarcerated.375 along with the deficit of effective mental health services, treatment regimens must grind to a halt for prisoners with previously diagnosed mental illness, as fifty percent of inmates who were medicated for mental illness upon admission did not continue to receive medication during their sentence in prison.376 to circumvent the challenges faced by mentally ill incarcerated individuals and enhance the medical services provided to those in solitary confinement, consistent psychological screening and regular access to mental health professionals must be implemented in prisons. while isolation unit conditions vary depending on state legislature, systematic policies of confinement–including isolation behind a steel door for twenty-two to twenty-four hours a day, physical discipline including hog-tying and restraint chairs, severely limited contact with other humans, and inadequate rehabilitative and educational programming—are universal in the united states.377 as they serve their sentences, inmates experience immense anxiety surrounding social conduct after being deprived of interaction. if they are released from solitary confinement into larger society, many former inmates exhibit maladjustment disorders and difficulty acclimating to social contact after release from isolation units compared to inmates released from maximum security prisons.378 in 2006, the commission on safety and abuse in america’s prisons expressed concern for the practice of releasing inmates from isolation settings directly into the community due to the diminished social skills incurred from stays in solitary 378 corcoran, supra note 343. 377 madeodev. (2023). solitary confinement facts. american friends service committee. https://afsc.org/solitary-confinement-facts. 376 id. 375 nami, supra note 373. 103 https://afsc.org/solitary-confinement-facts brandeis university law journal 2023-2024, volume 11 confinement.379 considering ninety five percent of inmates in solitary confinement will be released, the successful reintegration into society of previously incarcerated individuals should be the pinnacle of a correctional administration’s mission.380 the practice of prolonged incarceration excluding the use of solitary confinement for “higher risk” inmates is already highly damaging due to the internalized prisonization effect. the unregulated, unlimited use of solitary confinement in federal prisons perpetuates and intensifies the cycle of “catch and release.” this refers to the fundamental concept of recidivism among individuals released from prison, relating to a relapse into criminal behavior.381 drawn from linked prison records in the u.s. from 2006 to 2013, the recidivism rate for inmates released from solitary confinement increased by fifteen percent beyond the recidivism rate of fifty percent for general population inmates.382 this correlation between release from isolation and increased risk of recidivism is documented in research conducted in state penitentiaries. preliminary research in california shows that recidivism rates are twenty percent higher for those released from solitary confinement as opposed to the general prison population.383 in colorado two-thirds of inmates released from restrictive housing units return to prison within three years of release.384 additional research comparing the behavioral trajectories of inmates who were not placed in solitary 384 id. 383 aclu, supra note 269, at 12. 382 dean, supra note 344. 381 nij. (n.d.). recidivism. national institute of justice. https://nij.ojp.gov/topics/corrections/recidivism#:~:text=recidivism%20is% 20one%20of%20the,intervention%20for%20a%20previous%20crime. 380 hughes, supra note 323. 379 commission on safety and abuse in america’s prisons, confronting confinement 55 (2006), available at http://www.vera.org/download?file=2845/confronting_confinement.pdf 104 https://nij.ojp.gov/topics/corrections/recidivism#:~:text=recidivism%20is%20one%20of%20the,intervention%20for%20a%20previous%20crime https://nij.ojp.gov/topics/corrections/recidivism#:~:text=recidivism%20is%20one%20of%20the,intervention%20for%20a%20previous%20crime http://www.vera.org/download?file=2845/confronting_confinement.pdf brandeis university law journal 2023-2024, volume 11 confinement with the inmates housed in isolation units confirms that the risk of conviction of another crime within three years of release is increased by fifteen percent.385 one potential factor driving recidivism is the psychological trauma incurred from prolonged periods of solitary confinement, and when individuals are labeled as “problem inmates” by correctional officers due to mental health issues, the cycle of detriment continues.386 while research demonstrating the psychological damage from confinement in supermax units has become more widespread over the last two decades, the united states has a prolonged and dismal record of psychological harm resulting from use of isolation units.387 in 1959, the american correctional association’s manual of correctional standards dictated that use of solitary confinement for mentally ill individuals should not exceed fifteen days and should only be utilized as a last resort, stressing that inmates must be provided with individual or group therapy to preserve mental well-being.388 despite previous efforts being made to regulate the practice of solitary confinement in the u.s., its widespread use was reignited in the 1980s, and the research demonstrating these effects is too often cast aside in u.s. prisons.389 it is important to note that the resurrection of isolation units in prisons was also spurred by the widespread dissolution of mental hospitals in the 1960s. this forged an era of “transinstitutionalization” where mentally ill individuals are transferred from psychiatric hospitals to prisons.390 the 390 bennion, supra note 279. 389 herring, t. (2020, december). the research is clear: solitary confinement causes long-lasting harm. prison policy initiative. https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ 388 craig haney, mental health issues in long-term solitary and “supermax” confinement, 49 crime & delinq. 126, 126 (2003). 387 bennion, supra note 279. 386 id. 385 dean, supra note 344. 105 https://www.prisonpolicy.org/blog/2020/12/08/solitary_symposium/ brandeis university law journal 2023-2024, volume 11 intention was to house mentally ill persons in less-restrictive environments with treatment provided in group settings. however, once the mental hospitals closed, funding for support services and community housing failed to materialize.391 as a result, america’s largest inpatient facilities became not hospitals, but jails.392 this concept manifests in the concentration of mentally ill individuals in prison that is observed in current society, as individuals diagnosed with psychological illness are three times more likely to be incarcerated than hospitalized for treatment.393 the u.s. has been grappling with the facilitation of positive change among inmates for decades, and it remains critical that the psychological health of incarcerated individuals is preserved to create a rehabilitative environment. ii. arguments for the unlimited use of solitary confinement advocates for unlimited use of solitary confinement claim that the isolating conditions imposed on a single prisoner preserve the safety of correctional officers and other inmates.394 it is argued that segregation cells deter misconduct and properly punish inmates who are unwilling to abide by the prison’s rules, promoting generalized orderly conduct.395 the fundamental justifications for the use of solitary confinement rely on the deluded notion that only the “worst of the worst” are placed in social isolation cells, working to create a safer general prison environment.396 the reality is wholly different, 396 id. 395 id. 394 aclu, supra note 269, at 10. 393 fathi, supra note 302. 392 nation’s jails struggle with mentally ill prisoners, npr (sept. 4, 2011), http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-ment ally-ill-prisoners. 391 fathi, supra note 302. 106 http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-mentally-ill-prisoners http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-mentally-ill-prisoners brandeis university law journal 2023-2024, volume 11 as incarcerated individuals cast into solitary confinement are generally placed there for one of three reasons beyond the presence of a genuine security threat. isolation cells are utilized to control individuals perceived as a current or potential threat to the prison community, to shield certain inmates from threats and violence from other inmates, or to discipline dissent for prison rules.397 within the realm of the perceived threat, the majority of inmates housed in supermax facilities indefinitely are allegedly involved in gang activity.398 despite remaining free of disciplinary write-ups during their sentence and a lack of discrete evidence confirming affiliation with organized crime, inmates suspected of gang membership are confined in restrictive housing without a timeframe for release back into the greater prison population.399 alongside inmates suspected of gang affiliation and those who commit minor infractions, mentally ill inmates are disproportionately represented in restrictive housing. conforming to a heavily regimented prison environment is made even more difficult by the symptoms of severe mental illness, and thus minor infractions are more frequently committed by this group of inmates.400 correctional officers often treat this ‘disordered behavior as disorderly behavior’, and place mentally ill inmates in solitary confinement 400 bennion, supra note 279. 399 thomas l. hafemeister & jeff george, the ninth circle of hell: an eighth amendment analysis of imposing prolonged supermax solitary confinement on inmates with a mental illness, 90 denv. u. l. rev. 1, 10 (2012). 398 bennion, supra note 279. 397 hope metcalf, jamelia morgan, samuel oliker-friedland, judith resnik, julia spiegel, haran tae, alyssa work & brian holbrook, administrative segregation, degrees of isolation, and incarceration: a national overview of state and federal correlation policies 2 (2013), https://www.aclu.org/files/assets/administrative%20segregation,%20degre es%20of%20isolation,%20and%20incarceration.pdf. 107 https://www.aclu.org/files/assets/administrative%20segregation,%20degrees%20of%20isolation,%20and%20incarceration.pdf https://www.aclu.org/files/assets/administrative%20segregation,%20degrees%20of%20isolation,%20and%20incarceration.pdf brandeis university law journal 2023-2024, volume 11 indefinitely, ultimately exacerbating the disordered behavior.401 due to the poorly defined policies regarding which inmates may be placed in solitary confinement, restrictive housing units become densely populated with inmates who committed small transgressions or petty annoyances.402 imposing complete isolation on an inmate is entirely left to the discretion of individual prison administrations, and without definitive guidelines restricting the length of confinement in restrictive housing units, inmates may be left to suffer in solitary confinement indefinitely. these low-risk inmates may pose minor management difficulties for the corrections officers, but do not demand complete sensory deprivation and social isolation. evaluating whether solitary confinement units deprive inmates of a basic human need entails weighing the gravity of the harm caused to an individual against the penological demands of the prison, such as security and inmate management.403 inherent in this comparison of the risk of harm and security needs, is the indifference of the prison guards to the psychological interests of the inmates.404 this functions only to perpetuate the intransient trade-off between the mental well-being of the individuals incarcerated in solitary confinement and maintaining discipline within the prison. neglecting the overwhelming research confirming the damages caused by solitary confinement leads to the use of supermax housing as the predominant solution for any conflict arising in the prison environment, including aforementioned alleged gang affiliation and minor infractions.405 there is an 405 ring, k. a., & gill, m. (n.d.). mental health policies and practices surrounding mental health. prison policy initiative. https://www.prisonpolicy.org/research/mental_health/ 404 id. 403 coppola, supra note 273. 402 atul gawande, hellhole, new yorker, mar. 30, 2009, pg. 36, 39. 401 id. 108 https://www.prisonpolicy.org/research/mental_health/ brandeis university law journal 2023-2024, volume 11 imbalance between the traumatic and permanent implications of social isolation and the penological interests that solitary confinement is intended to serve. this emerging imbalance is derived from the fact that socio-environmental deprivation presents an excessive risk of severe brain deterioration and psychological consequences; this extremely unbalanced cost fails to be justified by any penological interest.406 the evidence of excessive risk of psychological damage reinforces existing evidence that neither short nor prolonged sentences in solitary confinement reduces infractions or prison incidents as intended.407 in fact, prisons that have restricted the use of solitary confinement have noted a decrease in inmate violence, and thus limited use of isolation cells does not undermine capacity of prison administrations to maintain prison safety.408 the reality remains that solitary confinement cells are consistently overused, causing a disproportionate isolation of mentally ill or cognitively-impaired prisoners struggling to navigate in prison settings.409 once placed in solitary confinement and excluded from the greater prison population, the prisoner must endure the detrimental effects of social isolation which increases the likelihood of psychological harm. the infliction of social deprivation on inmates through extended periods of solitary confinement is counterproductive to the release of a convict back into the greater prison community, and the release of a rehabilitated individual into 409 ring, supra note 405. 408 asca-liman, working to limit restrictive housing: efforts in four jurisdictions to make changes (oct. 2018), https://law.yale.edu/sites/default/files/documents/pdf/liman/asca_liman_20 18_workingtolimit.pdf. 407 joseph lucas & matthew jones, an analysis of the deterrent effects of disciplinary segregation on institutional rule violation rates, crim. j. pol. rev. 1 (2017). 406 national committee on correctional health care, position statement: solitary confinement (isolation), 22(3) j. correct. health care 257, 258 (2016). 109 https://law.yale.edu/sites/default/files/documents/pdf/liman/asca_liman_2018_workingtolimit.pdf https://law.yale.edu/sites/default/files/documents/pdf/liman/asca_liman_2018_workingtolimit.pdf brandeis university law journal 2023-2024, volume 11 greater society. mental illness originating from an inmate’s experience in solitary confinement further prevents them from a successful reentry into society, posing an even greater impact on the larger population.410 the pervasive use of the practice of solitary confinement results in the release of thousands of mentally ill inmates from incarceration with diminished social capacities and life skills, and a greater likelihood to reoffend.411 unlimited use of solitary confinement may also be preferred when alternative disciplinary options are ineffective in controlling high-risk inmates.412 supporters of the use of solitary confinement argue that other methods of discipline, including education programs and cognitive-behavioral therapy, are only applicable treatments to a minute portion of the prison population. however, with over fifty percent of the population in federal and state prisons suffering from mental illness, the need for more comprehensive psychological treatment is impertinent.413 according to a prison report published by the prison policy initiative organization, in 2017 and revised in 2023, sixty-six percent of mentally ill inmates do not receive, nor are they offered, psychological treatment while incarcerated.414 in addition to the lack of psychological treatment, contact visits, rehabilitative therapy, work, and all other recreational activities that are afforded to the general prison population are prohibited for inmates in solitary confinement.415 the disproportionate incarceration of individuals with 415 madrid v. gomez, 889 f. supp. 1146, 1229 (n.d. cal. 1995); reassessing solitary confinement: the human rights, fiscal, and public safety consequences: hearing before the subcomm. on the constitution, civil rights & human rights of the s. comm. on the judiciary, 112th cong. 20–21 (2012). 414 ring, supra note 405. 413 id. 412 id. 411 aclu, supra note 269. 410 taylor, supra note 324. 110 brandeis university law journal 2023-2024, volume 11 mental health issues paired with the lack of accessible treatment in prisons illuminates the u.s.’s deficit in attention to the psychological needs of inmates, and the glaring need for reform. the implementation of more opportunities for mental health treatment and the improvement of staff training would enhance communication regarding high-needs prisoners and replace solitary confinement to maintain prison security. the proliferation of supermax facilities as a more fiscally conservative alternative to high-quality therapy is a paradox. supermax facilities are far more expensive to construct and maintain, and holding a prisoner in solitary confinement housing costs more than three times as much as incarceration in a maximum security prison per day.416 the majority of the additional expenses of supermax prisons are rooted in higher staffing costs, as cleaning and food services are typically performed by inmates for no compensation in maximum security prisons.417 through reallocation of funds, community-based activities and increased group therapy programs within the prison can be arranged to maintain a safer prison environment without excessive additional cost. iii. proposal to eliminate the unlimited use of solitary confinement in federal prisons: in this section, i will introduce five achievable reforms designed to mitigate the harm induced by solitary confinement without wholly eliminating the practice. as stated by justice sotomayor in apodaka, “a punishment need not leave physical scars to be cruel and unusual.”418 while discontinuation of the use of supermax facilities to house mentally ill incarcerated individuals is necessary to uphold the eighth amendment, 418 apodaka, 586 u.s. 417 fathi, supra note 302. 416 american correctional association, 2004 directory (65th ed. 2004), at 286, 288, 568, 570. 111 brandeis university law journal 2023-2024, volume 11 implementing the following reforms will alleviate some of the scars imposed by current practices of solitary confinement. 1. prioritize mental health training for correctional officers to place greater emphasis on the psychological treatment of high-risk inmates; high-risk would entail those with pre-established mental illness or cognitive impairments. contact visits, rehabilitative therapy, work, and all other recreational activities that are afforded to the general prison population are prohibited for inmates in solitary confinement. this would ensure that correctional officers have the skills and knowledge necessary to effectively and compassionately manage situations with non-compliant inmates without resorting to solitary confinement. in 2001, appelbaum and colleagues published an article regarding the state of mental health training for correctional officers.419 the article identified the discrepancy between professional cultures of security staff and mental health staff as a prominent issue within prison administrations. the article noted how many members of security and mental health staff actually collaborate effectively and share a common goal of humane treatment of inmates, and the capacity of mental health training sessions to hone these skills. introducing collaborative training sessions focused on mental illness would function to create a multidisciplinary staff equipped with more skills to conduct a safe prison environment, and prevent inmate abuse. in the estelle and wilson420 cases, the supreme court determined that claims of violation of the eighth amendment arising from solitary confinement conditions requires the subjective aspect of “deliberate indifference” of corrections officers to the risk to 420 estelle, 429 u.s. 97; wilson, 501 u.s. 294, at 300 419 kenneth l. appelbaum, james m. hickey & ira packer, the role of correctional officers in multidisciplinary mental health care in prisons, 52 psychiatric services 1343–1347 (2001). 112 brandeis university law journal 2023-2024, volume 11 inmate health.421 through implementation of trauma-response training and established methods of accommodating mentally ill incarcerated individuals, the possibility of ignorant indifference to inmates’ psychological suffering would be eliminated. this would facilitate litigation of solitary confinement conditions to appropriately deliver justice to those individuals who have suffered. 2. establish solitary confinement for mentally ill individuals as a violation of the eighth amendment. this entails the need for the court to uphold that the degree of mental injury endured as a result of prolonged isolation significantly exceeds the psychological pain compatible with eighth amendment standards.422 the justification for this reform is predicated on the research indicating the increased vulnerability to detrimental effects of social isolation in people with pre-existing mental illness.423 once this discrepancy is acknowledged, comprehensive evaluation of the practice of solitary confinement can occur, and congress may pass a statute that would effectively end solitary confinement in the future. within the criteria to establish a punishment as “cruel and unusual” is a demonstration of an “objectively, sufficiently serious act or omission resulting in the denial of necessities…”424 and the mental, physical, and physiological harms imposed by the conditions of solitary confinement are on par with physical risk involved in starvation and sleep deprivation. given the biologically-based human need for social interaction and the irreversible neurological and psychological damage incurred from confinement in isolation units, the complete isolation imposed by solitary confinement 424 first principles: constitutional matters: cruel and unusual punishment, https://www.armfor.uscourts.gov/digest/ib4.htm 423 id. 422 id. 421 coppola, supra note 273. 113 https://www.armfor.uscourts.gov/digest/ib4.htm brandeis university law journal 2023-2024, volume 11 constitutes a deprivation of necessities. 3. reconfigure the layout of isolation cells to align with defined environmental standards. the constitution does not mandate comfortable cells.425 however, empirical studies have confirmed that environmental surroundings influence psychological well-being and behavior, and severely under-furnished cells function to magnify the effects of social deprivation.426 research surrounding suicides in prisons have noted that prison characteristics constitute almost half of the variation of distress among inmates who had attempted suicide, highlighting the substantial impact of prison-level factors on compromised mental health.427 affording small personal amenities to incarcerated individuals, such as proper bedding and natural lighting, contributes to more generalized well-being of inmates and overall reduced prison misconduct.428 4. develop alternative disciplinary measures that address the psychological root of an inmate's poor conduct. this could include providing more intensive therapy and vocational training outside of the cell in a consistent routine. access to skills training and preparation for future employment would provide a constructive purpose for inmates to direct the intellectual and creative energies that are suppressed by confinement in supermax housing. access to social activities for inmates, and access to reading material, in-cell programming, and telephone calls can be maintained even if inmates remained segregated from the rest of the prison population. this routine should be maintained for as long as it 428 id. 427 liebling alison. 2006. “the role of the prison environment in prison suicide and prisoner distress.” pp. 16–28 in preventing suicide and other self-harm in prison, edited by dear g. london: palgrave macmillan. 426 coppola, supra note 273. 425 eg rhodes, 452 u.s. 337, at 349. 114 brandeis university law journal 2023-2024, volume 11 is deemed necessary through evaluation by a psychologist. research of brain plasticity has indicated that social engagement induces positive alterations in the neural circuits underlying socio-affective skills such as empathy, cognitive functions, and social behavior that persist throughout the individual’s lifespan.429 facilitating positive social interaction through group therapy and interactive training courses allows for inmates to experience environmental stimulation and develop normal sociable tendencies.430 acknowledging the bidirectional link between cognitive function and social environment in the development of alternative disciplinary measures is key in protecting brain health among inmates and functional reentry into society.431 5. increase the accessibility to enriching activities and group therapy sessions within the general prison population to generate a sense of community and trust between inmates and officers. research indicates that the frequency of prison violence in america is more closely correlated to the manner in which inmates are treated by prison staff than the presence of a minute number of “high-risk” inmates.432 by cultivating an environment of respect as opposed to a skewed hierarchy of power, a safer general prison population can be attained. the current vehicle for achieving respect in maximum security facilities is through repression, and this would be rectified by demonstrating that mentally ill inmates would form bonds of respect through constructive avenues. the availability of work 432 leena kurki & norval morris, the purposes, practices, and problems of supermax prisons, 28 crime and just. 385, 389 (2001). 431 id. 430 coppola, supra note 273. 429 riitta hari et al., centrality of social interaction in human brain function, 88 neuron 181 (2015); sophie valk et al., structural plasticity of the social brain: differential change after socio-affective and cognitive mental training, 3 sci. advances e1700489 (2017). 115 brandeis university law journal 2023-2024, volume 11 and recreational activities have an immense impact on inmates’ mental health, as activity deprivation is linked to depression and aggressive behavior.433 establishing these aspects of functional life within prison walls would decrease hostility between inmates and officers, as well as among inmates themselves. the implementation of this proposal eliminates the need for solitary confinement of mentally ill inmates while establishing a balance between maintaining order and safety within the prison and accommodating the psychological demands of the inmates. current progress towards the limitation and uniform regulation of the use of solitary confinement has proven to be inconsistent, therefore, ongoing dialogue and collaboration with all advocates for and against the unlimited use of solitary confinement must be maintained. 433 tartaro christina, lester david. 2009. suicide and self-harm in prisons and jails. lanham, ma: lexington books. 116 brandeis university law journal 2023-2024, volume 11 the development of privity of contract as the common law standard for product liability: an analysis of winterbottom v. wright, thomas v. winchester, and industrialization harrison sugarman434 this article explores the development of standards of product liability during the market revolution, arguing that jurists adopted the standard of privity of contract to protect manufacturers from the legal consequences of industrialization. this article surveys the history of product liability prior to the market revolution, and then it describes how winterbottom v. wright and thomas v. winchester radically departed from this tradition. this article then analyzes how judges specifically feared the increased volume of liability cases under a strict liability framework that would have arisen from a depersonalized and mechanized economy. the article concludes with parallels between questions surrounding product liability in the market revolution and the present day. i. introduction james mcgreevey, former governor of new jersey, once said, “the arc of american history almost inevitably moves toward greater individual legal rights.”435 since the 1930s, his statement applies to much of american history, but 435 james mcgreevey, james mcgreevey quotes, brainyquote.com, https://www.brainyquote.com/quotes/james_mcgreevey_468732.https://ww w.brainyquote.com/quotes/james_mcgreevey_468732. 434 brandeis university undergraduate, class of 2024. 117 https://www.brainyquote.com/quotes/james_mcgreevey_468732.https://www.brainyquote.com/quotes/james_mcgreevey_468732 https://www.brainyquote.com/quotes/james_mcgreevey_468732.https://www.brainyquote.com/quotes/james_mcgreevey_468732 brandeis university law journal 2023-2024, volume 11 there have also been long periods where legislatures and courts restricted individual rights. for example, american courts dismantled a series of 17th and 18th-century legal privileges during the market revolution (1815-1855). this was a period of unprecedented economic growth, industrialization, and corporatization in the rapidly maturing republic. during these years, the courts particularly targeted product liability, a “condition of being bound to respond because a wrong has occurred… with reference to property, proceeds[, or] yield.”436 under the colonial standard of strict liability, average consumers could have successfully sued for injuries caused by a manufacturer "when neither care nor negligence, neither good nor bad faith, neither knowledge nor ignorance will save [the] defendant.”437 winterbottom v. wright (1842) and thomas v. winchester (1852), two court cases decided within a decade of each other, overturned strict liability and replaced it with a standard of privity of contract. jurists define this concept as “that connection or relationship which exists between two or more contracting parties.”438 in other words, these two cases limited a manufacturer’s duty of care strictly to consumers with whom a contract was agreed. this sudden shift in jurisprudence left scholars of american legal history perplexed as to what caused this departure from precedent. this article argues that judges established privity of contracts to protect manufacturers from the potential legal ramifications of industrialization. this article provides background on the strict liability era, and the two cases that overturned it. it will also connect the factual background of the cases with the two trends, the emergence of 438 id. at 1362. 437 black, supra note 436 at 1591. 436 henry campbell black, black’s law dictionary, 1060, 1374 (4th ed. 1968), https://heimatundrecht.de/sites/default/files/dokumente/black%27slaw4th. pdf. 118 https://heimatundrecht.de/sites/default/files/dokumente/black%27slaw4th.pdf https://heimatundrecht.de/sites/default/files/dokumente/black%27slaw4th.pdf brandeis university law journal 2023-2024, volume 11 a “faceless economy” and dangerous industrial technology, that led judges to legally insulate manufacturers. lastly, the article will establish broader connections between late 19th century product liability standards and modern tort jurisprudence. ii. background prior to winterbottom v. wright, product liability was an obscure field of the law that had hardly changed since its inception. historians have determined that early roman law includes the first mention of product liability as a legal concept.439 laws, such as the twelve tables of 450 bc, presumed that goods purchased by consumers at a fair price should be of a fair quality, and therefore, the manufacturer was liable for any injury the purchaser suffered as a result of the manufacturer’s negligence.440 when rome conquered britain in 43 ad, roman law strongly influenced english common law and continued to prove fundamental long after the fall of the western roman empire. in his summa theologica, st. thomas aquinas — among the foremost western philosophers — defended the virtue of strict liability on the basis that selling a product with a known liability was a sin according to scripture.441 scholars agree that his endorsement contributed to strict liability’s survival throughout the medieval era.442 english colonists imported english common law to the new world, including its understanding of product liability, and it remained foundational into the antebellum period.443 until 1842, american courts 443 id. at 959–960. 442 id. at 958–959. 441 owen, supra note 439 at 958. 440 john c. reitz, a history of cutoff rules as a form of caveat emptor: part ii-from roman law to the modern civil and common law, 37 am. j. comp. law 247, 249 (1989). 439 david g. owen, the evolution of products liability law, 26 rev. litig. 955, 956 (2007). 119 brandeis university law journal 2023-2024, volume 11 upheld this standard of product liability which remained virtually unchanged since antiquity.444 it was in winterbottom v. wright that courts took the first step to dismantle the ancient standard of strict liability. winterbottom, a stagecoach driver, was severely injured when his stagecoach broke down on august 8, 1840.445 an investigation revealed that the carriage broke down because wright, a stagecoach repairman and builder, did not properly maintain it.446 consequently, winterbottom sued wright for damages, and the case went all the way to the court of exchequer, which ultimately ruled in favor of the respondent.447 the court reasoned that wright acted negligently but was not liable for winterbottom’s injuries because wright owed winterbottom no duty of care.448 the court ruled that a manufacturer could only owe a consumer a duty of care within privity of contract; that is, only a well-established contract between parties could, in case of breach, give rise to damages.449 winterbottom and wright did not have a contractual relationship due to the absence of privity between them as consumer and servicer.450 winterbottom worked as a driver for the postmaster-general, and the postmaster-general was, in turn, employed by nathaniel atkinson, a wealthy aristocrat.451 atkinson also employed 451 id. at 109. 450 id. 449 winterbottom v. wright, supra note 445 at 110–116. 448 black, supra note 436 at 267. 447 id; the court of exchequer was one of the four major courts of england prior to the reorganization of the english court system during the late 19th century. the court heard common and natural law cases, especially those relating to financial matters and equity. 446 id. 445 winterbottom v. wright, 110–116, https://sites.la.utexas.edu/judpro/files/2016/02/winterbottom-v.pdf. 444 id. at 960. 120 https://sites.la.utexas.edu/judpro/files/2016/02/winterbottom-v.pdf brandeis university law journal 2023-2024, volume 11 wright to maintain his fleet of carriages.452 hence, wright had no contractual obligations to winterbottom because they did not sign a contract to formally establish any duty of care.453 wright vanished from the historical record after this case, but winterbottom remained handicapped for the rest of his life and did not receive compensation for his injuries.454 ten years later, thomas v. winchester affirmed the legality of winterbottom v. wright’s precedent, with certain exceptions. the facts of the case are as follows: mrs. mary ann thomas became ill in 1849.455 after visiting the doctor, mrs. thomas received a prescription for dandelion extract.456 her husband picked up a dose from dr. foord’s drug store, but immediately after mrs. thomas took the medication, she fell almost fatally ill.457 an investigation discovered that the jar was mislabeled and contained belladonna, a poison that resembles dandelion extract. mr. thomas sued the labeler, an employee of winchester named a. gilbert. gilbert sold the mislabeled belladonna to a distributor named aspinwall, who then sold it to dr. foord.458 the case eventually reached the new york court of appeals in 1852 and the court ruled in favor of thomas.459 the court upheld the legality of privity of contract, but it ruled that the danger and blatancy of winchester’s negligence made it almost tantamount to manslaughter.460 justice ruggles made this argument by first defining manslaughter as “[when] 460 thomas v. winchester, supra note 456. 459 id. 458 id.; daniel breen, supra note 454. 457 id. 456 thomas v. winchester, https://www.nycourts.gov/reporter/archives/thomas_winchester.htm (last visited dec 3, 2023). 455 id. 454 daniel breen, the role of the judge in formulating legal rules, (2021). 453 id. at 110–116. 452 id. 121 https://www.nycourts.gov/reporter/archives/thomas_winchester.htm brandeis university law journal 2023-2024, volume 11 culpable negligence, [an individual] causes the death of another, although without intent to kill.”461 he then included several examples of case law where a court found a pharmacist or chemist guilty of manslaughter due to mislabeling by an employee, improper mixing of chemicals, or any other such act of negligence.462 mrs. thomas' survival of the poisoning shielded him from criminal prosecution, but the court found “no doubt of his liability in a civil action” according to their understanding of equity.463 thus, thomas v. winchester crystalised the precedent of winterbottom v. wright that a manufacturer could only be liable for damages within the privity rule, except in cases where products were “imminently dangerous to human life.”464 iii. connections from the case to the argument this article primarily relies upon two sources of information. the first is a set of legal opinions from the market revolution, winterbottom v. wright and thomas v. winchester. these legal decisions offer the fact patterns or the key facts of a particular legal case, and the court’s reasoning behind each decision. second, this article utilizes scholarly articles that trace the development of anglo-american product liability law, and provide invaluable context and an overview of broad american legal and historical trends. articles written by donald g. gifford, a professor of tort law at the francis king carey school of law, and david g. owen, a professor emeritus at the joseph f. rice school of law support my argument that courts established the privity of contract standard to protect nascent industry from legal repercussions. these articles provide invaluable contextualization and overviews of 464 id.; daniel breen, supra note 454. 463 id. 462 id. 461 id. 122 brandeis university law journal 2023-2024, volume 11 broad legal and historical trends that will help understand the development standards of product liability. thus, these two types of sources create a robust explanation for the switch in standards of product liability. the establishment of the privity rule had a profound impact on american society because it facilitated american industrialization during the second half of the 19th century. to this effect, owen writes, “the privity requirement was an effective instrument of social policy for a nation bent on promoting the development of its infant industries.”465 in other words, american manufacturers were left uninhibited by the fear of product liability litigation.466 this allowed manufacturers to expand in size, develop new technologies, and take risks that contributed to the us’s unparalleled economic supremacy by the beginning of the 20th century.467 gifford best summarizes this development: “[t]he liability exposure of businesses [that] heavily invested in new technologies was almost assuredly substantially reduced. as a result, railroads, mines, and factories flourished. in effect, the change from a strict liability to a negligence-based regime created a ‘subsidy’ for railroads and other newly emerging industries.”468 the decision to establish the privity of contract standard represented a massive departure from the tradition of formalism in american jurisprudence.469 formalist political and 469 michael willrich, the making of the u.s. constitution, part ii, (2022). 468 id. at 30–31. 467 donald g. gifford, technological triggers to tort revolutions: steam locomotives, autonomous vehicles, and accident compensation, 30 (2017), https://digitalcommons.law.umaryland.edu/fac_pubs/1590. 466 id. 465 owen, supra note 439 at 963. 123 https://digitalcommons.law.umaryland.edu/fac_pubs/1590 brandeis university law journal 2023-2024, volume 11 legal theorists of the early republic, such as alexander hamilton and other federalists (and later whigs), maintained that judges “[had] no active resolution whatsoever.”470 law, in the formalist tradition, evolves by applying a precedent to different fact patterns, which leads to the gradual “discovery of new law.”471 however, as american historian morton horowitz writes, the market revolution (the period of economic, technological, and political growth during the antebellum period) “reflected the overthrow of eighteenth-century pre-commercial and anti-developmental common law values.”472 this included the anachronistic judicial paradigm of formalism. in replacement of formalism, legal instrumentalism, which advanced that the law could be directed toward a collective social good, began to dominate american courts, including the ny court of appeals.473 according to accredited sources, any discussion about american product liability, privity of contract, and thomas v. winchester would be fundamentally incomplete without discussing winterbottom v. wright at length.474 although the case was adjudicated under english law, applying the principles of winterbottom v. wright to american jurisprudence is essential because the ny court of appeals adopted the court of exchequer’s approach, exemplifying the concurrent socioeconomic and legal challenges great britain and the us faced as a consequence of industrialization and economic expansion. 474 daniel breen, supra note 454; gifford, supra note 467 at 50; owen, supra note 439 at 960. 473 michael willrich, supra note 469. 472 morton j. horwitz, the rise of legal formalism, 19 am. j. leg. hist. 251, 251 (1975). 471 id. 470 alexander hamilton, no. 78, in the federalist 401, 409 (by alexander hamilton ed. et al. eds., gideon ed. 2001). 124 brandeis university law journal 2023-2024, volume 11 iv. analysis a. the technology-expansion fear judges also feared that strict liability left manufacturers vulnerable to litigation resulting from the expansion of the market of manufactured goods.475 the market revolution and industrialization increased the overall efficiency of production and distribution which dramatically lowered prices for consumers.476 the lower cost of finished products allowed more consumers to engage in the market and created a middle class of high-paid workers and managers who could now afford these products.477 because they were part of the emerging consumer class themselves, judges keenly realized that the combination of these factors would produce more injuries inflicted by defective products.478 other businesses also constituted a large share of the manufactured goods market, and the amount of product liability lawsuits coming from the private sector dramatically rose in the decades prior to 1842.479 faulty machinery caused 63 percent of injuries in the textile industry—among the largest aspects of american industry—and many of these injured people successfully sued the manufacturers.480 judges understood that, in the words of gifford, the “darker side to this unprecedented expansion of technology and industry,” would engulf american industry if strict liability was not modified or replaced.481 even more, judges feared the consequences of an expanding market with increasingly dangerous products and 481 id. 480 id. at 18. 479 id. at 19. 478 gifford, supra note 467 at 31. 477 michael willrich, supra note 469. 476 michael willrich, legal instrumentalism in the age of the market revolution, (2022). 475 gifford, supra note 467 at 17. 125 brandeis university law journal 2023-2024, volume 11 machinery. lewis mumford, a foremost american historian and sociologist of the 20th century, described the industrial revolution as “a transition from the ‘ecotechnic’ era, characterized by wood, water, and handicrafts, to a new ‘paleotechnic’ world of steam, iron, and factories.”482 essentially, the industrial revolution represented a shift in both the materials and methods of manufacturing, moving away from craftsmanship toward industrialization. the industrial machines that dominated this new paleotechnic era provided “much greater [power] than that supplied during the pre-industrial era by humans and animals and, as a result, the severity of the injury was likely to be much greater.”483 market revolution judges presumed that the increased severity of injuries caused by paleotechnic technology would increase the likelihood that a consumer would seek legal action against a negligent manufacturer.484 a trend in tort law vindicated this belief because, before 1842, mechanized transportation (railroads and steamships) generated a disproportionate amount of litigation, and the severity of the injuries incentivized victims to sue tortfeasors.485 judges found the idea of mechanized transportation companies being litigated to bankruptcy especially likely, and disturbing, because of their risk, profitability, and economic importance.486 chief justice lemuel shaw, in the massachusetts supreme court’s ruling on farwell v. boston & worcester railroad company (1842), wrote that the protection of the nascent railroad industry “is an action of new impression in our courts, and involves a principle of great importance.”487 in that case, a railroad engineer sued 487 farwell v. boston & w. r. r. corp, 55, https://advance.lexis.com/api/document?collection=cases&id=urn:contentit 486 michael willrich, supra note 469. 485 gifford, "technological triggers," 10. 484 id. at 19. 483 id. 482 id. 126 https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831.https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831 brandeis university law journal 2023-2024, volume 11 his employer for damages he suffered from the negligence of a fellow employee.488 shaw understood that affirming the plaintiff’s suit would set a precedent that transportation and heavy industry must assume the financial risk associated with the dangers of their business, so shaw elected to err on the side of business and pen his infamous “assumption of risk” doctrine.489 judges, compelled by concerns about severity and frequency, decided to act decisively in favor of installing privity of contract. the ruling in winterbottom v. wright illustrates the fear of judges at a time when technology, specifically mechanized transportation, was expanding and becoming more innovative. justice byles provided, in his dissent, the example of a recent railroad accident in france to support his argument: “for example, every one of the sufferers by such an accident as that which recently happened on the versailles railway, might have his action against the manufacturer of the defective axle. so…every person affected, either in person or property, by the accident, might have an action against the manufacturer, and perhaps against every seller also of the iron.”490 he embedded the key presumption of unreasonableness in this example to illuminate the absurdity of winterbottom’s case.491 his usage of the phrase “every one” suggests that the railroad accident resulted in broad and severe damages.492 paying remedies for so many severe injuries would have bankrupted 492 id. 491 id. 490 winterbottom v. wright, supra note 445 at 111. 489 id. 488 michael willrich, supra note 469. em:3wbv-v4h0-00kr-f49d-00000-00&context=1516831.https://advance .lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4 h0-00kr-f49d-00000-00&context=1516831. 127 https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831.https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831 https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831.https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831 https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831.https://advance.lexis.com/api/document?collection=cases&id=urn:contentitem:3wbv-v4h0-00kr-f49d-00000-00&context=1516831 brandeis university law journal 2023-2024, volume 11 the manufacturer of the defective axle. he warned that “alarming consequences” would have followed for the economy if the court ruled for winterbottom and defended strict liability.493 the opinion in thomas v. winchester voices a concern for unfamiliar products, and this illustrates the issues of the technology expansion theory.494 ruggles wrote that belladonna and extract of dandelion “ may on careful examination be distinguished the one from the other by those who are well acquainted with these articles.”495 in a pre-industrial world, someone consuming either belladonna or dandelion extract would likely not have possessed the expertise necessary to differentiate between the two substances themselves or immediate access to expert supervision. here, ruggles recognized that consumers buying and using unfamiliar products was an inevitable consequence of consumerism’s upsurge.496 prior to industrialization, consumer expertise was a final safeguard against injuries, but the court reaffirmed the privity of contract to reduce manufacturer liability from consumer unfamiliarity. however, ruggles somewhat accounted for the severity of injuries caused by modern technology through the “imminent danger” exception. pre-industrial pharmacists could not make enough of a drug, with sufficient concentrations of chemicals, to accidentally kill a consumer through their negligence.497 however, new machinery allowed pharmacists to increase the quantity and quality of their products, so they faced increased legal risk through producing better drugs.498 even though the court decided to penalize winchester, the 498 id. 497 daniel breen, supra note 454. 496 id. 495 id. 494 thomas v. winchester, supra note 456. 493 id. 128 brandeis university law journal 2023-2024, volume 11 exception of “imminent danger” leaves ample space for manufacturers of possibly hazardous products to defend themselves from product liability lawsuits.499 b. the faceless economy theory through analysis of the relevant literature and sources, it became evident that judges worried that depersonalizing the relationship between the consumer and the manufacturer would create additional product liability lawsuits. for the purposes of clarity, i shall refer to the aforementioned process as the faceless economy theory. before 1820, gifford concluded that few product liability lawsuits were argued because most consumers personally knew the artisan who made their product; they were often relatives, friends, or personally connected.500 this connection further disincentivized the consumer from filing a product liability lawsuit.501 litigation remains an inherently acrimonious and arduous process that destroys any personal relationship between the parties. industrialization fundamentally depersonalized the relationship between the manufacturer and the consumer, who started to see manufacturers as “anonymous…large industrial enterprises that had access to significant resources to pay for the costs of the accidental injuries they had inflicted.”502 judges sensed the change in public opinion toward manufacturers and the subsequent increased prosperity to sue them for negligence. the privity standard theoretically remedied this issue by rehumanizing litigation because an injured party could only sue a manufacturer with whom he shared a contract. this implies a certain familiarity between both parties, and therefore a desire to avoid any acrid litigation. 502 id. 501 id. at 11. 500 gifford, supra note 467 at 9, 11. 499 id. 129 brandeis university law journal 2023-2024, volume 11 the opinion in winterbottom v. wright demonstrates the court of exchequer’s conviction in the faceless economy theory. lord james scarlett abinger, who wrote the main opinion for the court, maligns that “if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action.”503 he foresaw that ruling in favor of winterbottom, based on the old standard of strict liability, would have “le[t] in …an infinity of actions.”504 abinger’s language implies that any individual with the slightest injury from the accident would try to sue wright, a man they likely had no personal connection with. the subsequent “infinity of actions” would financially ruin wright’s business and swamp the courts with seemingly frivolous litigation.505 therefore, the court would prevent these opportunistic litigants by ruling for winterbottom. the nysc’s decision in thomas v. winchester demonstrates the faceless economy theory because it ruled in favor of the plaintiff and against privity of contract, based on the exception of “imminent danger.”506 chief justice charles ruggles, the author of the court’s unanimous opinion, upheld the legality of the decision on wright v. winterbottom. however, he stated that the court ruled against the defendant because “the case …stand[s] on a different ground.”507 unlike the negligence of a repairman failing to maintain a carriage or a “horse be[ing] defectively shod by a smith[,] … [t]he death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label.”508 508 id. 507 thomas v. winchester, supra note 456. 506 daniel breen, supra note 454. 505 id. 504 id. 503 winterbottom v. wright, supra note 445 at 112. 130 brandeis university law journal 2023-2024, volume 11 the court ruled in favor of the plaintiff for “considerations of public policy or safety.”509 otherwise, manufacturers would have faced no civil legal liability for virtual manslaughter. this decision held manufacturers more culpable for injuries arising from their negligence.510 however, it established such a high threshold for the “imminent danger” exception that it shielded manufacturers from the opportunistic litigants that judges feared.511 iv. conclusion judges stimulated industrial growth during the market revolution by reducing manufacturers’ legal liability to consumers. the nysc overturned its previous ruling on thomas v. winchester with its 1916 decision on macpherson v. buick motor company, and legal scholars view this as the beginning of modern product liability law; the case established the standard of reasonability, but a series of product liability cases further reestablished the ancient standard of strict liability.512 justice benjamin cardozo of the ny court of appeals astutely realized that the economy had become so industrialized and integrated by the early 20th century that consumers almost exclusively purchased products from manufacturers they did not know personally.513 the distribution of burden that privity of contract placed on consumers by that point was so unacceptable that even conservative formalists, like carodozo, knew that the faceless economy theory outlived its utility.514 in a broader context, the analysis of the shift in product liability standards assesses the distribution of risk 514 id. 513 id. 512 daniel breen, old rules in modern settings: how the rule of law provides for change, even as it strives for consistency, (2021). 511 id. 510 daniel breen, supra note 454. 509 id. 131 brandeis university law journal 2023-2024, volume 11 associated with technological progress. new forms of industries and products unavoidably generate accidents and injuries, so the legal system ought to establish order and assign blame accordingly.515 keeping pace with a rapidly globalizing and digitizing world will continue to bedevil contemporary jurists, as questions of industrialization frustrated them during the industrial revolution.516 516 gifford, supra note 467 at 5. 515 michael willrich, supra note 469. 132 brandeis university law journal 2023-2024, volume 11 the following articles are written in: the chicago manual of style 17th edition 133 brandeis university law journal 2023-2024, volume 11 immigrant labor and civil rights in the united states peyton gillespie517 immigration has been the subject of intense political debate in the united states for decades. it is consistently a high policy priority for presidential administrations, a subject of endless stalled action from the u.s. congress, and an issue that ultimately fuels mass anti-immigrant rhetoric such as the idea that immigrants take away domestic jobs. this paper addresses the intersection of immigration and labor in the u.s. and refutes such rhetoric as inaccurate and grossly misinformed. in reality, immigrant laborers, regardless of legal status, are indispensable contributors to the u.s. economy and endure arbitrary u.s. immigration laws and policies that enable repeated violations to their fundamental human rights. i. context and guiding questions immigrant laborers constitute a substantial demographic in the u.s. labor market. according to a 2022 report by the u.s. bureau of labor statistics, immigrants make up about 18.1 percent of the u.s. civilian labor force.518 that same year, over 500,000 various types of work visas were issued by the u.s. government to immigrants seeking work in the country.467 the same report indicates that, as of 2022, the u.s. labor force participation rate of foreign-born adults was higher than that of native-born adults: 65.9 percent of all workforce-eligible (16-years and older) foreign-born adults participate in the workforce, compared to just 61.5 percent of all workforce-eligible native-born adults.519 thus, analyzing the 519 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 518 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 517 brandeis university undergraduate, class of 2025. 134 brandeis university law journal 2023-2024, volume 11 nexus of immigration and labor is critical to providing a better understanding of the u.s. economy and its labor market. as will be discussed subsequently, the interplay of these fields is marked by inconsistent applications of legal protections for the fundamental human rights of immigrants. accordingly, this article seeks to answer the following questions: 1. how do immigrant laborers with and without legal status contribute to and interact differently with the u.s. economy? 2. what is the process for becoming an immigrant worker in the u.s.? how are immigrant laborers in the u.s. without legal status treated differently in the legal system and by employers as opposed to immigrant laborers who have legal status? 3. what implications do these differences have on the fundamental human rights entitled to every person within the jurisdiction of the u.s.? to begin answering these questions, we first need a clearer understanding of the specific ways in which immigrants interact with the economy and labor market. ii. interactions with the economy immigrant workers in the u.s. are frequently the subject of harsh assertions about “stealing jobs” from native-born workers.520 a quote from a report by the american civil liberties union (aclu) encapsulates and addresses this assertion directly: “contrary to popular belief, immigrants do not take away jobs from american workers. instead, they create new jobs by forming new businesses, spending their incomes on american goods and services, paying taxes, and 520 american civil liberties union, immigrants and the economy, 1-2. 135 brandeis university law journal 2023-2024, volume 11 raising the productivity of u.s. businesses.”521 in the same report, the aclu contextualizes the contributions of immigrants in terms of tax payments: each year, immigrants (with and without status) pay over $90 billion in taxes and only receive $5 billion in welfare benefits. per person and household, immigrants receive significantly less in welfare benefits than u.s. citizens while simultaneously paying their fair share and contributing substantially to the u.s. economy.522 there is also significant evidence to indicate that one of the only reasons the social security and medicare programs continue to obtain the necessary funding to stay afloat is because of immigrant laborers. a 2018 report from the social security administration articulated this, noting that: “increasing average annual total net immigration by 100,000 persons improves the long-range actuarial balance by about 0.08 percent of taxable payroll.”523 this 0.08 percent represents a substantial sum, especially when multiplied by the hundreds of thousands of immigrants who are issued work permits every year, plus undocumented workers. it is important to understand in the context of these contributions, which will be explained later in this paper, as it helps to show that immigrants are not reaping benefits or experiencing treatment that is proportional to their contributions to the economy. finally, the specific jobs that immigrants fill in the labor market provide additional context for understanding their treatment in the workplace and the crucial role they play in the u.s. economy. a 2015 report by the panel of experts from the national academy of sciences observed that “...immigrants appear to be taking low-skilled jobs that natives are either not 523 the social security administration, the 2018 annual report of the board of trustees of the federal old-age and survivors insurance and federal disability insurance trust funds, 181. 522 sherman, immigrants contribute greatly to u.s. economy, despite administration’s “public charge” rule rationale, 2. 521 american civil liberties union, immigrants and the economy, 1-2. 136 brandeis university law journal 2023-2024, volume 11 available or unwilling to take.”524 the vast majority of immigrant laborers (with and without status) in the u.s. are employed in low-skill positions and make up a substantial portion of the workforce in numerous industries. according to research conducted by the center on budget and policy priorities, industries with large percentages of immigrant workers include farming, fishing, and forestry (36 percent), grounds and maintenance (36 percent), textile and apparel manufacturing (29 percent), food manufacturing (27 percent), hotels (27 percent), and construction (24 percent).525 these industries, critical to the function of the u.s. economy, would undoubtedly collapse without the support and contributions of immigrant laborers. iii. the process the legal process for becoming an immigrant laborer in the u.s. depends largely on the individual’s immigration status, what their country of origin is, whether they have parents or a spouse with u.s. citizenship, whether they have obtained a job prior to arriving, and other factors. these specifics won’t be covered in this article. however, for the purposes of this article, it is important to understand that each individual seeking to obtain status and work in the u.s. is additionally subject to “grounds of inadmissibility,” or categorizations defined by the government that disqualify certain individuals from working in the u.s. entirely. these grounds of inadmissibility are often arbitrary and unfairly enforced, making the process to become immigrant laborers incredibly difficult in the first place for too many people.. 525 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 524 national academies press, the integration of immigrants into american society, 6. 137 brandeis university law journal 2023-2024, volume 11 one such ground of inadmissibility is the “public charge” rule, which was originally established in the late nineteenth century and has been continually modified to this day.472 the rule gives the department of homeland security (responsible for immigration enforcement) the ability to “determine that a noncitizen is likely at any time to become a public charge if the noncitizen is likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.”526 many immigrants who come to the u.s., especially those fleeing persecution, natural disaster, and economic downturn, arrive with few resources and require aid. the nature of the public charge rule thus allows the government unfair and arbitrary enforcement power to turn away a large number of immigrants at their discretion. it is hard to imagine that this practice is fair, given that so many millions of americans access welfare benefits from the government (including food and economic assistance) as a result of economic downturn, environmental disasters, and more—in other words, millions of americans are public charges themselves. in fact, it is widely believed that congress continues to implement the rule in order to actively discourage migrant workers from coming to the u.s. seeking employment, a clear violation of fundamental human rights and dignity. another example of the arbitrary policies immigrants encounter in the u.s. pertains to asylum seekers. individuals seeking to be granted asylum in the u.s. (which, per the immigration and nationality act, is granted to individuals fleeing from persecution based on one or more grounds of race, religion, nationality, political opinion, or membership in a particular social group) have one year from their time of entry into the u.s. to file their asylum application. asylum 526 federal registrar, public charge ground of inadmissibility, 1. 138 brandeis university law journal 2023-2024, volume 11 applications are lengthy filings, often reaching hundreds or sometimes thousands of pages of detailed information, documents, and testimony about the individual’s story. such applications take time to file, and in the meantime, individuals applying for asylum are not legally permitted to work in the u.s.; in fact, they must wait until six months after their asylum application is filed to be eligible for an employment authorization document, according to the immigration and nationality act. there seems to be no good reason for this rule. it is one of the many examples in which immigration laws make the legal process for becoming an immigrant laborer in the u.s. so needlessly difficult and arbitrary. the above processes, of course, do not pertain to immigrants who are in the u.s. without lawful status, yet still seek to engage in employment opportunities to provide for themselves and their families. these individuals often work “under the table,” meaning they work without benefits, proper pay, and often in dangerous working conditions.527 many of the aforementioned low-skill industries in which immigrant laborers are employed involve more hazardous working conditions than an average office job environment. the nature of these positions combined with the already vulnerable legal state of the undocumented immigrant workers breeds conditions for unfair treatment and abuse on the part of their employers. iv. u.s. labor law and civil rights the u.s. constitution applies to all people within the jurisdiction of the united states, regardless of legal immigration status. crucially, its language consistently 527 sherman, immigrants contribute greatly to u.s. economy, despite administration’s “public charge” rule rationale, 2. 139 brandeis university law journal 2023-2024, volume 11 references “people” or “peoples” as opposed to “citizens.”528 while certain fundamental rights are established in the constitution, the right to work is not one of them. however, despite the lack of a constitutional “right to work,” laborer rights are still applicable to all workers, whether they are citizens, undocumented people, or permanent residents. according to the aclu, “federal labor and employment laws generally apply to all employees regardless of an individual's immigration status.”529 a report from the university of chicago clearly states that all immigrant laborers, regardless of legal status, share in the right to minimum wage and overtime pay, breaks and tips, and protections under health, safety, and anti-discrimination laws.530 not only are all immigrants protected under the constitution as having certain fundamental rights, they are also entitled to protections as laborers as a matter of statute. given the context that has thus far been established, many undocumented workers routinely face exploitation, dangerous working conditions, wage theft, and physical and emotional abuse.531 the same report from the university of chicago notes that 37 percent of undocumented immigrant laborers receive less than minimum wage and 76 percent of immigrant laborers experience wage theft.532 in addition, the report reveals: “immigrant workers experience 300 more workplace fatalities and 61,000 more workplace injuries 532 american civil liberties union, how do labor laws apply to immigrants?, 1. 531 american civil liberties union, how do labor laws apply to immigrants?, 1. 530 garcia quijano, workplace discrimination and undocumented first-generation latinx immigrants, 4. 529 american civil liberties union, how do labor laws apply to immigrants?, 1. 528 the national archives, the constitution of the united states of america. 140 brandeis university law journal 2023-2024, volume 11 annually than native-born workers…”533 this research empirically supports these claims. the vast majority of immigrant laborers work in low-skilled industries with more dangerous working conditions and experience high levels of exploitation. neither u.s. labor nor immigration laws prevent immigrants from serving as independent contractors, exposing them to even more possibilities of exploitation; this is especially true in cases of the many immigrant laborers who work in private residences.534 for example, the report from the university of chicago goes on to confirm that many of the 22 percent of undocumented immigrants working in private homes, the majority of whom are women, experience exploitative and inhumane working conditions: “in addition to unregulated pay, they are often victims of physical and mental abuse, ranging from rape and verbal abuse to 12-hour work days with little to no breaks and no overtime pay.”535 despite the fact that each person in the u.s. is entitled to fundamental rights and labor rights, current laws fail to protect immigrant workers equally, irrespective of their legal status, and, in fact, enable their ill-treatment. this ill-treatment raises the question: if immigrant workers enjoy the same fundamental laborer rights as native-born people in the u.s., aren’t they entitled to legal remedies for that mistreatment? technically, the answer is “yes”—but there’s a catch. any undocumented immigrant who takes a case to court, especially pertaining to work-related 535 american civil liberties union, how do labor laws apply to immigrants?, 1. 534 american civil liberties union, how do labor laws apply to immigrants?, 1. 533 american civil liberties union, how do labor laws apply to immigrants?, 1. 141 brandeis university law journal 2023-2024, volume 11 rights, becomes vulnerable to deportation. according to the university of chicago report: “an undocumented worker bringing a dispute to court risks punishment if found to have used false documentation in obtaining work. for example, an undocumented worker unfairly terminated from a job is not actually entitled to back pay or reinstatement because such remedies would directly violate the irca. anti-retaliation provisions make it unlawful for employers to use undocumented status to terminate employment in retaliation of a worker complaint. however, if employer retaliation does occur, immigration and customs enforcement (ice) can still follow up on a report and attempt to deport the undocumented worker.”536 here exists an absurd and apparent legal paradox: immigrant workers can seek legal redress for workplace discrimination, yet they're exposed to serious legal repercussions if they dare to take action to obtain said redress. this treatment of immigrant workers, enshrined in law, unequivocally makes a mockery of american legal principles of fairness, consistency, and rationality. v. conclusions and recommendations: in what follows, this article proposes some policy solutions which address the issues pertaining to violations of fundamental human rights and dignity throughout this article. to start, there must be a substantive effort by government leaders to curb rhetoric and ideology that mischaracterizes immigrants and their contributions to the economy. especially 536 american civil liberties union, how do labor laws apply to immigrants?, 1. 142 brandeis university law journal 2023-2024, volume 11 in the u.s., where major decisions are made by representative bodies composed of elected officials, shaping public opinion is a critical component of influencing policy outcomes. the executive branch plays an immensely important role in the shaping of public opinion and must be strategic about employing methods for both 1) acting to influence public opinion on particular issues and 2) exercising executive power to achieve policy outcomes. this, in turn, may lay the groundwork for eliminating arbitrary policies like unreasonable limits on work permit applications and rules like the “public charge” rule in the name of fundamental human rights and dignity. an excellent example of this proposal in action is the obama administration’s implementation of deferred action for childhood arrivals (daca). according to the migration policy institute, roughly one-third of the over 11 million noncitizens currently in the u.s. were brought here as children (commonly known as “dreamers”).537 the issuance of daca by the executive branch provided work permits and temporary protection from deportation for these young immigrants. in a 2012 speech to the american public following daca’s implementation, president obama seized the opportunity to provide a compassionate perspective on the immigration debate: “these are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. they are americans in their heart, in their minds, in every single way but one: on paper. they were brought to this country by their parents -sometimes even as infants -and often have no idea that they’re undocumented until 537 migration policy institute, profile of the unauthorized population us, 1-2. 143 brandeis university law journal 2023-2024, volume 11 they apply for a job or a driver’s license, or a college scholarship.”538 although much of daca was ultimately struck down by a federal court in texas, its implementation provides a key example of how the executive branch may take action to address policy issues. such actions are crucial in the face of an increasingly polarized congress and effective in working to reshape public opinion. presidential administrations have the ability to create fairer conditions for immigrants and vouch for their rights. this is crucial for implementing effective immigration policy in the face of a deadlocked legislature and increases in anti-immigrant rhetoric.539 additionally, the federal government must ensure that labor laws are being equally enforced across the u.s. with the intent to protect all workers, regardless of status, in the name of safety, fairness, and equality. special attention must be paid to workers in low-skill industries because, as mentioned previously, these laborers are the most susceptible to exploitation and abuse. moreover, this is especially true for independent contractors who, for example, work in private homes and are at even greater risk of experiencing mistreatment.540 ensuring that labor law protections are enforced and apply equally to all people is not just humanly decent, but it is enshrined in the law and entitled to each and every person within the jurisdiction of the u.s. constitution. lastly, immigrants must have equal access to fair legal processes and legal remedies. arbitrary policies like unreasonable limits on work permit applications and rules like 540 white house office of the press secretary, remarks by the president on immigration, all. 539 united states department of labor, foreign-born workers: labor force characteristics 2022, 1. 538 white house office of the press secretary, remarks by the president on immigration, all. 144 brandeis university law journal 2023-2024, volume 11 the “public charge” rule must cease. they are violations of fundamental human rights and dignity. immigrants should not feel the need to refrain from seeking legal relief because they are worried about the threat of deportation. hence, another proposal, stemming from the interest of fundamental rights and dignity, is that all courts in the u.s. should adopt an amnesty rule that legally protects personal information from agencies like ice when individuals bring suits, as is their legal right. upholding policies that place a burden on an individual’s right to seek legal remedies is entirely against american values. finally, the same rights of citizens should unquestionably apply to immigrants in terms of receiving back pay when unfairly terminated from a job. the assertion that immigrant workers are “taking our jobs” is an ignorant mischaracterization that not only invalidates the vital contributions of immigrants to the u.s. economy, but also their lived experiences as human beings seeking a better life. immigrants are an essential cornerstone of the livelihoods of all people in the u.s., especially in a country built by, for, and of immigrants. upon examination, it is apparent that u.s. immigration laws and policies not only make the legal process of obtaining work unnecessarily difficult, but also don’t adequately protect immigrants. rather, these laws actively discourage immigrants from seeking legal relief, essentially depriving them of their fundamental rights. the federal government must ensure laws and policies are consistent with upholding the equal treatment of all people in the u.s., regardless of status. 145 brandeis university law journal 2023-2024, volume 11 bibliography foreign-born workers: labor force characteristics 2022. united states department of labor. garcia quijano, josselyn a. "workplace discrimination and undocumented first-generation latinx immigrants." the university of chicago, 2023. crown family school of social work, family, and practice, https://crownschool.uchicago.edu/student-life/advocates -forum/workplace-discrimination-and-undocumented-fi rst-generation-latinx#:~:text=rights%20and%20protect ions%20of%20the%20undocumented%20worker&text =undocumented%20workers%20are%20entitled%20to, employment%20rights%2c%e2%80%9d%20n.d.). "how do labor laws apply to immigrants?" american civil liberties union, january 9, 2009. https://www.aclu.org/documents/how-do-labor-laws-ap ply-immigrants#:~:text=federal%20labor%20and%20e mployment%20laws,religion%2c%20sex%20or%20nat ional%20origin. "immigrants and the economy." american civil liberties union, march 12, 2002. https://www.aclu.org/documents/immigrants-and-econo my#:~:text=contrary%20to%20popular%20belief%2c %20immigrants,the%20productivity%20of%20u.s.%2 0businesses. "profile of the unauthorized population: united states." the migration policy institute, 2023. https://www.migrationpolicy.org/data/unauthorized-im migrant-population/state/us. "public charge ground of inadmissibility." the federal registrar. national archives and records administration, september 9, 2022. https://www.federalregister.gov/documents/2022/09/09/ 2022-18867/public-charge-ground-of-inadmissibility. 146 https://crownschool.uchicago.edu/student-life/advocates-forum/workplace-discrimination-and-undocumented-first-generation-latinx#:~:text=rights%20and%20protections%20of%20the%20undocumented%20worker&text=undocumented%20workers%20are%20entitled%20to,employment%20rights%2c%e2%80%9d%20n.d https://crownschool.uchicago.edu/student-life/advocates-forum/workplace-discrimination-and-undocumented-first-generation-latinx#:~:text=rights%20and%20protections%20of%20the%20undocumented%20worker&text=undocumented%20workers%20are%20entitled%20to,employment%20rights%2c%e2%80%9d%20n.d https://crownschool.uchicago.edu/student-life/advocates-forum/workplace-discrimination-and-undocumented-first-generation-latinx#:~:text=rights%20and%20protections%20of%20the%20undocumented%20worker&text=undocumented%20workers%20are%20entitled%20to,employment%20rights%2c%e2%80%9d%20n.d https://crownschool.uchicago.edu/student-life/advocates-forum/workplace-discrimination-and-undocumented-first-generation-latinx#:~:text=rights%20and%20protections%20of%20the%20undocumented%20worker&text=undocumented%20workers%20are%20entitled%20to,employment%20rights%2c%e2%80%9d%20n.d https://crownschool.uchicago.edu/student-life/advocates-forum/workplace-discrimination-and-undocumented-first-generation-latinx#:~:text=rights%20and%20protections%20of%20the%20undocumented%20worker&text=undocumented%20workers%20are%20entitled%20to,employment%20rights%2c%e2%80%9d%20n.d https://crownschool.uchicago.edu/student-life/advocates-forum/workplace-discrimination-and-undocumented-first-generation-latinx#:~:text=rights%20and%20protections%20of%20the%20undocumented%20worker&text=undocumented%20workers%20are%20entitled%20to,employment%20rights%2c%e2%80%9d%20n.d https://www.aclu.org/documents/how-do-labor-laws-apply-immigrants#:~:text=federal%20labor%20and%20employment%20laws,religion%2c%20sex%20or%20national%20origin https://www.aclu.org/documents/how-do-labor-laws-apply-immigrants#:~:text=federal%20labor%20and%20employment%20laws,religion%2c%20sex%20or%20national%20origin https://www.aclu.org/documents/how-do-labor-laws-apply-immigrants#:~:text=federal%20labor%20and%20employment%20laws,religion%2c%20sex%20or%20national%20origin https://www.aclu.org/documents/how-do-labor-laws-apply-immigrants#:~:text=federal%20labor%20and%20employment%20laws,religion%2c%20sex%20or%20national%20origin https://www.aclu.org/documents/immigrants-and-economy#:~:text=contrary%20to%20popular%20belief%2c%20immigrants,the%20productivity%20of%20u.s.%20businesses https://www.aclu.org/documents/immigrants-and-economy#:~:text=contrary%20to%20popular%20belief%2c%20immigrants,the%20productivity%20of%20u.s.%20businesses https://www.aclu.org/documents/immigrants-and-economy#:~:text=contrary%20to%20popular%20belief%2c%20immigrants,the%20productivity%20of%20u.s.%20businesses https://www.aclu.org/documents/immigrants-and-economy#:~:text=contrary%20to%20popular%20belief%2c%20immigrants,the%20productivity%20of%20u.s.%20businesses https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/us https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/us https://www.federalregister.gov/documents/2022/09/09/2022-18867/public-charge-ground-of-inadmissibility https://www.federalregister.gov/documents/2022/09/09/2022-18867/public-charge-ground-of-inadmissibility brandeis university law journal 2023-2024, volume 11 "remarks by the president on immigration." the white house. office of the press secretary, june 15, 2012. https://obamawhitehouse.archives.gov/the-press-office/ 2012/06/15/remarks-president-immigration. sherman, arloc. "immigrants contribute greatly to u.s. economy, despite administration’s “public charge” rule rationale." center on budget and policy analysis. august 15, 2019. https://www.cbpp.org/research/immigrants-contribute-g reatly-to-us-economy-despite-administrations-public-ch arge-rule. the 2018 annual report of the board of trustees of the federal old-age and survivors insurance and federal disability insurance trust funds. united states social security administration. "the constitution of the united states." nationalarchives.gov. the national archives, september 21, 2022. https://www.archives.gov/founding-docs/constitution. waters, mary. 2015. the integration of immigrants into american society. washington, dc: national academic press. https://nap.nationalacademies.org/read/21746/chapter/8. 147 https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-president-immigration https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule https://www.archives.gov/founding-docs/constitution https://nap.nationalacademies.org/read/21746/chapter/8 brandeis university law journal 2023-2024, volume 11 “decisions we do not like”: flag desecration case law and the culture war jack granahan541 the years following the reagan administration were defined by a newfound american cultural conservatism. the first amendment’s protection of flag desecration as a form of symbolic speech was one of the most divisive issues in american politics, and it comprised a major facet of the cultural conflict between liberals and conservatives.542 although the supreme court issued several conservative rulings on cultural issues at this time, the decisions of texas v. johnson (1989) and united states v. eichman (1990) did not follow this trend. this paper analyzes the extent to which the supreme court in general, and the court’s conservative wing in particular, repudiated culture war pressures to uphold constitutional civil liberty. i. introduction during the 1992 republican national convention (rnc), presidential candidate and traditionalist conservative stalwart pat buchanan gave a speech in which he described the political division of the united states as “a cultural war, as critical to the kind of nation we will one day be as was the cold war itself,” and called upon republican voters to “take back [their] culture, and take back [their] country.”543 according to buchanan, this marked an increased political relevance of cultural issues, which positioned traditionalist, nationalist, and 543 collins, transforming america, 171. 542 henderson, “today’s symbolic speech dilemma,” 534. 541 brandeis university undergraduate, class of 2026. 148 brandeis university law journal 2023-2024, volume 11 religious conservatives against countercultural, secular, and multicultural liberals.544 over three decades later, america still appears to be in the midst of a culture war. in the 2022 u.s. midterm elections, three prominent cultural issues—abortion, gun policy, and parental oversight of education—held special significance in the eyes of voters, with over half of registered voters considering these issues to be “very important.”545 the shift of american politics toward a focus on the cultural issues buchanan described can be traced back ten to twenty years prior to his rnc speech. following the conservative backlash against the counterculture movement during the nixon era, american politics experienced a liberalization under gerald ford and jimmy carter’s presidencies. shortly thereafter, the presidency of ronald reagan ushered in a period of increased conservatism, religious faith, and american patriotism. increased reverence for the american flag was indicative of the reagan era resurgence of patriotism—one of the most prominent facets of the culture war.546 conversely, desecration (usually by burning) of the american flag became a symbol for some of reagan’s political opponents.547 with few exceptions, the holdings of cases heard by the late burger court and early rehnquist court overwhelmingly took traditionalist stances on cultural issues. in the 1986 case of bowers v. hardwick, which upheld georgia’s criminal statute prohibiting sodomy, chief justice warren burger appealed to traditional perceptions of sexuality. more specifically, he pointed to the blackstonian view of homosexuality as an “infamous crime against nature,” stating 547 goldstein, flag burning and free speech, 44. 546 hunter, culture wars, 147. 545 schaeffer and green, “key facts about u.s. voter priorities ahead of the 2022 midterm elections.” 544 ibid, 171. 149 brandeis university law journal 2023-2024, volume 11 that “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”548 although it upheld roe v. wade’s federal protection of reproductive rights, the supreme court’s 1992 holding in planned parenthood v. casey also rolled back many of roe’s provisions and created additional obstacles for those seeking abortions.549 in his concurrence, chief justice william rehnquist compared abortion to the other traditional vice of bigamy, “with which entire societies of reasonable people disagree.”550 the supreme court’s traditionalist streak during and after the peak of the reagan era was indicative of a “spiteful kulturkampf” (or cultural clash), motivated by religious and national conservative values.551 the supreme court’s decisions in texas v. johnson and united states v. eichman are unique in that, unlike in cases regarding other cultural issues, they rejected the application of cultural conservatism to their jurisprudence in favor of protecting the constitutional rights of americans. ii. history of flag customs although reverence for the american flag is usually seen as ubiquitous in the united states, this was not the case for much of the country’s history. in the decades following the american revolution, even the united states military did not fight under the flag, and the “demand for flags was so low that no private company manufactured them until after 1845.”552 in fact, it was not until the civil war that the american flag received its current reputation, as it was union veterans of the 552 goldstein, flag burning and free speech, 1. 551 schulman, “kulturkampf and spite,” 62. 550 ibid. 549 planned parenthood v. casey, 505 u.s. 833, 120 l. ed. 2d 674, 112 s. ct. 2791 (1992). 548 bowers v. hardwick, 478 u.s. 186, 92 l. ed. 2d 140, 106 s. ct. 2841 (1986). 150 brandeis university law journal 2023-2024, volume 11 civil war who founded the flag protection movement (fpm) in the 1890s.553 this movement was a conglomeration of organizations that sought to prevent the flag from being desecrated, commercialized for profit, or otherwise disrespected. the first state law banning flag desecration was enacted in south dakota, in 1897.554 by 1932, every state had a ban on flag desecration.555 in the first half of the 20th century, approximately two dozen individuals were prosecuted for flag desecration, most of whom committed such acts in protest of american entry into world war i.556 however, only one of these prosecutions, that of new york clergyman bouck white in 1916, involved the burning of the flag, which is generally considered the gravest offense against the flag.557 flag desecration, particularly flag burning, made a resurgence in the late 1960s, following the deployment of american troops in the vietnam war. this protest was accompanied by a spike in popularity for the anti-establishment counterculture movement.558 in response, congress passed the flag protection act of 1968, a federal statute that banned “publicly mutilating, defacing, defiling, burning, or trampling upon” the american flag.559 shortly after the passage of this law, the american flag became, as described by a 1970 time story, “the emblem of disunity.”560 many cultural liberals saw the desecration of the flag as a symbol of protest, whereas their conservative counterparts saw the flag itself as a powerful symbol of traditional american culture.561 the conservative 561 ibid, 23. 560 goldstein, flag burning and free speech, 24. 559 h.r.10480 90th congress (1967-1968). 558 goldstein, flag burning and free speech, 23. 557 goldstein, flag burning and free speech, 27. 556 guenter, the american flag, 1777-1924, 167–169. 555 guenter, the american flag, 1777-1924, 144. 554 codified law 22-9-1. 553 ibid, 7. 151 brandeis university law journal 2023-2024, volume 11 reagan revolution of the 1980s coincided with the increased flying of the american flag.562 as reagan-era american patriotism eclipsed the counterculture movement’s skepticism of the idealist american vision, so too did reverence for the flag eclipse disdain for the flag. this is perhaps why so many americans had such visceral reactions to flag burnings, including the one by gregory lee johnson on august 22, 1984. iii. background of texas v. johnson the 1984 rnc in dallas, texas, was met with left-wing political demonstrations against president reagan. one particular protest was carried out by the revolutionary communist party (rcp), an anti-capitalist organization that “advocated violent revolution in the united states,” particularly in light of the rise of reagan-era nationalist conservatism.563 at the end of the protest, rcp member gregory lee johnson set an american flag, in his possession, on fire.564 johnson’s disdain towards the american flag was certainly a product of his reaction to cultural conservatism. in his own words, johnson saw “a need to condemn and repudiate” reagan’s “belligerent american patriotism” by “burning the flag of the empire.”565 johnson also compared dallas, which had “flags draped all over the place,” to “a modern nuremberg rally.”566 johnson was convicted under texas’s flag desecration law and sentenced to one year in prison and a $2,000 fine.567 he subsequently appealed his case to the texas supreme court, 567 taylor, “the protection of flag burning as symbolic speech and the congressional attempt to overturn the decision,” 1477. 566 ibid. 565 johnson, gregory lee johnson interview. 564 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 563 goldstein, flag burning and free speech, 44. 562 hunter, culture wars, 147. 152 brandeis university law journal 2023-2024, volume 11 which struck down the state’s law and vacated johnson’s conviction.568 when texas appealed to the u.s. supreme court, famed civil liberties attorney william kunstler defended johnson. kunstler’s defense hinged upon the first amendment to the constitution, which states that “congress shall make no law [...] abridging the freedom of speech.”569 in previous cases, however, the supreme court had ruled that speech can be restrained when it is “likely to produce a clear and present danger of a serious substantive evil that rises far and above public inconvenience, annoyance, or unrest.”570 kunstler’s argument explained that flag desecration, while controversial and inflammatory, did not produce a clear and present danger.571 kunstler cited west virginia state board of education v. barnette, a 1943 supreme court ruling that held students could not be legally compelled to recite the pledge of allegiance to the american flag in their classrooms.572 the barnette decision specifically held that mandating respect for the flag “cannot be justified as a means of meeting a ‘clear and present danger’ to national unity,” with justice robert jackson famously opining that “compulsory unification of opinion achieves only the unanimity of the graveyard.”573 according to kunstler, barnette and johnson shared the same premise, and if the government “can’t order you to salute the flag,” it also “can’t order you to do all these obeisances with relation to the flag,” such as not burning it.574 in addressing chief justice william rehnquist, who was “easily 574 texas v. johnson. 573 west virginia state board of education v. barnette, 319 u.s. 624, 87 l. ed. 1628, 63 s. ct. 1178 (1943). 572 ibid. 571 texas v. johnson. 570 terminiello v. chicago, 337 u.s. 1, 93 l. ed. 2d 1131, 69 s. ct. 894 (1949). 569 constitution annotated. 568 ibid. 153 brandeis university law journal 2023-2024, volume 11 the most conservative member” on the bench at the time, kunstler stated that the predicament created by johnson’s burning of the flag was exactly what the first amendment was written to protect.575 kunstler reasoned that “to hear things or to see things that we hate test[s] the first amendment more than seeing or hearing things that we like [...] it wasn’t designed for things we like.”576 district attorney kathi drew, who argued on behalf of the state of texas, pushed back against kunstler’s reasoning. while being questioned by justice antonin scalia, drew stated that the “preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest,” and the flag desecration law was crucial to preventing a “breach of the peace.”577 drew also attempted to frame the american flag’s status as one transcending private property ownership in favor of being “this nation’s cherished property,” to which justice scalia responded, “i never thought that the flag i owned is your flag.”578 this was the first indication of scalia’s hesitancy to rule on behalf of traditional patriotic values in johnson, despite his conservative approach to jurisprudence. he was not convinced that the collective interest of the state outweighed the personal agency of the individual burning the flag. iv. politics of the rehnquist court for william kunstler, arguing before the supreme court in texas v. johnson was an uphill battle. at the time of this case, the judicial branch of the federal government was not immune to the culture wars. in his two terms, president reagan appointed more federal judges than any other american president, and the supreme court was no exception. three 578 ibid. 577 ibid. 576 texas v. johnson. 575 “biography: chief justice william rehnquist.” 154 brandeis university law journal 2023-2024, volume 11 conservative supreme court justices—anthony kennedy, sandra day o’connor, and antonin scalia—were appointed by reagan, while the nixon-appointed william rehnquist had been elevated to the position of chief justice in 1986.579 additionally, the ford-appointed john paul stevens, while known for his more liberal tendencies, fell squarely within the conservative wing of the supreme court on questions of american patriotism.580 stevens, an outspoken world war ii veteran, gave an emotionally charged response to kunstler’s argument that flag desecration constituted free expression. during these exchanges with kunstler, stevens reportedly “turned red and was clearly quite angry.”581 the reliably centrist byron white similarly had a history of ruling conservatively on flag use cases, having previously joined rehnquist’s dissent in the 1974 case of spence v. washington. in spence, the supreme court held that adorning an american flag with peace symbols was a constitutionally protected form of free speech.582 this left three liberal justices—harry blackmun, william brennan, and thurgood marshall—for kunstler to rely on, compared to the six justices who would ostensibly be eager, as evidenced by their past decisions regarding cultural issues, to reinstate the conviction of a man who had committed, what many had deemed to be, the most egregious offense against the american flag.583 v. the johnson decision on june 21, 1989, the supreme court handed down its decision in texas v. johnson. in an unexpected rebuke of culture war conservatism, the ruling was 5-4 in favor of 583 ibid, 98. 582 ibid, 99. 581 ibid, 95. 580 goldstein, flag burning and free speech, 106–107. 579 hunter, culture wars, 251–252. 155 brandeis university law journal 2023-2024, volume 11 gregory lee johnson. as expected, rehnquist, o’connor, stevens, and white sided with the state of texas and voted to reinstate johnson’s conviction for flag desecration. anthony kennedy and antonin scalia, however, defected from their conservative colleagues to side with the liberal wing of the court in opposition to the legal prohibition of flag desecration.584 justice william brennan wrote the opinion for the majority, in which he applied several legal standards to texas’s flag desecration law.585 first, brennan clarified that johnson’s burning of the american flag, especially outside of a political convention in protest of a political action or entity, constitutes “expressive conduct” of an “overtly political nature.”586 though johnson himself had uttered no words in the process of setting the flag alight, he had, in brennan’s view, made a powerful enough non-verbal statement for the first amendment to be applicable.587 brennan also discredited kathi drew’s testimony on behalf of the state of texas under the o’brien test. the o’brien test stipulates that, for the government to prohibit an act of symbolic speech, there must be a “legitimate governmental interest” in doing so that “is unrelated to restricting expression.”588 this test originated from o’brien v. united states, a 1968 case that held that the first amendment did not protect draft card burning because such an act, while expressive, interfered with the state interest of raising a military force via conscription.589 therefore, to uphold the texas statute would 589 taylor, “the protection of flag burning as symbolic speech and the congressional attempt to overturn the decision,” 1479–1480. 588 henderson, “today’s symbolic speech dilemma,” 550–551. 587 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 586 goldstein, flag burning and free speech, 103. 585 ibid. 584 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 156 brandeis university law journal 2023-2024, volume 11 require the state to prove that flag desecration impedes the government’s ability to further its interests. upon analyzing the purported interest of the state of texas in preventing a breach of the peace, the supreme court found that johnson’s burning of the flag did not increase the risk of such an event, nor did texas’s legal counsel even attempt to prove such a risk.590 brennan’s opinion also challenged the supposed importance of the texas law in maintaining “nationhood and national unity,” which the supreme court found to be an insufficient interest, due to the inherently expressive nature of opposing such a form of patriotism.591 brennan wrote that the motive behind the texas law was instead to prohibit an action that an audience could take “serious offense” to, a concern that brennan countered by pointing out that the “bedrock principle underlying the first amendment” is that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”592 vi. justice kennedy’s concurrence justice anthony kennedy’s concurrence in texas v. johnson was perhaps the most powerful indicator of the case’s rejection of the culture war. agreeing with brennan’s definition of flag burning as a form of constitutionally protected political expression, kennedy emphasized that “the hard fact is that sometimes we must make decisions we do not like. we make them because they are right, right in the sense that the law and the constitution, as we see them, compel the result.”593 justice kennedy, a reagan-appointed conservative, made no secret of his opposition to flag desecration. however, he also firmly 593 henderson, “today’s symbolic speech dilemma,” 573. 592 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 591 ibid, 642. 590 birkett, “flag desecration statutes after texas v. johnson,” 640. 157 brandeis university law journal 2023-2024, volume 11 argued that “the flag is constant in expressing beliefs americans share, beliefs in law and peace and that freedom which sustains the human spirit,” and that “it is poignant but fundamental that the flag protects those who hold it in contempt.”594 despite his own disgust with the practice of flag burning, he acknowledged that the law is not to be solely based on his own personal views, and that the first amendment’s protection of free expression had been settled long before gregory lee johnson burned the flag. vii. dissenting opinions chief justice william rehnquist, joined by justice sandra day o’connor and justice byron white, wrote the primary dissenting opinion. the chief justice’s dissent rejected the overtly legal angle to flag desecration law taken by the majority, in favor of an emotionally charged exaltation of the american flag as a unique symbol deserving special legal protection.595 most importantly, chief justice rehnquist disagreed with the premise that the flag represented “simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas.”596 instead, he claimed that “millions and millions of americans regard it with an almost mystical reverence” and a “uniquely deep awe and respect” that would create a legitimate interest under the o’brien test.597 sentiment like that of the chief justice was well at home in the 1980s; as a result of the culture war, the american flag was “monopolized” as a “symbol of legitimacy” for the conservative movement.598 among an american populace that 598 hunter, culture wars, 147. 597 goldstein, flag burning and free speech, 106. 596 ibid. 595 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 594 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 158 brandeis university law journal 2023-2024, volume 11 had elected ronald reagan president twice in a row in landslide victories, it is likely that very few individuals would not take offense to the destruction of the american flag.599 following this surge of american patriotism, justice john paul stevens wrote a separate dissenting opinion that decried the majority’s belief that the flag was but an expendable symbol of a political ideology. a testament to justice stevens’ military service and immense patriotism, this dissent drew heavily on military iconography, stating that the flag, which had motivated “the philippine scouts who fought at bataan and the soldiers who scaled the bluff at omaha beach,” was “itself worthy of protection from unnecessary desecration.”600 in contrast with the conservatives of the majority, stevens, a justice with moderate conservative-to-liberal tendencies, heavily incorporated cultural conservatism in his decision.601 viii. reactions to johnson the supreme court’s ruling in texas v. johnson, which invalidated all state laws prohibiting flag desecration, received nearly instantaneous backlash. according to a washington, d.c. dispatch from the day following the decision, “citizens across america were outraged by the supreme court decision yesterday ruling that flag burning is not a crime.”602 some 602 hunter, culture wars, 28. 601 there is academic skepticism that cultural conservative assumptions are able to fully explain stevens’ dissent. i am grateful to professor daniel breen of the brandeis university legal studies department for pointing out that justice stevens’ use of cultural conservatism is not the most important or heaviest part of this descent. to read more on why this skepticism is warranted, see the words of one of his former clerks: “the least popular dissent,” scotusblog (blog), may 4, 2010, https://www.scotusblog.com/2010/05/the-least-popular-dissent/. 600 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 599 goldstein, flag burning and free speech, 108. 159 https://www.scotusblog.com/2010/05/the-least-popular-dissent/ brandeis university law journal 2023-2024, volume 11 opponents of the decision went as far as “gather[ing] on the steps of the high court… to burn a mock supreme court justice’s robe.”603 on the night of the decision, peter jennings told abc evening news viewers that “there are very few supreme court decisions which we can imagine evoking such a gut reaction as this one,” while a usa today poll taken two days after the johnson decision found that “69 percent [of americans] supported a constitutional amendment” prohibiting flag desecration.604 president george h.w. bush stated that the supreme court’s decision to effectively legalize the desecration of a “banner of freedom” was “wrong, dead wrong.”605 meanwhile, the house of representatives voted 411-15 to condemn the ruling and the senate voted 97-3 to express “profound disappointment” with the supreme court.606 although the johnson decision struck down all state-level flag desecration statutes, it did not preclude the federal government from acting on the issue. both houses of congress quickly moved to legally circumvent johnson, with jack b. brooks (d-tx) leading the charge in the house of representatives and joseph r. biden (d-de) in the senate.607 after initial arguments over whether to introduce a constitutional amendment or a more feasible federal statute, representative brooks and senator biden each proposed a bill to amend the flag protection act of 1968 in their respective chambers. to avoid a challenge similar to johnson, the flag protection act of 1989 amended the 1968 act to criminalize flag desecration in the name of any ideology. the flag 607 ibid, 115. 606 goldstein, flag burning and free speech, 114. 605 henderson, “today’s symbolic speech dilemma,” 564. 604 goldstein, flag burning and free speech, 108–112. 603 ibid, 28. 160 brandeis university law journal 2023-2024, volume 11 protection act of 1989 passed in both houses, before president bush allowed it to pass without signing it.608 ix. united states v. eichman tests the johnson decision the immense public backlash to the johnson ruling may suggest that the decision was a regrettable mistake by the supreme court. this possibility was soon eliminated when the flag protection act of 1989 received its first test. on the day of the law’s codification into federal law, gregory lee johnson and seven others burned american flags in protest of the law in washington, d.c. and seattle, washington.609 all eight were charged with violating the 1989 law, though charges against johnson were dropped after witness testimony confirmed that his flag had not ignited.610 just as supporters and opponents of the flag protection act had planned, the case was appealed to the supreme court, with the case being submitted as united states v. eichman (johnson’s fellow activist, shawn eichman, was listed as the primary appellee).611 after almost a year of the public relations firestorm that had resulted from the johnson decision, it certainly would not have been surprising for any of the five justices who had voted with the majority—especially a conservative justice who had only tentatively sided with johnson—to change their mind on the flag desecration issue. nevertheless, on june 11, 1990, the supreme court once again ruled 5-4 that the flag desecration ban was unconstitutional, and every justice voted the same as in texas v. johnson.612 william brennan’s majority opinion in eichman was nearly identical to his johnson opinion, slamming the flag protection act as “suppression of free 612 goldstein, flag burning and free speech, 206. 611 united states v. eichman, 496 u.s. 310, 110 l. ed. 2d 287, 110 s. ct. 2404 (1990).” 610 ibid, 175. 609 goldstein, flag burning and free speech, 174. 608 text h.r.2978 101st congress (1989-1990). 161 brandeis university law journal 2023-2024, volume 11 expression.”613 john paul stevens’s eichman dissent also mirrored his johnson dissent, claiming that the federal government, like texas’s state government, “has a legitimate interest in protecting the symbolic value of the american flag.”614 since the supreme court’s decision in eichman, the focus of supporters of a flag desecration ban has shifted towards passing a constitutional amendment to circumvent johnson and eichman. such an amendment would supersede the first amendment to prohibit flag desecration, exempting the ban from the o’brien test. the most recent of these attempts was in 2006 when orrin hatch (r-ut) introduced a senate resolution proposing an amendment to ban flag desecration, which would ultimately fall one vote short of the two-thirds majority needed to pass in the senate.615 x. conclusion shortly before his 1990 retirement from the supreme court, william brennan expressed his disappointment with the supreme court’s shift towards cultural conservatism but also stated firmly that he was “not discouraged to the point of giving up [...] after all, kennedy and scalia joined me on the flag-burning case, for god’s sake.”616 in the words of gregory lee johnson, “being able to criticize the government is at the heart of the first amendment—without that, the first amendment really means nothing.”617 this was the view of flag desecration taken by five members of the supreme court in texas v. johnson and united states v. eichman, not the least surprising of whom were anthony kennedy and antonin 617 johnson, gregory lee johnson interview. 616 goldstein, flag burning and free speech, 101. 615 s.j.res.12 109th congress (2005-2006). 614 ibid. 613 united states v. eichman, 496 u.s. 310, 110 l. ed. 2d 287, 110 s. ct. 2404 (1990). 162 brandeis university law journal 2023-2024, volume 11 scalia. for these two conservative, reagan-appointed justices to join the liberal wing of the supreme court in affirming a constitutional civil liberty, not once, but twice, was no accident. by choosing to rule in favor of gregory lee johnson and later shawn eichman, et. al., kennedy and scalia were able to set their own conservative leanings aside to rule in a way that they believe most appropriately interpreted the first amendment. to paraphrase kennedy, the two made a decision they did not like, but in doing so made the right decision, compelled by the law and the constitution.618 thus, as the supreme court becomes more motivated by partisan politics, perhaps the sitting justices should heed the words of anthony kennedy and make more decisions they do not like. 618 texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). 163 brandeis university law journal 2023-2024, volume 11 bibliography birkett, william c. “flag desecration statutes after texas v. johnson a legislative solution to a political problem.” southern illinois university law journal 14, no. 3 (1990 1989): 625–56. collins, robert m. transforming america: politics and culture in the reagan years. new york: columbia university press, 2007. congress.gov. “h.r.2978 101st congress (1989-1990): flag protection act of 1989.” legislation, october 28, 1989. 10/28/1989. https://www.congress.gov/bill/101st-congress/house-bil l/2978. congress.gov. “s.j.res.12 109th congress (2005-2006): a joint resolution proposing an amendment to the constitution of the united states authorizing congress to prohibit the physical desecration of the flag of the united states.” legislation, june 27, 2006. 06/27/2006. https://www.congress.gov/bill/109th-congress/senate-jo int-resolution/12/. constitution annotated: analysis and interpretation of the u.s. constitution. “first amendment.” accessed march 9, 2023. https://constitution.congress.gov/constitution/amendme nt-1/. goldstein, robert justin. flag burning and free speech: the case of texas v. johnson. landmark law cases & american society. lawrence, kan: university press of kansas, 2000. govtrack.us. “h.r.10480 90th congress (1967-1968): flag protection act of 1968.” legislation, july 5, 1968. 07/05/1968. https://www.govtrack.us/congress/bills/90/hr10480/text. guenter, scot m. the american flag, 1777-1924: cultural 164 https://www.congress.gov/bill/101st-congress/house-bill/2978 https://www.congress.gov/bill/101st-congress/house-bill/2978 https://www.congress.gov/bill/101st-congress/house-bill/2978 https://www.congress.gov/bill/109th-congress/senate-joint-resolution/12/ https://www.congress.gov/bill/109th-congress/senate-joint-resolution/12/ https://www.congress.gov/bill/109th-congress/senate-joint-resolution/12/ https://constitution.congress.gov/constitution/amendment-1/ https://constitution.congress.gov/constitution/amendment-1/ https://constitution.congress.gov/constitution/amendment-1/ https://www.govtrack.us/congress/bills/90/hr10480/text https://www.govtrack.us/congress/bills/90/hr10480/text brandeis university law journal 2023-2024, volume 11 shifts from creation to codification. rutherford, n.j: fairleigh dickinson university press, 1990. henderson, michael a. “today’s symbolic speech dilemma: flag desecration and the proposed constitutional amendment comment.” south dakota law review 41, no. 3 (1996): 533–73. hunter, james davison. culture wars: the struggle to define america. new york: basicbooks, 1991. johnson, gregory lee. gregory lee johnson interview. interview by author. soundcloud audio, april 1, 2021. https://soundcloud.com/user-565827568/gregory-lee-jo hnson-interview. pbs newshour. “biography: chief justice william rehnquist,” september 4, 2005. https://www.pbs.org/newshour/politics/law-july-dec05-r ehnquist_09-04. schaeffer, katherine, and ted van green. “key facts about u.s. voter priorities ahead of the 2022 midterm elections.” pew research center. accessed april 22, 2023. https://www.pewresearch.org/short-reads/2022/11/03/ke y-facts-about-u-s-voter-priorities-ahead-of-the-2022-mi dterm-elections/. schulman, alex. “kulturkampf and spite: the rehnquist court and american ‘theoconservatism.’” law and literature 22, no. 1 (2010): 48–75. scotusblog. “the least popular dissent,” may 4, 2010. https://www.scotusblog.com/2010/05/the-least-populardissent/. south dakota legislature. “codified law 22-9-1.” accessed november 17, 2023. https://sdlegislature.gov/statutes/22-9-1. taylor, r. neil iii. “the protection of flag burning as symbolic speech and the congressional attempt to overturn the decision: texas v. johnson case note.” 165 https://soundcloud.com/user-565827568 https://soundcloud.com/user-565827568/gregory-lee-johnson-interview. https://soundcloud.com/user-565827568/gregory-lee-johnson-interview. https://www.pbs.org/newshour/politics/law-july-dec05-rehnquist_09-04 https://www.pbs.org/newshour/politics/law-july-dec05-rehnquist_09-04 https://www.pbs.org/newshour/politics/law-july-dec05-rehnquist_09-04 https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/ https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/ https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/ https://www.pewresearch.org/short-reads/2022/11/03/key-facts-about-u-s-voter-priorities-ahead-of-the-2022-midterm-elections/ https://www.zotero.org/google-docs/?broken=tpinhe https://www.scotusblog.com/2010/05/the-least-popular-dissent/ https://www.scotusblog.com/2010/05/the-least-popular-dissent/ https://www.zotero.org/google-docs/?broken=oi4x5g https://sdlegislature.gov/statutes/22-9-1 https://sdlegislature.gov/statutes/22-9-1 brandeis university law journal 2023-2024, volume 11 university of cincinnati law review 58, no. 4 (1990 1989): 1477–1508. cases cited bowers v. hardwick, 478 u.s. 186, 92 l. ed. 2d 140, 106 s. ct. 2841 (1986). planned parenthood v. casey, 505 u.s. 833, 120 l. ed. 2d 674, 112 s. ct. 2791 (1992). terminiello v. chicago, 337 u.s. 1, 93 l. ed. 2d 1131, 69 s. ct. 894 (1949). texas v. johnson, 491 us 397 (1989). texas v. johnson, 491 u.s. 397, 105 l. ed. 2d 342, 109 s. ct. 2533 (1989). united states v. eichman, 496 u.s. 310, 110 l. ed. 2d 287, 110 s. ct. 2404 (1990). west virginia state board of education v. barnette, 319 u.s. 624, 87 l. ed. 1628, 63 s. ct. 1178 (1943). 166 brandeis university law journal 2023-2024, volume 11 the psychedelic surge and its threats to native american communities leora karoll619 the psychedelic substances market is preparing to outpace the legal cannabis market in the united states by 2027. the country’s federal policies are not prepared to protect native americans in the potential acquisition of their traditional resources such as peyote (lophophora williamsii), a small and spineless cactus that contains psychoactive alkaloids. through case studies of biopiracy instances in the united states and around the world, this paper demonstrates the vulnerability of indigenous knowledge and resources and advocates for its protection as the popularity of psychedelics surges. these cases prove how easily and recklessly indigenous knowledge and resources are exploited, barring indigenous people from accessing them due to new patent rights, laws, or scarcity. president biden pledged to incorporate indigenous knowledge in federal research and policymaking in 2022, but due to the lack of a tribal consultation model and international agreements signed to protect native americans, the administration risks enabling further exploitation of these invaluable resources in the united states. i. introduction america is surging into psychedelic research. an unprecedented amount of funding is being allocated to psychedelic research to bring promising discoveries to the field of mental health.620 however, to many native americans, the 620 “johns hopkins center for psychedelic and consciousness research,” johns hopkins medicine, accessed november 9, 2023, 619 brandeis university undergraduate, class of 2024. 167 brandeis university law journal 2023-2024, volume 11 powerful healing properties of the psychoactive plant peyote have been known and used in religious ceremonies for thousands of years.621 as more research is done, policymakers and more than half of american voters begin to wake up to the wealth of benefits that many currently illegal substances may bring to american society.622 although exciting to many, this phenomenon causes concern for many traditional peyote users. many believe peyote should remain a closed practice, and staunchly oppose genetic manipulation of the plant and commercialization of what many native americans consider an “ancestor and a living relative.”623 even more pressing is the threat of biopiracy, the act of taking knowledge and genetic resources from indigenous communities without consent or compensation.624 companies and individuals have historically used united states patent law to gain the sole right to produce and distribute medical plants that have long been part of the traditional knowledge of indigenous people. the legalization of psychedelics has the potential to improve countless american lives; however, numerous protections need to be established to protect native american sovereignty over their traditional resource. the united states has signed the united nations declaration on the rights of indigenous peoples 624 john reid, “biopiracy: the struggle for traditional knowledge rights,” american indian law review 34 (2009). 623 louis sahagun, “legalization efforts spur ‘peyote crisis’; as cities move to allow psychedelic plants, some native americans cry foul.,” los angeles times, may 17, 2020. 622 catherine ho, “majority of u.s. voters support therapeutic use of psychedelic drugs,” san francisco chronicle, july 13, 2023, https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-the rapeutic-use-18197873.php. 621 james d. muneta, “peyote crisis confronting modern indigenous peoples: the declining peyote population and a demand for conservation,” american indian law journal 9, no. 1 (december 23, 2020), 139. https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-researc h. 168 https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-therapeutic-use-18197873.php https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-therapeutic-use-18197873.php https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-research https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-research brandeis university law journal 2023-2024, volume 11 (undrip), but has yet to meaningfully ratify it. in doing so, the united states would be obligated to prioritize native american voices by improving its tribal consultation model by establishing free, prior, and informed consent (fpic) standards. in addition to undrip, the united states must sign and uphold international agreements such as the nagoya protocol to protect the rights of native americans. led by emerging medical studies funded by the united states national institutes of health625 and the united states department of veterans affairs, a 21st century term, “psychedelic renaissance,” has been coined to describe this new period of acceptance of psychedelics.626 psychedelics are psychoactive substances that are either lab-made or naturally occurring in plants. peyote, methylenedioxy-methamphetamine (mdma), ayahuasca, psilocybin, and lysergic acid diethylamide (lsd) are common psychedelic drugs.627 consumption of these drugs generally does not lead to dependence or addiction.628 from 2007 to 2020, 105 registered clinical trials took place around the world examining the use of psychedelic drugs.629 notably, johns hopkins medicine 629 joshua s kurtz et al., “the use of psychedelics in the treatment of medical conditions: an analysis of currently registered psychedelics 628 nichols, “psychedelics,” 264–355. 627 david e. nichols, “psychedelics,” pharmacological reviews 68, no. 2 (february 3, 2016): 264–355, https://doi.org/10.1124/pr.115.011478. 626 “correa, bergman applaud house-passage of their amendment pushing va to study impact of psychedelics on veterans: united states congressman lou correa of california,” congressman correa, july 27, 2023, https://correa.house.gov/news/press-releases/correa-bergman-applaud-house -passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelicson-veterans. 625 brian s. barnett, sloane e. parker, and jeremy weleff, “united states national institutes of health grant funding for psychedelic-assisted therapy clinical trials from 2006–2020,” international journal of drug policy 99 (january 2022): 103473, https://pubmed.ncbi.nlm.nih.gov/34624734/. 169 https://doi.org/10.1124/pr.115.011478 https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans https://pubmed.ncbi.nlm.nih.gov/34624734/ brandeis university law journal 2023-2024, volume 11 received a federal grant of nearly $4 million to research the impacts of psilocybin630 on tobacco addiction in 2021.631 a breakthrough study by johns hopkins (2022) found that psilocybin relieved symptoms of major depressive disorder for up to a month in adults, and a follow-up study proved that benefits lasted up to a year for some participants.632 in 2010, the journal of psychopharmacology found that 83 percent of formerly treatment-resistant patients who underwent two mdma treatments were cured of ptsd.633 a long-term follow-up study found the positive results to be stable for 3.5 years.634 in response to the promising results of these studies, the united states congress unanimously passed an amendment to the military construction, veterans affairs, and related agencies appropriations bill in 2023 to encourage the united states department of veterans affairs to utilize federal funding for research of psychedelic therapies to help treat veterans suffering from ptsd.635 a growing proportion of americans report using psychedelic drugs, and 53 percent of users say they used it therapeutically.636 fifty-six percent of united states voters also express support for federal regulators to approve the use of psychedelics for prescription use, 636 ho, “voters support therapeutic use.” 635 congressman correa “applaud house-passing amendment.” 634 krediet et al., “psychedelics treatment of ptsd,” 385–400. 633 mdma is also known as ecstasy, a synthetic stimulant and psychedelic drug; erwin krediet et al., “reviewing the potential of psychedelics for the treatment of ptsd,” international journal of neuropsychopharmacology 23, no. 6 (2020): 385–400, https://doi.org/10.1093/ijnp/pyaa018. 632 natalie gukasyan et al., “efficacy and safety of psilocybin-assisted treatment for major depressive disorder: prospective 12-month follow-up,” journal of psychopharmacology 36, no. 2 (2022): 151–58, https://doi.org/10.1177/02698811211073759. 631 johns hopkins medicine “psychedelic research.” 630 psilocybin is a psychedelic chemical compound naturally occurring in some species of fungi. studies in the american drug trial registry,” cureus, september 14, 2022, https://doi.org/10.7759/cureus.29167. 170 https://doi.org/10.1093/ijnp/pyaa018 https://doi.org/10.1177/02698811211073759 https://doi.org/10.7759/cureus.29167 brandeis university law journal 2023-2024, volume 11 according to a survey by the uc berkeley center for the science of psychedelics.637 as more studies provide fruitful findings, the psychedelic substances market is projected to rapidly expand, from $2 billion in 2020 and expected to reach $10.75 billion by 2027.638 these studies display the increased readiness of the american medical community, government, and general public to accept the legality of psychedelics. ii. peyote in native american communities although the medical community in the united states may only begin to accept the benefits of psychedelic remedies, they have long been understood by native americans. herbal medicines and psychedelics such as peyote have been used for thousands of years by native americans as part of their medicinal and spiritual practices and rituals; carbon dating proves that peyote was used 6,000 years ago at an archaeological site in texas.639 however, many tribes further claim that peyote has been used by them since time immemorial.640 peyote is often ingested during a night-long ceremony shared by a community involving singing, praying, drumming, and communication with a creator or some other metaphysical entity.641 members sit in a tipi or other ceremonial structure facing a crescent-shaped altar with a fire. there are four elements to the ceremonies, including praying, singing, 641 peter n. jones, “the native american church, peyote, and health: expanding consciousness for healing purposes,” contemporary justice review 10, no. 4 (2007): 411–25, https://doi.org/10.1080/10282580701677477, 415. 640 fannie kahan, “the struggle for peyote,” in a culture’s catalyst (university of manitoba press, 2016), https://doi.org/10.1515/9780887555084-007. 639 muneta, “peyote crisis,” 139. 638 phelps, “investment in psychedelics.” 637 ho, “voters support therapeutic use.” 171 https://doi.org/10.1080/10282580701677477 https://doi.org/10.1515/9780887555084-007 brandeis university law journal 2023-2024, volume 11 ingestion of peyote, and quiet contemplation.642 ceremonies are usually called by a tribe to pray for the healing of a sick person or to give thanks for being cured.643 additionally, ceremonies take place to heal other problems or to pray for a loved one who is away at school or in the military.644 according to personal anecdotes, the revelations experienced through these ceremonies can lead to forgiveness, the alleviation of physical and emotional illness, and bonding with others in the community.645 as peyote offers both religious, emotional, and physical healing, it has helped countless native americans recover from life challenges such as substance abuse, mental illness, homelessness, poverty, and food insecurity.646 the tradition of the peyote ceremony strengthens communities through a shared intergenerational ritual, not only by connecting individual community members but also by linking generations through a common experience. losing this ritual endangers the wellness of individuals, the strength and continuity of their communities, and their religious freedom. however, with the arrival of settlers from the west, this tradition became vulnerable. european conquerors and their descendants have long been critical of peyote and its religious uses by indigenous people. when the spanish conquistadors arrived on the land in 1492, they tried to eradicate the plant entirely.647 as the natives reported visiting god when using peyote, the spanish identified it as a threat to the priesthood of their catholic 647 michael pollan, “chapter 4: mescaline,” how to change your mind, directed by alison ellwood and lucy walker, 2022, netflix. 646 muneta, “peyote crisis,” 172–173. 645 jones, “native american church,” 415. 644 jones, “native american church,” 415. 643 jones, “native american church,” 415. 642 jones, “native american church,” 415. 172 brandeis university law journal 2023-2024, volume 11 faith.648 in 1620, the roman catholic church deemed peyote “an evil to be rooted out in the new world.”649 during the mexican inquisition, the plant was labeled the “diabolical root” and was a “heretical perversity opposed to the purity and integrity of our holy catholic faith.”650 from the start of western colonization of the land, indigenous rights to peyote have been imperiled. after thousands of years of native american use of peyote, congress passed the indian religious crime code of 1883, enforcing the imprisonment and withholding of government rations from anyone in possession of peyote.651 the legislation stated that “dances and so-called religious ceremonies, shall be considered ‘indian offenses’... cognizable by the court of indian offenses.”652 upon losing the ability to legally practice these traditional and spiritual rituals, the alienation of native americans and their cultures became codified in law. this law forced these practices to move underground out of threat of persecution. it fragmented the passing down of indigenous knowledge from one generation to the next, severing a connection between past and present. this infringement of indigenous rights to peyote fractured identity, sovereignty, community connection, spirituality, healing, and freedom.653 as of the 1994 amendment of the american indian religious freedom act (airfa), native american church of north america (nacna) members alone are legally allowed to use peyote for solely religious purposes.654 the potential mainstream legalization of the plant raises concerns for many 654 muneta, “peyote crisis,” 139. 653 muneta, “peyote crisis,” 140. 652 muneta, “peyote crisis,” 140. 651 muneta, “peyote crisis,” 140. 650 pollan, “mescaline.” 649 muneta, “peyote crisis,” 139. 648 pollan, “mescaline.” 173 brandeis university law journal 2023-2024, volume 11 indigenous people, especially in the wave of decriminalization of other psychedelics such as psilocybin. colorado became the first state to legalize psilocybin for therapeutic uses in 2019, and oregon followed in 2020.655 based on data from the trajectory of cannabis legalization, it is projected that most states will have passed legislation legalizing psychedelics by 2033–2037.656 nonprofit organizations such as decriminalize nature have emerged in recent years, aiming to grant the healing properties of natural hallucinogens including peyote accessible to all.657 some native americans, including navajo spiritual leader steven benally, beg outsiders to “leave peyote alone” and ask, “is that too much to ask?”658 benally claims that “the spiritual healing power peyote offers is only attainable through native american protocol,” and that the illegality of the plant for non-natives “is one of the few federal laws on our side…we want to hold on to it.”659 benally is one voice of many who believe that peyote should remain inaccessible to the general public. from his perspective, peyote usage is a closed practice and should only be ingested ceremonially with the proper protocol traditionally performed by tribes. the concept of a closed practice asks only members of a certain culture to perform traditional practices as a way of preserving the culture and practices and often the sanctity centered around them. close practices for some cultures are a way of self-protection against colonial infiltration, especially if the group suffers from a history of settler colonialism. 659 sahagun, “legalization efforts.” 658 sahagun, “legalization efforts.” 657 sahagun, “legalization efforts.” 656 siegel et al., “psychedelic drug legislative reform,” 80. 655 joshua s. siegel et al., “psychedelic drug legislative reform and legalization in the us,” jama psychiatry 80, no. 1 (january 1, 2023): 77, https://doi.org/10.1001/jamapsychiatry.2022.4101. 174 https://doi.org/10.1001/jamapsychiatry.2022.4101 brandeis university law journal 2023-2024, volume 11 in a commercialist society, many traditional peyote users fear what could happen if the sacred plant becomes accessible to the general public. dawn davis, a member of the shoshone-bannock tribes, worries about any “cultivation of peyote outside of the ancient terrain it shares with indigenous people” and that “it is a step toward hybridization and commercialization.”660 she is concerned that this reborn national interest in psychedelic experiences reminds her of the 1960s when peyote was illegally bought and sold to non-natives. this illegal activity decreased access to native americans and led many non-natives to profit from the illegal exploitation of the sacred plant. although to most americans peyote is just a psychoactive plant, davis explains that “to us, peyote is an ancestor and a living relative,” holding immense spiritual significance.661 for this reason, the hybridization and commercialization of it poses serious concerns. however, some native americans believe that the use of the plant should not be restricted to native americans alone. indigenous leaders such as comanche william voelker claim that the decriminalization of peyote may be best for all.662 voelker is also the director of the nonprofit group sia, which is dedicated to the preservation of eagle feathers. he argues that “it wouldn't be very humble of us to claim exclusive ownership to peyote and prevent others from using it. it wasn't just given to us.”663 however, in opening up the practice to outsiders, there should be intentional respect for the plant and consideration for its conservation needs. miriam volat, a soil scientist and co-director of the riverstyx foundation, which funds psychedelic research while simultaneously collaborating with tribes to contribute to the conservation of peyote argues that “instead of saying, ‘[y]ou owe us this plant, the 663 sahagun, “legalization efforts.” 662 sahagun, “legalization efforts.” 661 sahagun, “legalization efforts.” 660 sahagun, “legalization efforts.” 175 brandeis university law journal 2023-2024, volume 11 decriminalization movement should be saying, ‘[w]e’d like to help you take care of your sacred medicine.’”664 researchers should work with tribal leaders to ensure respectful use of the sacred plant. however, native americans have previously witnessed an exploitative pattern of their traditional resources. jon brady, the former president of the native american church of north america (nacna), worries that [a] lot of people want to tap into [peyote] because they see the potential, the almighty dollar … they’ve done that to a lot of our medicines already … this is kind of the last of our medicines of our native american people, so we’re trying every avenue to have its protection.665 according to brady, with the influence of capital, peyote will inevitably become exploited if it becomes legal for all. he believes that nacna “should not have to fight endless efforts to decriminalize peyote,” and that “it requires that the federal government to anticipate and act to cease states’ usurpation of american indian religious rights.”666 brady argues that legalization and decriminalization of peyote violates the religious right of peyote as outlined in the 1994 amendment of the american indian religious freedom act (airfa). he therefore instigates the federal government to initiate actions to prevent states’ legalization or decriminalization efforts. 666 jon brady, “strengthening the indigenous communities through cultural and environmental preservation” (testimony before the house natural resources committee, united states congress, november 8, 2021), 2. 665 hallie golden, “inside the battle to save the sacred peyote ceremony: ‘we’re in dire straits,’” the guardian, december 9, 2022, www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medici ne-nacna-federal-protection. 664 sahagun, “legalization efforts.” 176 http://www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medicine-nacna-federal-protection http://www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medicine-nacna-federal-protection brandeis university law journal 2023-2024, volume 11 however, as the federal government falls short on meeting many necessary protections for native americans, many tribal governments are empowered to implement their own legislation for protecting their cultural property. indigenous rights scholar angela riley is concerned that “in an age of globalization…property and quasi-property can spread across the world…in a matter of moments.”667 once indigenous cultural ideas and practices gain exposure, they are subject to appropriation and exploitation, and therefore need protection. although tribal law has limited jurisdiction, its development or revitalization is uniquely capable of accommodating the specific needs and circumstances of each tribe.668 therefore, tribes can determine how to protect themselves within each cultural context and normative framework. as tribal law gains prevalence, it will gain legitimacy and standing in american courts.669 riley advocates for a tiered system approach of incorporating international, national, and tribal law to protect cultural property.670 however, tribal law must be the foundation.671 iii. the threat of biopiracy many indigenous communities in the united states and abroad have historically been exploited by biopiracy, executed by individuals and companies. this process often involves using patent law to grant the patent holder the sole right to manufacture and distribute a plant. consequently, indigenous people are criminalized for using the plant in their traditional way if they lose their rights to it. 671 riley, “straight stealing.” 670 riley, “straight stealing.” 669 riley, “straight stealing.” 668 riley, “straight stealing.” 667 angela r. riley, “‘straight stealing’: towards an indigenous system of cultural property protection,” washington law review, 2005, 69–164, 79. 177 brandeis university law journal 2023-2024, volume 11 this process often involves pharmaceutical companies using indigenous knowledge to identify medicinal plants. indigenous knowledge is a body of knowledge, observations, practices, philosophies, and beliefs developed by indigenous people, passed down from generation to generation, based on lived experiences, and interactions with the environment.672 as pharmaceutical companies seek treatments in plants such as psychedelics, the research process is lengthy and expensive. using indigenous knowledge of medicinal plants instead of discovering them individually increases efficiency by over 400 percent.673 therefore, the world market for medicinal plants discovered by indigenous communities is valued at up to $43 billion.674 the united states has a history of lenient patent laws, allowing the biopiracy of many plants and their medicinal applications. in 1995, a united states patent was granted to two researchers at the university of mississippi medical center filed for the oral and topical use of turmeric powder from india as a surgical wound and ulcer healing agent.675 this was allowed despite the fact that evidence of ancient ayurvedic texts on traditional indian medicine, books about home remedies. simultaneously, previous scientific publications proved that turmeric has been known and used as a wound healer long before the university of mississippi medical center even existed.676 similarly, in 1993, american company agridyne received a united states patent for the use of neem oil extract as an insecticide and fungicide in the united states 676 jayaraman, “patent on indian herb.” 675 k. s. jayaraman, “us patent office withdraws patent on indian herb,” nature 389, no. 6646 (1997), https://doi.org/10.1038/37838. 674 reid, “biopiracy.” 673 reid, “biopiracy.” 672 “indigenous knowledge and traditional ecological knowledge,” national parks service, accessed february 29, 2024, https://www.nps.gov/subjects/tek/description.htm. 178 https://doi.org/10.1038/37838 https://www.nps.gov/subjects/tek/description.htm brandeis university law journal 2023-2024, volume 11 and the european union.677 neem is a tree that has been used in india for over two thousand years as a medicine, cosmetic, and insect repellent. once the patent was approved and came into effect, the european union struck it down for lack of novelty because it had proof of traditional usage, although the patent was upheld in the united states. the indian government spent nearly six million dollars fighting these cases.678 lack of novelty can help protect these resources when backed by indigenous knowledge of these resources. however, especially seen with historically marginalized people, novelty can often be difficult to prove. for an invention to be patented in the united states, it needs to be qualified as a novel invention. to be novel, “it either could not have been known or used by others in the united states or have previously been patented or described in a printed publication in the united states or a foreign country.”679 therefore, if a medicinal plant is known to indigenous people or published, it should be protected from patenting. however, with lack of publishing, it can be challenging to prove if it is known by indigenous people. additionally, by tweaking a minor part of the plant or the procedure in which the plant is used for medicinal purposes, novelty can be justified, especially against historically marginalized people.680 most indigenous knowledge on medicinal resources is not written or published and is instead passed down orally, which increases the vulnerability of patenting by non-natives. if the traditional indian documents on turmeric were officially published and reviewed by the united states patent office, india would not have needed to spend millions of dollars fighting the case.681 681 reid, “biopiracy,” 90. 680 reid, “biopiracy,” 92. 679 reid, “biopiracy,” 82. 678 reid, “biopiracy,” 90. 677 reid, “biopiracy,” 89. 179 brandeis university law journal 2023-2024, volume 11 following the turmeric and neem cases, india’s national institute of science communication and information resources (niscir) started collecting information on 130,000 traditional indian medicinal products to publish in a database. the european patent office (epo) entered an agreement with india to gain access before granting any patents involving botanical knowledge to the database to help prevent future cases like these.682 this was a progressive step towards preventing biopiracy, as if the knowledge of a plant’s medicine uses has been previously published, it cannot be patented. implementing this system with native american medicine would prove to be almost impossible. tracking down all traditional knowledge on medicinal plants spanning thousands of years and all over the country would be a nearly impossible and costly feat, if possible at all. the database project in india had a budget of $2 million. much indigenous knowledge is passed down orally and uses different names for plants than what scientists use. additionally, due to the closed nature of many native american practices, community members may feel uncomfortable sharing their sacred knowledge that has traditionally only been passed down orally from generation to generation.683 a database may pose additional concerns and may inadvertently subject this knowledge to further biopiracy. an estimated 4,000 plants with medicinal properties have been patented on plants that are already known.684 therefore, traditional knowledge could more easily be obtained and copied. it is also subject to being misconstrued or distorted and then patented. for example, a united states patent was granted for a solution of leaves from the aloe vera plant and water that was documented in indian literature.685 the patent was granted 685 reid, “biopiracy,” 92. 684 reid, “biopiracy,” 92. 683 reid, “biopiracy,” 82. 682 reid, “biopiracy,” 91. 180 brandeis university law journal 2023-2024, volume 11 on the grounds that the solution used only chlorinated water.686 by changing one element such as the kind of water or the temperature of the water, the practice is then eligible to be patented. the united states often exercises leniency when defining novelty; therefore, companies that pirate and profit from indigenous resources often rely on united states patent law. in 1974, the founder of the international plant medicine corporation based in california, loren miller, traveled to ecuador, where he obtained samples of ayahuasca from a local indigenous tribe. ayahuasca is a psychoactive plant that has been used by indigenous south americans and is often administered by a shaman in a long healing ceremony for its therapeutic and medicinal benefits.687 the plant is sacred to many indigenous south americans; the name translates from quechua as the vine of “souls.”688 miller took samples back to california to reproduce and study for its potential uses in cancer treatment and psychotherapy. in 1986, miller obtained united states plant patent no. 5,571 for the specific strain, awarding him the exclusive right to grow and sell it.689 in a statement, miller claimed: “if this patent was causing any harm to the indigenous people, i would have it canceled myself.”690 however, in 1994, the amazon alliance, center for international environmental law, and coordinating body of indigenous organizations of the amazon basin challenged the patent. they were successful on the basis that the strain was no 690 press, “ayahuasca on trial,” 352. 689 press, “ayahuasca on trial,” 329. 688 sara v. press, “ayahuasca on trial,” history of pharmacy and pharmaceuticals 63, no. 2 (2022): 328–53, https://doi.org/10.3368/hopp.63.2.328, 329. 687 jonathan hamill et al., “ayahuasca: psychological and physiologic effects, pharmacology and potential uses in addiction and mental illness,” current neuropharmacology 17, no. 2 (january 7, 2019): 108–28, https://doi.org/10.2174/1570159x16666180125095902. 686 reid, “biopiracy,” 92. 181 https://doi.org/10.3368/hopp.63.2.328 https://doi.org/10.2174/1570159x16666180125095902 brandeis university law journal 2023-2024, volume 11 different from the original form of the plant that miller collected and therefore lacked novelty. in 1999, the united states patent and trademark office revoked the patent. however, miller succeeded in his patent reinstatement in 2001 based on evidence that the shapes of the leaves and stems of his breed were novel.691 miller left many indigenous people concerned with his actions, despite his supposed good intentions to study the beneficial uses of a plant. miller’s patent reinstatement by the united states after protests and legal action from indigenous-led groups demonstrates the unwillingness to listen to and consider indigenous voices in these matters. this case demonstrates again how lenient patent law in the united states can be, and how easily novelty can be proven. in 2022, san francisco-based company journey colab, which uses psychedelics to study addiction treatment, obtained a patent for lab-made mescaline (the active ingredient in peyote). however, it became the first company of its kind to publish a patent non-assertion pledge. this means that the company vowed to not sue indigenous people for patent infringement for using peyote in their traditional way.692 additionally, journey colab established the journey reciprocity trust, devoting a small portion of the company’s founding equity to indigenous communities; however, the company does not specify which indigenous communities and whether they are solely ones that use peyote.693 although this initiative is a progressive addition to studying psychedelics for medical research and innovation in mental health care, it is unclear to what extent indigenous communities were 693 journey colab, “reciprocity trust.” 692 “the journey colab reciprocity trust,” journey colab, accessed november 9, 2023, https://www.journeycolab.com/the-journey-colab-reciprocity-trust. 691 press, “ayahuasca on trial,” 331. 182 https://www.journeycolab.com/the-journey-colab-reciprocity-trust brandeis university law journal 2023-2024, volume 11 thoroughly consulted, and whether they provided consent and are receiving benefits from this process. hopefully, companies continue to follow this precedent. however, there are no regulations or incentives to follow suit. a non-assertion pledge is not required, enforceable by law, or even encouraged. as psychedelic lab research accelerates companies continue to receive patents, the federal government must have a role in protecting the rights of indigenous people to not be sued for patent infringement for using their crucial traditional resource of peyote. iv. the federal government’s role protected by the patent laws of the united states, private companies can become the new gatekeepers of indigenous knowledge and resources. as this surge in psychedelic research accelerates, policies need to be implemented quickly to protect against exploitation and biopiracy of indigenous resources such as peyote on united states soil. patent law leniency jeopardizes the autonomy of indigenous people’s right to use peyote if companies gain the right to peyote or mescaline. new medical research of psychedelics spearheads potential progress in the mental health medical field. discoveries in psychedelics have the potential to improve countless lives. many supporters of these initiatives argue that no more roadblocks or limitations should be placed on these endeavors.694 however, “progress” in the united states often comes at the expense of native american livelihoods.695 695 john gast, “american progress,” an allegorical female figure of america leads pioneers westward, as they travel on foot, in a stagecoach, 694 alicia victoria lozano, “candidates who support psychedelics as medicine get a political action committee,” nbcnews.com, march 20, 2023, https://www.nbcnews.com/news/us-news/candidates-support-psychedelicsmedicine-get-political-action-committe-rcna75295. 183 https://www.nbcnews.com/news/us-news/candidates-support-psychedelics-medicine-get-political-action-committe-rcna75295 https://www.nbcnews.com/news/us-news/candidates-support-psychedelics-medicine-get-political-action-committe-rcna75295 brandeis university law journal 2023-2024, volume 11 while the pursuit of these new medical advances for americans accelerates, native americans still experience unequal access to health care. the life expectancy of native americans is five years shorter than the general united states population.696 native americans are 20 percent more likely than white americans to experience colon and lung cancer.697 native americans are more likely to commit suicide than white americans, with those under the age of 25 being three times more likely.698 the indian health service (ihs) expenditures per patient are three times lower compared to medicare.699 the ihs struggles with the retention and recruitment of professional staff, causing grave limitations and a lack of continuity of care. ihs primary care physicians often feel overworked and are forced to take on a higher degree of patient complexity than they can manage without specialty consultation.700 lack of attention and funding for the ihs from congress leads to poor health and the premature deaths of native american individuals. funding towards research in psychedelics has the potential to deliver transformative health care, however, simultaneously, the indigenous people of this land still lack the funding and support to meet their basic healthcare needs. 700 kruse et al., “the indian health service.” 699 desiree l fox, ciara d hansen, and ann m miller, “over-incarceration of native americans: roots, inequities, and solutions,” safety and justice challenge, n.d., https://doi.org/https://safetyandjusticechallenge.org/, 35. 698 kruse et al., “the indian health service.” 697 kruse et al., “the indian health service.” 696 gina kruse et al., “the indian health service and american indian/alaska native health outcomes,” annual review of public health 43, no. 1 (2022): 559–76, https://doi.org/10.1146/annurev-publhealth-052620-103633. conestoga wagon, and by railroads, where they encounter native americans and herds of bison., the library of congress, 1872, autry museum of the american west, los angeles, california, https://www.loc.gov/item/97507547/. 184 https://doi.org/https://safetyandjusticechallenge.org/ https://doi.org/10.1146/annurev-publhealth-052620-103633 https://www.loc.gov/item/97507547/ brandeis university law journal 2023-2024, volume 11 v. legislation and agreements one hundred and forty-four other countries have vowed to take steps against the exploitation of indigenous resources by signing the nagoya protocol on access and benefit sharing.701 the nagoya protocol was established by the united nations in 2014 to protect indigenous resources such as peyote, turmeric, and neem against biopiracy. this international treaty stresses working with indigenous communities to agree upon terms in an informed, consensual manner with an emphasis on benefit sharing. when countries abide by the nagoya protocol, indigenous communities need to consent to the utilization of their traditional knowledge and genetic resources by any government, individual, or company.702 further, they also need to negotiate mutually agreed upon written terms for the equitable and fair sharing of profits and subsequent third-party use.703 each party may take legislative, administrative, or policy measures to ensure that the terms of their agreement are upheld. the nagoya protocol also promises that indigenous knowledge associated with genetic resources is accessed with the prior and informed consent of the indigenous communities. in addition, under the protocol, there must be consideration for the indigenous and local communities' customary laws, community protocols, and procedures. parties who benefit from the utilization of genetic resources are encouraged to contribute to the conservation efforts and sustainable uses of the resource. although the protocol was opened for signatures 703 united nations treaty collection, “nagoya protocol.” 702 united nations treaty collection, “nagoya protocol.” 701 “nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the convention on biological diversity,” united nations treaty collection, n.d., https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=x xvii-8-b&chapter=27&clang=_en. 185 https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvii-8-b&chapter=27&clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvii-8-b&chapter=27&clang=_en brandeis university law journal 2023-2024, volume 11 in the united nations headquarters in new york for a full year, the united states has never signed it.704 in 2021, the bidenharris administration announced new pledges to support native american communities and elevate indigenous knowledge to inform federal policymaking.705 the administration outlined its goals of growing mutually beneficial relationships with tribal nations and indigenous people, as well as “considering, including, and applying indigenous knowledge in federal research, policies, management, and decision making.”706 this is a tremendous and properly celebrated achievement in legitimizing indigenous knowledge and elevating indigenous voices in initiatives such as climate resilience and environmental restoration. along with this statement, the administration vowed to strengthen the tribal consultation model.707 tribal consultation is the government-to-government dialogue between official representatives of tribes and federal agencies to discuss federal proposals before the federal agency makes decisions on those proposals.708 new consultation training and guidebooks will be created to ensure that tribal self-government, sovereignty, and rights are respected and upheld. these statements sound promising. however, the 708 government-to-government dialogue between official representatives of tribes and federal agencies to discuss federal proposals before the federal agency makes decisions on those proposals. 707 the white house “indigenous knowledge guidance.” 706 the white house “indigenous knowledge guidance.” 705 “fact sheet: biden-harris administration announces new actions to support indian country and native communities ahead of the administration’s second tribal nations summit,” the white house, november 30, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/ fact-sheet-biden-harris-administration-announces-new-actions-to-support-in dian-country-and-native-communities-ahead-of-the-administrations-secondtribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,p romote%20environmental%20sustainability%20and%20the. 704 united nations treaty collection, “nagoya protocol.” 186 https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the brandeis university law journal 2023-2024, volume 11 guidebook, which was published in 2023, is seriously flawed. it includes tips for consulting with tribal nations such as “[a]void using patronizing language when working with tribes” and “do not mistake kindness, silence, or politeness for consent or agreement,” but does not require obtaining consent from tribes. in fact, in the 121-page document, requiring consent is only mentioned when it involves removing native american human remains, cultural items, and archeological resources from tribal lands.709 therefore, although the federal government may use traditional knowledge to guide federal agencies, native americans are still powerless to consent to how indigenous knowledge is used.710 additionally, the federal government is still not required to receive consent from native americans about federal proposals involving tribes. free, prior, and informed consent (fpic) must be implemented in the united states. fpic is the right of self-determination of indigenous people, established by the united nations. under fpic, when decisions are made by 710 editorial note: here, the author intended to justify the use of capitalizing indigenous and traditional knowledge. these terms are capitalized by the doi and white house. see the following sources for inspiration of this capitalization: “departmental policy on indigenous knowledge | indian affairs,” accessed march 23, 2024, https://www.bia.gov/service/tribal-consultations/departmental-policy-indige nous-knowledge; “indigenous knowledge | ostp,” the white house, accessed march 23, 2024, https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indi genous-knowledge/; however, i have also seen literature fail to capitalize indigenous knowledge and traditional knowledge. see the harvard public health magazine for recent works without capitalization:harvard public health magazine and makepeace sitlhou tu lucy, “how indigenous knowledge may shape the future of u.s. policy,” harvard public health magazine (blog), june 5, 2023, https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-a pproach-to-health-climate/. 709 dod legacy resource management program, department of defense tribal engagement guidebook, 2023. 187 https://www.bia.gov/service/tribal-consultations/departmental-policy-indigenous-knowledge https://www.bia.gov/service/tribal-consultations/departmental-policy-indigenous-knowledge https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indigenous-knowledge/ https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indigenous-knowledge/ https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-approach-to-health-climate/ https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-approach-to-health-climate/ brandeis university law journal 2023-2024, volume 11 governments that impact indigenous people, resources, or land, indigenous people must consent without coercion, intimidation, or manipulation prior to authorization of activities. they must also receive sufficient knowledge about the proposed activities. in the federal government’s aim to strengthen ties with tribal nations, no effort has been made to implement fpic. fpic in tribal consultation is outlined in article 19 of the united nations declaration on the rights of indigenous peoples (undrip), declaring that states must consult with and obtain fpic from indigenous people “before adopting and implementing legislative or administrative measures that may affect them.”711 the united states did not support undrip when it was adopted by the general assembly in 2007 but later endorsed it in 2010 due to administration change. however, alongside the endorsement came a preface; a document expressing that the declaration will have limited legal power.712 the united states announced that instead, the “[d]eclaration expresses aspirations that the united states seeks to achieve.”713 although the biden-harris administration’s steps to improve tribal consultation display progress, the united states, if it wants to keep its word about aspiring to uphold undrip, must begin to implement fpic in tribal consultation. vi. conclusion before proceeding with the expansion of psychedelic research and legalization, the united states must instate protections for native american. first, the united states must sign and abide by the nagoya protocol. this will codify native 713 arndt, “‘rights of indigenous peoples.’” 712 jordyn arndt, “explanation of position on ‘rights of indigenous peoples’” (new york, new york, november 7, 2019). 711 united nations, united nations declaration on the rights of indigenous peoples, 2007. 188 brandeis university law journal 2023-2024, volume 11 americans’ ability to use peyote without risk of criminalization for patent infringement. it will ensure that native american people, communities, indigenous knowledge, and resources are protected and used under mutually agreed-upon terms. second, the biden-harris administration must fully ratify and abide by undrip. this will require native americans to provide free, prior, and informed consent for the use of their resources and indigenous knowledge. tribes and companies must reach mutual agreements on the sharing of benefits, extraction, and use of peyote. third, tribal law must be legitimated and considered in matters involving tribes. fourth, funding for the ihs including addiction, trauma, and mental health treatment must be increased to mitigate unacceptable disparate health outcomes that leave native americans behind. these actions are not just empty promises, statements, or aspirational documents. native american rights and sovereignty over their traditional resources must not be protected “aspirationally,” but protected by no less than united states law. 189 brandeis university law journal 2023-2024, volume 11 bibliography arndt, jordyn. “explanation of position on ‘rights of indigenous peoples.’” new york, new york, november 7, 2019. barnett, brian s., sloane e. parker, and jeremy weleff. “united states national institutes of health grant funding for psychedelic-assisted therapy clinical trials from 2006–2020.” international journal of drug policy 99 (january 2022): 103473. https://pubmed.ncbi.nlm.nih.gov/34624734/. brady, jon. “strengthening the indigenous communities through cultural and environmental preservation.” testimony before the house natural resources committee, united states congress, november 8, 2021. “correa, bergman applaud house-passage of their amendment pushing va to study impact of psychedelics on veterans: u.s. congressman lou correa of california.” congressman correa, july 27, 2023. https://correa.house.gov/news/press-releases/correa-ber gman-applaud-house-passage-of-their-amendment-push ing-va-to-study-impact-of-psychedelics-on-veterans. dod legacy resource management program. department of defense tribal engagement guidebook, 2023. “departmental policy on indigenous knowledge | indian affairs.” accessed march 24, 2024. https://www.bia.gov/service/tribal-consultations/depart mental-policy-indigenous-knowledge. ellwood, alison, and lucy walker. "mescaline." how to change your mind. netflix, 2022. “fact sheet: biden-harris administration announces new actions to support indian country and native communities ahead of the administration’s second tribal nations summit.” the white house, november 30, 2022. 190 https://pubmed.ncbi.nlm.nih.gov/34624734/ https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans https://correa.house.gov/news/press-releases/correa-bergman-applaud-house-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-on-veterans https://www.zotero.org/google-docs/?broken=uegoyf https://www.zotero.org/google-docs/?broken=uegoyf https://www.zotero.org/google-docs/?broken=uegoyf https://www.zotero.org/google-docs/?broken=uegoyf brandeis university law journal 2023-2024, volume 11 https://www.whitehouse.gov/briefing-room/statements-r eleases/2022/11/30/fact-sheet-biden-harris-administrati on-announces-new-actions-to-support-indian-country-a nd-native-communities-ahead-of-the-administrations-se cond-tribal-nations-summit/#:~:text=initiated%20at%2 0the%202021%20tribal,promote%20environmental%2 0sustainability%20and%20the. fox, desiree l, ciara d hansen, and ann m miller. “over-incarceration of native americans: roots, inequities, and solutions.” safety and justice challenge, n.d. https://doi.org/https://safetyandjusticechallenge.org/. gast, john. “american progress.” an allegorical female figure of america leads pioneers westward, as they travel on foot, in a stagecoach, conestoga wagon, and by railroads, where they encounter native americans and herds of bison. the library of congress, 1872. autry museum of the american west. los angeles, california. https://www.loc.gov/item/97507547/. golden, hallie. “inside the battle to save the sacred peyote ceremony: ‘we’re in dire straits.’” the guardian, december 9, 2022. https://www.theguardian.com/us-news/2022/dec/09/pey ote-native-american-medicine-nacna-federal-protection. gukasyan, natalie, alan k davis, frederick s barrett, mary p cosimano, nathan d sepeda, matthew w johnson, and roland r griffiths. “efficacy and safety of psilocybin-assisted treatment for major depressive disorder: prospective 12-month follow-up.” journal of psychopharmacology 36, no. 2 (2022): 151–58. https://doi.org/10.1177/02698811211073759. hamill, jonathan, jaime hallak, serdar m. dursun, and glen baker. “ayahuasca: psychological and physiologic effects, pharmacology and potential uses in addiction and mental illness.” current neuropharmacology 17, 191 https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/fact-sheet-biden-harris-administration-announces-new-actions-to-support-indian-country-and-native-communities-ahead-of-the-administrations-second-tribal-nations-summit/#:~:text=initiated%20at%20the%202021%20tribal,promote%20environmental%20sustainability%20and%20the https://doi.org/https://safetyandjusticechallenge.org/ https://www.loc.gov/item/97507547/ https://www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medicine-nacna-federal-protection https://www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medicine-nacna-federal-protection https://doi.org/10.1177/02698811211073759 brandeis university law journal 2023-2024, volume 11 no. 2 (january 7, 2019): 108–28. https://doi.org/10.2174/1570159x16666180125095902. ho, catherine. “majority of u.s. voters support therapeutic use ...” san francisco chronicle, july 13, 2023. https://www.sfchronicle.com/bayarea/article/majority-u -s-voters-support-therapeutic-use-18197873.php. “indigenous knowledge and traditional ecological knowledge.” national parks service. accessed february 29, 2024. https://www.nps.gov/subjects/tek/description.htm. jayaraman, k. s. “us patent office withdraws patent on indian herb.” nature 389, no. 6646 (1997): 6–6. https://doi.org/10.1038/37838. “johns hopkins center for psychedelic and consciousness research.” johns hopkins medicine. accessed december 7, 2023. https://www.hopkinsmedicine.org/psychiatry/research/p sychedelics-research. jones, peter n. “the native american church, peyote, and health: expanding consciousness for healing purposes.” contemporary justice review 10, no. 4 (2007): 411–25. https://doi.org/10.1080/10282580701677477. “the journey colab reciprocity trust.” journey colab. accessed november 9, 2023. https://www.journeycolab.com/the-journey-colab-recipr ocity-trust. kahan, fannie. “the struggle for peyote.” in a culture’s catalyst. university of manitoba press, 2016. https://doi.org/10.1515/9780887555084-007. krediet, erwin, tijmen bostoen, joost breeksema, annette van schagen, torsten passie, and eric vermetten. “reviewing the potential of psychedelics for the treatment of ptsd.” international journal of 192 https://doi.org/10.2174/1570159x16666180125095902 https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-therapeutic-use-18197873.php https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-therapeutic-use-18197873.php https://www.nps.gov/subjects/tek/description.htm https://doi.org/10.1038/37838 https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-research https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-research https://doi.org/10.1080/10282580701677477 https://www.journeycolab.com/the-journey-colab-reciprocity-trust https://www.journeycolab.com/the-journey-colab-reciprocity-trust https://doi.org/10.1515/9780887555084-007 brandeis university law journal 2023-2024, volume 11 neuropsychopharmacology 23, no. 6 (2020): 385–400. https://doi.org/10.1093/ijnp/pyaa018. kruse, gina, victor a. lopez-carmen, anpotowin jensen, lakotah hardie, and thomas d. sequist. “the indian health service and american indian/alaska native health outcomes.” annual review of public health 43, no. 1 (2022): 559–76. https://doi.org/10.1146/annurev-publhealth-052620-103 633. kurtz, joshua s, neal a patel, julian l gendreau, chenyi yang, nolan brown, nick bui, bryce picton, et al. “the use of psychedelics in the treatment of medical conditions: an analysis of currently registered psychedelics studies in the american drug trial registry.” cureus, 2022. https://doi.org/10.7759/cureus.29167. lozano, alicia victoria. “candidates who support psychedelics as medicine get a political action committee.” nbcnews.com, march 20, 2023. https://www.nbcnews.com/news/us-news/candidates-su pport-psychedelics-medicine-get-political-action-comm itte-rcna75295. magazine, harvard public health, and makepeace sitlhou tu lucy. “how indigenous knowledge may shape the future of u.s. policy.” harvard public health magazine (blog), june 5, 2023. https://harvardpublichealth.org/equity/indigenous-know ledge-to-shape-u-s-approach-to-health-climate/. muneta, james d. peyote crisis confronting modern indigenous peoples: the declining peyote population and a demand for conservation 9, no. 1 (december 23, 2020). “nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the convention on biological diversity.” 193 https://doi.org/10.1093/ijnp/pyaa018 https://doi.org/10.1146/annurev-publhealth-052620-103633 https://doi.org/10.1146/annurev-publhealth-052620-103633 https://doi.org/10.7759/cureus.29167 https://www.nbcnews.com/news/us-news/candidates-support-psychedelics-medicine-get-political-action-committe-rcna75295 https://www.nbcnews.com/news/us-news/candidates-support-psychedelics-medicine-get-political-action-committe-rcna75295 https://www.nbcnews.com/news/us-news/candidates-support-psychedelics-medicine-get-political-action-committe-rcna75295 https://www.zotero.org/google-docs/?broken=d7ltmh https://www.zotero.org/google-docs/?broken=d7ltmh https://www.zotero.org/google-docs/?broken=d7ltmh https://www.zotero.org/google-docs/?broken=d7ltmh https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-approach-to-health-climate/ https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-approach-to-health-climate/ https://www.zotero.org/google-docs/?broken=3kpzi2 brandeis university law journal 2023-2024, volume 11 united nations treaty collection, n.d. https://treaties.un.org/pages/viewdetails.aspx?src=tre aty&amp;mtdsg_no=xxvii-8-b&amp;chapter=27&a mp;clang=_en. nichols, david e. “psychedelics.” pharmacological reviews 68, no. 2 (february 3, 2016): 264–355. https://doi.org/10.1124/pr.115.011478. phelps, joshua, ravi n. shah, and jeffrey a. lieberman. “the rapid rise in investment in psychedelics—cart before the horse.” jama psychiatry 79, no. 3 (2022): 189. https://doi.org/10.1001/jamapsychiatry.2021.3972. press, sara v. “ayahuasca on trial.” history of pharmacy and pharmaceuticals 63, no. 2 (2022): 328–53. https://doi.org/10.3368/hopp.63.2.328. pure ideas. “usa patent law vs european patent law.” pure ideas, november 16, 2022. https://pure-ideas.co.uk/2021/06/21/usa-patent-law-vs-e uropean-patent-law/. reid, john. “biopiracy: the struggle for traditional knowledge rights.” american indian law review 34 (2009). riley, angela r. “‘straight stealing’: towards an indigenous system of cultural property protection.” washington law review, 2005, 69–164. sahagun, louis. “legalization efforts spur ‘peyote crisis’; as cities move to allow psychedelic plants, some native americans cry foul.” los angeles times. may 17, 2020. siegel, joshua s., james e. daily, demetrius a. perry, and ginger e. nicol. “psychedelic drug legislative reform and legalization in the us.” jama psychiatry 80, no. 1 (january 1, 2023): 77. https://doi.org/10.1001/jamapsychiatry.2022.4101. the white house. “indigenous knowledge | ostp.” accessed 194 https://treaties.un.org/pages/viewdetails.aspx?src=treaty&amp;mtdsg_no=xxvii-8-b&amp;chapter=27&amp;clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&amp;mtdsg_no=xxvii-8-b&amp;chapter=27&amp;clang=_en https://treaties.un.org/pages/viewdetails.aspx?src=treaty&amp;mtdsg_no=xxvii-8-b&amp;chapter=27&amp;clang=_en https://doi.org/10.1124/pr.115.011478 https://doi.org/10.1001/jamapsychiatry.2021.3972 https://doi.org/10.3368/hopp.63.2.328 https://pure-ideas.co.uk/2021/06/21/usa-patent-law-vs-european-patent-law/ https://pure-ideas.co.uk/2021/06/21/usa-patent-law-vs-european-patent-law/ https://doi.org/10.1001/jamapsychiatry.2022.4101 https://www.zotero.org/google-docs/?broken=bvh6id brandeis university law journal 2023-2024, volume 11 april 7, 2024. https://www.whitehouse.gov/ostp/ostps-teams/climate-a nd-environment/indigenous-knowledge/. united nations. united nations declaration on the rights of indigenous peoples, 2007. “white house releases first-of-a-kind indigenous knowledge guidance for federal agencies.” the white house, december 1, 2022. https://www.whitehouse.gov/ceq/news-updates/2022/12 /01/white-house-releases-first-of-a-kind-indigenous-kn owledge-guidance-for-federal-agencies/. 195 https://www.zotero.org/google-docs/?broken=jqhq33 https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indigenous-knowledge/ https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indigenous-knowledge/ https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/ https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/ https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/ brandeis university law journal 2024-2025, volume 12 mission statement the brandeis university law journal aims to provide brandeis university with the opportunity to contribute to discussions of law and law-related topics with the publication of undergraduate scholarship. we hope to aid in the furtherance of brandeis university’s motto of “truth even unto its innermost parts” through publishing rigorously researched articles and engaging in respectful, thoughtful, and insightful debates. this journal is both a publication and a constant work in progress as we are grounded in an undergraduate academic environment and constantly trying to learn, grow and improve. our journal provides a platform for intellectual growth and debate where academic scholarship can flourish. we focus on academic excellence, encouraging expressions of scholarship, and encouragement of educational purposes. 1 brandeis university law journal 2024-2025, volume 12 statement of neutrality the brandeis university law journal is an independent publication, managed entirely by undergraduate students, that functions as a neutral platform for the unrestricted circulation of community members’ views on legal matters. the views expressed in the journal do not necessarily reflect those of the journal’s executive board or its other authors and editors. 2 brandeis university law journal 2024-2025, volume 12 submissions our journal requires all submissions of articles and abstracts to be: 1) original and written by members of the brandeis community. 2) related to law and/or using legal reasoning. we welcome submissions from undergraduates for publication at any time. interest in involvement through writing, editing, or administrative roles is always welcome. please direct any queries to deislawjournal@gmail.com. archives to access the brandeis university law journal archives and explore past and current issues, please visit the brandeis university library archives at: https://journals.library.brandeis.edu/index.php/blj 3 mailto:deislawjournal@gmail.com https://journals.library.brandeis.edu/index.php/blj brandeis university law journal 2024-2025, volume 12 brandeis university law journal ©2025 issn: 22154-4468 e-issn: 2836-7251 4 brandeis university law journal 2024-2025, volume 12 brandeis university law journal©2025 fall 2024 & spring 2025 volume 12 executive board editor-in-chief daniel block editor-in-chief emerita gonny nir copy editor koby gottlieb layout editor alyssa golden editorial librarian aimee slater faculty advisor professor rosalind kabrhel editor-in-chief noah levy publisher and treasurer peyton gillespie social media manager sadie lieberman library liaison kaylin ger archival librarian wendy shook faculty advisor professor daniel breen technical editors: benjamin grimes, carolyn jiang (deputy treasurer), casey shea dinkin*, fairooz abida*, zachary miller*. editors**: anna ertischek, julia fair, maia katsnelson*, olivia (yujuan) zhang, tehilla oami, adira muskat, harry watkin-fox*, lauren lederer, coco cao, malia perry*, emily yao*, liam gurevitch, syeda qadri. (*) indicates editor engaged in workshops and training to learn the bluebook: a uniform system of citations (**) editors listed in the journal have not only met but exceeded the publication’s rigorous standards for editorial excellence. while we are grateful to have over 200 individuals who provide valuable feedback throughout the editing process, these editors have gone above and beyond, consistently demonstrating exceptional skill, dedication, and attention to detail. their contributions were integral to maintaining the journal's high standards of quality, ensuring that each article undergoes thorough review and revision. these editors are recognized for their outstanding commitment to the journal's success. 5 brandeis university law journal 2024-2025, volume 12 contents letter from the editor-in-chief..........................................7 the canary in the west virginia coal mine: how the major questions doctrine led to the demise of chevron, daniel block.......................................................................8 second to one: walking in the footsteps of a giant, noah levy.................................................................................. 40 ambiguities embedded in the systems of interstate compacts, zachary miller............................................... 47 state responsibility for state sponsors of terror, koby gottlieb...........................................................................105 the sedition act of 1798 as a federalist legal instrument, jack granahan...............................................................120 a debate decided: civil liberties for guantanamo bay detainees, lanie hymowitz............................................134 6 brandeis university law journal 2024-2025, volume 12 letter from the editor-in-chief dear reader, thank you for lending your time to our scholarship. our dedicated team of over two hundred editors labored over these pages to provide an analytical lens through which to view past, present, and future legal issues. this issue is chock-full of novel perspectives. our authors braved the uncharted waters of the rise of the major question doctrine and trade with state sponsors of terror. others looked back to our nation’s founding to clarify the period and teach lessons for the present. some looked into the structure of american government, commerce, and justice, bringing fresh insights to enduring debates. through joint journal and departmental workshops designed to refine their work, our authors have crafted a style of legal narrative sure to keep you engaged. we have completely transitioned our citation style to the bluebook: a uniform system of citation. this process has been over a year in the works, and we are so grateful for the whole-of-organization effort that brought this full transition to fruition. our editors are the unsung heroes that constitute the backbone of our journal. they have submitted thousands of comments and spent over a hundred hours fixing spelling, syntax, content, and style to ensure our articles meet the highest standards of clarity and accuracy. our authors went beyond their call of duty to meet with our executive board frequently, adding entire sections to their writing as recommended by our editors, and invested exorbitant amounts of their time to polish their work. their contributions were a labor of love, as evident from the quality of the articles they produced. the executive board is a uniquely deliberative setting. mutual respect and admiration constitute its core. our faculty advisors, professor breen and kabrhel are our guiding lights and remind us of our dedication to judah marans. without resources from the student union allocation board, this journal wouldn’t come to print. we dearly thank all our backers for their support. four board members in particular have been instrumental in the journal. gonny nir, my predecessor, is a model i aspire to emulate in this role. daniel block, my co-editor-in-chief, has had some of the most thought-out opinions and guidance, vitally keeping us on track and ensuring the journal runs smoothly. koby gottlieb, who is transitioning into daniel’s position, has been a phenomenal collaborator whose efforts have ensured the successful piecing together of a thriving future for the platform. our outgoing treasurer, peyton gillespie, worked tirelessly with our publisher and the university at the final stretch of our programming and editorial process. like the crystal back of a timepiece or the open hood of a high-performance vehicle, we hope this brief view into the operations behind the words nourishes your experience and you come back for more. sincerely, noah levy editor-in-chief 7 brandeis university law journal 2024-2025, volume 12 the canary in the west virginia coal mine: how the major questions doctrine led to the demise of chevron by daniel block1 for almost four decades, federal courts ruling on issues of administrative law relied on chevron v. natural resource defense council (nrdc).2 the chevron doctrine instructed courts to defer to an agency’s reasonable interpretation of ambiguous texts.3 in 2000, the supreme court began sporadically applying a new “major questions doctrine” (mqd) that weakened chevron’s primacy.4 the mqd, while not named until west virginia v. epa (2022), would increasingly undermine basic assumptions of chevron.5 two years after west virginia, in loper bright enterprise v. raimondo, the court found chevron unworkable, contrary to principles of separation of powers, and incongruent with the administrative procedure act.6 this article traces the twenty-year leadup to west virginia and loper bright, arguing that, while the mqd began as a rarely used tool for statutory interpretation, the court’s growing hostility toward agency powers led it to expand the mqd into a stringent clear 6 this paper does not discuss the court’s decision in loper bright, but argues that mqd cases led to the court’s holding that “congress expects courts to handle technical statutory questions.” see loper bright enterprises v. raimondo, 603 u.s. __, 24 (2024). 5 west virginia v. epa, 597 u.s. 697 (2022). 4 daniel deacon & leah litman, the new major questions doctrine, 109 va. law rev. 1040 (2023) (the “major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies.”). 3 chevron u.s.a., inc. v. nrdc, 467 u.s. 837 (1984). 2 kent barnett & christopher j. walker, chevron and stare decisis, 31 george mason law rev. (2024). 1 brandeis university, class of 2025; brandeis university law journal, editor-in-chief. 8 brandeis university law journal 2024-2025, volume 12 statement rule.7 this shift reshaped principles of separation of powers, eliminating any need for chevron deference. i. roadmap this article begins with an introduction to chevron deference, highlighting its respect for separation of powers and its support for the administration of laws meant to protect people and the environment. then, a historical analysis of mqd cases will highlight the supreme court’s growing opposition to administrative deference. afterward, a review of the first three cases of the “major questions quartet” will show how the mqd is underpinned by poorly defined constitutional values.8 then, a close reading of the atextual decision in west virginia v. epa will argue that the mqd encourages judges to draw from their personal beliefs to hold agencies to an ambiguous and arbitrarily applied threshold defined by “economic and political magnitude.”9 finally, this article will show how the mqd cases turned chevron’s version of separation of powers on its head, rendering the decades old precedent unworkable and unconstitutional. ii. chevron as law in 1979, the environmental protection agency (epa) created a “bubble” rule under the clean air act (caa), allowing factories in areas that met the national ambient air quality standards (naaqs) to treat all pollutant-emitting sources within a plant as though they were inside a single 9 fda v. brown & williamson tobacco corp., 529 u.s. 120 (2000). 8 the term “major questions quartet” comes from mila sohoni and refers to alabama ass’n of realtors v. dhhs, nfib v. osha, biden v. missouri, and west virginia v. epa. see infra note 29. 7 john f. manning, clear statement rules and the constitution, 110 columbia law rev. 399, 401 (2010) (a clear statement rule “insist[s] that congress express itself clearly when it wishes to adopt a policy that presses a favored constitutional value.”). 9 brandeis university law journal 2024-2025, volume 12 “bubble.”10 this meant that emissions could be managed collectively, enabling plants to offset increases from some pollutant-emitting devices with reductions from others, as long as overall emissions remained stable. with the change of presidential administrations in 1981, president reagan’s epa expanded this rule so that it also applied to factories in areas that did not meet air quality standards, known as “nonattainment” areas.11 by extending the bubble rule to include plants in these more polluted regions, the epa allowed factories to receive permits for new or modified equipment even if they increased emissions, provided that the net emissions from the entire plant did not increase.12 arguing that the new policy ran contrary to the caa’s goals of protecting “human health and the environment from emissions that pollute ambient, or outdoor, air,” the natural resources defense council (nrdc) filed a petition for review in the u.s. court of appeals for the district of columbia.13 writing for a unanimous panel, then-judge ginsburg noted that the raison d’être of the nonattainment provisions of the caa is to ensure reductions in air pollution such that “attainment can be achieved… no later than five years from the date the area was designated nonattainment.”14 since the bubble rule could only guarantee the maintenance of the status quo, the panel ruled that the epa’s promulgation was an inappropriate interpretation of the statute.15 the chevron corporation 15 id.; 42 u.s.c. § 7502 (a)(2); 42 u.s.c. § 7502 (c)(2). 14 natural resources defense council, v. gorsuch, supra note 13. 13 42 u.s.c. § 7401; natural resources defense council, v. gorsuch, 685 f.2d 718 (1982). 12 for more detail on the bubble rule, see jack l landau, economic dream or environmental nightmare? the legality of the “bubble concept” in air and water pollution control, 8 environ. aff. (1980). 11 46 fed. reg. 16,280, 16,281 (1981). 10 saideman ellen, an overview of the bubble concept, 8 columbia j. environ. law (1982). 10 brandeis university law journal 2024-2025, volume 12 intervened and petitioned the supreme court to grant certiorari.16 writing for a unanimous supreme court against nrdc, justice stevens determined that, because congress did not articulate a clear meaning of the term “stationary source,” and because the epa’s bubble rule was not “arbitrary, capricious, or manifestly contrary to the statute,” the court should defer to the reasoned rulemaking of the epa.17 justice stevens’ opinion established a two-prong test that would become known as the chevron doctrine. under this doctrine, when a court reviews an agency’s actions, it must determine at chevron step one whether congress explicitly addressed the issue in question. if congress addressed the issue, the court does not defer to the agency and applies the statute as written.18 if congress did not directly address the issue, the court proceeds to determine at chevron step two whether the agency’s interpretation of the statute is “reasonable” and “permissible.”19 if the agency’s interpretation meets this standard, the court defers to the agency’s interpretation.20 following its publication, this two-pronged test became the hallmark of administrative law. under chevron, federal courts were instructed to recognize that congress, which generally lacks the expertise to address complex issues with finely detailed policy prescriptions, reasonably delegates rulemaking authority to agencies.21 this assumption is supported by congress’s role as a generalist body that enacts broad statutes outlining overarching policy goals (e.g., 21 alli orr larsen, becoming a doctrine, 76 fla. law rev., 27 (2024); catawba county, n.c. v. e.p.a., 571 f.3d 20 (2009) (explaining that “ambiguity… suggests a congressional intent to leave unanswered questions to an agency’s discretion and expertise.”). 20 id. at 844; catherine m sharkey, cutting in on the chevron two-step, 86 fordham law rev. (2018). 19 id. at 844. 18 id. at 842. 17 id. at 844. 16 chevron u.s.a., inc. v. nrdc, supra note 3. 11 brandeis university law journal 2024-2025, volume 12 promoting vaccinations or preventing pollution), while agencies are tasked with implementing these goals by drawing from their “experience with how a complex regulatory regime functions and with what is needed to make it effective.”22 in turn, these agencies, through painstaking administrative procedures, utilize their subject-matter competence to fill in the policy gaps left by congress.23 the chevron doctrine required judges who, like congress, often lack industry-specific expertise of complex issues, to defer to agencies’ reasonable construction of a statute.24 some opponents of chevron argue that it violates basic separation of powers principles because it could appear that the executive branch usurps both the legislative branch’s lawmaking authority and the judicial branch’s article iii charge to interpret statutes.25 such a reading of chevron is wrong. chevron upholds the constitution’s separation of powers by affirming congress’ policymaking authority, including its broad discretion to delegate rulemaking to administrative agencies within the executive branch that are charged with enforcing the law.26 meanwhile, the judiciary 26 elena kagan, presidential administration, 114 harv. law rev. 2376 (2001) (asserting that “presidential supervision of administration could 25 nathan alexander sales & jonathan h adler, the rest is silence: chevron deference, agency jurisdiction, and statutory silences, 2009 univ. ill. law rev. (2009); abigail moncrieff, reincarnating the “major questions” exception to chevron deference as a doctrine of non-interference (or why massachusetts v. epa got it wrong), 60 adm. law rev. (2008); randolph j may & andrew k magloughlin, nfib v. osha: a unified separation of powers doctrine and chevron’s no show, 74 s. c. law rev. (2022). 24 transcript of oral argument, loper bright enters. v. raimondo, 35–37 (2024). 23 rybachek v. u.s.e.p.a, 904 f.2d 1276 (1990) (emphasizing the importance of deferring to agency expertise when there are conflicting readings of a statute); sierra club, inc. v. bostick, 787 f.3d 1043 (2015) (underscoring the importance to defer when the technical expertise of an agency leads it to a conclusion “substantia[lly] bas[ed] in fact.”). 22 loper bright enterprises v. raimondo, supra note 6 at 10 (kagan, j., dissenting). 12 brandeis university law journal 2024-2025, volume 12 remains crucial in this dance of powers by ensuring that agency rulings remain within the confines of the relevant policy set forth by congress.27 notwithstanding chevron’s warning to the legislative branch that statutory ambiguity will be resolved “within the bounds of permissible interpretations” and its importance in maintaining americans’ health and safety, the conservative justices of the supreme court have deemed it unworkable and in need of replacement.28 to understand how the supreme court arrived at this juncture, it is imperative to interrogate how the mqd was the canary in the coal mine, signaling the death of chevron. iii. the fall of chevron some scholars point to the “major questions quartet” as the primary departure from chevron and adoption of the mqd.29 however, a closer look at the supreme court’s administrative jurisprudence reveals that the seeds for overturning chevron were sown by the “elephants in mouseholes” rule initiated in fda v. brown and williamson tobacco corp and crystallized in whitman v. american 29 mila sohoni, the major questions quartet, 136 harv. law rev. (2022). 28 scalia, supra note 27 at 517; loper bright enterprises v. raimondo, supra note 6 (kagan, j., dissenting). 27 antonin scalia, judicial deference to administrative interpretations of law, 1989 duke law j. 511 (1989) (explaining that when conducting administrative review, courts only need to determine whether “the agency has acted within the scope of its discretion.”); peter m. shane, chevron deference, the rule of law, and presidential influence in the administrative state, 83 fordham rev (2014) (showing that chevron requires courts to differentiate lawful from unlawful administrative acts that go beyond any plausible intent of congress.). operate to, contrary to much opinion, to trigger, not just react to, agency action[.]”); e. donald elliot, chevron matters: how the chevron doctrine redefined the roles of congress, courts and agencies in environmental law, 16 villanova environ. law j. (2005) (explaining that the executive, through agencies, is capable of making pertinent and effective policy as on-the-ground facts change.). 13 brandeis university law journal 2024-2025, volume 12 trucking association. this “elephants in mouseholes” rule existed within the chevron framework. it instructed courts to consider on rare occasions—along with the ordinary meaning, context, and structure of the statute—extratextual ideas of separation of powers and nondelegation.30 the newly anointed ultra-conservative supreme court, however, expanded this interpretation, asserting that any regulation approaching a politically motivated threshold of “too big” is an unconstitutional expression of regulatory power.31 thus began the end of chevron. iii.a the canary’s first warning in the 2000 case, fda v. brown, the court addressed the food and drug administration (fda)’s anti-smoking regulations. these rules were promulgated under the food, drug, and cosmetic act and aimed to curtail the sale, distribution, and advertisement of tobacco products.32 while acknowledging the serious public health issue of smoking-related illnesses in the united states, the court denied the fda the authority to regulate tobacco products. the court’s holding was partly based on the fda’s duty to ensure the safety and efficacy of the products it regulates, prohibiting the sale of those that would “present a potential unreasonable risk of illness or injury.”33 justice o’connor reasoned that because tobacco could never be used safely, the fda would be statutorily mandated to prevent the sale of tobacco entirely.34 34 fda v. brown & williamson tobacco corp., supra note 32 at 142. 33 21 u.s. code § 360f. 32 fda v. brown & williamson tobacco corp., 529 u.s. 120 (2000). 31 chad squitieri, who determines majorness?, 44 harv. j. law public policy, 495–497 (2021) (discussing how the mqd allows courts to “exercise its own political discretion to determine whether a policy question is major,” thus inviting the court into the political arena.); deacon and litman, supra note 4 at 1050–1052 (describing how the mqd encourages the courts to consider controversy generated by special interest groups to justify invalidating detested policies.). 30 deacon and litman, supra note 4, at 1040. 14 brandeis university law journal 2024-2025, volume 12 however, she found that congress explicitly forbade a tobacco ban, thus failing the agency’s claim at step one of chevron.35 justice o’connor emphasized that congress had devised a distinct regulatory scheme concerning the sale of tobacco products, “focus[ing] on labeling and advertising,” rather than restrictions.36 importantly for the justice, this scheme did not mention the fda, but delegated enforcement responsibility to the federal trade commission and federal communications commission.37 justice o’connor figured that by providing precise regulatory instructions to specific agencies not including the fda, congress intended to preclude the agency from regulating tobacco.38 fda v. brown illustrates a growing reluctance by the court to infer implicit delegations of power in cases involving “decisions of such economic and political magnitude” that could otherwise be reasonably justified by a plain reading of statutory text.39 justice o’connor argued that in such cases, courts should be skeptical as to whether congress delegated broad authority through ambiguous text. while it might be good policy to approach major agency rulings that congress has not explicitly addressed with a degree of caution, such a legal analysis lacks a clear constitutional or legislative basis. indeed, justice o’connor suggested that her decision was guided by a degree of “common sense,” which is hardly the rigorous legal standard required for interpreting complex statutory or constitutional questions.40 this “common sense” approach further undermines chevron’s view that congress 40 id. at 133; manning, supra note 7 at 410. 39 id. at 160. 38 id. at 130. it is important to note that the majority did not claim that the plain text of the statute precluded fda, rather their reasoning rested in a purposivist reading of extratextual sources. 37 id. at 149. 36 id. at 155–156. 35 id. at 148;156. 15 brandeis university law journal 2024-2025, volume 12 regularly makes implicit, and often major, delegations of authority through statutory silence.41 if one were to compare justice o’connor’s “common sense” understanding of congressional intent with actual statutory directives, one would find that the congressional review act (cra) authorizes congress to nullify agency rulemakings of which it disapproves.42 indeed, the cra explicitly details legislative procedures for reviewing “major” rules.43 given this, the absence of congressional disapproval for a rule issued under ambiguous statutory language could reasonably signal legislative approval—or at least acquiescence—that courts should respect. one year after fda v. brown, the supreme court continued to limit agency rulemaking by building on its burgeoning clear statement rule in american trucking. that case considered the constitutionality of the epa’s authority under §109(b)(1) of the clean air act (caa) to set national ambient air quality standards (naaqs) without considering the financial impacts of implementing such standards.44 textually, §109(b)(1) gives epa the authority to set naaqs, “the attainment and maintenance of which… are requisite to protect the public health.”45 justice scalia determined that the omission of economic considerations in §109(b)(1), and the inclusion of it in many other sections of the caa, unambiguously foreclosed the epa’s ability to consider any factors beyond public health.46 justice scalia determined that, unless congress explicitly stated otherwise, it is implausible that congress would demand, or even allow, the epa to consider costs that could “cancel[] the conclusions drawn from direct health effects.”47 such a reading of the statute would 47 id. at 469. 46 whitman v. american trucking associations, inc., supra note 44 at 467. 45 42 u.s.c. § 7409 (b)(1). 44 whitman v. american trucking associations, inc., 531 u.s. 457 (2001). 43 id. at (a)(ii). 42 5 u.s.c. § 801. 41 chevron u.s.a., inc. v. nrdc, supra note 3 at 843–844. 16 brandeis university law journal 2024-2025, volume 12 fundamentally alter the operating framework of the caa. if congress meant to require the consideration of costs, it knows how to write the words “cost-benefit analysis.”48 as justice scalia concisely put it, “congress… does not, one might say, hide elephants in mouseholes.”49 to understand american trucking’s relationship to the mqd, it must be read as a limitation of administrative powers. although the epa was not asserting that it could consider economic factors, the court concluded that the agency could not do so even if it wanted. had congress intended the epa to have such authority, it would have explicitly said so as it did elsewhere in the caa. in other words, the epa’s authority to set naaqs is not so broad that it can read the caa in a way that would fundamentally alter the regulatory framework established by congress. when harmonizing this principle with fda v. brown, it can be argued that, when administrative agencies issue rulings of significant political and economic magnitude to which congress did not speak, those rulings inherently disrupt the intended regulatory framework. simply put, any “major” agency rulemaking that can be read, textually or otherwise, as contradicting congressional intent would fail at chevron step one. american trucking and fda v. brown operate within chevron step one analysis.50 these rulings required courts to consider the breadth of the rulemaking in light of the agency’s charge from congress.51 if the agency’s rulemaking is broader than congress intended or spoke to, then it fails at step one. importantly, neither of the above cases address what would happen if the text of the statute is ambiguous and an agency 51 fda v. brown & williamson tobacco corp., supra note 32 at 159. 50 deacon and litman, supra note 4 at 1021. 49 whitman v. american trucking associations, inc., supra note 44 at 468. 48 entergy corp. v. riverkeeper, inc., 556 u.s. 208, 232 (2009) ( stevens, j., dissenting); american textile mfrs. inst., inc. v. donovan, 452 u.s. 490, 510 (1981) (stating that “when congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute.”). 17 brandeis university law journal 2024-2025, volume 12 rulemaking is not explicitly foreclosed by a direct congressional charge. nor do these cases discuss what would happen if congress intentionally wrote ambiguously to allow the agency to determine the best course of action within the prescribed regulatory framework and its stated goals. as demonstrated below, the court answers by shuffling the mqd between chevron step one, step two, and a new step zero, as well as by expanding the indicia for its application.52 this inconsistent application allowed the court to scrutinize not just what, but how federal agencies regulate. iii.b the canary’s coughing fit moving on to a set of cases that further lay the foundation for overturning chevron, judicial antipathy towards agency powers becomes more pronounced as the supreme court narrows the administrative state’s regulatory authority. these cases show how the court inconsistently invoked the mqd to circumvent otherwise precedent-bound agency deference.53 these cases demonstrate how the mqd increasingly became a “get-out-of-deference” free card, destabilizing the traditional chevron framework and eventually necessitating its elimination.54 in gonzales v. oregon, the supreme court ruled against a u.s. attorney general’s 2001 interpretive rule.55 this rule claimed that under the controlled substances act, the attorney general (ag) could revoke the licenses of medical professionals who prescribed or dispensed controlled substances for physician-assisted suicide, even in states where such practices were legal.56 the court determined that while the ag had the authority to add, remove, or reschedule 56 id. at 249–250. 55 gonzales v. oregon, 546 u.s. 243 (2006). 54 west virginia v. epa, supra note 5 at 28. (kagan, j., dissenting). 53 cass r sunstein, chevron step zero, public law leg. theory work. pap. (2005). 52 squitieri, supra note 31 at 475. 18 brandeis university law journal 2024-2025, volume 12 substances and ensure compliance, he did not have the authority to unilaterally decide the legality of medical practices.57 part of the analysis supporting this conclusion derived from congress’ delegation of medical policy decisions to the secretary of the department of health and human services (dhhs), rather than the ag.58 the court suggested that if the ag’s proposition were accepted, he would have the authority to decide “whether a physician who administers any controversial treatment could be” punished.59 this would make the ag, rather than the secretary of dhhs, the ultimate arbiter of permitted medical practices — a delegation too “broad and unusual” to be made through the implicit language of the controlled substances act.60 finally, the court noted in dicta that the controversial nature of physician-assisted suicide made the ag’s claim all the more suspect.61 gonzales exhibits two new factors materializing within the mqd’s framework. first, the mismatch between an agency’s actions and the powers delegated to it by congress; and second, the controversial nature of a regulation. the gonzalez court argued that the ag could not regulate medical uses of controlled substances, since his authority was limited to regulating abuses of controlled substances.62 on its face, this premise does not seem to disregard chevron’s reverence for an agency’s particular expertise. indeed, gonzales recognized that chevron is predicated on the assumption that agencies typically make decisions within their delegated domain by relying on experts in the relevant field.63 when an agency attempts to regulate an area in which it traditionally lacks subject-matter expertise, it 63 id. at 267. 62 id. at 270. 61 id. at 267. 60 id. at 267–268. 59 id. at 268. 58 id. at 274. 57 id. at 262. 19 brandeis university law journal 2024-2025, volume 12 becomes quite doubtful that congress would delegate that authority through ambiguous text.64 however, subsequent rulings applied this principle too expansively. while gonzales showed respect for dhhs’s expertise in medical care policy, recent cases — particularly alabama ass’n of realtors v. cdc and nfib v. osha — exemplify how the “agency mismatch” principle has become a tool to denigrate the expertise of agencies attempting to address multifaceted issues like climate change and covid-19.65 the court’s recognition of an “earnest and profound debate” over physician-assisted suicide in the country was insufficient on its own to find the ag’s actions unconstitutional.66 rather, the presence of moral controversy provided reason to doubt that congress had, through such vague language, authorized the ag to unilaterally prohibit physician-assisted suicide.67 as explained in part iv.c, these words, while not binding, foreshadow how some justices have come to undermine chevron deference and the administrative state by pointing to the presence of controversy, whether it be large or small, real or imagined.68 in utility air regulatory group v. epa, the court considered the legality of the epa’s decision to include greenhouse gasses under certain permitting provisions of the caa, particularly the “prevention of significant deterioration” (psd).69 the psd provisions require “major emitting facilities” 69 utility air regulatory group v. epa, 573 u.s. 302 (2014). the other provision at the heart of the case, title v, shares many of the same definitions and effects as the psd provisions, so for clarity's sake, only the psd provisions will be discussed. 68 deacon and litman, supra note 4 at 1063. 67 brianne j gorod, brian r frazelle & j alex rowell, major questions: an extraordinary doctrine for extraordinary cases, 58 wake for. law rev. 599, 619. 66 gonzales v. oregon, supra note 55 at 249. 65 thomas o mcgarity, the major questions wrecking ball, 41 va. environ. law rev. 1, 49–50 (2023). 64 id. at 268. 20 https://www.zotero.org/google-docs/?broken=5a4x2g brandeis university law journal 2024-2025, volume 12 in “areas designated attainment or unclassifiable” to comply with emissions limitations and best practices.70 the caa defines “major emitting facilities” as stationary sources with the potential to emit 250 tons per year (tpy) of any air pollutant.71 recognizing that greenhouse gasses are emitted at much higher rates than other pollutants, the epa chose to enforce its interpretation only against facilities that emit at least 100,000 tpy of co2e.72 the court held that, even if the epa did not change the numerical definition of “major emitting facilities,” the caa would still preclude the epa from including greenhouse gasses in the psd provision. echoing its reasoning in brown, the court ruled that the epa is statutorily required to apply the 250 tpy threshold when establishing rules under the psd provisions. the epa conceded that this threshold would be inappropriate for greenhouse gasses, as it would mandate the regulation of millions of smaller sources. as in brown, such an outcome, though plausibly supported by the statute’s plain text, would be incompatible with the regulatory framework established by congress. the court reinforced this conclusion by requiring “clear congressional authorization” for agencies claiming “enormous and transformative” expansions of regulatory power.73 this requirement reflects the “elephants in mouseholes” rule articulated in american trucking. the court reasoned that the epa’s attempt to include greenhouse gasses in the psd framework, which traditionally regulated only a few major polluters, would fundamentally alter the statute’s scope. while the epa enjoys authority to regulate greenhouse gasses 73 id. at 324. 72 utility air regulatory group v. epa, supra note 69 at 309–310. co2e, or carbon dioxide equivalent, is a standard unit used to compare the emissions of different ghgs to co2 based on their global warming potential. 71 42 u.s.c. § 7479(1). 70 id. at 308. 21 brandeis university law journal 2024-2025, volume 12 under the caa, that authority was deemed insufficiently broad to justify such an extensive expansion of the psd provisions.74 the utility air framework extends the basic rationale of fda v. brown and american trucking. its holding being that, without clear congressional authorization, agency rulings of political and economic significance disrupt the intended regulatory scheme. the primary issue begins when the court states that it “expect[s] congress to speak clearly if it wishes to assign agency decisions of vast economic and political significance.”75 synthesizing this principle with american trucking, it follows that agencies cannot “discover” an unheralded power to regulate conferred through the “ancillary provisions” of statutes; they must find this power in explicit text.76 here, utility air establishes a new chevron carve-out whereby “ambiguous language cannot be invoked to allow an agency to exercise its authority in a sufficiently transformative way.”77 there are three major issues with this seemingly innocuous transformation: (1) how significant a rulemaking must be to require a clear statement from congress; (2) who determines when this threshold has been reached; and (3) what constitutional compulsion supports the court’s clear statement rule for “major regulations.” as the next section will show, the court answers this line of inquiry by arrogating to itself the power to “selectively 77 cass r. sunstein, chevron as law, 107 georget. law rev. 1613, 1677 (2019). 76 id.; whitman v. american trucking associations, inc., supra note 44 at 458. 75 utility air regulatory group v. epa, supra note 69 at 321. 74 massachusetts v epa, 549 u.s. 497 (2007) (granting epa authority to regulate ghgs.); cass r sunstein, there are two “major questions” doctrines, 73 adm. law rev. 475, 491 (2021) (arguing that the rationale in utility air “could easily have been used to justify the opposite result in massachusetts v. epa”. that argument is beyond the scope of this paper, but it is at least worth pointing out that the massachusetts court gave epa the authority to regulate ghgs, but the utility air court stripped it of substantial enforcement power as it relates to certain provisions of the caa.). 22 brandeis university law journal 2024-2025, volume 12 demand that explicit legislative language be used to delegate the authority to answer those questions that courts determine to be major.”78 the court’s synthesis of the above cases leads it to maximalist conclusions that encourage arbitrary judicial policymaking excused by an ambiguously-defined threshold of “political and economic significance.” iii.c the canary’s last gasps if the old mqd existed within the chevron framework, the “major questions quartet” exemplifies how the new mqd, enunciated in utility air, comes to function as a half-baked federalism canon and nondelegation doctrine that undermines basic assumptions of chevron.79 the quartet’s judicial power-grab further turns the court into a political actor, whereby questions of “political and economic significance” are not decided by legal reasoning but by a jurist’s policy preferences and world view.80 this power of “void for majorness” amounts to a political veto in which a jurist, for their own political and economic reasons, may determine that a policy is “too grand” to stand on ambiguous language.81 by applying this doctrine arbitrarily to administrative agencies, the court disrupts forty years of precedent that informed legislative processes and agency rulemaking, causing a sea-change in administrative law and ultimately the demise of chevron. as mentioned in part ii, chevron put congress on notice that ambiguous statutory text will be interpreted by the executive, whose agencies issue rules “within the bounds of permissible interpretation.”82 under chevron, the boundaries of 82 scalia, supra note 27 at 516. 81 id. at 503–509. 80 squitieri, supra note 31 at 496. (describing that by voiding laws on majorness grounds, courts “act similarly to the president, who for idiosyncratically held political reasons may veto a bill…”). 79 cass r. sunstein, supra note 77 at 1669; sohoni, supra note 29; alison gocke, chevron’s next chapter: a fig leaf for the nondelegation doctrine, 55 uc davis law rev. 955 (2024). 78 squitieri, supra note 31 at 495. 23 brandeis university law journal 2024-2025, volume 12 permissible interpretation are not set by the majorness of the resulting policy, but by a plain text reading of the statute.83 this analysis treats statutory ambiguities as delegating authority to agencies, giving them the flexibility to adjust rules as knowledge evolves and challenges change.84 the quartet undermines these assumptions that informed congress’ drafting of complex regulatory schemes, skewing outcomes against regulation and disrupting the legislative compromises that often signal broad delegation.85 the first three cases of the quartet considered whether different administrative agencies had the authority to prevent the spread of covid-19 through novel regulations.86 in alabama ass’n of realtors v. dhhs, the court held that the center for disease control and prevention (cdc) did not have the authority to prevent the spread of covid-19 by imposing a national eviction moratorium.87 in national federation of independent business (nfib) v. occupational safety and health administration (osha), the court held that because covid-19 did not pose an exclusively occupational risk, osha’s authority to protect workers from dangerous “agents” or “toxins” could not extend to a vaccine mandate.88 in biden v. missouri, the court agreed with the government’s assertion that the secretary of dhhs could set health and safety conditions, including a covid-19 vaccine mandate, for facilities receiving funding from medicare and medicaid.89 part of the rationale in the cases in which the government lost relied on a counter-chevron assumption of the 89 biden v. missouri, supra note 86. 88 nfib v. osha, supra note 86. 87 alabama ass’n of realtors v. dep’t of health and human services, supra note 86. 86 alabama ass’n of realtors v. dept. of health and human services, 594 u.s. ___ (2021); nfib v. osha, 595 u.s. __ (2022); biden v. missouri, 595 u.s. __ (2022). 85 sohoni, supra note 29 at 286; squitieri, supra note 31 at 505. 84 id. at 517-518. 83 id. 24 brandeis university law journal 2024-2025, volume 12 purpose of statutory ambiguity. the court failed to recognize that congress cannot foresee future problems and uses ambiguous language to ensure flexibility in agency regulations. instead, it assumed that provisions in decades-old statutes, never previously applied expansively, could not be so applied without a clear statement from congress.90 the court emphasized that neither the cdc nor osha had previously used their emergency rulemaking powers to pause evictions or effectuate a vaccine mandate.91 by contrast, in missouri, the court noted that the secretary claimed broader authority than before because the agency “never had to address an infection of this scale and scope.”92 although not cited, the only way to reconcile these disparate rationales is with the agency mismatch concept from gonzales. one could argue that the cdc and osha had never established such regulations because doing so would touch on matters beyond their subject-matter expertise. dhhs on the other hand, was reasonably expanding upon previous regulations for healthcare facility operations—something undoubtedly within its purview and expertise. this overly broad application of gonzales prevents agencies from adapting regulations as circumstances evolve. it further loads the dice against agencies trying to address multifaceted crises that touch on, but might not be fully encompassed by, their titular responsibilities.93 this raises a fundamental question about why federal courts should require a clear statement from congress to support an agency’s claim to regulate issues that involve, but are not fully encompassed by, the agency’s core 93 antonin scalia, common-law courts in a civil-law system: the role of united states federal courts in interpreting the constitution and laws, in a matter of interpretation: federal courts and the law 3, 26 (new ed. 2018). 92 biden v. missouri, supra note 86. 91 id. 90 alabama ass’n of realtors v. dept. of health and human services, supra note 86; nfib v. osha, supra note 86. 25 brandeis university law journal 2024-2025, volume 12 responsibilities. the court answers this by detaching the mqd from chevron and inconsistently attaching it to poorly articulated constitutional values of federalism and nondelegation. iii.c.1 federalist values in the cdc case, the court found that the agency’s actions encroached on typically state-regulated landlord-tenant relationships.94 instead of applying the federalism canon—which presumes that federal laws do not override state laws without a clear statement from congress—the court treated the disruption of state law as an indicator of political significance.95 by doing so, the court linked the federalism canon to the mqd, creating a superficial constitutional basis for requiring a clear statement from congress. by invoking federalist principles rather than applying an already established clear statement rule, the court justified its limitation of statutory text by associating one doctrine with another.96 this judicial sleight of hand allows the court to demand an unusually high level of statutory clarity, one that undermines congress’s authority to delegate regulatory powers to agencies.97 moreover, later cases show that federalism does not appear to be the primary justification for a presumption against major administrative powers; rather, it becomes one of a myriad of poorly articulated constitutional values used to justify the strangling of the administrative state.98 iii.c.2 nondelegation values the more often-discussed constitutional value connected to the mqd’s clear statement rule is that of 98 sohoni, supra note 29 at 283. 97 john f. manning, the supreme court, 2013 term foreword: the means of constitutional power, 128 harv. law rev. (2014). 96 sohoni, supra note 29 at 313. 95 id; manning, supra note 7 at 434. 94 alabama ass’n of realtors v. dep’t of health and human services, supra note 86 at 6. 26 brandeis university law journal 2024-2025, volume 12 nondelegation.99 the nondelegation doctrine derives from the legislative vesting clause of article i and “bars congress from transferring its legislative power to another branch of government.”100 on only two occasions, both in 1935, has the supreme court applied this doctrine to invalidate a statute.101 while its pedigree remains weak, the mqd today camouflages the reemergence of a nondelegation doctrine that provides the court with a framework to decide not just whether congress did delegate certain powers, but whether congress could do so.102 in a fashion similar to the court’s justification via association of constitutional values in the cdc case, justice gorsuch justified the application of the mqd in the osha case by merely associating the mqd with the seldom-invoked nondelegation doctrine.103 the justice explained that the nondelegation doctrine precludes congress from “hand[ing] off all its legislative powers to unelected agency officials,” while the mqd prevents agencies from “exploit[ing] some gap, ambiguity, or doubtful expression in congress’s statutes to assume responsibilities far beyond its initial assignment.”104 according to justice gorsuch, both doctrines “prevent government by bureaucracy supplanting government by the people.”105 notably, the main difference between these two theories is which branch of government is inappropriately extending its authority. the nondelegation doctrine polices “improper legislative delegations” from congress while the 105 id. at 6. 104 id. 103 nfib v. osha, supra note 86, at 5 (gorsuch, j., concurring). 102 id.; loshin and nielson, supra note 99 at 57; gocke, supra note 79 at 995–997. 101 cass r sunstein, nondelegation canons, 67 univ. chic. law rev., 322 (2000). 100 gundy v. united states, 588 u.s. 128 (2019). 99 sunstein, supra note 74; jacob loshin & aaron nielson, hiding nondelegation in mouseholes, 62 adm. law rev. (2014); gocke, supra note 79. 27 brandeis university law journal 2024-2025, volume 12 mqd polices “abuse[s] of delegated authority” by the executive.106 when considering the purported constitutional compulsions supporting justice gorsuch’s nondelegation argument, it becomes clear that his framework stands on even shakier constitutional grounds than the federalist principles supporting the outcome in the cdc case. unlike the federalism canon, the court has been unable to articulate a workable version of the nondelegation doctrine that demarcates when statutory ambiguity meant to be resolved by the executive becomes a prohibited delegation of legislative power.107 justice gorsuch’s theory purports to resolve this dilemma by asserting that any statutory ambiguity that results in a “major” policy is either an unconstitutional expression of agency powers (mqd) or an “unconstitutional delegation of legislative authority” (nondelegation).108 for the justice, this means that, unless the matter is wholly mundane or otherwise interstitial, congress cannot even expressly and specifically delegate decision-making authority to an administrative agency.109 this theory of both the mqd and nondelegation doctrine turns on the question of when exactly an agency policy is mundane and when it is “major.” as will be discussed in part iv, no consistent answer is readily available, as the court has issued “ad hoc, discretionary rulings” that “suffer from the appearance” and reality of jurists’ basing the outcome of a case on a knee-jerk reaction to personally detested or favored policies.110 110 sunstein, supra note 101 at 327; deacon and litman, supra note 4 at 1065–1069 (asserting that worldviews align closely with policy preferences “judges may be more inclined to perceive issues or policies as politically significant if the policies are opposed by the political party that appointed that judge.”). 109 gocke, supra note 79 at 996; gundy v. united states, supra note 100. 108 nfib v. osha, supra note 86, at 6 (gorsuch, j., concurring). 107 loshin and nielson, supra note 99 at 56. 106 may and magloughlin, supra note 25 at 271; gocke, supra note 79 at 994. 28 brandeis university law journal 2024-2025, volume 12 iv. the end of chevron iv.a the canary’s death up until this point, the mqd merely warned us of chevron’s death. as demonstrated in west virginia v. epa, the court did not listen to the warnings. instead of leaving the mqd behind and deferring to an agency, the court continued to plunge deep into the unnavigable mines of “majorness” until its new doctrine finally asphyxiated chevron. in west virginia v. epa, the court determined that the epa’s authority under section 111(d) of the caa was not so capacious as to allow for the obama-era clean power plan (cpp).111 the cpp adopted a “generation shifting” approach to greenhouse gas reduction, whereby power plants would need to shift “from higher-emitting to lower-emitting production” of electricity.112 rather than attempt to refine the contours of the mqd and explain the constitutional compulsions for the clear statement rule, the court’s opinion and justice gorsuch’s concurrence present a hodgepodge of ideas justifying the mqd. the opinion and concurrence attempt to justify the doctrine’s application and provide a broad framework for anti-regulatory judges to wage their war against the administrative state. this final section is composed of three parts. part iv.b will critique the court’s atextual justification for applying the mqd in west virginia. part iv.c will show how the opinion and concurrence instruct lower courts to rule against agency actions that judges personally find to be too political or too 112 id. at 705. 111 west virginia v. epa, supra note 5; 42 u.s.c. § 7411(d). not wholly relevant to this article, but still crucial for context, is the issue of standing in the case. the majority and dissent disagreed as to whether any party maintained standing in the case, especially given that an entire presidency and a half had lapsed since the cpp was initially put into place and stayed. furthermore, the biden administration claimed that it was not going to reinstate the cpp. indeed, justice kagan characterized the ruling as “an advisory opinion on the proper scope of the new rule epa is considering.” 29 brandeis university law journal 2024-2025, volume 12 costly. part iv.d will argue that the court embraced justice gorsuch’s version of separation of powers from nfib v. osha, thus making the mqd impossible to apply so long as chevron breathed. iv.b the (a)textual justification the court begins its justification for applying the mqd by characterizing section 111(d) of the caa as an “ancillary” and seldom employed provision of the statute.113 this characterization sets the rhetorical foundation for the rest of the court’s opinion. first, the court forwards a purposivist argument in textualist’s clothing, whereby it establishes an anti-regulatory hierarchy of statutory text in which ambiguous provisions executed through broad regulation are deemed “ancillary” or insufficient to support the agency’s ruling. second, the court determines that, because the epa had never interpreted section 111(d) in such an expansive manner, it is functionally prevented from doing so to address novel issues like climate change.114 finally, the court jettisons textualism and replaces it with a post-hoc anti-regulatory framework that allows the inactions of subsequent congresses to define the scope of statutes passed by a previous congress. as in american trucking, the depiction of certain provisions of statutory text as “ancillary” begs the question of how the court knows which provisions are unimportant “mouseholes” hiding regulatory elephants.115 the court answers by turning its analysis into a fraught search for statutory purpose.116 indeed, the court does not determine the size of the “mousehole” in section 111(d) by parsing through the language of the provision and situating it within the context of the caa, but by pointing to the remarks made by one 116 id. 115 loshin and nielson, supra note 99 at 45–46. 114 deacon and litman, supra note 4 at 1033. 113 id. at 703. 30 brandeis university law journal 2024-2025, volume 12 architect of the caa and the epa’s previous rulings pursuant to section 111(d).117 this form of statutory construction disregards the normative textualist theory that legislation is often “the result of ‘backroom deals’ and diverse individual compromises” rather than solely reflecting the views of a few cited legislators.118 the court’s framework further ignores justice scalia’s view that shifting agency interpretations are not indicative of an incorrect interpretation but that agencies change the law in light of new information and “within the limited range of discretion conferred by the governing statute.”119 both of these textualist presumptions would typically render legislative history and shifting agency interpretations irrelevant to statutory interpretation.120 notwithstanding its textualist commitments, the west virginia court misconstrued ambiguous text as being no more than a legislative afterthought and undeserving of meaningful textual analysis that would likely result in a policy disfavored by the majority.121 the third atextual justification for the mqd in west virginia relies on congress’s failure to pass comprehensive legislation addressing climate change despite knowing that greenhouse gas emissions pose an existential threat to humanity.122 this justification is incongruent with textualism, as it cites inactions of subsequent congresses as limiting the power of broad legislation passed by a previous congress.123 this justification also assumes that legislative inaction exclusively provides evidence of congressional disapproval, 123 deacon and litman, supra note 4 at 1062. 122 id, at 724. 121 west virginia v. epa, supra note 5 at 703. 120 id.; conroy v. aniskoff, 507, u.s. 511, 519 (1993). (scalia, j., concurring) (writing that “the greatest defect of legislative history is its illegitimacy. we are governed by laws, not by the intentions of legislators.”). 119 scalia, supra note 27 at 518–519. 118 loshin and nielson, supra note 99 at 52. 117 west virginia v. epa, supra note 5 at 703. 31 brandeis university law journal 2024-2025, volume 12 rather than evidence of acquiescence to agency rulemaking or a lack of expertise on exactly how issues should be regulated. as shown below, the atextualist justifications for applying the mqd in this case leads to results that appear to be, or are, arbitrary, inconsistent, politically motivated, and contradictory. iv.c the political instruction to understand how the mqd’s application in west virginia promotes arbitrary rulings, one needs to look no further than the list of possible indicia for “majorness” put forth by justice gorsuch in his concurrence. the five indicia for majorness that justice gorsuch lays out are poorly defined and can be interpreted in an infinite variety of ways.124 as the court has noted regarding criminal statutes, poorly defined and limitless rules fail to establish clear standards of enforcement, leading to arbitrary application.125 while this understanding of arbitrariness pertains to statutory enforcement rather than rulings made pursuant to unclear reasoning, the principle still stands. when one branch of the government, including the judiciary, establishes vague rules, it leads to inconsistent applications. this is concerning in the world of administrative law because vague rules and standards encourage judges to base decisions on their policy preferences. first, justice gorsuch suggests that policies of “profound political significance” may be implicated in mqd analysis.126 as shown above, this comes from fda v. brown and its progeny. then, justice gorsuch seems to expand this theory of majorness, citing gonzales to show that the presence of societal controversy should clue judges into the majorness of an agency’s ruling.127 this idea, in effect, allows controversies 127 id. 126 west virginia v. epa, supra note 5 at 743. 125 city of chicago v. morales, 527 u.s. 41, 49-50 (1999). 124 the five indicia of majorness include political controversy, economic significance, federalism, nondelegation, and agency mismatch. because the last three have already been fleshed out in part iii.c.1-c.2, the discussion here focuses on the first two indicia. 32 brandeis university law journal 2024-2025, volume 12 generated by an increasingly partisan and volatile political landscape to determine when courts stray from normative statutory interpretation.128 if one party achieves its goals through the legislature or executive, the opposing party need not worry, so long as it can generate sufficient controversy. this provides antidemocratic results, as the executive branch is barred from using regulation to “end an earnest and profound debate” and legislative inaction is interpreted as opposition to the challenged policy.129 furthermore, the issue of political controversy allows for judicial policy-making. a judge’s interpretation of what is sufficiently controversial turns on their political values and worldview, which often closely align with the party that appointed them.130 this results in an inconsistent adjudication of law, in which an individual judge’s political ideology, rather than objective modes of statutory interpretation like textualism, forms the basis for their rulings.131 closely related to the issue of political controversy is that of economic significance. both the majority opinion and justice gorsuch’s concurrence take issue with the hefty cost associated with the cpp.132 for the conservative justices, the fact that the cpp would result in industries shelling out billions of dollars in fines and compliance costs meant that it was major and required clear congressional authorization.133 this economic analysis is even more ripe for judicial policymaking when compared to the political controversy analysis. a policy does not need to result in the upending of entire industries to be considered economically significant, although that was a factually incorrect charge made against the epa. rather, it 133 id. 132 west virginia v. epa, supra note 5 at 715, 744. 131 id. at 1069. 130 deacon and litman, supra note 4 at 1065. 129 id. at 1060; west virginia v. epa, supra note 5 at 743. 128 deacon and litman, supra note 4 at 1051–1052. 33 brandeis university law journal 2024-2025, volume 12 must be deemed too expensive in the eyes of the presiding jurist. the economic analysis reeks of judicial policymaking, as it asks whether the economic impact is too significant in relation to the issue in question. this leads to politically motivated, or at least politically informed, weighing of economic factors. indeed, the conservative justices’ hostility towards the cpp was based on its potential to raise the price of production and home energy, both of which are gop talking points against the shift from nonrenewable to renewable energy.134 to be sure, the justices did not mention the price associated with inaction, which in west virginia would likely outweigh the costs of enforcement.135 no matter which way the analysis is sliced, any determination of majorness that asks for the price tag inevitably results in legislating from the bench, as it requires a jurist to choose between competing values and costs associated with a given policy. this is undeniably a policy determination, and it asks unelected judges to impress their own idiosyncratic economic views upon an electorate that cannot hold them accountable. notwithstanding the mqd’s opening to judicial policymaking, the conservatives on the court understand themselves to be issuing legal, rather than policy, decisions. this argument should be taken seriously. to be fair, in almost all cases before the court, the line between legal and political decisions is hazy. however, the problem of west virginia and the mqd is that the court reaches legal conclusions—e.g., that congress did not or could not delegate authority to a given 135 solomon hsiang et al., estimating economic damage from climate change in the united states, 356 science 1362 (2017); adam b. smith, u.s. billion-dollar weather and climate disasters, 1980 present (ncei accession 0209268), (2020). 134 west virginia v. epa, supra note 5 at 714; lisa friedman, a republican 2024 climate strategy: more drilling, less clean energy, the new york times, aug. 4, 2023; brian kennedy tyson cary funk and alec, what americans think about an energy transition from fossil fuels to renewables, pew research center (jun. 28, 2023). 34 brandeis university law journal 2024-2025, volume 12 agency—based on policy preferences—e.g., a policy is too expensive, controversial, and the like. the only way to justify such conclusions is by endorsing the anti-chevron view that the judiciary is the exclusive, rather than ultimate, interpreter of statutes. iv.d the canary dies the first three articles of the constitution lay out the separation of powers. the legislature makes the laws, the executive enforces the laws, and the judiciary interprets the laws. there are, however, nuances to this basic understanding. of relevance here is chevron’s view that statutory enforcement requires at least some degree of executive interpretation of vague statutory language. as discussed in part iii.c.2, justice gorsuch understands the mqd to protect against nondelegation issues by forbidding the executive from citing ambiguous statutory language to fill in major policy gaps. for justice gorsuch, any ruling made pursuant to ambiguous statutory language that results in policies affecting more than day-to-day operations would constitute a forbidden exercise of the executive’s enforcement power. while it remains unclear whether all of the conservative justices are prepared to join justice gorsuch in the most extreme application of that anti-regulatory posture, endorsing the justice’s reconceptualization of separation of powers in nfib v. osha is the only way for the conservatives on the court to coherently support the conclusions of west virginia and eventually loper bright.136 136 this article focuses on justice gorsuch’s framework of the mqd because it appears to be the dominating conceptualization. however, it remains worth noting that not all conservative justices agree that the mqd functions as a clear statement rule. indeed, justice barrett understands the mqd to support ordinary principles of communication. as cass sunstein writes, for justice barrett, “the mqd is relevant to what the best interpretation is, but if congress is best understood to have said ‘actually i meant that sort of [major policy],’ or perhaps better, ‘i meant the sort of [major policy] that the relevant agency deemed’ appropriate, then the fact 35 brandeis university law journal 2024-2025, volume 12 as mentioned in part iii.c.2, the mqd renders the chevron doctrine incompatible with principles of separation of powers. it does so by undermining chevron’s basic legal fiction that statutory ambiguities delegate regulatory authority to agencies who define vague terms to determine the scope of their regulatory power. the court’s framework in the mqd cases stipulates that only clear congressional authorization can be understood to grant agencies expansive powers.137 taken to its most extreme end, this understanding renders executive interpretations of ambiguous text antithetical to the entire federal project, and prevents administrative agencies from using their subject-matter expertise to fill in policy gaps left by congress. the court’s framework further turns chevron’s version of separation of powers on its head. first, it asserts that congress cannot divest itself of its legislative powers by telling an agency to adopt what the agency deems to be, for example, the “best,” most “economically feasible,” or “safest” policy.138 instead, congress must articulate policy prescriptions with an impractical level of specificity so that agencies know exactly what congress understands to be the “best,” most “economically feasible,” or “safest” policy. this framework has the deregulatory effect of kicking important issues to a congress that has often purposefully declined to determine exactly how issues should be regulated.139 139 mcgarity, supra note 65 at 37 (“it is beyond naïve to suggest that allowing federal courts to strike down consequential agency actions taken under fresh interpretations of old statutes will cause congress to suddenly spring into action and refresh those statutes or write new statutes to address newly emerging problems.”). 138 indeed, in west virginia, the cpp was promulgated pursuant to the epa’s interpretation of the ambiguous statutory phrase “best system of emissions reduction.” 137 west virginia v. epa, supra note 5 at 722. that a major question is involved is neither her nor there.” see cass r. sunstein, two justifications for the major questions doctrine, 76 fla. law rev. 251 (2024). 36 https://www.zotero.org/google-docs/?broken=0eu5ew https://www.zotero.org/google-docs/?broken=0eu5ew https://www.zotero.org/google-docs/?broken=0eu5ew https://www.zotero.org/google-docs/?broken=0eu5ew https://www.zotero.org/google-docs/?broken=0eu5ew https://www.zotero.org/google-docs/?broken=bagwaf https://www.zotero.org/google-docs/?broken=bagwaf https://www.zotero.org/google-docs/?broken=bagwaf brandeis university law journal 2024-2025, volume 12 while purporting to give the electorate a chance to decide how it is regulated, this anti-chevron version of the balance of powers undemocratically dispossesses the executive of much of its duty to “take care that the laws be faithfully executed.”140 it does so by limiting the executive branch’s ability to act on issues where congress’s intent is not explicitly clear but can be reasonably gleaned from the text of the statute. this limitation undermines the executive’s duty to execute laws by restricting its ability to interpret and apply statutory provisions in light of new circumstances, advancing science, and novel policy needs.141 perhaps most problematic for chevron’s version of separation of powers is that the executive cannot resolve statutory ambiguities when they inevitably exist.142 rather, as chief justice roberts wrote in loper bright, it is the exclusive role of the judiciary to determine the “single, best meaning” of a statute.143 this means judges, who are not experts in much beyond law, decide what is the one “best,” most “economically feasible,” or “safest” policy.144 this is a maximalist judicial power grab that justifies legislating from the bench by claiming that the court’s legal expertise legitimizes its exclusive authority “over every open issue – no matter how expertise-driven or policy-laden – involving the meaning of regulatory law.”145 by anointing itself as the exclusive, rather than ultimate, interpreter of statutes, the supreme court rejects any need for agency deference, rendering chevron unworkable, contrary to the separation of powers, and in need of overturning. 145 id. at 3 (kagan, j., dissenting). 144 id. at 17–18 (“when the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the apa, is as always, to independently interpret the statute and effectuate the will of congress subject to constitutional limits.”). 143 loper bright enterprises v. raimondo, supra note 6 at 22. 142 west virginia v. epa, supra note 5 at 740; sunstein, supra note 102 at 323. 141 mcgarity, supra note 65 at 36. 140 u.s. const. art. 2, § 3, cl. 5. 37 https://www.zotero.org/google-docs/?broken=ktsh2v https://www.zotero.org/google-docs/?broken=ktsh2v https://www.zotero.org/google-docs/?broken=qwtgse https://www.zotero.org/google-docs/?broken=grxylg brandeis university law journal 2024-2025, volume 12 v. conclusion over the past twenty years, the supreme court has transformed the major questions doctrine from a rarely used tool of statutory interpretation into a rigid clear statement rule, weakly grounded in the constitution. in doing so, the court undermined the foundational principles of chevron v. nrdc. most notably, the mqd cases reveal how the court disregarded chevron’s vision of the separation of powers and the appropriate disposition of ambiguous statutory text. as these two doctrines sat on increasingly diametrically opposed ends, the court’s desire to constrain administrative powers left overruling chevron as the only logical conclusion. this outcome was solidified with justice gorsuch’s reconceptualization of the separation of powers in osha v. nfib and the court’s endorsement of that approach in west virginia v. epa. after west virginia, so little remained of chevron deference that its overruling was essentially a formality. to be sure, the seemingly natural progression of mqd cases to chevron’s demise should not be mistaken as validation of the court’s approach. rather, it highlights the roberts court’s troubling approach to precedent. as justice kagan and legal commentators have observed, the court often erodes important precedents by selectively ignoring when they should be applied, then calling the original decision into question.146 this cycle continues until the court constructs enough self-justified reasoning to formally overrule the precedent. the mqd cases exemplify this manipulative approach to stare decisis, undermining the stability of bedrock legal principles. the court has attempted to frame its manipulation of precedent and stare decisis as a long overdue defense of its constitutional role, claiming in loper bright enterprises v. raimondo that overruling chevron safeguards distinctly 146 id.; richard l. hasen, the chief justice’s long game, the new york times, june 25, 2023. 38 brandeis university law journal 2024-2025, volume 12 “judicial” skills like statutory interpretation. chief justice roberts, in particular, has argued that this is simply the court “saying what the law is.”147 as this article makes clear, this justification is a smokescreen. the mqd cases — particularly justice gorsuch’s politics-laden definition of what constitutes a “major question” — reveal the court's repeated forays into policymaking. by deciding which issues qualify as “major” and dictating their resolution, the court encroaches on policymaking authority that belongs to the legislative and executive branches. now, without the judicial guardrail that was chevron, unelected judges are empowered to impose upon the electorate their subjective views on matters of vast political and economic importance. this invites judicial activism, where administrative policies become increasingly susceptible to arbitrary and politically motivated interference. this new era of statutory interpretation threatens to destabilize critical regulatory efforts, with potentially disastrous consequences for governance, environmental protection, and the public good. 147 loper bright enterprises v. raimondo, supra note 6 at 7. 39 brandeis university law journal 2024-2025, volume 12 second to one: walking in the shoes of a giant noah levy1 this book review of john adams by david mccullough situates the reader in president adams’ tumultuous position during the american revolution. in the spirit of the law, the article utilizes his legal milestones to reveal the inherent risk in his actions and the rewards of living by a cause. the time boston is crumbling, and you are fleeing your home as a penniless refugee. rewind: what just happened? while it may be out of fashion in the twenty-first century, imagine being a proud colonial british farmer in the 18th century. the sunrise is a signal to pick up a plow or force someone else to, depending on local values. when the yield is plentiful, mighty british trade routes are convenient to export surpluses. most goods are english and support “the good life.” there is a scuffle in boston, and the royal taxes become increasingly pervasive. the situation escalates, and suddenly, your fellow countrymen are declaring independence. which side do you choose? in retrospect, it is easy to declare allegiance to the winners, but it would have been a dangerous decision in the historical milieu. britain was the world’s major superpower, with the most powerful army, navy, and commerce network. rebelling would put one’s life and livelihood at catastrophic risk. playing it safe by remaining loyal to the crown would result in being among the thousands who fled in haste.2 through riveting storytelling, david mccollough, the author of john adams, illustrates that those who risked treason for liberty were the unlikely victors. 2 david mccullough, john adams 76 (2001). 1 brandeis university, class of 2025, brandeis university law journal, editor-in-chief. 40 https://www.zotero.org/google-docs/?broken=kmu3l0 brandeis university law journal 2024-2025, volume 12 the man john adams faced a far more arduous decision than many of his countrymen. put yourself in his shoes, coming from a patrilineage of new england farmers with a prestigious maternal heritage.3 the family works hard to put food on the table, taking advantage of vast land holdings.4 your father is a deacon who recognizes your potential to follow in his footsteps.5 breaking the family’s long-standing maxim against selling land, he parts with ten of his seventy-five acres to send you to harvard.6 you toil in books while others labor in the soil. while not exceedingly rich, the harvest provides a life of relative comfort. thinking you “would make a better lawyer than preacher” leads to employment as a schoolmaster after graduation to save up for a legal apprenticeship.7 the work is exhausting and builds on a preexisting yearning for more prestige. sociological research shows that periods of major societal upheaval lend to excellence.8 later on, arguing as vice president that president washington should be referred to as “his excellency” may be a tacit early recognition of the time’s significance. there lies a desire to seal the prestige of the position in perpetuity. while ambition is externally viewed as vain, a fire burns within. two years of legal training culminates in admission to the massachusetts bar. a cascade of success emerges, including moving your law office from braintree to boston, beginning to acquire land, and becoming “boston’s busiest attorney.”9 many newly minted law school graduates say they’ll put in their time with “white shoe” law and move on to 9 mccullough, supra note 2 at 63. 8 malcolm gladwell, outliers: the story of success, 60 (2008). 7 id. at 37. 6 id. at 35. 5 id. at 34. 4 id. at 32. 3 id. at 30. 41 https://www.zotero.org/google-docs/?broken=qxeieh https://www.zotero.org/google-docs/?broken=2ascz9 https://www.zotero.org/google-docs/?broken=eagwrw https://www.zotero.org/google-docs/?broken=jtctyo https://www.zotero.org/google-docs/?broken=ssg39k https://www.zotero.org/google-docs/?broken=9ndihx https://www.zotero.org/google-docs/?broken=w77kgn brandeis university law journal 2024-2025, volume 12 other work. you embody this modern ideal, yet you refuse to forgo the time’s iconic metal-clasped, black colonial shoes, appearing before the “superior court… in more than two hundred… cases” in a single year. your public profile grows, serving as braintree’s surveyor and selectman. then, early in a soon-to-be storied career, a crossroads emerges. a dear friend, jonathan sewall, shares “an offer you cannot refuse” to lead the “office of advocate general in the court of admiralty,” a plush royal position and a massive career advancement.10 the thirst for prominence has never been closer to being satisfied. yet, in the face of the stamp act, you begin a legal movement for national independence instead, halting the prospect of immediate ascendancy. you campaign with the historic phrase, “no taxation without representation,” building out ironclad revolutionary ideals.11 you have “no difficulty saying no” to sewall.12 having everything to lose, you inextricably tie your fate to a budding nation. achieving the coveted societal status of a landowner warrants the conviction of expanding liberty to your countrymen through war. soon after choosing a side, an opportunity arises to exercise your values. the people of massachusetts are outraged at the events of the boston massacre. no lawyer will take the british soldier’s case until the one and only john adams esq. rises to the occasion. this choice leads to “public scorn… painful in the extreme.”13 being extremely self-conscious and loathing criticism, the negative publicity scars your ego, which is a surprisingly grounding experience. nevertheless, the “principle” that “no man in a free country should be denied the right to counsel” trumps all personal considerations. unknowingly, this will aid political ambitions later. 13 id. at 66. 12 id. at 64. 11 id. at 61. 10 id. at 64. 42 https://www.zotero.org/google-docs/?broken=ayzoke https://www.zotero.org/google-docs/?broken=fau52u https://www.zotero.org/google-docs/?broken=g4q7hs https://www.zotero.org/google-docs/?broken=uenfk3 brandeis university law journal 2024-2025, volume 12 the government while some have the initial instinct to take up arms or aimlessly bash the present circumstances, you take a more calculated path, detailed in various publications. the instrumental ideas you authored in thoughts on government recognize that the “form of government which communicates… happiness… to the greatest number of persons… is the best.”14 the subject is a government with three branches: the executive, legislative, and judiciary. each should be independent to serve as a check on the others. in the face of war, there is a release valve called “militia law,” where the executive takes the reins of the state to straighten out conflict.15 you pride yourself in solutions, so deride thomas paine’s common sense, which identifies a problem without proposing an adequate fix. these seminal works, endowed with legal prowess, will constantly inform your activism. congress is indecisive when debating independence. some prefer a semi-autonomous status, others sovereign freedom.16 you leverage your oratorical skills to keenly apply procedural rules and ensure the effectiveness of the debates.17 the first attempt at a declaration failed, leaving two more weeks for negotiations. you draw on your lawyering days to whip together a unanimous final vote.18 authoring the declaration of independence’s preamble is an honor. modern readers can see that it alone can serve the document’s purpose. the document explains that government legitimacy lies upon the consent of the governed to provide the “unalienable rights” to “life, liberty, and the pursuit of happiness.”19 since the british crown was “destructive towards 19 john adams, preamble to the declaration of independence, (1776). 18 id. at 129. 17 id. at 123. 16 mccullough, supra note 2 at 126. 15 id. at 2. 14 john adams, thoughts on government, 1 (1776), http://founders.archives.gov/documents/adams/06-04-02-0026-0004 (last visited jan 2, 2025). 43 https://www.zotero.org/google-docs/?broken=zmap26 https://www.zotero.org/google-docs/?broken=mlv27x https://www.zotero.org/google-docs/?broken=vyudpv https://www.zotero.org/google-docs/?broken=qxeieh https://www.zotero.org/google-docs/?broken=wrifam https://www.zotero.org/google-docs/?broken=ascp0r https://www.zotero.org/google-docs/?broken=ascp0r https://www.zotero.org/google-docs/?broken=ascp0r brandeis university law journal 2024-2025, volume 12 these ends[,] it is the right of the people… to abolish it… and to institute [a] new government.” the circumstances in the colonies were “reduced[ed to] despotism,” and it was the “duty” of americans to “throw off such government.” as if signing the document is not a sufficient mortal risk, you double down by championing it with vigor. leading up to the vote, you defended it in a speech that thomas jefferson describes as having “a power of thought and expression that moved us from our seats.”20 while unbeknownst at the time, mccullough will say it was “the most powerful and important speech heard in the congress since it convened, and the greatest of [your] life.” later, the british will write a list of founding fathers to pardon in the case of reunification. “adams” is absent, corroborating the risk inherent in these choices.21 the statesman the precarious global circumstances make it abundantly clear that america needs global support, so you become its top statesman, liaising between france, britain, and the netherlands.22 a vital duty is to negotiate terms for peace with britain, defense from france, and financing from the dutch. the treaty of paris cements american independence, defense from france provides naval armaments in the war, dutch loans finance the war of independence, and the correspondence you spearhead with france leads to the conditions necessary for jefferson’s louisiana purchase.23 your spoken legal eloquence serves your pursuit of liberating america. the u.s. constitution is modeled after the values you enshrined in authoring massachusetts’, which will become “the 23 id. at 586. 22 id. at 384. 21 id. at 158. 20 mccullough, supra note 2 at 127. 44 https://www.zotero.org/google-docs/?broken=icp4qa https://www.zotero.org/google-docs/?broken=vezgko https://www.zotero.org/google-docs/?broken=pq3qqt https://www.zotero.org/google-docs/?broken=9znrhy brandeis university law journal 2024-2025, volume 12 oldest functioning written constitution in the world.”24 the constitutional role of the vice president comes easily.25 you dutifully undertake your job and go above and beyond to preside over all the senate’s sessions. as president, the law holds the fledgling republic together. with the nearing prospect of war with france, your long-term ambition of establishing a navy to maintain the borders and reactionary measures of the alien and sedition acts attempt to maintain unity in tumultuous times.26 the navy is one of the most vital institutions for america’s independence. it critically aids madison’s defense of the shore during the war of 1812. though initially a critic of the branch, jefferson will come to admit his mistake in judgment in personal correspondence.27 the alien and sedition acts neglect the first amendment, acutely policing speech. the administration does not prosecute anyone under the alien act but does police the sedition act by imprisoning republicans who have slandered you. you judge these actions to be necessary as a temporary measure during times of war.28 while your heart may be in the right place to promote unity in a divided time, history will prove this measure wrong. the legacy of this mistake will perpetually cast a dark shadow over the period in the history books. as the nation’s second presidency is coming to a close and the government is becoming increasingly partisan, it seems a fruitful time to bolster the courts. you nominate justices that will be called the “midnight judges” despite being confirmed more than a week before leaving office.29 if you lived until the twenty-first century, you could take this historical inaccuracy up with its chief propagator, lin-manuel miranda. yet, among 29 id. at 563. 28 id. at 505–506. 27 id. at 606. 26 id. at 499, 504. 25 id. at 434. 24 id. at 225. 45 https://www.zotero.org/google-docs/?broken=gmyqh8 https://www.zotero.org/google-docs/?broken=fbarza https://www.zotero.org/google-docs/?broken=ypvvxq https://www.zotero.org/google-docs/?broken=7ccrlo https://www.zotero.org/google-docs/?broken=jvhz1y https://www.zotero.org/google-docs/?broken=u2vifc brandeis university law journal 2024-2025, volume 12 the judges is justice john marshall, who will become the most celebrated justice to have served on the supreme court.30 along with these appointments, you create six more circuit courts to protect against the despotism of unfettered power, as strengthening the courts by any means is among your central values. nonetheless, these courts will not survive jefferson’s impending presidency.31 you believe parties are destructive to the government’s functioning, as factions definitionally cause more, not less, disagreement.32 this leads to the maintenance of washington’s cabinet and the consideration of appointments void of partisan loyalties.33 at the cost of mental well-being, you endure the slander and subversion of the cabinet to sustain the people’s best interests. the legacy you question your self-worth on account of criticism from all angles yet stay wedded to your ideals. you are open-minded but remain resolute to acknowledge when you are right. when the odds are stacked against you, you double down. time will count billions who ride the tide, but you break the current. your project will become a force for good that lifts billions from poverty, serves as a model for governance, and flourishes for 248 years and counting. you could have been on that boat to london and reconstituted a law practice abroad. watching your city recede into the horizon would have hurt, but the feelings would have been temporary. instead, you will not give up on your freedom without a fight and will secure a seat in the annals of history for taking the road never traveled. 33 id. at 518. 32 id. at 422. 31 id. at 577. 30 id. at 560. 46 https://www.zotero.org/google-docs/?broken=rhdssk https://www.zotero.org/google-docs/?broken=cnay62 https://www.zotero.org/google-docs/?broken=bxmdfn https://www.zotero.org/google-docs/?broken=ib140o brandeis university law journal 2024-2025, volume 12 ambiguities embedded in the systems of interstate compacts zachary miller1 the united states is noteworthy in that the federal government is the product of a union of autonomous states bound together by the constitution. the framers sought to concurrently insert the sovereignty of the states and the strength of the federal government into this binding document through a series of compromise measures. one of these compromise measures was the compact clause which outlines the parameters for the enactment of an interstate compact.2 presently, interstate compacts are legally both federal statutes enacted by congress and contracts entered into by the party states.3 existing case law and literature surrounding interstate compacts largely presupposes this duality. this article explores the circumstances that led to each of these characterizations and some problems posed by their continued usage, both individually and jointly. overview the possibility of states forging clandestine agreements with one another remains a perennial danger that the compact clause is designed to combat, but one it can never fully eradicate. congressional consent is the major mechanism for effectuating a defense against this threat. the framers created this system to mitigate the risk of state insurgency while preserving a degree of state sovereignty for interstate collaboration and achieving mutual policy goals. essentially, when two or more states uncover a shared interest, they can 3 stephen p. mulligan, interstate compacts: an overview, (2023), https://crsreports.congress.gov/product/pdf/lsb/lsb10807. 2 u.s. const. art. i, § 10, cl. 3; felix frankfurter & james m. landis, the compact clause of the constitution. a study in interstate adjustments, 34 yale law j. 685 (1925). see infra note 126 for a discussion of additional historical context for the enactment of the compact clause. 1 brandeis university undergraduate, class of 2025, brandeis university law journal, senior technical editor. 47 brandeis university law journal 2024-2025, volume 12 draft a compact and seek the consent of congress to allow them to ratify and execute the compact. while compacts have historically governed issues such as boundary disputes and water distribution agreements, in the twentieth and twenty-first centuries, compacts have grown to encompass more ambitious policy objectives.4 the compact clause is silent as to what congressional consent indicates, when consent is required, and what constitutes consent. given the range of subjects an interstate compact could address, congress’s role in this process has been viewed as advisory. congress’s power to provide consent has historically, therefore, been seen as independent of the stringent enumerated powers delegated to congress by the constitution.5 5 some legal and practical problems of the interstate compact, 45 yale law j. 324, 328 (1935). (“the essence of congressional consent is…a grant to the compacting states of permission to compact, and such consent does not make a compact a law of the union in any significant sense. congress' supervision of compact-making among the states is thus a political function, independent of congress' other enumerated powers.”) the former portion of 4 katherine m. crocker, a prophylactic approach to compact constitutionality, 98 notre dame l. rev. 1185, 1186-1189 (2023). (interstate compacts have been floated amongst both democrats and republicans in recent years to advance political goals. democrats formulated an interstate compact designed to combat climate change following president donald trump’s withdrawal from the paris accords. democratic governor phil murphy proposed an interstate compact to implement gun control policies in response to federal inaction following the 2018 parkland school shooting. democratic governor andrew cuomo explored an interstate compact to combat the coronavirus pandemic. conversely, republicans initiated an interstate compact in opposition to president barack obama’s immigration policies and to counteract the effects of the passage of the affordable care act.) an interstate compact has also been discussed to commit member states to allocating their electoral votes to presidential candidates who win the popular vote in their states (the national popular vote compact). this article does not discuss this particular compact and instead offers a generalized critique of the legal frameworks interstate compacts occupy. for an analysis of this compact in the context of compact law, see tara ross & robert m. hardaway, the compact clause and national popular vote: implications for the federal structure, 44 n.m. l. rev. 383 (2014). 48 brandeis university law journal 2024-2025, volume 12 first, this article will examine the role that congress has played in the formation and execution of compacts. this part of the article will culminate in the 1981 case cuyler v. adams, which held that compacts are acts of congress.6 this article will then examine the supreme court’s recent interstate compact opinion in the 2023 case of new york v. new jersey and its reliance on the “contract-law rule,” which posits that compacts can be governed by common-law contract principles.7 here, the article will analyze the application of contract law principles to compacts. finally, this article will demonstrate the inability of compacts to embody these classifications simultaneously by interrogating lingering questions posed by this judicial duality. i. the role of congress and the road to statutory status a. people v. central railroad: congress as a notary in 1870, the supreme court heard the case of people v. central railroad. the state of new york brought a complaint against the central railroad company for seizing “about 800 acres of land and water, and erecting docks, wharves, piers, and other improvements” without authorization from the government of new york.8 new york alleged that the corporation’s conduct violated a compact ratified between new york and new jersey, with the consent of congress in 1834, because the compact had placed the approval of the 8 people v. central railroad, 79 u.s. 455, (1870). see also the people v. central r.r. co. of n.j, 42 n.y. 283 (n.y. 1870). this section’s goal is to provide an abstract overview of this particular theory of compact law; rather than to provide the expansive chronology of case law, an endeavor left to subsequent sections of this article. for this reason, discussion of the history chronicled in infra note 38 is omitted here. 7 new york v. new jersey, 143 s. ct. 918 (2023). 6 cuyler v. adams, 449 u.s. 433 (1981). this excerpt has been abrogated by cuyler v. adams (see infra notes 6 & 38-39; part i, section d of this article), but this recognition of the independence of the compact supervision power remains largely intact. 49 brandeis university law journal 2024-2025, volume 12 undertakings within the purview of new york. conversely, the central railroad company argued that the compact placed the projects within the jurisdiction of new jersey, the entity from whom the corporation had received approval for its activities. the court of appeals ruled in favor of the corporation and interpreted the compact as granting discretion over these assets to new jersey.9 the case was appealed to the supreme court where new york contended that questions posed by interstate compacts were fundamentally ones of federal law, by virtue of their prerequisite acquisitions of congressional consent. new york argued this precluded the lower court from adjudicating the matter in the first place and that only the supreme court could examine the case. the supreme court used this case to decide whether compacts were simply agreements between states or if the consent of congress converted them into federal law. the supreme court chose the former option, that congressional consent did not make compact agreements federal law.10 as a result, state courts were understood to possess jurisdiction over the adjudications of compact matters and the court of appeals’ ruling was respected.11 11 one area where central railroad falls short is in its failure to explain why a state is obligated to respect the legislation and judicial proceedings of other states. specifically, central railroad was silent as to what rectification mechanisms might have existed if the lower court had found that the central railroad company had actually usurped property from new york. perhaps the supreme court implicitly believed that the full faith and credit clause of the constitution would have imbued new jersey with the obligation to respect and enforce the ruling of the new york court. this clause states that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” (u.s. const. art. iv, § 1, cl. 1). presently, compacts are confined to the federal court system and deemed to present federal questions which obviates this issue. see part iii, section c and its accompanying notes; infra notes 38 & 41 for an explanation of this shift. 10 id. 9 people v. central railroad, supra note 8 at 455-456. 50 brandeis university law journal 2024-2025, volume 12 the question of whether an interstate compact is transformed into an act of congress through the acquisition of congressional consent is important. the constitution requires that the states receive the consent of congress, but central railroad held that the core of a compact is the contractual agreement entered into by the states. this understanding of how congress factors into the development of compacts, espoused in central railroad, frames congress merely as a notary.12 congress providing its consent to a compact did not transform the compact into a matter of federal law. thus, congress was not the policy actor driving the compact and could not be perceived as having any investment in the compact’s execution aside from offering its consent.13 states handled the orchestration of the compact’s imperatives through state legislation and adjudications in state courts. similarly, when two individuals enter into a contract with one another, they are tasked with carrying out the obligations assigned to them under the agreement.14 a positive byproduct of central railroad’s jurisprudence, which prevents a compact from instantaneously becoming a matter of federal law, is that it ensures congress does not acquire legislative powers not afforded to the federal government by the constitution. states have an inherent series of reserved powers as a condition of their sovereignty that the 14 id. at 455-456; american society of notaries, notary conflict of interest, https://www.asnnotary.org/?form=conflictofinterest. 13 people v. central railroad, supra note 8 at 456. (“we think that…the question [in this case] arose under the agreement and not under any act of congress. the assent of congress did not make the act giving it a statute of the united states…the construction of the act…had no effect beyond giving the consent of congress to the compact between the two states.”). 12 a notary is someone legally authorized to officiate a contract to ensure the parties are on the same page. a notary cannot preside over the formation of a contract where they might have a personal interest. see generally national notary association, what is a notary public? https://www.nationalnotary.org/knowledge-center/about-notaries/what-is-anotary-public#:~:text=a%20notary%20public%20is%20an,exercise%20of %20significant%20personal%20discretion. 51 brandeis university law journal 2024-2025, volume 12 constitution does not explicitly delegate to the federal government. while there is ambiguity in where each entity’s domain begins and ends, state powers typically include matters more specific in scope. the federal government generally may not interfere with or take up reserved powers retained by the states.15 if the federal government was emboldened to complete these localized imperatives, federal power would be unnecessarily overextended and enlarged.16 however, congress can utilize its compact consent powers to consider a wide range of subject matters pertaining to the capacity of states to exercise their respective reserved powers.17 the 1918 case of virginia v. west virginia posed a complication to the central railroad framework.18 here, the supreme court held that congress’s compact consent power affords congress the ability to enforce and operate any given compact.19 19 id. at 601. (“the vesting in congress of complete power to control agreements between states, that is, to authorize them when deemed advisable and to refuse to sanction them when disapproved, clearly rested upon the conception that congress…was virtually endowed with the ultimate power of final agreement which was withdrawn from state authority and brought within the federal power. it follows as a necessary implication that the power of congress to refuse or to assent to a contract between states carried with it the right, if the contract was assented to and hence became operative by the will of congress, to see to its enforcement.”); id. at 605. (“[b]ecause of the character of the parties and the nature of the controversy, a contract approved by congress and subject to be by it enforced...full opportunity may be afforded to congress to exercise the power which it undoubtedly possesses.”). 18 virginia v. west virginia, 246 u.s. 565 (1918). 17 see supra note 5. 16 edward p. buford, federal encroachments upon state sovereignty, 9 va. law regist. 321 (1923); p.f., constitutional law: encroachment by treaty upon the reserved powers of the states, 8 cal. law rev. 177 (1920). 15 even the necessary and proper clause of the constitution, which empowers congress to do what is necessary and proper to achieve an objective, is confined to congress’s explicitly enumerated constitutional powers (u.s. const. art. i, § 8, cl. 18). 52 brandeis university law journal 2024-2025, volume 12 b. virginia v. west virginia: congress as an executor under west virginia, congress is a direct executor of interstate compacts. but if congress has the ability to enforce a compact’s execution, compacts cease to simply be a matter upon which two or more states have an agreement. when states come to congress to ratify an agreement, under the central railroad theory of compact law, the expectation is that those states will carry out the obligations of the compact. congress has certain abilities pursuant to its delegated powers, however, and these powers have historically been distinct from congress’s power to consent to the ratification of compacts. under these parameters, congress has traditionally been granted the discretion to consider compacts that stray outside the powers delegated to the federal government by the constitution.20 west virginia offered congress the unbridled power to ensure the operation of compacts if states fall short of meeting their contractual obligations. in this constitutional framework, a compact that pertains to powers not explicitly delegated to congress can be absorbed by congress. west virginia proclaims that congress can use compacts for policymaking and that congress can use powers reserved for the states if they cease to operate a compact.21 if a compact exists as an agreement between states, the states ought to have the autonomy to multilaterally withdraw from a compact that no longer serves their interests and to render any given compact obsolete and non-operational.22 a notary would not assume the duties of a contract and continue to operate under the contract’s parameters if the original signatories no longer sought to enforce the provisions of the contract. 22 see part ii for a more in-depth evaluation of the application of contract law principles to compacts and new york v. new jersey’s stance on state withdrawal from compacts. 21 infra note 44. 20 see supra note 5. 53 brandeis university law journal 2024-2025, volume 12 it is worth noting that historically congress has enshrined a retention of the right to alter, amend, or repeal its consent into the act that provided it.23 still, the compact which held the states to the same circumstantial arrangements could not be retroactively amended. the sole mechanism for states to rectify discrepancies in the original language of the compact would be to mutually agree to let an existing compact go dormant and to adopt a new one.24 west virginia’s framework, which allows congress to take up old compacts and consider their specifics, exacerbates this rigidity on the state level. thus, the west virginia opinion tacitly operates within a framework which presumes that congress is an executor of the compacts it consents to and that congress has a greater capacity to curate compacts than the states. this deference presents a potential conflict of interest for congress, as west virginia allows congress to determine which compacts congress greenlights while also empowering congress to inject itself into compacts as an executor. while west virginia may enable congress to overstep, west virginia’s underlying reasoning highlights a shortcoming in central railroad’s depiction of congress as a notary. a notary would not maintain an interest in the affairs of the parties to a contract they officiate, nor would they choose to officiate a contract on the merits of its outcomes. yet, congress remains invested in the operations of interstate compacts because the federalist system creates an existential contest for supremacy between the federal government and the states.25 25 federalist paper no. 1 (alexander hamilton). (“among the most formidable of the obstacles which the new constitution will have to encounter may…be…the obvious interest of a certain class of men in every state to resist all changes which may hazard a diminution of the 24 richard h. leach, the federal government and interstate compacts, 29 fordham law rev. 421, 426 (1961). 23 see generally part iii for a more in-depth evaluation of the ambiguities of congressional consent. congress authored these provisions because congress does not inherently possess the right to re-evaluate its consent retroactively. 54 brandeis university law journal 2024-2025, volume 12 the political process inextricably links states and the federal government in ways that do not exist between the parties to a contract and their notary.26 thus, west virginia employs a more accurate portrayal of congress than central railroad does. still, west virginia affords congress a tremendous amount of leeway to forward these interests, when some of these interests would be better left to the states to address. furthermore, west virginia’s jurisprudence leaves congress room to exploit its consent powers. this possibility was displayed in 1960 by the house judiciary committee under the leadership of chairman emanuel celler, a new york congressman who took an interest in the compact between new york and new jersey that established the port authority as an interstate agency.27 the port authority was an unpopular institution within the public sphere during this time.28 congressman celler introduced a resolution that would have required congressional consent for every new project the agency proposed. this resolution was controversial because the port authority had been operating within the parameters of its compact and its previous projects did not require congressional approval.29 29 id. 28 leach, supra note 24 at 436. 27 leach, supra note 24 at 435-436; an interstate agency or compact agency is “an agency of two or more states established by or pursuant to an agreement or compact approved by the congress, or any other agency of two or more states, having substantial powers or duties” 33 u.s.c. § 1362(2). 26 orie leon phillips, governmental powers, state and national, under our constitutional system, 36 mich. law rev. 1051 (1938). see part iii of this article for discussions of the federalist challenges posed by the current legal classifications of compacts and the ways in which the relationships between the different levels and branches of government converge to conceal salient legal remedies for compact related inquiries. power…they hold under the state establishments; and the perverted ambition of another class of men, who…will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.”) 55 brandeis university law journal 2024-2025, volume 12 when this resolution failed, celler sought to place investigations into the internal operations of compact agencies within the purview of the judiciary committee.30 celler’s imperatives were not shared by his colleagues, who nullified his efforts to maintain this strict construction of congressional consent.31 a proposed resolution to representative celler’s attempted federal encroachment was to establish a clearer adherence to virginia v. tennessee’s parameters for compact consent within congressional procedure.32 in 1893, this case evaluated what constituted congressional consent. the court found that compacts could be granted congressional consent implicitly and that, if a compact was not retroactively nullified by subsequent congressional actions, the compact could be presumed to possess the implied consent of congress.33 c. virginia v. tennessee: a medium for congressional participation virginia v. tennessee demonstrates that there are legitimate questions concerning the efficacy of congressional consent as a safeguard against compacts which may encroach upon the constitutional federalist framework. the court acknowledged that some compacts cannot be considered until 33 virginia v. tennessee, supra note 32 at 503. (“an agreement or compact as to boundaries may be made between two states, and the requisite consent of congress may be given to it subsequently, or may be implied from subsequent action of congress itself towards the two states, and when such agreement or compact is thus made and is thus assented to, it is valid.”) 32 virginia v. tennessee, 148 u.s. 503 (1893); leach, supra note 24 at 443. this suggestion was eventually adopted in u.s. steel v. multistate tax comm’n. for the full citation of this case and more on its role in this development, see infra note 92. 31 id. at 443. for more about this particular controversy and arguments raised during this time see: id. at 436-443; emanuel celler, congress, compacts, and interstate authorities, 26 law contemp. probl. 682 (1961); congress and the port of new york authority: federal supervision of interstate compacts, 70 yale law j. 812 (1961); congressional supervision of interstate compacts, 75 yale law j. 1416 (1966). 30 id. at 437. 56 brandeis university law journal 2024-2025, volume 12 they are fully realized and found that these compacts could elicit retroactive congressional consent. the court held that congressional consent is only required for agreements which encroach upon the “just supremacy” of the federal government, by finding that the word “compact” in the compact clause is noscitur a sociis.34 in an article celler published to elucidate his perspective on federal oversight of compact operations, he argued for narrowly applying virginia v. tennessee because the case dealt with a compact congress had already ostensibly provided with consent through prior legislation.35 while there is a practical rationale for the standard espoused by virginia v. tennessee, it is not in the best interest of public policy to have a compact take shape and be retroactively denied consent by congress. if the compact is nullified, this nullification would result in a waste of the resources consolidated by each state to fulfill its respective duties. furthermore, the legitimate interest in preserving the federal republic is inadequately forwarded by the implied consent doctrine. under virginia v. tennessee’s doctrine of implied consent, there may be times where a compact bears the imprimatur of congress despite the fact that congress has 35 celler, supra note 31 at 685. 34 id. at 519. (“looking at the clause in which the terms ‘compact’ or ‘agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the united states.”). a latin phrase meaning it is known by its associates, noscitur a sociis is a statutory interpretation technique that derives the meaning of an ambiguous word from the legislature’s use of associated words in the sentence. the “united states” is sometimes used by the court to refer to the country, and sometimes to monolithically refer to the federal government. see generally section d of this part and part iii of this article for a discussion of the difficulties the supreme court has had in deriving the nature and parameters of congressional consent from a practical and “political” standpoint and differentiating between the various branches and departments of the federal government. 57 brandeis university law journal 2024-2025, volume 12 never directly evaluated the compact. as a result, states can implement unconstitutional compacts unbridled by the safeguards embedded in prerequisite congressional deliberations. the court justified permitting states to enact unconstitutional compacts under the assumption that congress would subsequently learn of their unconstitutionality and dismantle them. it is dangerous to assume that congress can be fully aware of the parameters of a compact congress did not review. this is especially true when, under virginia v. tennessee, the only compacts congress is intended to review are ones which may encroach upon the supremacy of the federal government. if three individuals enter an agreement, it would be inequitable for two individuals to enter the agreement with direct consent; while one individual is subsumed into the agreement through implied consent without being able to formally review the agreement. it is especially inequitable when that individual can only withdraw their consent through subsequent actions that explicitly showcase their disinterest. in addition to its implementation of an implied consent doctrine, virginia v. tennessee established the “just supremacy” standard. this extrapolation is intriguing because it seeks to provide a consistent safeguard for state sovereignty by limiting the congressional consent prerequisite to agreements which can encroach on federal power. one could argue, however, that this remedy is inadequate even when congress is given the opportunity to review and consent to a compact. if the enactment of a compact which encroaches on federal power is only checked by congressional consent, congress can erroneously consent to a compact that jeopardizes the constitutional supremacy of the federal government. as previously stated, the west virginia case afforded congress the ultimate authority on the passage of a compact through its consent.36 but under the american system of government, it is 36 to effectuate the “ultimate power of final agreement” doctrine, the supreme court in west virginia countered the argument that it had 58 brandeis university law journal 2024-2025, volume 12 not the role of congress to interpret legal documents and assess their constitutionality; that power is associated with the judiciary.37 the quandary of whether congress ought to be thought of as an executor of or as a notary to interstate compacts was further occluded by the 1981 case of cuyler v. adams, where the supreme court solidified a transformation doctrine. the court found that any compact that acquires congressional consent and pertains to a matter appropriate for congressional legislation is transformed into federal law.38 cuyler’s 38 in cuyler v. adams, the court referred to this as the “law of the union” doctrine (see cuyler v. adams, supra note 6 at 439 n.7). this doctrine’s prudence had long been contested prior to its incorporation in cuyler (see supra note 5). the “law of the union” compact doctrine originated in pennsylvania v. wheeling & belmont bridge company, 54 u.s. 518, 566 (1851). in the 1851 case, the supreme court regarded the compact in contention as a law of the union because it amassed the sanction of congress. neither the parties nor the court in people v. central railroad acknowledged this precedent. this left the question of whether compacts were the “law of the union” without a clear answer for a substantial portion of american history. for an overview of this historical dilemma and a contemporary perspective on the law of the union doctrine prior to the court’s opinion in cuyler v. adams; see generally david e. engdahl, 37 federalist paper no. 51 (alexander hamilton & james madison); u.s. const. art. iii, § 2, cl. 1; marbury v. madison, 5 u.s. 137 (1803). in this case, the supreme court ruled that it could assess the constitutionality of laws and strike down unconstitutional ones. while this power is not enshrined in the constitution, this power known as “judicial review” has become a major norm of constitutional law. see infra note 126 for an additional explanation of this anomalous conflict between compact consent and judicial review. undermined the explicit delegation of original jurisdiction of interstate disputes to the court by the constitution (see infra note 99). west virginia v. virginia, supra note 18 at 603. (“[t]here [is not] any force in the suggestion that the existence of the power in congress to legislate for the enforcement of a contract made by a state under the circumstances here…is incompatible with the grant of original jurisdiction to this court to entertain a suit between the states on the same subject. the two grants in no way conflict, but cooperate and coordinate to a common end, that is, the obedience of a state to the constitution by performing the duty which that instrument exacts.”). 59 brandeis university law journal 2024-2025, volume 12 transformation doctrine fundamentally altered the legal status of interstate compacts, by dubbing them federal statutes and centralizing adjudications of compact disputes in the federal judiciary.39 39 cuyler v. adams, supra note 6 at 434. (“[w]here congress has authorized the states to enter into a cooperative agreement and the subject matter of that agreement is an appropriate subject for congressional legislation, congress' consent transforms the states' agreement into federal law under the compact clause, and construction of that agreement presents a federal question.”); id. at 438. (“although the court of appeals did not reach this constitutional issue, it held that it was not bound by the state court's result because the…interstate compact [is] approved by congress and is thus a federal law subject to federal rather than state construction. before reaching the merits of the…decision, we must determine whether that conclusion was correct. we hold that it was.”). construction of interstate compacts: a questionable federal question, 51 va. l. rev. 987 (1965). see infra note 127 for how engdahl’s analysis was factored into the opinions authored in cuyler v. adams. hinderlider v. la plata co., 304 u.s. 92 (1938) directly dealt with the repercussions of the conflicting doctrines of the 1851 opinion in wheeling and central railroad. in this case, the court was hesitant to concede that compacts were acts of congress but the court sought to afford itself jurisdiction over the matter (see engdahl at 998-1003). justice louis brandeis deemed hinderlider a question of federal common law to justify the federal bench’s usurpation of the case (hinderlider v. la plata co. at 110). this justification was particularly flimsy because that same year justice brandeis wrote for the court in erie railroad co. v. tompkins, 304 u.s. 64, 78 (1938) where he would proclaim that there is no general federal common law and state judicial and legislative authorities ought to be deferred to, by federal courts, in cases that do not deal with the constitution or acts of congress; cases that do not present a federal question. two years after hinderlider, the court would decide delaware river commission v. colburn (infra note 103) where the court would directly attempt to reconcile the discrepancy between central railroad and the court’s 1851 opinion in wheeling by overturning central railroad and holding that compacts presented federal questions as a result of their acquisition of congressional consent through federal statutes. for a more in-depth discussion of the court’s opinion in colburn and the development of the “federal question” doctrine in compact cases see part iii, section c of this article. ultimately, cuyler v. adams resolved this entire debacle by unequivocally ruling that compacts are federal statutes. however, as this article argues, the decision in cuyler has garnered mixed results. 60 brandeis university law journal 2024-2025, volume 12 d. cuyler v. adams: compacts as acts of congress the power that west virginia affords congress to upkeep compacts, coupled with cuyler, enables congress to usurp reserved powers for itself. west virginia’s framework allowed congress to use compacts as instruments for its own policymaking; cuyler deemed compacts federal statutes. these rulings disincentivize states from respecting their obligations under a compact because congress can assume a compact’s responsibilities on a state’s behalf. as previously mentioned, a primary motivation for the compact clause was the framers’ concern about states entering into clandestine agreements with one another. however, states can theoretically place a compact before congress with a mutual intention of abstaining from fulfilling the compact’s obligations. in this paradigm, congress will absorb the duties of these states and keep the compact in effect. this incentivizes states to relinquish their reserved powers and instead incentivizes states to afford congress powers the federal government was not explicitly delegated by the constitution.40 while cuyler only held that compacts pertaining to subjects appropriate for congressional legislation bear the imprimatur of federal law, presuming they meet the definition of a compact under virginia v. tennessee, the common takeaway has been that all compacts are federal law. in washington metro. area t.a. v. one parcel of land, the fourth 40 kevin j. heron, the interstate compact in transition: from cooperative state action to congressionally coerced agreements, 60 st john's law rev. 1, 23 (1985). (“if congress were permitted to create arrangements [with the prerogatives and objectives of compacts]…pursuant to its commerce power, the power of the states under the compact clause would essentially be nullified and they would be deprived of the element of state sovereignty specifically retained in the constitution.”). this section exclusively discusses the ramifications of the majority opinion authored in cuyler v. adams as it pertains to the statutory status of compacts. see part iii for more about the implications of cuyler coupled with the character of compacts as contracts. see infra note 127 for an overview of the dissenting opinion in cuyler. 61 brandeis university law journal 2024-2025, volume 12 circuit held that congressional consent delegates federal powers to those involved in a compact’s operation, rather than simply viewing cuyler as dubbing compacts federal law for interpretation purposes. this generalized the cuyler precedent beyond merely subject matters appropriate for federal legislation.41 it has even been posited that cuyler partly overturned virginia v. tennessee because cuyler framed congressional consent as the prerequisite for something being 41 washington metro. area t.a. v. land, 706 f.2d 1312 (4th cir. 1983). regarding the common takeaway being that even compacts with subject matters not appropriate for federal legislation still become federal law, see 1317 n.9. (“[s]tate agreements whose subject matter is appropriate for federal legislation…which do not threaten to increase the political power of the states at the expense of the federal government…that do…not receive congressional consent will not be invalidated for lack of consent, but a compact that is consented to by congress will thereby become federal law.”). on the question of federal prerogatives for compact enforcement, see 1318-1319. the fourth circuit grappled with the question of whether a compact is delegated federal power or if it is a document merely interpreted on the federal level because state courts would be unable to provide a neutral forum for compact dispute adjudication (see part iii, section c for a discussion of the evolution of compact interpretation and the development of the “federal questions” doctrine and see generally west virginia ex rel. dyer v. sims, infra note 115, for an overview of the centralization of compact disputes in the federal court system to maintain the impartiality of compact proceedings). ultimately, the fourth circuit held that congress could delegate federal powers to forward compact executions and to interstate agencies. the fourth circuit permitted a compact agency to nullify a provision in the maryland constitution because the compact agency was understood to have been empowered to do so by way of its attainment of congressional consent. by allowing the compact agency to act in a manner inconsistent with the constitution of a signatory state, the fourth circuit afforded compact agencies more power than the states that create them because a state cannot pass a law in conflict with its constitution. (see eichorn, infra note 42 at 1409.) on appeal, the supreme court declined to address the finding in this case. nevertheless, in new york v. new jersey (new york v. new jersey, supra note 7 at 924) the supreme court held that the fact that compacts are federal laws means compacts preempt “contrary state law.” 62 brandeis university law journal 2024-2025, volume 12 considered a compact, whereas virginia v. tennessee vested this evaluation in the subject matter of the compact and its impact on the just supremacy of the united states.42 this framework can pose a significant danger as polarization increases in congress, as the political makeup of congress can determine which compacts are approved.43 furthermore, if compacts are acts of congress then, congressional consent is a mechanism for congress to contemplate whether its own laws comply with the constitution. traditionally, the supreme court is the branch of government tasked with judicial review. in virginia v. tennessee, by interpreting congress’s consent power as one that requires congress to strictly scrutinize a compact, the supreme court abdicated its judicial review imperatives to congress. the cuyler doctrine does more than permit congress to circumvent constitutional checks placed on congress, however. prior to cuyler, there were already complications surrounding the procedure for providing consent to interstate compacts. compacts were rarely examined by all members of congress. instead, compacts were delegated to the committees that dealt with the subject matter of the compact. there were also ambiguities regarding whether congress could examine the merits of the compact or whether congress’s consent power exclusively pertained to its analysis of a compact’s effect on the federal structure of the union.44 there have also been times 44 with regard to these ambiguities, west virginia v. virginia holds “that the power of congress to grant or withhold assent to such contracts carries with it the duty and power to see to their enforcement when made operative by its sanction. this power is plenary, limited only by the general rule that acts done for the exertion of a power must be relevant and appropriate to the power exerted. as a national power it is dominant and not circumscribed by the powers reserved to the states.” (virginia v. west virginia, supra note 18 43 id. at 1395-1396. 42 see infra note 127; see also l. mark eichorn, cuyler v. adams and the characterization of compact law, 77 va. law rev. 1387, 1393-1394 (1991). 63 brandeis university law journal 2024-2025, volume 12 when congress has actively lobbied for a compact through consent-in-advance legislation, before compacts had been submitted for approval, which advocated for states to create them.45 the status of compacts as federal law creates ambiguities because congress could theoretically bypass constitutional limitations on its power with the enactment of a compact. but, before cuyler, a major issue stemmed from a paradigm that imposed an antithetical separation of powers issue. the lack of a focal point within congress led the branch to defer to executive branch agencies on the validity of certain compacts.46 while the integration of executive branch agencies may produce better policy outcomes and ensure that compacts are examined by those with subject-matter expertise, this integration presents a grave danger to the constitutional doctrine of separation of powers. if compacts are acts of congress, then two constitutionally detrimental scenarios can unfold. firstly, congress can defer to the executive branch to determine whether to offer its consent. this outcome is 46 id. at 428-430. this section emphasizes the separation of powers predicament posed by the integration of executive agencies into compact ratifications and the implications of conceptualizing compacts as federal laws from a federalist standpoint. for a broader discussion of the implications of encroachments upon separation of powers principles and compact issues concerning federalism, see part iii. 45 u.s. steel corp. v. multistate tax comm’n, infra note 92 at 485 (white, j., dissenting); leach, supra note 24 at 429. the compact at bar in cuyler v. adams was an example of such an instance, see infra note 106 for an overview of this relevant example of a compact consented to prior to the compact’s construction. at 566). as a result, congress is encouraged to evaluate policy issues and take an active role in compacts. whereas, virginia v. tennessee limits congressional discretion to matters that encroach upon the “just supremacy of the united states” which proffers a more hands-off approach to compact evaluations (see supra note 34). it was not until u.s. steel corp v. multistate tax comm’n that the court directly applied the “just supremacy” standard (see infra notes 92-93). but see cuyler v. adams, supra note 6 which would revive ambiguity surrounding what standard the court truly preferred and what standard ought to be deferred to soon after. 64 brandeis university law journal 2024-2025, volume 12 antithetical to the constitution because it enables the executive branch to make legislative considerations and allows for external actors to influence the development of a contract that the constitution explicitly limits to certain parties.47 secondly, this doctrine empowers states to formulate agreements that usurp prerogatives from congress as the federal legislative branch. it empowers states to potentially enact federal law and vests interstate compact agencies with the imprimaturs afforded to federal agencies without the procedural safeguards encased in congressional deliberations. this danger is heightened by the implied consent doctrine of virginia v. tennessee which, after cuyler, empowers states to enact federal laws without receiving the direct prerequisite consent of the federal legislature.48 thus, throughout the nineteenth and twentieth centuries, the nature of the relationship between congress and 48 eichorn, supra note 42 at 1405; washington metro. area t.a. v. land, supra note 41; some legal and practical problems, supra note 5 at 328. (“[m]ost compacts, even when they affect interstate commerce or some other federal province…have not been subjected to congress’ legislative deliberation[s]”). 47 for examples of compacts ratified with executive input, see id. at 430 (internal citations omitted). (“although the constitution mentions only the congress in connection with compacts, agencies in the executive branch have also come to have a number of relations with both compacts and compact agencies. congress itself has been responsible to some degree for bringing executive agencies into the picture…[i]n the eighty-sixth congress the senate committee on the judiciary asked the department of justice, the department of interior and the bureau of the budget for comments on the compact for a new boundary between arizona and nevada which the committee had before it for consent. and the house committee on public works, while considering the northeastern water and related land resources compact, solicited opinions from eight executive agencies which it felt might have an interest in the proposed compact.”). agency input is not the only way the executive branch has inserted itself into compact enactments. president franklin d. roosevelt vetoed the republican river compact in 1942 after congress consented to it. see generally: linda hein, fdr vetoes republican river compact, mccook gazette (october 12, 2001), https://www.mccookgazette.com/story/1046711.html. 65 https://www.mccookgazette.com/story/1046711.html brandeis university law journal 2024-2025, volume 12 the compacts it consents to has evolved. in people v. central railroad, the supreme court regarded congress as nothing more than a notary to compacts. in this way, congress had the opportunity to preview a range of compacts that states would then operate and enforce. in virginia v. west virginia, congress was afforded the capacity to see through the operation of compacts. west virginia provided congress a far larger role in the compact process than that of a notary and factored congress in as more of an executor. virginia v. tennessee obscured the role of congress in the process because not all compacts required congressional consent and compacts could sometimes receive the implied consent of congress. finally, cuyler v. adams stated that all compacts are matters of federal law. cuyler affords compacts a legal status equivalent to the statutory documents directly authored by congress. there is a major difference between being legally recognized as a contract’s notary, an executor of a contract, an author of a contract, or all three. nevertheless, the supreme court ascribes all of these roles to congress in interstate compact matters. concurrently, the court regards congress as the body afforded the power to evaluate a compact’s constitutionality.49 the devolving of all of these responsibilities onto congress is a result of the inherent ambiguity posed by the compact clause’s prerequisite mandate of congressional consent. the endowment of all of these roles upon congress is antithetical to the cultivation of prudent public policy and the safeguarding of constitutional norms. the court’s deference to congress to assess the constitutionality of compacts is largely unparalleled in constitutional law. virginia v. tennessee tasks congress with evaluating the impact of compacts on the federalist structure. in all other cases, the supreme court possesses judicial review and the imperative of preserving the dictates of the constitution. this is because the supreme 49 for further discussion of the complications of concurrent ascriptions, see part iii of this article. 66 brandeis university law journal 2024-2025, volume 12 court’s subject-matter expertise qualifies the court to make constitutional evaluations in a way congress cannot. furthermore, the separation of powers doctrine correctly recognizes that a conflict of interest is posed by allowing a legislature to review its own laws. under cuyler, compacts are laws of congress. there are no direct examples of improprieties resulting from this arrangement; nonetheless, the existence of these ambiguities poses detrimental consequences for the united states. these ambiguities further prove detrimental as a result of their entanglement with the perception of compacts as contracts and the supreme court’s ascription of contract law principles to compacts. in the next part, this article will use the court’s recent opinion in new york v. new jersey as a backdrop for demonstrating the ineffectiveness of arbitrating compact disputes with contract law principles. ii. compacts as de jure contracts a. new york v. new jersey: unilateral withdrawal for party states and the “contract-law rule” in 2023, the supreme court decided the case of new york v. new jersey. this case arose in 2018 when new jersey sought to unilaterally withdraw from a compact it had entered into with new york in 1953 that was designed to mitigate the spread of organized crime. the supreme court found that new jersey had the right to unilaterally withdraw from the compact. thus, the court held that any state can unilaterally withdraw from a compact which does not contain a set duration of time for its execution.50 the court held that compacts that impose active obligations, such as the exhaustion of labor and resources, have traditionally been understood to be governed 50 new york v. new jersey, supra note 7 at 920. see infra notes 71 & 134 and the accompanying references for more background about the circumstances of the case. 67 brandeis university law journal 2024-2025, volume 12 by the principles of contract law under a doctrine the court termed the “contract-law rule” for this case.51 finally, the court held that it was incumbent upon states to include language which expressly allows or prohibits withdrawal. the court reasoned that states clearly enumerating withdrawal terms would alleviate future confusion; and this decree countered new york’s contention that a ruling in new jersey’s favor would induce a slippery slope of states unilaterally withdrawing from compacts. in the absence of a specified duration of time, however, states retain this right to unilaterally withdraw from compacts.52 new york v. new jersey’s understanding of compacts, wherein compacts are differentiated on the basis of the activeness or passiveness of the obligations a compact carries, is useful for preserving the autonomy of a state to successfully unilaterally withdraw from a compact. this opinion’s deference to the “contract-law rule” is not firmly rooted in historical jurisprudence. while compacts may have been analogized to contracts throughout american history, in early supreme court jurisprudence, compacts were largely recognized as treaties. this initial view of interstate compacts posited that, upon the acquisition of congressional consent, states were restored to their full sovereignty under the parameters of any given compact to ensure its execution.53 53 gerald stapp, interstate compacts and the federal treaty power, 29 denver law rev. 211, 212-214 (1952). see generally rhode island v. massachusetts, 37 u.s. 657 (1838). 52 id. at 926. (“new york argues that allowing new jersey to withdraw would have sweeping consequences for interstate compacts generally. but…for any current and future compacts, states can propose language expressly allowing or prohibiting unilateral withdrawal if they wish to do so.”). 51 id. at 925. (“to be clear, the contract-law rule…does not apply to other kinds of compacts that do not exclusively call for ongoing performance on an indefinite basis—such as compacts setting boundaries, apportioning water rights, or otherwise conveying property interests.”). 68 brandeis university law journal 2024-2025, volume 12 this interpretation neglected the intent of the framers of the constitution to maintain federal hegemony in international relations and ensure a united front on the world stage.54 if this were the underlying conceit, it is unlikely that the framers would have even implemented the compact clause because the clause would have afforded congress a means of forfeiting the federal government’s supremacy in foreign policy.55 overall, the twentieth century observed a shift characterized by compacts becoming more active instruments of policy; this zeitgeist also likely served as the impetus for the shift to contract principles.56 so, where did new york v. new jersey get the “contract-law rule” from? new york v. new jersey cited the 2013 case tarrant regional water district v. herrmann to strengthen the presumption that interstate compacts ought to be construed as contracts governed by the principles of contract law.57 tarrant undergirded this assertion by citing the 1987 case texas v. new mexico.58 texas v. new mexico, in turn, cited a 1959 dissenting opinion authored by justice felix frankfurter in the case of petty v. tennessee-missouri bridge comm’n.59 in his dissent, justice frankfurter wrote that a 59 texas v. new mexico, 482 u.s. 124, 128 (1987) (“a compact when approved by congress becomes a law of the united states…but ‘[a] 58 tarrant reg'l water dist. v. herrmann, 569 u.s. 614, 615 (2013). (“because interstate compacts are construed under contract law principles… the court begins by examining the compact's express terms as the best indication of the parties' intent.”) (internal citations and quotation marks omitted). 57 new york v. new jersey, supra note 7 at 924. 56 congressional supervision of interstate compacts, supra note 31 at 1426 n.61; frederick l. zimmerman & mitchell wendell, new experiences with interstate compacts, 5 western political quarterly 258 (1952). 55 stapp, supra note 53 at 214. 54 federalist paper no. 3 (john jay). (“it is of high importance to the peace of america that she observe the laws of nations…[i]t appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies.”). 69 brandeis university law journal 2024-2025, volume 12 “compact is, after all, a contract. ordinarily, in the interpretation of a contract, the meaning the parties attribute to the words governs the obligations assumed in the agreement.”60 perhaps the incorporation of contract language was most prudent for the court to apply in new york v. new jersey. indeed, using vocabulary associated with the development of a contract is helpful, and this article has relied upon this framework to construct its analogies. in any case, this chronology demonstrates that the “contract-law rule” is not as entrenched in american jurisprudence as the court implicitly surmised in new york v. new jersey. it is important to assess the history of any given doctrine that a supreme court opinion reveres because if the opinion champions that outlook, the philosophy will continue to reverberate in american jurisprudence. in this matter, the doctrine of treating compacts like contracts is important because this doctrine supposes a correspondence between interstate compacts and the contracts entered into by individuals. while the contract doctrine may be more analogous to a compact than the treaty doctrine, this doctrine’s novelty is important to emphasize because continuing to entrench the doctrine into american jurisprudence can have detrimental effects on public policy. the potential drawbacks of the “contract-law rule” will be discussed below in the second section of this part. b. trump v. trump and the democratic caveat of the “contract-law rule” following the distribution of the opinion in new york v. new jersey, the case was cited in the 2023 case trump v. trump; this case was heard in the new york state supreme 60 petty v. tennessee-missouri bridge comm’n, 359 u.s. 275, 285 (1959) (frankfurter, j., dissenting). see part iii, section c for a more in-depth discussion of this case. the citation of this dissenting opinion is noteworthy against the backdrop of the duality discussed generally in part iii. compact is, after all, a contract.’ it remains a legal document that must be construed and applied in accordance with its terms.”) (internal citations omitted). 70 brandeis university law journal 2024-2025, volume 12 court in new york county.61 this case arose after president donald trump sued his niece, mary trump, for attempting to publish a book that cast him in a negative light by revealing personal details of their familial dealings. mary trump’s conduct allegedly violated the terms of a confidentiality agreement she had previously signed. one of the questions before the court in trump was whether this confidentiality agreement was terminable at will, as the confidentiality agreement contained no end date.62 at first glance, trump is an unusual case for a citation of an interstate compact dispute. however, this citation highlights the dangers of conceptualizing interstate compacts as contracts. mary trump’s attorneys argued that because new jersey was permitted to withdraw from its compact agreement in new york v. new jersey, the court was obligated to permit mary trump to withdraw from her confidentiality agreement. the court found that these cases were too incongruent for new york v. new jersey to be an applicable precedent to the facts of trump because new jersey’s compact obligations were actions, whereas the confidentiality agreement binding mary trump imposed an obligation of inaction and silence.63 it is noteworthy that the trump court’s sole consideration, regarding the applicability of new york v. new jersey, was the nature of each agreement’s impositions. if the obligations imposed upon new jersey were ones of inaction or if mary trump’s obligations were active in nature, perhaps the court would have used new jersey’s victory to assess mary trump’s options. it was this discrepancy, the passivity of the confidentiality agreement, that led the court to refrain from applying new york v. new jersey. the adverse underlying presumption here is that the principles that govern individuals and those that govern states are similar enough for courts to 63 id. at 778 n.9. 62 id. at 766-768, 777. 61 trump v. trump, 80 misc. 3d 765 (n.y. sup. ct. 2023). 71 brandeis university law journal 2024-2025, volume 12 sometimes apply them interchangeably.64 whether or not mary trump now wishes to unilaterally withdraw from the confidentiality agreement, she signed it. there is no denying that the mary trump who sought to withdraw from the confidentiality agreement is the same mary trump who signed the agreement at its inception. mary trump is a specific individual with the absolute ability to assess and scrutinize the agreement she enters. the signatories to any given interstate compact, however, are the states. unlike individuals, states are not inherently monolithic entities. rather, states are constructs which individuals create to settle their affairs in an orderly fashion.65 this fact creates complications when the inanimate idea of a state is tasked with serving as a signatory to an agreement. the state encompasses all of the local municipalities, corporations, and people who reside and operate within it. mary trump’s decision to sign a contract only inhibits her own autonomy. a state, by signing onto an interstate compact, inhibits the autonomy and liberty of its entire constituency. mary trump does not have to build a 65 john locke, concerning the true original extent and end of civil government, (1689). 64 the personhood of states was addressed in monell v. department of soc. svcs., 436 u.s. 658 (1978). this case assessed whether local governmental agencies could be held liable in accordance with a provision in the civil rights act of 1871 that explicitly contained the term “person(s).” that case assessed the peoplehood of states in a manner more narrow in scope than the evaluations of this section. additionally this section’s evaluations are distinct from those made in citizens united v. fec, 558 u.s. 310 (2010) for two major reasons. firstly, the unique longevity contained in the promise of a government juxtaposes the subject matter of this section from a corporation whose affairs occupy a comparatively brief duration of time. secondly, governmental actors are uniquely linked to the democratic will of the populace. whereas corporations, like individuals, perennially operate to advance their own interests without an equivalent direct mechanism of democratic accountability; nor do the imperatives of corporations bear democratic imprimaturs in a manner congruent to government. these factors, taken together, confine the evaluations of this section to the applicability of contract law principles to governmental actors in the context of interstate compacts. 72 brandeis university law journal 2024-2025, volume 12 coalition or reach a consensus to relinquish her own autonomy and sign an agreement. she would, however, have to obtain the consent of others to compromise their autonomy and sign an agreement on their behalf. given that a state is truly an amalgamation of entities with a plethora of interests, a state risks unduly inhibiting the autonomy of segments of its constituency when that state signs onto a compact that poses adverse consequences for the forwarding of those members’ interests. by equating the conditions of an interstate compact with those of a contract, the judicial system ascribes states a monolithic capacity to discern the merits of an agreement. a presumption of states as monolithic actors may impose no impediments on the autonomy of the entities within a state in the context of water distribution agreements, property rights matters, or border disputes. but, the principles of contract law and the presumption of transitivity explicitly arise in the case of the compacts which have the greatest capacity to inhibit the autonomy of the states and the entities which exist within the framework of the state.66 perhaps compacts are an instance where states relinquish aspects of their autonomy for a common interest. however, by framing the state as the signatory, courts create a paradox because ascribing a state the capacity to discern is inherently impossible. given that the state is a nonhuman entity and a union of a plurality of interests, there must be some body that courts are actually offering the power to make considerations on the merits of prospective compacts. if the state is the signatory and it is a monolithic personification of a population, perhaps the name of the state is truly a moniker for that state’s government. for the doctrine of transitivity to truly be applicable, however, the body that possesses the signatory prerogatives must remain intact throughout the duration of an agreement’s execution. while mary trump sought to withdraw from her agreement, she remained the same entity throughout 66 see supra notes 51-52. 73 brandeis university law journal 2024-2025, volume 12 the confidentiality agreement’s enforcement. the same is not true for a state government, which possesses compact signatory capabilities. an individual’s decision about signing a contract differs from a state’s decision about signing onto a compact because the entire constituency is impacted by a compact’s officiation. a source of pride in democratic societies is that constituents have a say in the composition of the government and the policy directions the elected government takes. the rigidity and perceived permanence of compacts prevents the public from exercising these rights and altering the trajectory of political affairs. while imposing contractual obligations upon states might be beneficial for ensuring obligations are upheld, there are tremendous drawbacks in empowering states to sign themselves onto indefinite agreements unbridled by the checks and balances of a democratic society.67 if public sentiments surrounding the continuity of a compact have shifted, democratic and federalist intuitions would point towards offering states the unilateral ability to withdraw to comply with the mandate of their voters. this interpretation of compact obligations, however, precludes state officials from unilaterally withdrawing from a compact that fails to comport with the democratic will of the people. ultimately, any particular governmental administration seeks to implement legislation or policy agenda items that will outlast them. this prerogative is an inherent aspect of civic engagement and service in government. perhaps this goal is inherently at odds with the democratic process’s commitment to flexibility and a system which consistently alters its course based on the will of the people. however, even if one were to argue that the interest in stable public policy ought to outweigh the interest in preserving this democratic check, this scenario offers little room for state governments to implement new policies in 67 jill elaine hasday, interstate compacts in a democratic society: the problem of permanency 49 fla. l. rev. 1, 7-8; 16 (1997). 74 brandeis university law journal 2024-2025, volume 12 response to progressions in the circumstances of the underlying problem that any given compact is enacted to solve.68 the compact in new york v. new jersey was enacted in 1953 to slow the spread of organized crime; new jersey sought to withdraw more than 60 years later. throughout this time, the composition of each state’s government underwent significant changes. furthermore, the nature of the issue did not remain stagnant, despite the continuity of the compact. yet the trajectory of state policies was immovably beholden to the pre-existing compact. this critique is not specific to interstate compacts and it is an issue that plagues any fledgling executive administration assuming office following the ratification of agreements and laws by their predecessors. interstate compacts can exist for longer periods of time than any given contract may exist between two individuals. there is no lifespan for a compact signed by theoretical entities in the same way that a contract between individuals ceases to be operational upon the death of one of the signatories. this truth is the result of the limited lifespans of humans and the regulatory influence of the democratic process, which consistently alters the composition of governments. in this way the state government, which possesses the prerogative to consider the compacts onto which a state becomes a signatory, cannot assess the validity of a compact that exists prior to the ascension of that particular administration. on the one hand, this framework offers compacts stability and continuity irrespective of changes in the ideological or governmental composition of one particular state. if an individual signed a contract and then immediately sought to withdraw after they changed their mind, the goods and services promised in the contract might not be delivered. on the other hand, there is an inherent difference between individuals and states that inhibits an equivalent perception of these signatories.69 69 new jersey v. new york, 523 u.s. 767 (1998). (clarifying a dispute regarding ellis island pursuant to a compact between new york and new 68 id. at 10. 75 brandeis university law journal 2024-2025, volume 12 the elimination of this system of indenturing state governments to the compacts entered into by their predecessors is a significant victory of new york v. new jersey. by allowing states the autonomy to unilaterally withdraw from an agreement that does not specify a set duration of time, the issue of indefinite compacts is obviated. the issue of state immortality highlights the inefficacy of equating the legal obligations of individuals and states. new york v. new jersey affords state governments the autonomy to determine their destinies regarding pre-existing compacts. ultimately, however, new york v. new jersey does not fully rectify this matter of indenturing state governments to pre-existing compacts. the supreme court addressed the slippery slope argument raised by new york, in defense of holding new jersey to the compact, by finding that states could be held to pre-existing compacts if a duration of time was specified within the terms of the compact or if withdrawal was expressly prohibited.70 while the delegation of this responsibility to include terms of withdrawal to states obviates any indefinite obligation based on an omission of withdrawal capabilities, this still may require subsequent gubernatorial administrations to oversee the completion of pre-existing compacts because of the continuity of the state as the signatory. there are policy merits to this framework because it ensures that a state continues to uphold its obligations to another state irrespective of the political whims of a particular gubernatorial administration. however, this landscape has the detrimental effect of insulating interstate compacts from the democratic process. the lack of a perfectly fitting analytical unit of measurement for interstate compacts speaks to the unique legal status of the states that undergird the united states of america. the states are not sovereign nations capable of treaty-making. simultaneously, they are not individuals capable of 70 see supra note 52. jersey enacted in 1834 that remained binding upon the party states in 1998 using common law contract principles.) 76 brandeis university law journal 2024-2025, volume 12 contract-making. the goal of the compact clause was to balance the supremacy of the federal government with the desire to offer states the autonomy to formulate agreements for forwarding shared interests. ultimately, this balancing act is extremely delicate and points to a deeper fragility which underlies the federalist structure of the united states. the first two parts of this article each dissected a distinct characteristic that the supreme court has imputed to interstate compacts. part i examined the jurisprudence surrounding congress’s role in the formation and execution of interstate compacts, and part ii examined the “contract-law rule” applied to interstate compacts. despite isolating these attributes from one another to explain them and their connections to interstate compacts, interstate compacts are legally an embodiment of both of these characteristics. this duality doctrine, however, obscures a clear roadmap for efficiently arbitrating interstate compact disputes. some of the major lingering questions over the character of compact law will be expounded upon below in the final part of this article. iii. the undynamic duality: compacts as federal statutes and contracts a. the duality and the rights of the federal government in interstate compact disputes this part of the article will discuss the various problems with the duality doctrine. this first section discusses the negative consequences the duality poses for states because their contractual disputes can be hampered by federal interests. virginia v. west virginia recognized congress as an executor while central railroad conceptualized congress as a notary. this discrepancy highlights a fundamental confusion regarding the status of interstate compacts and congress’s role in their development and execution. in tandem with this enigma exists the dual classification of compacts as federal statutes under cuyler, and as contracts entered into by party states. if congress can pick up the responsibilities of a compact and 77 brandeis university law journal 2024-2025, volume 12 maintain a compact’s operativeness, a compact is further juxtaposed in its legal status from a contract entered into exclusively by two or more parties. there is no expectation that a third party can continue to operate a contract after the signatory parties have opted to terminate it. but new york v. new jersey empowers states to withdraw from a compact and render the compact inactive. this highlights the inability of these attributes to harmoniously characterize a compact. while new york v. new jersey held that states can unilaterally withdraw from a compact, this opinion does not speak on whether congress can still restore a dormant compact. therefore, the west virginia problem of congress potentially usurping state prerogatives and unilaterally undertaking compact imperatives remains viable. perhaps the united states filing its own brief in new york v. new jersey in support of new jersey highlights a federal indifference to the maintenance of this particular compact.71 regardless, west virginia appears to remain controlling in the case of this power. along the same lines of this federal retention of the power to maintain a dormant compact, the federal government has been empowered to extend a compact dispute; despite the fact that compact disputes are contractual disputes amongst states. in 2024, the supreme court decided texas v. new mexico and colorado.72 this matter began in 2013 when texas sued colorado and new mexico for grievances accrued during joint participation in a compact.73 by 2024, the litigant states had reached a resolution to this legal battle and sought a consent decree74 from the court in accordance with the 74 a consent decree is enacted by a presiding court to approve a settlement agreement and bind the parties of a lawsuit to the settlement’s agreed-upon terms. the consent decree is a common law mechanism independent of the consent mechanisms of compact law. see black’s law dictionary (9th ed. 73 id. at 1761. 72 texas v. new mexico and colorado, 144 s. ct. 1756 (2024). this article was largely completed prior to the publication of this ruling. 71 brief for the united states as amicus curiae, new york v. new jersey, 143 s.ct 918 (2023). 78 brandeis university law journal 2024-2025, volume 12 settlement they had reached.75 the federal government, however, opposed the settlement agreement and argued against the court providing a consent decree.76 the federal government had an interest in the outcome of this dispute, and the continuity of the compact, because of the federal government’s obligations to the neighboring country of mexico and various indigenous tribes in the region.77 in 2018, in a prior ruling, the supreme court permitted the federal government to enter this particular dispute because the court recognized “distinctively federal interests” in the matter at bar.78 in the 2018 decision, the supreme court held that it was possible for the federal government to have interests in the execution of a compact independent from those of the states and permitted the federal government to insert itself into a compact dispute as a party. but, the 2018 opinion attempted to avoid creating a slippery slope whereby the federal government could invariably insert itself into compact disputes. the court clarified that: viewed from some sufficiently abstract level of generality, almost any compact between the states will touch on some concern of the national 78 texas v. new mexico, supra note 77. the supreme court had already published an opinion pertaining to this particular legal battle, since it began in 2013, by the time the court was tasked with considering a consent decree in 2024. to reach the determination made in the 2018 case, the court relied upon maryland v. louisiana, 451 u.s. 725, 746 n.21 (1981). 77 texas v. new mexico, 583 u.s. 407, 407–412 (2018); see generally: rachel reed, supreme court tackles water rights in the west in texas v. new mexico and colorado, harvard law school today, (march 13, 2024) https://hls.harvard.edu/today/supreme-court-tackles-water-rights-in-the-west -in-texas-v-new-mexico-and-colorado/. 76 id. 75 texas v. new mexico and colorado, supra note 72 at 1761. 2009) at 471. the supreme court was the body tasked with providing the consent decree in this matter because the court possesses original jurisdiction over interstate disputes (see infra note 99). also, the settlement agreement reached by the states was not an interstate compact. 79 brandeis university law journal 2024-2025, volume 12 government—foreign affairs, interstate commerce, taxing and spending. no doubt that is the very reason why the constitution requires congressional ratification of state compacts. but just because congress enjoys a special role in approving interstate agreements, it does not necessarily follow that the united states has blanket authority to intervene in cases concerning the construction of those agreements.79 in the 2024 case, the states argued that the federal government did not have standing to obstruct their attainment of a consent decree.80 the compacting states argued that the federal government did not have a compelling enough interest in the matter at bar to halt the consent decree because the compact was a water distribution agreement and the federal government was not a party who would be apportioned water.81 nonetheless, the court regarded the interests that justified the entrance of the federal government into the matter in 2018 as compelling enough for the court to consider the federal 81 id. 80 texas v. new mexico and colorado, supra note 72 at 1767. 79 texas v. new mexico, supra note 77 at 413. this justification is interesting because it neglects to mention the implied consent doctrine of virginia v. tennessee in its recounting of the congressional consent requirement. along these same lines, the 2018 majority opinion is interesting in its parallel to u.s. steel v. multistate tax comm’n (infra note 92 at 479 n.33). while the 2018 majority opinion does not cite u.s. steel, u.s. steel similarly conceded that any compact poses the capacity to touch a federal interest. u.s. steel held that the existence of a “federal interest” was irrelevant to whether a compact required congressional consent and instead emphasized “threats to ‘federal supremacy’” as a criterion distinct from that of the federal interest (see infra note 92); the 2018 majority opinion conceded that any compact can touch on a national concern but conjectured that this truth did not necessarily confer the right to intervene in any interstate dispute upon the federal government. as discussed in part i, section d of this article, cuyler may have shifted the metric of a compact to its acquisition of congressional consent rather than its impact on federal supremacy. nevertheless, the 2018 opinion makes use of u.s. steel’s framing device. 80 brandeis university law journal 2024-2025, volume 12 government’s opposition and deny the consent decree on the basis of the federal government’s grievances.82 justice neil gorsuch, who authored the 2018 case’s majority opinion, filed a dissenting opinion in the 2024 matter. justice gorsuch’s dissent argued that the majority’s conduct set a dangerous precedent by permitting the federal government to exercise unprecedented authority over interstate disputes, a constitutional mechanism the political branches of the federal government traditionally possessed no role in, by prolonging this case against the wishes of the litigating states.83 justice gorsuch argued that once the dispute between the states died, the original jurisdiction of the court died with it. the only course of action the court could have taken in this case, according to gorsuch, was dismissing the federal government’s claims without prejudice.84 this division amongst the ranks of the court poses an interesting dilemma as far as the duality is concerned. if a compact were exclusively a federal law, then the states would remain beholden to the federal government in a manner similar to any other law; the majority’s jurisprudence would unequivocally prevail.85 if a compact were exclusively a contract between party states, then justice gorsuch would be correct as contractual disputes cease and consent decrees are granted upon the acquisition of a consensus amongst the parties without examining the interests of nonparties. justice gorsuch would have been further vindicated because most other interstate original jurisdiction cases deal with state prerogatives and leave no room for input from the federal government.86 86 id. at 1772-1779 (gorsuch, j., dissenting). 85 id. at 1763. 84 id. at 1779 (gorsuch, j., dissenting). 83 id. at 1772 (gorsuch, j., dissenting). for an overview of original jurisdiction, see infra note 99; see generally sections b-d of this part for more about the delineation between the political and the constitutional and the role of compact cases as a convergence of these questions in the wake of the duality. 82 id. 81 brandeis university law journal 2024-2025, volume 12 compacts are anomalous in that they exist as an amalgamation of federal, interstate, and state political apparatuses. therefore, the duality doctrine and the legal character of compacts transcend the binary between the majority and dissenting opinions in the 2024 case because each faction of the court was only looking at half of the equation for adjudicating a compact dispute. even before the emergence of the duality, however, the supreme court inconvenienced states by enshrining the vantage point of the national government into interstate compact disputes. in the 1854 case florida v. georgia, despite confirming that the united states was not legally a party to the dispute, the supreme court invited the attorney general of the united states to an original jurisdiction dispute over a compact enumerating the boundary between two states.87 the court extended this invitation to the attorney general against the wishes of both of the party states so that the attorney general 87 florida v. georgia, 58 u.s. 478, (1854). notably, maryland v. louisiana, supra note 78, which the 2018 and 2024 opinions rely upon to support their integration of the federal government into the interstate proceeding, makes no mention of this historical event to support its finding that the federal government is entitled to make a case for “distinctively federal interests” in interstate original jurisdiction hearings. additionally, neither the 2018 nor the 2024 opinion mentions this historical fact about the florida v. georgia opinion. although justice gorsuch acknowledged the sometimes unconventional structure of original jurisdiction interstate hearings in his 2018 majority in dicta. “our role in compact cases differs from our role in ordinary litigation. the constitution endows this court with original jurisdiction over disputes between the states. and this court's role in these cases is to serve as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force. as a result, the court may, [i]n this singular sphere… regulate and mould the process it uses in such a manner as…its judgment will best promote the purposes of justice.” texas v. new mexico, supra note 77 at 412 (citations and internal quotation marks omitted). gorsuch noted that “[u]sing that special authority,” the court “sometimes permitted the federal government to participate in compact suits to defend ‘distinctively federal interests’ that a normal litigant might not be permitted to pursue in traditional litigation.” 82 brandeis university law journal 2024-2025, volume 12 could raise issues neither of the states wanted addressed.88 despite the fact that the intervention of the attorney general might have led to a settlement neither of the party states wanted, and the fact that this matter was a dispute between two states, the court felt that the attorney general’s attendance was vital to ensuring that federal interests were defended.89 if compacts are federal law, then it is reasonable to allow the federal government to be represented in compact disputes. but if compacts are also contracts, this poses a major impediment upon the ability of a compact dispute’s party states to procure expeditious and amicable settlements congruent with those awarded in traditional contractual disputes. thus, the duality imposes a legal methodology antithetical to the timely amelioration of compact disputes by hampering these contractual disputes with evaluations of the interests of nonparties. specifically, the supreme court has come to examine federal interests as a distinct factor in the court’s interrogations of interstate compact disputes because of the federal nature of compacts post-cuyler. the contractual characterization of compacts falls short because america’s federal system requires the supreme court to examine federal interests. the fate of the contract’s parties, therefore, resides in the external interests of nonparties; this would not be the case in other contractual disputes. concurrently, the statutory identification of compacts fails because of the stringent constitutional limitations placed on the court’s original jurisdiction in interstate cases. overall, the court’s conduct in florida v. georgia is also worthy of examination for its postulations of the nature of congressional consent, a lingering unresolved element of the compact clause. in this way, florida v. georgia further muddles compact clause jurisprudence as this next section will demonstrate. 89 id. at 1429-1430. 88 congressional supervision of interstate compacts, supra note 31 at 1429. 83 brandeis university law journal 2024-2025, volume 12 b. political vs. constitutional consent: the mystery of equity and the nature of congressional consent under the duality as a result of silence embedded in the compact clause, there are still lingering questions about the nature of congressional consent. if the criteria for congressional consent are policy-based then congress can be more readily regarded as a party, as it was in west virginia. if the criterion is simply ensuring states are on the same page to conduct their affairs, congress can be conceived of as a notary as it was in central railroad. if congressional consent is an evaluation of the constitutionality of the compact and its compliance with the federalist framework, as virginia v. tennessee’s just supremacy standard posits, then congress is tasked with considerations of constitutionality in its consent deliberations; despite the fact that the judiciary is otherwise entrusted with this kind of evaluation. the court affirmed in florida v. georgia that “a question of [the] boundary between states is…a political question, to be settled by [an interstate] compact made by the political departments of the government.”90 in this case, the court also opined that congressional consent “is obviously intended to guard the rights and interests of the other states, and to prevent any compact or agreement between any two states, which might affect injuriously the interest of the others.”91 in u.s. steel corp. v. multistate tax comm’n, the majority referred to these principles from florida v. georgia as dicta.92 in his dissent, however, justice byron white interpreted the principle of florida v. georgia as a binding truth in an attempt to neatly divide up interstate compact responsibilities 92 u.s. steel corp. v. multistate tax comm’n, 434 u.s. 452, 466 n.18. (1978). the majority opinion in this case is noteworthy for its expansion of the “just supremacy” standard and its contention that this standard is also applicable to compacts that create interstate agencies. see id. at 452–453. 91 id. 90 florida v. georgia, supra note 87 at 494. 84 brandeis university law journal 2024-2025, volume 12 between the courts and congress. justice white averred that “congress does not pass upon a submitted compact in the manner of a court of law deciding a question of constitutionality. rather, the requirement that congress approve a compact is to obtain its political judgment”.93 regardless of whether these elements of florida v. georgia were intended to be dicta or a compulsory roadmap for the evaluation of congressional consent, florida v. georgia highlights the weighty burdens the court imposes upon congress and congressional consent deliberations. florida v. georgia ostensibly tasks congress with evaluating equitability issues, in a compact, that have the potential of affecting non-signatory states by deeming these considerations “political.” irrespective of the complexity of the responsibility this theory delegates to congress and the ambiguity surrounding what distinguishes a “political” question from a “constitutional” one, this dichotomy is a commendable effort to distinctly define and characterize congressional consent. in the wake of the court’s opinion in cuyler and the emergence of the duality, however, this solution was diluted. this 93 id. at 486 (footnotes omitted). in this passage, justice white also stated that an interpretation of the compact clause that reads its mandate as one requiring states to seek “the political consent [of] congress affords that such consent may be expressed in ways as informal as tacit recognition or prior approval, that congress be permitted to attach conditions upon its consent, and that congressional approval be a continuing requirement.” as discussed in infra note 130, white’s conception of congressional consent as a “continuing requirement” is unsupported. additionally, his theory of congressional equitable oversight was nullified by the subsequent decision of the court in cuyler v. adams and the emergence of the duality; as well as by his failure to account for virginia v. tennessee’s implied consent doctrine in this aspect of his opinion. the implied consent doctrine is such that congress does not directly officiate every compact enacted to ensure they take an equitable form. justice white’s references to prior approval and tacit consent further demonstrate the instability of his proposal. nonetheless, white’s delegation of political oversight to congress and constitutional oversight to courts is worth discussing to decipher the nature of congressional consent. 85 brandeis university law journal 2024-2025, volume 12 dysfunctionality can be seen in the court’s 2010 opinion in alabama v. north carolina.94 according to alabama v. north carolina, congressional deliberations are also the sole venue where any equitability issues imposed upon a compact’s signatory states can be rectified. in alabama v. north carolina justice antonin scalia, writing for the court, declared that “an interstate compact is not just a contract; it is a federal statute enacted by congress. if courts were authorized to add a fairness requirement to the implementation of federal statutes, judges would be potent lawmakers indeed. we do not—we cannot—add provisions to a federal statute.”95 while the supreme court certainly cannot insert provisions into a federal statute, the court should still be able to adjudicate issues stemming from inequities in a contract and provide relief to any aggrieved parties. if compacts are a contract, then the states should be able to judicially redress grievances posed by the compact. however, despite the court’s concession that every contract imposes a duty of good faith and fair dealing upon the parties, the court has “never held that an interstate compact approved by congress includes an implied duty of good faith and fair dealing.”96 the fact that interstate compacts are an exception to this fundamental rule of contract-making further complicates conceptualizations of interstate compacts as contracts. alabama v. north carolina’s preclusion on equitable judicial intervention and judicial enforcement of an implied duty of good faith and fair dealing, safeguards largely guaranteed to parties in contract law, is a direct result of the court’s decision in cuyler. the court has rendered itself incapable of adjudicating and resolving inequities embedded in interstate compacts. in addition to this dilemma, the court demonstrated the incongruence of compacts and contracts on federalist grounds; the court deemed itself unable to read 96 id. at 351. 95 id. at 351–352. 94 alabama v. north carolina, 560 u.s. 330 (2010). 86 brandeis university law journal 2024-2025, volume 12 absent terms into an agreement of states.97 the court’s federalist objection highlights the incompatibility of contract law principles and interstate compacts. as, generally in contract law, courts are permitted to supplement agreements with incomplete or ambiguous terms by judicially filling these gaps to maintain the continuity and enforceability of the contract.98 it is the unique constitutional relationship between states, congress, and the courts that has led the court to deny states this recourse. yet, despite the court recognizing these structural conflicts of interest, the court remains the exclusive venue with original jurisdiction for arbitrations of interstate disputes.99 a court would not usually refrain from adjudicating a contract dispute because of who the notary was. but when it comes to interstate compacts, the court has abdicated its duty to equitably arbitrate interstate disputes because compacts are concurrently a contract between the party states and a federal statute; a contract between the parties and an imperative of the 99 alabama v. north carolina, supra note 94 at 344; u.s. const. art. iii, § 2, cl. 2. this constitutional provision explicitly delegates original jurisdiction of legal disputes between states to the supreme court; compact cases that are not intrinsically arbitrations of interstate disputes are heard throughout the federal court system, as a result of the evolution of the “federal question” doctrine highlighted in section c of this part. 98 u.c.c. § 2-204(3) (2002). 97 id. at 352. (“we are especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise were we to rewrite an agreement among sovereign states, to which the political branches consented.”) the court’s description of the branches who consent to compacts as “political” is noteworthy. in baker v. carr, 369 u.s. 186 (1962) the court provided some parameters for what a political question outside the court’s reach might look like. still, the term remains opaque in the context of compact law. in alabama v. north carolina, the court surreptitiously deemed questions of compact equitability “political” and pushed them squarely outside the domain of the court and into the custodianship of congress. the court delegated this responsibility, of ensuring equitability amongst the states, to congress despite the fact that the court possesses original jurisdiction for resolving interstate disputes (see infra note 99). 87 brandeis university law journal 2024-2025, volume 12 contract’s notary. this perception of congress as both an author and curator of compacts only emerged from the likening of compacts to congressionally-authored federal statutes in cuyler.100 thus, the duality doctrine is detrimental to the interests of party states and prevents the supreme court from performing its duties. this is especially disconcerting when one recalls the fact that the supreme court voluntarily absorbed compact disputes into the federal judiciary in a controversial maneuver in petty v. tennessee-missouri bridge comm’n. c. compacts as federal questions and the derivation of meaning under the duality people v. central railroad rejected the notion that compacts were federal laws and instead as contracts between the two states. central railroad did not regard compact disputes as federal questions and held that state courts could hear cases pertaining to them. as previously stated, new york v. new jersey’s “contract-law rule” is predicated on a chain of citations originating from justice frankfurter’s dissenting opinion in petty v. tennessee-missouri bridge comm’n, that a “compact is…a contract.” frankfurter’s ideological distance from the majority was a result of the majority’s finding that a compact dispute presented a federal question because of a compact and compact dispute’s interstate nature. justice frankfurter’s notion in petty, that the parties retain the ability to assign the meaning to the words that govern their obligations, stemmed from his desire to imagine compacts exclusively as contracts.101 101 petty v. tennessee-missouri bridge comm’n, supra note 60 at 285 (frankfurter, j., dissenting). (while justice frankfurter acknowledged that compacts presented a federal question, he argued that “a federal question 100 alabama v. north carolina, supra note 94. similar to justice white’s dissent in u.s. steel, this setup fails to account for the implied consent doctrine from virginia v. tennessee. this mechanism is such that congress does not actually serve as a curator of every compact, let alone serve as every compact’s author. 88 brandeis university law journal 2024-2025, volume 12 both justice frankfurter and the majority cite delaware river commission v. colburn’s holding that a compact presents a federal question.102 colburn overturned central railroad and held that a compact presents a federal question because a compact's congressional consent is bestowed through the enactment of a federal statute.103 it must be noted that colburn falls short because it fails to account for the fact that compacts could also be effectuated with implied consent under virginia v. tennessee in its emphasis on the prerequisite consent statute’s centrality; although colburn cited virginia v. tennessee to affirm its contention that “[t]he compact clause does not make the supreme court the final arbiter with respect to the interpretation of interstate compacts.”104 justice frankfurter argued that while colburn was correct in stating that congressional consent conferred a federal character to compact disputes, compacts concurrently possessed the intrinsic character of a contract. it would therefore appear that justice frankfurter’s definition of a compact, a contract where parties determine the meaning of the words, directly conflicts with cuyler.105 after cuyler, any effort of a single state to unilaterally alter the provisions of an 105 see supra notes 40 and 104. see also: reiser, infra note 109 at 1999. 104 id. at 423. a premise that was subsequently undermined by the regime discussed later in this section. 103 delaware river commission v. colburn, 310 u.s 419, 427 (1940). 102 id. at 277–280; 285 (frankfurter, j., dissenting). see supra note 38 for more details about the historical relationship between the localized approach perpetuated in central railroad and championed by frankfurter in petty with the federal “law of the union” doctrine concurrently promoted by the court in the 1851 wheeling opinion and in delaware river commission v. colburn (see infra note 103). while petty cited colburn, petty’s majority held that the interstate nature of compacts conferred a federal question to them, irrespective of the existence of a federal statute bestowing congressional consent. does not require a federal answer by way of a blanket, nationwide substantive doctrine where essentially local interests are at stake.”). 89 brandeis university law journal 2024-2025, volume 12 active compact–as congress can–risks encroaching upon the supremacy clause.106 under cuyler, compacts are understood to present federal questions because the compacts themselves are federal statutes. one justification for cuyler is that making compacts a matter of federal law ensures that there is a uniform interpretation and application of any given compact; cuyler unequivocally held that compacts would be dealt with as federal laws. but, in the case of contracts, different interpretations of the terms by the different parties do not inherently hinder the execution of the contract.107 hence justice frankfurter’s assertion that “in the interpretation of a contract, the meaning the parties attribute to the words governs the obligations assumed in the agreement.”108 furthermore, parties will typically specify within the contract which laws they wish to have govern the contract’s provisions.109 one of the reasons justice frankfurter articulated for his distance from the majority was that the party states had not given authorization to have their dispute heard in the federal court system, as the case arose because an individual had filed the suit against the compacting states.110 the eleventh 110 petty v. tennessee-missouri bridge comm’n, supra note 60 at 284–285 (frankfurter, j., dissenting). 109 eichorn, supra note 42 at 1406–1407; dana brakman reiser, charting no man's land: applying jurisdictional and choice of law doctrines to interstate compacts 111 harv. l. rev. 1991 (1998). 108 petty v. tennessee-missouri bridge comm’n, supra note 60 at 285 (frankfurter, j., dissenting). 107 eichorn, supra note 42 at 1406–1407. 106 bush v. muncy, 659 f.2d 402, 410–412 (4th cir. 1981). the supremacy clause (u.s. const. art. vi, cl. 2) affirms the supremacy of the federal government over the states. bush v. muncy is noteworthy because it adjudicated a lingering question of the interstate agreement on detainers, the compact at bar in cuyler that sparked the transformation doctrine. as noted on page 411 of bush v. muncy, congress approved the compact before states had ever drafted the compact’s language. nevertheless, the moment multiple states joined the compact, the compact became a matter of federal law and the supremacy clause prohibition took hold. 90 brandeis university law journal 2024-2025, volume 12 amendment to the federal constitution grants states immunity from lawsuits filed by the citizens of other states. one of the majority’s findings in petty was that, by signing onto the compact at bar, the signatory states had waived their immunity under this amendment. whereas, in justice frankfurter’s view, the suit could only reach the federal court system if the states individually authorized the suit to proceed.111 in deeming compact cases adjudications of federal questions, the majority in petty placed them squarely in the domain of federal courts; further eroding the foundations of central railroad.112 petty’s articulation of the federal nature of compacts would be carried over into the cuyler regime.113 thus, one area where the duality fails to forward expedient resolutions to interstate compact disputes is in its attempt to circumvent the issue of whether compacts present federal questions. by conceiving of compacts as federal statutes, one makes compact disputes the concern of federal courts exclusively. however, this relegation stifles the expeditious resolutions to compact disputes that could be reached as a result of the contractual character of compacts. in his dissenting opinion in petty, justice frankfurter analogized compacts to contracts to justify localizing control of compacts for states and to evade the “federal question” pronouncement. the majority in petty held that “the meaning of a compact is a question on which this court has the final 113 new york v. new jersey, supra note 7 at 920; reiser, supra note 109 at 1999. 112 petty v. tennessee-missouri bridge comm’n, supra note 60 at 278–280. see also: supra note 38. 111 id. at 275–279 for the majority’s rationale for the compact’s role as a waiver. until cuyler v. adams unequivocally deemed compacts federal questions, however, the question of whether a state waived their eleventh amendment protections by signing onto a compact was evaluated on a case by case basis. see frank p. darr, electric holding company regulation by multistate compact, 14. energy law j. 357, 366–368 (1993) and the cases cited therein. 91 brandeis university law journal 2024-2025, volume 12 say.”114 to reach this conclusion, the majority deferred to west virginia ex rel. dyer v. sims’ declaration that “[j]ust as this court has power to settle disputes between states where there is no compact, it must have final power to pass upon the meaning and validity of compacts.”115 the sims opinion was authored by frankfurter. he differentiated his dissenting opinion in petty from his majority opinion in sims by stating that sims was more narrow than how the majority sought to use it in petty; to confirm that all compact disputes should be arbitrated on the federal level because compacts fundamentally presented a federal question.116 regardless of which opinion correctly invoked sims, the issue of federal jurisdiction has been deleteriously rendered moot as a result of the duality. firstly, the debate over whether compacts present federal questions was superseded by the designation of compacts as federal statutes. secondly, while the federal court system has been made the domain of compact disputes, jurisdiction over derivations of the meaning of terms in a compact has been denied to both the parties and the court. as shown by alabama v. north carolina, the duality detrimentally altered compact law because the court cannot serve as the arbiter of a compact’s meaning without raising constitutional qualms for itself.117 the court effectively 117 see supra note 97. 116 petty v. tennessee-missouri bridge comm’n, supra note 60 at 284 (frankfurter, j., dissenting). 115 west virginia ex rel. dyer v. sims, 341 u.s. 22, 28 (1951). the central question in sims was whether a west virginia state court could impartially adjudicate a compact dispute arising between west virginia and its sister states. the supreme court held that the state court could not be permitted to be the arbiter of such a dispute and the court consolidated that authority inside the federal judiciary. this marked a further departure from the jurisprudence of central railroad wherein the supreme court deferred to the judgment of the new york state court of appeals. sims is also worth studying in the context of the dilemma the court faced in hinderlider v. la plata co. and the absorption of compact disputes into the jurisdiction of the federal bench (see supra note 38). 114 petty v. tennessee-missouri bridge comm’n, supra note 60 at 278. 92 brandeis university law journal 2024-2025, volume 12 rejected frankfurter’s roadmap for handling compacts like contracts by deeming compacts federal laws, but the court continues to analogize compacts to contracts when it is convenient as evidenced by the citation of frankfurter’s dissenting opinion in the post-cuyler era. concurrently, as shown in this section, the fact that jurisdiction over compact disputes now resides on the federal level means that party states cannot determine the meanings of the terms in the agreements they enter. while there has been an effort made to delineate between the responsibilities of congress and the court, the court has abdicated the prerogative it provided itself to derive meanings.118 thus, the duality proves further adverse to prudent public policy and expedient conflict resolution in its occlusion of who clarifies the meanings of the terms of a compact. one other matter that remains contentious in compact law is who can withdraw from a compact. this next section advocates extending this right to withdraw to congress using the framework espoused in previous sections. d. congress and the right to unilateral withdrawal whether congress is a party afforded the same prerogative to unilaterally withdraw, afforded to states by new york v. new jersey, remains unanswered. as previously explained, congress sometimes affords itself the ability to repeal its consent and alter a compact as a condition of its consent. congress has also occasionally limited its consent to a specified duration of time.119 while congress has historically had the opportunity to include language that permits its withdrawal of consent, there has never been an explicit judicial codification of this right. if congress is intended to be a party to a compact like states, then this exclusive prerogative of unilateral alterations poses an inequity because congress can alter the contents of a compact while individual states cannot. 119 heron, supra note 40 at 16. 118 see section b of this part. 93 brandeis university law journal 2024-2025, volume 12 the existence of this inequity further complicates the application of contract law principles to compact jurisprudence. regardless, at first glance, this privilege uniquely afforded to congress settles the query of whether congress can unilaterally withdraw its consent from a compact. if congress had to include these provisions to exercise this prerogative, congress did not intrinsically possess the right to withdraw its consent at will once a compact was ratified. instead, congress only retained this right when congress remembered to include these provisions. therefore, if a compact is silent on mechanisms of withdrawal at its ratification, one might deduce that congress withdrawing its consent is expressly forbidden. putting aside the fact that the implied consent doctrine means congress cannot always proactively codify these stipulations, this hypothesis is challenged by new york v. new jersey. one of new york’s arguments for binding new jersey to the compact was that there was a broader historical tradition of pre-1953 compacts remaining silent on unilateral withdrawal, but nonetheless being understood to forbid withdrawal. the court rejected this interpretation because several compacts ratified prior to 1953 contained provisions which explicitly prohibited member states from withdrawing. the court postulated that this language would have been unnecessary if, historically, a compact which was silent on withdrawal had presumptively been understood to forbid withdrawal.120 given this holding, congress ought to similarly be afforded the prerogative to withdraw consent from a compact which is silent on congressional withdrawal. in this way, congressional withdrawal conditions for consent can serve merely as recitations of a right congress invariably holds. there has been little jurisprudence assessing the constitutionality of the inclusion of consent withdrawal provisions. a federal court was tasked with adjudicating a question about the constitutionality of congressional conditions 120 new york v. new jersey, supra note 7 at 925-926. 94 brandeis university law journal 2024-2025, volume 12 for consent in tobin v. united states.121 this case arose from the controversies surrounding the port authority during the tenure of emmanuel celler as chair of the house judiciary committee. in tobin, the appellant argued that congressional consent was irrevocable once consent was provided because congressional consent irreversibly restored states to their full sovereignty to effectuate the obligations of any given compact.122 in this case, the court stated that no case existed which could affirm or dispute the notion that congress possessed a constitutional right to attach conditions related to repealing its consent; or alter the terms of a compact. ultimately, the court did not provide a definitive resolution to this discrepancy and limited its discussion of constitutional doctrine surrounding the compact clause and congressional conditionality. the court in this case did not wish to explicitly bestow this right upon congress because, by its own admission, the court had “no way of knowing what ramifications would result from a holding that congress has the implied constitutional power ‘to alter, amend or repeal’ its consent to an interstate compact.”123 the court in tobin also confessed that, if its opinion in tobin further addressed the retractability of congressional consent, the court had “[n]o doubt the suspicion of even potential impermanency would be damaging to the very concept of interstate compacts.”124 the underlying presupposition here is that the intention behind all interstate compacts is for them to serve as permanent agreements. perhaps the court in tobin was conflating impositional compacts with historical treaty compacts. regardless, new york v. new jersey would later undermine this assertion 124 id. 123 id. 122 id. at 273. (within this framework, the court in tobin clarified that the appellant meant “sovereign[ty] in the narrow sense of being free to conclude an interstate compact, not sovereign[ty] in the broad sense of being free of the constitution.”) 121 tobin v. united states, 306 f.2d 270 (d.c. cir. 1962). 95 brandeis university law journal 2024-2025, volume 12 through its formation of unilateral withdrawal mechanisms for states in compacts without a specified duration of time. the court in tobin stated that congressional inclusions of consent withdrawal provisions may have been permissible as an implied power. although the court cautioned that congress cannot confer a power that the federal government does not constitutionally possess upon itself, as a condition of its provision of consent. tobin’s declaration that congress cannot confer powers upon itself as a condition of congressional consent was supported by a citation of the case coyle v. smith. in coyle, the supreme court ruled that congress could not impose conditions relating to matters outside of its constitutional purview to provide states with consent for their objectives.125 while the majority opinion in cuyler omits any reference to tobin or coyle, cuyler overturns tobin because cuyler insulates compact consent from the jurisdiction of the coyle rule, while tobin subjects compact consent to the coyle rule.126 126 cuyler v. adams, supra note 6 at 439-40. (“the requirement of congressional consent is at the heart of the compact clause. by vesting in congress the power to grant or withhold consent, or to condition consent on the states' compliance with specified conditions, the framers sought to ensure that congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority. [see] frankfurter & landis,...[supra note 2 at] 694-695.”). the court’s citation of the seminal 1925 article is thought-provoking. on the cited pages, the 1925 article makes an argument about why congress is uniquely qualified to be making these consent judgments and attempting to address the issues dissected in section b of 125 coyle v. smith, 221 u.s. 559 (1911). coyle was adjudicated while oklahoma was seeking statehood. congress conditioned its consent to oklahoma’s admission into the union, as a state, upon oklahoma acquiescing to congress’s preferred location for oklahoma’s capital city. the supreme court ruled in favor of oklahoma which served as the precedent for the court in tobin to declare that “[i]f congress does not have the power under the constitution, then it cannot confer such power upon itself by way of a legislative fiat imposed as a condition to the granting of its consent.” 96 brandeis university law journal 2024-2025, volume 12 the transformation doctrine in cuyler undoubtedly poses a major divergence from the jurisprudence of coyle.127 if the transformation doctrine and the jurisprudence of cuyler means compacts are not subject to the coyle rule, congress cannot be accused of usurping powers the federal government was not delegated by incorporating conditional provisions into compacts that exceed congress’s delegated powers. this development creates a risk of congress potentially inserting unconstitutional conditions into compacts. therefore, this insulation of compacts from coyle’s controlling jurisdiction poses negative repercussions for those seeking a judicial curtailment of congress’s ability to usurp powers. but the exemption of compacts from the coyle rule is a positive 127 cuyler v. adams, supra note 6 at 452 (rehnquist, j., dissenting). (“[the transformation] proposition is…contrary to the established rule in other contexts. the most fundamental example was discussed in coyle v. smith…”). see generally id. at 450-455 for cuyler’s dissenting opinion. in this dissent, relying on u.s steel, future chief justice william rehnquist argued that the intent of the parties and the attainment of consent did not inherently convert state legislation into a compact as he believed the majority was suggesting. rehnquist instead sought to constrain the definition of a compact to the subject matter of the policy initiative and the policy initiative’s proximity to the federal government. justice rehnquist borrowed from engdahl, supra note 38, to advance his argument; though it is worth noting that engdahl’s article precedes u.s steel, in addition to preceding cuyler. for a broader analysis of rehnquist’s compact clause jurisprudence, see generally eichorn, supra note 42. this part. the 1925 article does not necessarily speak to the retractability or conditionality of consent here, instead merely addressing the intent of the framers to endow congress with the consent power. here, the 1925 article supposes that the consent mechanism was afforded to congress as a “republican transformation of the needed approval by the crown” to enter intercolonial arrangements under british law. the importation of this monarchical procedure coupled with the terseness of the compact clause likely created the anomalous ambiguities embedded in the nature and retractability of congressional consent in the case of interstate compacts. the situation was likely complicated further by the advent of judicial review and the formation of a dichotomy between political judgments and constitutional judgments as domains of the legislature and the courts, respectively. 97 brandeis university law journal 2024-2025, volume 12 distinction for those seeking a legalization of the retractability of congressional consent from compacts. if compacts are federal law, it would be logical to afford congress unique leeway to contemplate its consent in this area. the consent congress grants for admitting new states, into the union, mirrors the passive compacts states have historically entered. in this way, it is understandable that congress would not be afforded the capacity to withdraw its consent to statehood because that would pose tremendous implications for the status of a state’s sovereignty and the stability of political and social dynamics throughout the country. nonetheless changing circumstances in the underlying exigence of a compact, and the protective capabilities the compact clause was designed to enshrine, necessitate providing congress the right to retract its consent.128 new york v. new jersey affords states the capacity to unilaterally withdraw from active compacts, absent provisions pertaining to the duration of time a compact must remain intact, whereas states cannot easily withdraw from compacts that enforce boundary lines or map out water distribution.129 analogously, congress ought to be afforded a similar prerogative to withdraw its consent in situations where a compact has an active impact on the political sphere and the federalist system.130 130 in his article advocating increased federal control over compacts, supra note 36 at 685-686, congressman celler cited the case louisville bridge company v. united states 242 u.s. 409 (1917) to support the assertion that congress retains the right to periodically consider the status of its consent. louisville dealt with a contract between congress and a corporation rather than an interstate compact. as was the case in part ii, section b; the position of this article remains that laws governing individuals and corporations cannot inherently transitively be applied to states. in his dissent in u.s. steel corp. v. multistate tax comm’n, justice white cited celler as evidence the court had recognized that “congress must possess the continuing power to reconsider terms approved in compacts” (supra note 92 at 486 n.10). white also cited pennsylvania v. 129 see supra notes 51-52. 128 congress and the port of new york authority, supra note 31 at 816. 98 brandeis university law journal 2024-2025, volume 12 the supremacy of the federal government would certainly be threatened if congress could not withdraw consent from a compact and instead had to remain stagnant as states undertook policy objectives in interstate capacities for indefinite periods of time. furthermore, in the wake of the court’s decision in texas v. new mexico and colorado, there is even more of an impetus for the supreme court to rule that congress bears the right to withdraw its consent to a compact; irrespective of the nature of interstate compacts as contracts. ultimately, it is rational to enshrine a retention of the right to withdraw from compacts to congress in subsequent cases. just as a scenario in which states cannot withdraw from a compact or let a compact go dormant is dystopian, a scenario in which congress cannot withdraw its consent is dystopian. if the de facto and de jure reality is that compacts are contracts in contemporary jurisprudence, it would be illogical for courts to retain a preclusion on congress’s capacity to withdraw its consent. it is inequitable for some parties to retain the right to unilaterally withdraw from an agreement while others remain indefinitely bound to it. additionally, if compacts are acts of congress, congress should be permitted to evaluate whether compacts should continue to remain in effect. new york v. new jersey codifies a right to unilateral withdrawal for states; congress should be afforded a similar right to withdraw its consent. iv. conclusion the interstate compact is an anomalous facet of american constitutional law with a unique purpose and an wheeling & belmont bridge co., 59 u.s. 421, 433 (1855) (white erroneously listed the year of the 1855 wheeling decision as 1856 in his dissent). in the 1855 opinion, “[t]he question…[wa]s whether or not the [interstate] compact can operate as a restriction upon the power of congress under the constitution to regulate commerce among the several states” in the area of a compact’s domain. this is markedly different from a verdict on congress’s right to withdraw or modify the consent it provides to a compact. nevertheless, justice white’s discussion of this particular issue was dicta. this question remains in need of a definitive answer. 99 brandeis university law journal 2024-2025, volume 12 anomalous ratification process. as a result of the distinctiveness of compacts, a perennial issue in american history has been ascribing them a coherent body of law for judicial dispute resolution. in cuyler v. adams, the supreme court ruled that compacts are federal laws. at the same time, the supreme court has defined compacts as contracts between states eligible for adjudication using contract law principles. in new york v. new jersey, the court held that the “contract-law rule” permits states to unilaterally withdraw from compacts lacking a set duration of time or explicitly codified withdrawal mechanisms. presently, both cuyler v. adams and new york v. new jersey are binding precedent. therefore, compacts possess a dual status as contracts and statutes. this duality is ineffective for elucidating remaining ambiguities posed by the compact clause. the framers designed the constitution to limit the power of the national government by building the principles of federalism, democracy, and a separation of powers into their new nation.131 this article has demonstrated that each of these constitutional norms are threatened by the supreme court’s jurisprudence pertaining to the compact clause: the supreme court’s dual-conception of interstate compacts as state-based solutions to localized problems and as congressional policies challenges the principle of federalism. virginia v. tennessee held that not all compacts require the involvement of congress and that some could even attain the implied consent of congress. concurrently, cuyler declared that all compacts are federal law and virginia v. west virginia asserted that congress can intervene to ensure a compact is carried out. these cases, taken together, blur the lines between state and federal government and endanger the federalist checks which undergird the united states. the permanency of compacts juxtaposed with the impermanence of governmental administrations and the exigencies of their policy imperatives highlights the 131 see supra note 37. 100 brandeis university law journal 2024-2025, volume 12 incompatibility of the compact clause with democratic intuitions. this incompatibility with democratic values plagues compacts whether compacts are statutes, contracts, or both. it was not until new york v. new jersey that states were afforded the opportunity to unilaterally withdraw from obligation-imposing compacts to comport with the changing nature of policy issues and the mandates of voters.132 even so, the continuity of the cuyler doctrine means that states undertaking a compact are executing federal laws. thus, states withdrawals from compacts amount to states nullifications of federal law. in this way, the duality doctrine imposes tremendous strains on the constitutional and political infrastructure of the united states. even in alabama v. north carolina, where the court expressly worked to reach its decision in the manner that best comported with the duality, the court took no issue with the inclusion of a provision in the compact at bar permitting states to withdraw from the compact by enacting laws to repeal it.133 if a compact was merely a contract, then there would be no need to further examine the court’s apathy to this provision’s inclusion. but a compact is also a federal statute, and this provision invited a state to enact laws that discontinued the state’s participation in the execution of federal laws. if compacts were merely contracts, these measures would exclusively constitute withdrawals from contracts. since compacts are also statutes, these withdrawals are state nullifications of federal statutes.134 134 the court in alabama v. north carolina had the liberty to comment on the withdrawal provision despite its contention that courts could not alter 133 alabama v. north carolina, supra note 94 at 351-352. the court presupposed that north carolina could withdraw from the compact in this case and referred to the compact’s enumerated procedures for withdrawal as the basis for this presupposition. the court specifically assessed whether north carolina’s withdrawal was in “bad faith.” this was discussed in part iii, section b of this article; the court found that an interstate compact does not inherently confer a duty, upon the parties, to act in good faith. 132 see supra note 52. 101 brandeis university law journal 2024-2025, volume 12 as for the separation of powers doctrine, the supreme court has been reluctant to decide whether congressional consent is a political consideration or a constitutional one. under virginia v. west virginia and florida v. georgia, the consent power is policy-based and a political consideration; and under virginia v. tennessee, that power is constitutionally-based as shown by the just supremacy federal statutes. the precedent that the court in alabama v. north carolina relied on to make this determination held that “[o]nce congressional consent is given to an interstate compact as required by the compact clause, the compact is transformed into a law of the united states, and unless the compact is unconstitutional, no court may order relief inconsistent with its express terms.” texas v. new mexico, 462 u.s. 554, (1983) (emphasis added). a clear exception is outlined in this rule because a state effort to nullify a federal law—as compacts are—would amount to a violation of the supremacy clause of the constitution. (see supra note 106 for an overview of the supremacy clause.) but because of the duality’s concurrent conception of compacts as contracts, where withdrawal provisions are permitted, the court in alabama v. north carolina took no umbrage with these provisions irrespective of their dubious constitutional foundations. the court in new york v. new jersey expanded the right to withdrawal to compacts lacking expressly codified withdrawal provisions. see generally parts ii and iii of this article for a discussion of the impact of the new york v. new jersey decision in this light. the realities of any given compact’s dissolution may differ on the basis of a number of criteria, including whether a compact launched an interstate agency; nonetheless, this proliferation of compact withdrawal capabilities remains concerning as state initiations of withdrawals from compacts invariably constitute nullifications of binding federal statutes. former new jersey governor chris christie was initially hesitant to sign the bill commencing new jersey’s withdrawal from the compact, at bar in 2023’s new york v. new jersey, because he believed that such an action was in violation of federal law. governor christie ultimately signed the bill immediately prior to his departure from the governor’s office in 2018. christie’s reservation further demonstrates the ambiguities perpetuated by the duality and the negative repercussions the duality poses for governmental affairs. ryan hutchins, christie, reversing himself, signs bill to abolish waterfront commission, politico (january 15, 2018), https://www.politico.com/states/new-jersey/story/2018/01/15/christie-revers ing-himself-signs-bill-to-abolish-waterfront-commission-189692. 102 https://www.politico.com/states/new-jersey/story/2018/01/15/christie-reversing-himself-signs-bill-to-abolish-waterfront-commission-189692 https://www.politico.com/states/new-jersey/story/2018/01/15/christie-reversing-himself-signs-bill-to-abolish-waterfront-commission-189692 brandeis university law journal 2024-2025, volume 12 standard. while the policy-based doctrine poses federalist issues, the virginia v. tennessee approach poses separation of powers issues. virginia v. tennessee’s approach presumes congress has the capacity to make evaluations of the constitutionality of legislation by evaluating a compact’s impact on the constitutional system and the preservation of the federal government’s supremacy. while the supreme court is afforded original jurisdiction for interstate disputes in all other contexts, virginia v. tennessee uniquely positions deliberations surrounding the constitutionality of an interstate compact within the purview of congress. this framework affords congress discretion in a subject matter, evaluations of constitutionality, where congressional deference is not otherwise typically provided. additionally, virginia v. tennessee’s implied consent doctrine means that congress does not always even directly make these evaluations despite being tasked with them. in the wake of cuyler, this means states can enact laws of congress without the direct consent of congress. while these prerequisite evaluations have been reserved for congress, the court has consolidated jurisdiction over disputes surrounding active compacts in the federal court system. this was the result of delaware river commission v. colburn, west virginia ex rel. dyer v. sims, and petty v. tennessee-missouri bridge comm’n; these cases were decided during the 1940s and 1950s as part of a national shift favoring the interstate compact as a policy solution. these cases centralized interstate compact disputes on the federal level to adapt to the changing political landscape. after cuyler in 1981 and the emergence of the duality, however, this situation proved disastrous for those seeking expeditious judicial resolutions of contractual disputes under a compact. this is because the court cannot effectively balance both of the characteristics a compact embodies. in new york v. new jersey, the court veered too close to the contract view of compacts by enumerating withdrawal 103 brandeis university law journal 2024-2025, volume 12 privileges at the expense of the continuity of federal law. in texas v. new mexico and colorado, in 2024, the court veered too far in the direction of the statute characterization. the court granted the federal government the ability to prolong a dispute for which the compacting states had already reached an expeditious settlement. when the court tries to acknowledge both of these attributes, the court fails to deliver decisive jurisprudence as evidenced by the opinion in alabama v. north carolina. as stated, the court permitted the inclusion of a withdrawal provision in the compact at bar that amounted to a state nullification of a federal statute; but the court also rendered itself incapable of ensuring that compacts comport with contractual principles of equity and fair dealing because compacts possess the legal status of federal laws. thus, given the presence of these issues and the implications they continue to pose for american constitutional law and public policy, the frameworks surrounding interstate compacts pose ambiguities that require amelioration. 104 brandeis university law journal 2024-2025, volume 12 state responsibility for state sponsors of terror koby gottlieb1 this article explores the international legal obligations of states to cease trading with state sponsors of terrorism, focusing on article 16 of the draft articles on responsibility of states for internationally wrongful acts. using the principles of customary international law, including the prohibition on the use of force and non-intervention, this article evaluates state accountability for aiding terrorism as applied to china. the paper asserts that international trade with state sponsors of terrorism, such as china’s trade with iran, constitutes a breach of international law. roadmap this paper looks at the implications for iran’s trading partners, particularly china, in light of iran’s support for terrorism.2 it is important first to establish the theoretical framework underpinning this argument by analyzing the mens rea and actus rea elements of state responsibility. throughout, the paper will apply relevant aspects of the elements of state responsibility to both iran and china while also exploring international legal concepts on the use of force, non-intervention, and terrorism. in doing so, it will become clear that china’s trade with iran is illegal under international law. background the islamic revolutionary guards corps (irgc) is a terrorist organization that supports other terrorist organizations, including hezbollah, the houthis, and various additional 2 nader uskowi, temperature rising: iran’s revolutionary guards and wars in the middle east xiv–xvi (2019). 1 brandeis university, class of 2026, brandeis university law journal, copy editor. 105 brandeis university law journal 2024-2025, volume 12 militias.3 the iranian office of the supreme leader controls and aids the irgc, including subsidiary groups within it.4 china was one of the largest importers of iranian goods compared to other countries in 2022, substantially contributing to the iranian economy.5 since the irgc and the office of the supreme leader control over five hundred businesses, accounting for almost half of the iranian economy, china’s contributions to the iranian economy undoubtedly assist the irgc.6 hezbollah causes significant human casualties to civilians and considerable destruction of property across the world. one notable case is the attack on a jewish community center in argentina in 1994 that killed eighty-five people, wounded three hundred, and leveled the recreation center.7 the inter-american court of human rights — a regional human rights-centered court represented by judges from across the western hemisphere — ruled in january 2024 that hezbollah committed the attack with support from iran; iran is also likely to have ordered the attack.8 notably, the court held that this attack was an act of terrorism, likely due to civilians being the target of this attack.9 9 memoria activa vs. argentina, supra note 6 at 1; thomas buergenthal, the inter-american court of human rights, 76 am. j. int. law 231, 233–234, 242 (1982). 8 decisions by the court are binding on states that accept the american convention on human rights as binding. see american convention on human rights, 33, 61-62 (1969). 7 memoria activa vs. argentina, 43 (2024). 6 uskowi supra note 2 at xiv–xvi. 5 world integrated trade solution, iran, islamic rep. trade balance, exports and imports by country 2022, (2022). 4 see generally augustus r. norton, hezbollah: a short history (new paperback edition ed. 2014); trevor johnston et al., could the houthis be the next hizballah? iranian proxy development in yemen and the future of the houthi movement, 51–71 (2020). 3 id. 106 brandeis university law journal 2024-2025, volume 12 state responsibility since 1955, the international law commission (ilc), a group of thirty-four individuals elected by the united nations general assembly (unga), has developed the draft articles on responsibility of states for internationally wrongful acts, with commentaries, determining the limits of state responsibility in international law.10 the draft articles, especially article 16, serve as the backbone for this paper.11 article 16 concerns states aiding or assisting other states in committing internationally illegal acts.12 since there is not a substantial contextual difference between “aiding” and “assisting,” these terms will be used interchangeably in line with the united kingdom’s opinion.13 the commentary sets forth three conditions that limit the scope of responsibility of states in aiding or assisting: first, the relevant state organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted state internationally wrongful; secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so; thirdly, the completed act must be such that it would have been wrongful had it been committed by the assisting state itself.14 there is both a mens rea element and an actus reus element. the first condition and part of the second condition — “the aid or… of that act” — touch on the mens rea element, 14 united nations, supra note 11 at 66. 13state responsibility – comments and observations received from governments, 53rd session, 52 (2001). 12 id. 11 united nations, draft articles on responsibility of states for internationally wrongful acts, with commentaries 66 (2001). 10 james crawford, the ilc’s articles on responsibility of states for internationally wrongful acts: a retrospect, 96 the american journal of international law 874, 874 (2002); stephen c. mccaffrey, the thirty-seventh session of the international law commission, 80 american journal of international law 185, 185 (1986). 107 brandeis university law journal 2024-2025, volume 12 while part of the second condition — “must actually do so” — and the third condition touch on the actus reus element. as shown below, china meets each of these conditions for state responsibility. the application of the convention on the prevention and punishment of the crime of genocide (bosnian genocide case) further elaborates on the case law surrounding state responsibility. the bosnian genocide case was a case in the international court of justice (icj) that determined that the bosnian serb armed forces perpetrated genocide in the town of srebrenica, bosnia and herzegovina, in july 1995.15 decisions by the icj reflect international law.16 in this case, the icj regards article 16 as customary international law which is binding, according to the icj statute.17 the icj does not specifically regard the attached commentaries to article 16 as part of the canon of customary law, but they may still be a source of customary law. furthermore, the icj’s statute recognizes “judicial decisions and teachings of the most highly qualified publicists” as a source of customary law.18 in 2001, the final presentation of the draft articles included commentaries by numerous respected international lawyers.19 these include sir ian brownlie, james crawford, and john dugard — some of the leading international lawyers in scholarship and practice.20 20 philippe sands, sir ian brownlie obituary, the guardian, jan. 11, 2010; philippe sands, james crawford obituary, the guardian, jun. 13, 2021; curriculum vitae and publications of john dugard, 20 leiden journal of international law 983 (2007). 19 summary records of the first part of the fifty-third session, 1 (2001). 18 id. at 38(1)d. 17 application of the convention on the prevention and punishment of the crime of genocide, international court of justice 420 (2007); statute of the international court of justice, 38(b). 16 alain pellet, decisions of the icj as sources of international law? 56–57 (2018), http://crde.unitelmasapienza.it/it/pubblicazioni/gmls-2018 (last visited jan 20, 2025). 15 vojin dimitrijević & marko milanović, the strange story of the bosnian genocide case, 21 leiden journal of international law 65, 65 (2008). 108 brandeis university law journal 2024-2025, volume 12 thus, these individuals fit the requirement of “most highly qualified publicists,” and as such, the commentary to the draft articles carries an important weight in determining international law. crawford suggests reading the draft articles with the commentary and even the preparatory work of the ilc.21 for this article, the first important part of the draft articles is the mens rea element of article 16. the mens rea element in the bosnian genocide case, the icj determined that for a state’s assistance of another state to constitute wrongdoing, the assisting state must do so “in full awareness that the aid supplied would be used to commit” a crime.22 the assisting state must also be aware of the “specific intent” of the perpetrating state.23 the international criminal tribunal for rwanda was established by the united nations security council (unsc) in 1994 to prosecute those responsible for genocide in rwanda.24 international legal terms used by the tribunal clarify the meaning of the same terms because, according to the icj statute, tribunals help interpret international law.25 the tribunal ruled that “specific intent” requires that the perpetrator of a crime intended the result of the crime.26 the icj in the bosnian genocide case determined that states must have “at the least” this knowledge of intent, suggesting that the claim of responsibility necessitates some knowledge.27 27 georg nolte & helmut philipp aust, equivocal helpers—complicit states, mixed messages and international law, 58 iclq 1, 14 (2009). 26 the prosecutor versus georges anderson nderubumwe rutaganda, 59 (1999). 25 statute of the international court of justice, supra note 17 at 38(1)d. 24 resolution 955 establishment of an international tribunal and adoption of the statute of the tribunal, (1994). 23 id. at 421. 22 application of the convention on the prevention and punishment of the crime of genocide, international court of justice 423 (2007). 21 james crawford, state responsibility: the general part 87 (2013). 109 brandeis university law journal 2024-2025, volume 12 nevertheless, states do not need complete certainty; near-certain knowledge that assistance provided to one state will perpetuate a crime is sufficient for the assisting state to be responsible under article 16.28 professor john quigley, a scholar of international law, confirms and further explains this idea in the european journal of international law.29 he regards the united states’ intervention in lebanon in 1958 as unlawful and germany as complicit because germany intended to assist the united states by sending american airplanes to lebanon.30 while germany was not entirely certain that the united states would use these airplanes unlawfully, they were “practically certain” that the united states would use these airplanes unlawfully.31 the “practically certain” designation insinuates that while germany was not aware of the united states’ “specific intent,” they still had significant knowledge of the united states’ intentions. since the inter-american court of human rights has addressed iran’s ties to hezbollah, when applying the above principles to china, it is reasonable to conclude that china is aware of this ruling and its implications for trading with a state sponsor of terror.32 the challenge is determining whether china knows that the money it uses to buy iranian goods will go to support terror. researchers, journalists, and government institutions have all confirmed the irgc’s hegemony over the iranian economy by controlling about half of the entire 32 cecilia medina, the inter-american commission on human rights and the inter-american court of human rights: reflections on a joint venture, 12 human rights quarterly 439, 439 (1990). 31 j. quigley, complicity in international law: a new direction in the law of state responsibility, 57 british yearbook of international law 77, 112–113 (1987). 30 the status of the us intervention is unrelated to the purpose of this paper. 29 john quigley, karim khan’s dubious characterization of the gaza hostilities, european journal of international law: talk! (may 28, 2024). 28 crawford, supra note 21 at 408. 110 brandeis university law journal 2024-2025, volume 12 economy.33 the wide range of sources confirming this fact reinforces the idea that china knows about the irgc’s control over the iranian economy. accordingly, it is “practically certain” that china knows a significant portion of its trade with iran finances terrorism around the world. another example to illustrate the standard for the necessary level of knowledge to hold an assisting state responsible is the corfu channel case, where the icj issued a ruling after several british ships were damaged and several civilians were injured in 1946. this incident occurred after the british hit mines in albanian territorial waters.34 despite publicly saying it did not know about mines in its territorial waters, albania “must have known” about this unlawful behavior.35 the court considers knowledge as a state’s ability to recognize unlawful activities, making it responsible even if it publicly denies awareness. since, as mentioned earlier, it is “practically certain” that china knows about its unlawful trade with iran, china cannot avoid responsibility by denying awareness. there are two additional considerations regarding the legal standards of due diligence and willful ignorance of the assisting state. article 16 and the commentaries do not refer to any duty of due diligence to investigate whether assistance might be used unlawfully. in addition, they do not mention how to treat an assisting state that is willfully ignorant. instead, they stay neutral on both points.36 the appeals chamber of the international criminal tribunal for the former yugoslavia, in 36 harriet moynihan, aiding and assisting: challenges in armed conflict and counterterrorism, 14–15. 35 the corfu channel case, international court of justice 19 (1949). 34 dafina buçaj, the obligation to prevent transboundary cyber harm: expand the regulatory regime or continue deflecting responsibility, 54 the george washington international law review 219, 252 (2023). 33 uskowi, supra note 2 at xvi; julian borger & robert tait, the financial power of the revolutionary guards, the guardian, feb. 15, 2010; treasury targets billion dollar foundations controlled by iran’s supreme leader, (2021). 111 brandeis university law journal 2024-2025, volume 12 interpreting the “had reason to know” standard of article 7(3) of the statute of the international tribunal, provides further insight into the principles of due diligence and willful ignorance. 37 the tribunal indicted tihomir blaškić for alleged violations of international law against bosnian muslims between may 1992 and january 1994. after being found guilty, blaškić appealed.38 the statute of the icj regards tribunals as a source of international law.39 the appeals chamber ruled “that the mental [mens rea] element ‘had reason to know’ as articulated in the statute, does not automatically imply a duty to obtain information… [but] responsibility can be imposed for deliberately [sic] refraining from finding out but not for negligently failing to find out.”40 this decision indicates that under international law, states do not have an active duty to conduct due diligence on other countries, but if there is publicly recognized evidence and the assisting state intentionally ignores it, then the state should be held responsible. so, china does not have a duty of due diligence to investigate the details of how its trade with iran aids terrorism. however, china cannot claim willful ignorance, especially if there is substantial and public evidence suggesting that iranian terror benefits from chinese trade. since there is substantial public evidence showing china must be “practically certain” that iranian terror benefits from chinese trade, china cannot claim willful ignorance. the commentary explicitly mentions the need for intent but does not clearly define it. moreover, the commentary’s use of the words “with a view to facilitate” 40 blaskic case, supra note 37 at 406. 39 statute of the international court of justice, supra note 17 at 38(1)d. 38 antonio cassese, the oxford companion to international criminal justice 610–611 (2009). 37 blaskic case, the appeals chamber of the international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former yugoslavia since 1991 406 (2004). 112 brandeis university law journal 2024-2025, volume 12 suggests that the assisting state must have intent in aiding.41 terms used in the rome statute can help elucidate the use of these terms in other circumstances, such as the concept of intent here, since the statute is a document of international law.42 the rome statute of the international criminal court (icc) concerns itself with crimes committed by individuals, as opposed to states.43 the rome statute defines intent as when “in relation to conduct, that person means to engage in the conduct; in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of event.” 44 for china to meet the threshold of intent, it must purposefully trade with iran while either meaning to support terrorism or knowing that trading with iran will aid iran’s terrorist activities. the icc further developed the concept of intent in the bemba case. in the case, the icc initially sentenced jean-pierre bemba, a politician in the democratic republic of congo, in 2016 for crimes against humanity and war crimes, but later acquitted him in 2018.45 the icc further explains its definition of intent in two ways: first and second degree. the first degree is when an individual acts in a manner with the desire to bring about the elements of the crime. the second degree is when an individual knows that the elements of the crime will almost inevitably arise by the commission or omission of an act, even if there is no desire for the elements of the crime to arise.46 china’s intent is quite easy to prove based 46 decision pursuant to article 61(7)(a) and (b) of the rome statute on the charges of the prosecutor against jean-pierre bemba gombo, 358–359 (2009). 45 the prosecutor v. jean-pierre bemba gombo, 1, 752 (2016); the prosecutor v. jean-pierre bemba gombo, 196–198 (2018). 44 rome statute of the international criminal court, 30(2) (1998). 43 the rome statute of the international criminal court, , in the handbook of comparative criminal law 593, 595–596 (kevin jon heller & markus dubber eds., 2020). 42 statute of the international court of justice, supra note 17 at 38(1)d. 41 united nations, supra note 11 at 66. 113 brandeis university law journal 2024-2025, volume 12 on the second degree of intent. as explained above, china is “practically certain” that its trade with iran aids iran’s terror. regardless of whether china wants to support terror, it still has intent based on the second degree. in summary, china has the requisite level of knowledge, under the mens rea element of article 16, that its trade with iran supports terror. the actus reus element while the previous section described the mens rea element, this section will evaluate the actus reus element by determining the legality of states aiding terror and ascertaining its universality. first, it is important to establish a definition of terrorism to understand why aid to the irgc should be ceased immediately. unfortunately, there is not one clear definition of terrorism under international law.47 the league of nations, the unga, the secretary-general of the united nations (un), the unsc, and others have all passed their own, and sometimes contradictory, definitions of terrorism.48 due to the variety of definitions, this paper will adopt the view of terrorism espoused by the special tribunal for lebanon. established by the unsc in 2007, the special tribunal for lebanon primarily prosecuted those responsible for the assassination of the former lebanese prime minister rafik hariri.49 this definition works best because of the wide-ranging methodology taken by the appeals chamber in the special tribunal for lebanon, whereby they consulted international treaties, un resolutions, and domestic legislative and judicial practices to determine the customary law view of terrorism. the view of terrorism taken by the special tribunal has three key elements which must all 49 jan erik wetzel & yvonne mitri, the special tribunal for lebanon: a court “off the shelf” for a divided country, 7 law pract int courts trib 81, 81–82 (2008). 48 convention for the prevention and punishment of terrorism, (1937); resolution 49/60 measures to eliminate international terrorism, (1995); kofi annan, statement to the general assembly, (2005); resolution 1566, (2004). 47 ben saul, defining terrorism in international law 7 (2008). 114 brandeis university law journal 2024-2025, volume 12 be fulfilled: “the perpetration of a criminal act;… the intent to spread fear among the population… or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; when the act involved a transnational element.”50 with this definition of terrorism, it is important to further investigate iran’s terrorist actions by looking at the international legal principles of the use of force and non-intervention. article 2(4) of the un charter expresses the fundamental principle on the use of force in saying: “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the united nations.”51 according to the ilc in 1966, the charter’s view on using force is consistent with customary international law.52 unga resolution 2625 further clarifies the principle of the use of force. the icj recognized this resolution as customary law in the case concerning the military and paramilitary activities in and against nicaragua (nicaragua case). this case was brought to the icj by nicaragua after the united states allegedly used military force against nicaragua. based on the principle of the use of force, the court declared that “every state has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state.”53 the challenge with employing the principle of the use of force is that in the 53 case concerning military and paramilitary activities in and against nicaragua, icj 191 (1986); resolution 2625 declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations, (1970); thomas j. pax, nicaragua v. united states in the international court of justice: compulsory jurisdiction or just compulsion?, 8 boston college international and comparative law review 471, 471 (1985). 52 united nations, yearbook of the international law commission 1966, vol. ii 20 (1966). 51 united nations charter, 2(4) (1945). 50 the prosecutor v. ayyash et al., 85 (2011). 115 brandeis university law journal 2024-2025, volume 12 nicaragua case, the icj determined that acts must be “classified as an armed attack rather than as a mere frontier incident” to be forbidden based on this approach.54 according to legal commentators, an armed attack can refer to the use of force when it causes “serious consequences… human casualties, or considerable destruction of property”.55 this limitation by the court’s ruling means that arming and training terrorist forces violates the principle of the use of force, but simply funding these forces does not. instead, funding may be a problem under the principle of non-intervention.56 only a limited number of acts of aggression are considered armed attacks; the remainder are frontier incidents.57 the high number of civilian casualties and destruction of property in the attack on the jewish community center show that hezbollah’s attacks can be considered armed attacks. by organizing, assisting, and participating in these attacks through hezbollah and the irgc, iran violates the use of force principle. based on the principle of non-intervention, unga resolution 2625 declares that “no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state.”58 the limitation of this principle is that for an entity to violate it, the terrorist activities must be conducted with the intention of bringing about change regarding “matters in which each state is permitted, by the principle of state sovereignty, to decide freely,” including “political, economic, social and cultural 58 resolution 2625 declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations, supra note 53. 57 john h. currie, public international law 504 (2. ed ed. 2008). 56 case concerning military and paramilitary activities in and against nicaragua, supra note 53 at 228. 55 yoram dinstein, war, aggression, and self-defence 193 (fourth edition ed. 2005). 54 case concerning military and paramilitary activities in and against nicaragua, supra note 53 at 195. 116 brandeis university law journal 2024-2025, volume 12 system, and the formulation of foreign policy” by the victim state.59 terrorism, according to the special tribunal for lebanon, includes cases where the terrorist organization intends to alter “matters in which a state is permitted to decide freely.” therefore, the non-intervention principle encompasses most acts of support to a terror organization. the principles on the use of force and non-intervention are customary principles that have their ultimate authority in article 2 of the un charter and are thus incumbent on all states.60 the recent houthi attacks on israel also demonstrate iran’s violation of international law. in december 2024, the houthis fired rockets targeting israel for several nights.61 these attacks may not be considered armed attacks because the houthi strikes have only killed one israeli and have only caused limited damage, thereby not fulfilling the criteria of “human casualties.”62 therefore, these attacks do not necessarily violate the principle of the use of force but could violate the principle of non-intervention. the houthis are firing these rockets to try to force israel to end the war in gaza, a highly political matter.63 because the houthi rebels are using iranian funds and weapons to interfere with israeli political matters, iran has violated the principle of non-intervention by financing the rebels.64 since these attacks are ongoing, iran is currently in violation of this principle. 64 uskowi supra note 2 at xiv–xvi 63 yemen’s houthis ‘will not stop’ red sea attacks until israel ends gaza war, al jazeera, dec. 19, 2023. 62 greg myre & daniel estrin, drone strikes tel aviv, killing one. houthis claim responsibility, npr, jul. 19, 2024; tia goldenberg, israel struggles to deter escalating attacks from yemen’s houthi rebels as other fronts calm, ap news, jan. 3, 2025. 61 stuart winer & emanuel fabian, houthis fire missile at central israel for 4th night in past week; idf intercepts it, dec. 25, 2024. 60 united nations charter, supra note 51 at 2. 59 case concerning military and paramilitary activities in and against nicaragua, supra note 53 at 205. 117 brandeis university law journal 2024-2025, volume 12 acts that violate both the principles of the use of force and non-intervention violate the key elements of terrorism.65 however, that does not imply that all acts of terrorism necessarily fall under one of either the principles of the use of force or non-intervention. there could be a case where a state only provides funds to a terrorist organization, thereby possibly violating the principle of non-intervention. if the terrorist organization only commits attacks to spread fear and not to effect change concerning “matters in which each state is permitted,” then a state aiding terror would not necessarily be committing a crime. nevertheless, this is not a concern because of the nature of state sponsors of terror who act with the intent to alter the political and security conditions of the victim state. therefore, state sponsors of terror support terror organizations that have a goal of changing “matters in which each state is permitted.”66 conclusion as demonstrated, trade with iran violates international law. the only remedy is for states to cease all trade with iran or violate international law. another option would be for the unsc to pass a resolution imposing economic sanctions on iran, which would be incumbent on all states.67 whether or not the unsc passes a resolution, trade with iran and other state sponsors of terror remains illegal, requiring all states to cease such activity. although international law is not enforceable, 67 rebecca barber, an exploration of the general assembly’s troubled relationship with unilateral sanctions, 70 iclq 343, 346–348 (2021); see anne van aaken & betül simsek, rewarding in international law, 115 am. j. int. law 195 (2021). 66 magdalena kirchner, why states rebel: understanding state sponsorship of terrorism 239–240 (2016). 65 see the prosecutor v. ayyash et al. supra note 50 at 85 “the perpetration of a criminal act;… the intent to spread fear among the population… or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; when the act involved a transnational element” 118 brandeis university law journal 2024-2025, volume 12 states may have a desire to comply with it and, therefore, should cease trade with iran on their own accord.68 states must not assist other states in committing internationally unlawful acts. there are both mens rea and actus reus elements to this responsibility. since support for terrorism is illegal under international law, it is illegal for states to support those who aid terrorist organizations or commit terror attacks themselves. using china and iran as a case study, this article demonstrates why all states, including china, must halt trade with iran due to its support for terrorism. 68 anthony d’amato, is international law really law, 79 nw. u. l. rev. 1293, 1293 (1984). 119 brandeis university law journal 2024-2025, volume 12 the sedition act of 1798 as a federalist legal instrument jack granahan1 the sedition act of 1798, enacted alongside the other federalist-proposed alien and sedition acts, stands as the most egregious violation of the first amendment’s free speech and free press clauses in american history. this law, passed by a predominantly federalist congress and signed into law by president john adams, criminalized the uttering and publishing of criticism of the federal government.2 this paper aims to demonstrate that the sedition act constituted more than just a national security measure that the federalists supported on the grounds of empowering a strong, central government. rather, as shown by the motives of the law described by federalist politicians and the biased trial proceedings of those charged under the law, the sedition act was a calculated act of legal instrumentalism that sought to empower the federalists by punishing anti-federalist dissenters. i. introduction the american political climate of the late 1790s was defined by ideological conflict: federalists supported a centralized federal government, while democratic-republicans supported a decentralized, agrarian vision.3 in 1797, federalist john adams was inaugurated as president, allowing the federalists to aggressively pursue their agenda.4 this included pushing for a war with france in the wake of the xyz affair, which saw the french government extort bribes from american diplomats as a prerequisite for negotiation. the fiercely anti-authoritarian democratic-republicans, who largely sympathized with the french republican government, opposed 4 douglas bradburn, a clamor in the public mind: opposition to the alien and sedition acts, 65 wm. & mary q. 565 (2008). 3 gérard hugues, norms for a misuse of authority: the alien and sedition acts, 74 rev. fr. d'études am. 93, 95 (1997). 2 an act for the punishment of certain crimes against the united states, ch. 9, 1 stat. 112 (1790). 1 brandeis university, class of 2026. 120 brandeis university law journal 2024-2025, volume 12 this war. as a consequence of this anti-war sentiment and other criticisms of the adams administration, adams and the federalist majority in both houses of congress sought to reduce anti-federalist political activity through legislative means.5 in the summer of 1798, this effort came to fruition with the implementation of the alien and sedition acts. in addition to three acts that regulated immigration and citizenship law, this collection of legislation concluded with the sedition act. among other provisions, this statute made “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the united states” a crime punishable by a fine of up to $2,000 (equivalent to over $51,000 in 2024) and up to two years in prison.6 this paper argues that the sedition act was based on an instrumentalist interpretation of the first amendment meant to empower the federalists by suppressing political dissent by the democratic-republicans. legal instrumentalism refers to the commandeering of specific interpretations and applications of legal texts as “instrument[s] of social change.”7 the alien and sedition acts conform to this practice. the first three parts of the act, which pertain to immigration and naturalization, constitute a clear effort to combat the “french peril” alleged by many federalists following the xyz affair.8 meanwhile, the sedition act was designed to crack down on democratic-republican opposition to, among other policies, the federalists’ march towards a war with france. the sedition act and its accompanying interpretation of the first amendment was used by the federalists as a legal instrument against the democratic-republicans. this use of legal instrumentalism can 8 hugues, supra note 3 at 95-96. 7 steven quevedo, formalist and instrumentalist legal reasoning and legal theory, 73 ca. law rev. 119, 125 (1985). 6 an act, supra note 2. 5 id. at 565-566. 121 brandeis university law journal 2024-2025, volume 12 be illustrated through federalist attempts to justify the subversion of the constitution, democratic-republican explanations of the law’s implications, and the individuals who would be prosecuted for sedition. ii. sedition and freedom of speech democratic-republicans slammed the sedition act as a blatant violation of the first amendment to the constitution, which states that “congress shall make no law […] abridging the freedom of speech, or of the press.”9 new york representative edward livingston declared that the sedition act was “an abridgement of the liberty of the press, which the constitution has said shall not be abridged,” and that the proper constitutional response to defamatory criticism of the government is “to disprove the fact” rather than “to prosecute the man who makes the charge.”10 in other words, seditious content must be met with correction instead of prosecution. it was also evident to the democratic-republicans even before passage that the sedition act was an explicit attempt by the federalists to clamp down on democratic-republican speech and presses. while the law worked its way through congress, vice president thomas jefferson, an unabashed democratic-republican, stated that “the object of [the sedition act] is the suppression of the [democratic-republican] presses.”11 north carolina representative nathaniel macon attacked the bill on the house floor, proclaiming that it would “produce more uneasiness, more irritation, than any act which ever passed the legislature of the union.”12 several counties in northern virginia, a democratic-republican stronghold known for its frequent public meetings at which citizens freely 12 walter berns, freedom of the press and the alien and sedition laws, 1970 sup. ct. rev. 109, 121 (1970). 11 id. at 18. 10 wendell bird, criminal dissent: prosecutions under the alien and sedition acts of 1798 (2020). 9 u.s. const. amend. i. 122 brandeis university law journal 2024-2025, volume 12 criticized the federal government, issued official resolutions condemning the sedition act. some of these resolutions “mimicked the laudatory petitions of the federalists and sent their complaints directly to adams.”13 federalists took different stances on the applicability of the first amendment to the sedition act. many federalist legal scholars asserted that, due to the importance of the journalistic integrity of newspapers in the revolutionary effort for american independence, government officials were entitled to freedom against “slanderous commentary in the press.”14 some federalist judges argued that the constitution did not apply to wartime legislation and that english common law could be used as a precedent for american law without the first amendment. this led some to turn towards the lengthy history of english common law statutes prohibiting “seditious libels” and “any dangerous or offensive writings” to preserve, in the words of sir william blackstone, “peace and good order, […] government and religion.”15 additionally, a common federalist argument supporting the law postulated that defaming the government during a period of such fierce hostilities with france was akin to aiding the enemy during wartime.16 meanwhile, connecticut representative samuel dana focused primarily on the defamatory nature of seditious speech, arguing that “the liberty of uttering malicious falsehood” does not exist in the constitution.17 these arguments may initially suggest that the impetus for the passage of the sedition act was grounded in sensible governance. however, even some arguments posed by supporters of the law challenge this interpretation, as they 17 bird, supra note 10 at 46. 16 ralph frasca, “treasonable expressions”: james bell and the emerging legal right to criticize, 86 pa. hist. 67, 73 (2019). 15 bird, supra note 10 at 42. 14 hugues, supra note 3 at 94. 13 bradburn, supra note 4 at 569. 123 brandeis university law journal 2024-2025, volume 12 demonstrate that the law was an attempt to suppress democratic-republican newspapers. connecticut representative john allen gave the first speech in favor of the sedition act while it was still in congress. he referred to the democratic-republicans as “the jacobins of our country” who sought to use “all the presses in the nation” as a means of overthrowing the federal government, urging the federalists to “wrest it away from them.”18 numerous federalist supporters of the law also referenced president george washington’s 1793 statement that partisan newspapers (particularly those associated with democratic-republicans) were “stuffing their papers with scurrility and malignant declamation.”19 the gazette of the united states, a prominent federalist newspaper, regularly characterized democratic-republican newspapers as “nest[s] of traitors” and “set[s] of revolters to france,” calling for those running these newspapers to be prosecuted to the fullest extent of the law.20 these federalist condemnations of democratic-republican newspapers are indicative of the sedition act’s purpose as a vehicle for the suppression of the democratic-republican press. iii. common law sedition prosecutions even more damning against the federalists, however, was the political affiliation of the individuals who were charged and prosecuted under the sedition act. the accused were all associated with democratic-republican publications or were prominent political dissidents who opposed the adams administration.21 before the passage of the sedition act, several democratic-republican dissidents had been charged with seditious libel under the common law. this followed the aforementioned trend of federalist judges adhering to blackstone’s common law rather than the constitution during 21 bird, supra note 10 at 385. 20 id. at 33. 19 id. at 18. 18 id. at 45. 124 brandeis university law journal 2024-2025, volume 12 times of war. the most notable of these common law sedition prosecutions was that of benjamin franklin bache, the grandson of the eponymous founding father, as well as the founder and editor-in-chief of the philadelphia-based aurora general advertiser.22 after its establishment, the aurora quickly became a prominent dissident newspaper. vice president jefferson had previously stated that bache’s newspaper had the potential to become the primary “[democratic-]republican vehicle of news established between the seat of government and all it’s [sic] parts.”23a relentless advocate of a free press, bache criticized attempts by the federalist-dominated congress to “muzzle the press” by restricting reports of a physical attack on vermont representative matthew lyon, a democratic-republican, by connecticut representative roger griswold, a federalist.24 this advocacy on lyon’s behalf made bache a key target of the federalist crackdown on democratic-republican speech. one source of bache’s contempt for president adams came from his continued support of the jay treaty, signed in 1795 by president washington, which strengthened ties between the u.s. and monarchist great britain at the expense of relations with republican france. bache slammed president adams in the aurora for his support of the treaty, rhetorically asking: “how has [adams] protected liberty? by writing in favor of monarchy and encouraging the suppression of the right of free opinion. how has he patronized religion? by promoting war.”25 after the aurora repudiated adams, bache was charged at the behest of secretary of state timothy pickering, a devout federalist, with “libeling the president and the executive government, in a manner tending to excite sedition and opposition to the laws, by sundry publication and 25 frasca, supra note 16 at 68. 24 id. at 71. 23 bird, supra note 10 at 58. 22 frasca, supra note 16 at 68. 125 brandeis university law journal 2024-2025, volume 12 re-publication.”26 mere days before his case was set to go to trial, bache fell victim to philadelphia’s yellow fever epidemic; he died prematurely, denying federalist judge john sloss hobart the ability to try him for speaking out against the federalist government.27 iv. the lyon trial the first individual to be criminally charged under the sedition act was congressman lyon of vermont in the summer of 1798.28 lyon, an irish-born immigrant, had previously faced fierce xenophobia from federalists in congress on account of his ethnic background, culminating in the cane attack on lyon by congressman griswold.29 lyon was also the editor-in-chief of the scourge of aristocracy, a newspaper intended to promote “the [democratic-]republican interest.”30 this put a target on lyon’s back, and in july of 1798, the federalists found their excuse to charge lyon with seditious libel. during this time, spooner’s vermont journal published a letter written by lyon that lambasted president adams for maladministration. this letter was written and sent to the press two weeks before the passage of the sedition act, so charging lyon with seditious libel would arguably violate the constitutional prohibition of ex post facto criminal charges (that is, a criminal charge levied against a defendant for actions committed prior to the criminalization of said act).31 nevertheless, lyon was indicted under the sedition act in october of 1798. the indictment accused lyon of attempting to “stir up sedition, and to bring the president and government of the united states into contempt,” citing lyon’s statement that 31 id. at 91. 30 bird, supra note 10 at 89. 29 id. at 580. 28 bradburn, supra note 4 at 580. 27 hugues, supra note 3 at 97. 26 bird, supra note 10 at 67. 126 brandeis university law journal 2024-2025, volume 12 condemned the president’s “continual grasp for power, […] unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”32 lyon’s trial exemplified a kangaroo court. federalist-influenced supreme court associate justice william paterson presided over the trial, and his conduct was fraught with judicial irregularities. paterson personally disqualified jurors whom he believed viewed the sedition act as an unconstitutional statute, and even instructed the jury to convict lyon on the grounds that the defendant had admitted to writing the supposedly seditious letter.33 paterson’s instructions to the jury required them to convict lyon if it was determined that lyon’s letter portrayed president adams “ odious or contemptible,” prohibiting the jury from assessing the validity of lyon’s criticisms.34 most glaringly, paterson specifically invalidated lyon’s defense that the law he was being charged under violated the first amendment. according to paterson, the constitutionality of the sedition act had already been settled by congress, and “the guilt consists in the publication” and the publication exclusively.35 therefore, it was no surprise when lyon was found guilty of seditious libel. he was ordered to pay a fine and legal costs totaling $1,060.96 (equivalent to over $27,000 in 2024) and sentenced to four months in prison, with this incarceration to continue until the fine and legal fees were paid.36 in november of 1798, lyon ran for reelection and became the first and only individual to win a congressional election while imprisoned.37 lyon was accordingly designated by a democratic-republican newspaper from connecticut as “the first martyr to the cause of liberty, under this law [the 37 bradburn, supra note 4 at 580. 36 id. at 95. 35 bird, supra note 10 at 94. 34 lyon’s case, supra note 32. 33 hugues, supra note 3 at 98. 32 lyon’s case, 15 f. cas. 1183, (c.c.d. vt. 1798). 127 brandeis university law journal 2024-2025, volume 12 sedition act].”38 lyon’s reelection was hailed as a victory for the democratic-republican party, but it was perhaps even more important as a demonstration of backlash against the draconian sedition act and the dubiously impartial prosecution of lyon. from the blatant hatred faced by lyon for his irish heritage (coupled with endemic anti-french xenophobia), to the ex post facto indictment of lyon, to justice paterson’s politically biased charge of the jury without consideration for lyon’s argument of constitutionality, the congressman’s show trial was indicative of the sedition act’s role as an instrument designed to infringe upon the freedoms of speech and the press held by democratic-republicans. v. the final wave of sedition prosecutions following a lengthy hiatus in enforcing the sedition act, a new wave of prosecutions took place between 1799 and 1800, this time focusing almost exclusively on democratic-republican newspaper editors. due to congressman lyon’s continued democratic-republican advocacy as editor of the scourge of aristocracy, he would once again be charged during this campaign of indictments, though the charges against him would never be served, as he left vermont after his retirement from congress.39 another victim of this return of the sedition act was democratic-republican stalwart anthony haswell, the editor-in-chief of the vermont gazette. haswell was charged with seditious libel in october of 1799, with his indictment citing his self-published defense of the previously imprisoned lyon, in which haswell stated that lyon was being held “by the oppressive hand of usurped power in a loathsome prison, deprived almost of the right of reason, and suffering all the indignities which can be heaped upon him by a hard-hearted 39 id. at 284-285. 38 bird, supra note 10 at 97. 128 brandeis university law journal 2024-2025, volume 12 savage.”40 in essence, haswell described lyon as a political prisoner of a tyrannical federalist regime. in the same publication, haswell castigated president adams for supporting the pro-british jay treaty, claiming that “the administration publicly notified that tories, men who had fought against our independence, who had shared in the desolation of our homes, and the abuse of our wives and daughters, were men who were worthy of the confidence of the government.”41 the demonstrably prejudiced justice paterson presided over haswell’s trial, refusing to accommodate the time necessary for the defendant to call witnesses and even referring to him as “a seditious libeller of your government, a convict justly suffering the penalty of a mild law” in the presence of the jury.42 needless to say, haswell was found guilty and sentenced to two months in prison and a $200 fine (equivalent to over $5,000 in 2024). despite the relatively short length of the sentence, it still took its toll on haswell; two months of inactivity left the vermont gazette bankrupt, and nine months after his release from prison, haswell stated, “i have been reduced to distress, and almost to penury.”43 this was far from an accident. the prosecution of a democratic-republican newspaper editor for criticizing a government agent’s treatment of an imprisoned congressperson, especially before a judge as politically skewed as paterson, likely had a specific intended impact: the elimination of that individual as a threat to the federalist administration in power. the federalist strategy of targeting outspoken democratic-republican figures continued with the prosecution of democratic-republican lawyer thomas cooper in pennsylvania. cooper had previously fled england due to 43 id. at 281. 42 bird, supra note 10 at 280. 41 id. 40 united states v. haswell, 26 f. cas. 218 (c.c.d. vt. 1800). 129 brandeis university law journal 2024-2025, volume 12 unresolved sedition charges.44 cooper’s experience with newspaper editing started and ended with a two-month-long stint as an editor for the sunbury and northumberland gazette.45 still, this was more than enough time for cooper to find himself in hot water with the federalists. in a leaflet distributed in northumberland county, pennsylvania in november of 1799, cooper lamented how the adams administration had left the us “saddled with the expense of a permanent navy” and “threatened [...] with the existence of a standing army,” and commented that the nation’s credit was “reduced so low as to borrow money at eight percent in time of peace, while the unnecessary violence of official expressions might justly have provoked a war.”46 arguably the most innocuous statement to result in a criminal charge under the sedition act, cooper’s criticism of president adams was nevertheless deemed libelous enough to have the lawyer indicted. in a trial heard by supreme court associate justice and staunch federalist samuel chase, cooper was forbidden from having the appropriate witnesses for his argument subpoenaed, leaving him unable to call any witnesses in his defense.47 additionally, chase told the jury that the criminalization of supposedly seditious press “is necessary to the peace and welfare of this country,” ordering the jurors to render a guilty verdict if cooper had published the pamphlet and did so with the intent to defame (both of which cooper had admitted to).48 cooper was convicted of seditious libel, receiving an unusually harsh sentence of six months in prison and a $400 fine (equivalent to over $10,000 in 2024). this egregious punishment, along with the fierce repudiation of jurors who did not follow his strict procedural guidelines, was 48 id. at 298-299. 47 bird, supra note 10 at 296. 46 united states v. cooper, 25 f. cas. 631 (c.c.d. pa. 1800). 45 id. at 293. 44 id. at 291-292. 130 brandeis university law journal 2024-2025, volume 12 one of many demonstrations of justice chase’s explicit federalist bias–a staple of sedition act prosecutions.49 the penultimate indictment under the sedition act was that of james t. callender, a prominent democratic-republican writer and contributor to the richmond examiner. in early 1800, callender published the prospect before us, a book in which he wrote that the “reign of mr. adams has been one continued tempest of malignant passions,” describing the “grand object” of the adams administration as “to exasperate the rage of contending parties” and “to calumniate and destroy every man who differs from his opinions.”50 callender had previously drawn criticism from federalist publications for referring to president adams as a “hoary headed incendiary” and former president washington as a “venal poltroon” (a combination of archaic terms describing a coward who is susceptible to corruption and bribery).51 consequently, callender was indicted on seditious libel charges, and once again, presiding justice chase issued a warrant for the writer’s arrest.52 as in previous trials heard by chase, the defendant was railroaded. utilizing common law libel standards, chase charged that callender could only be acquitted if he proved his condemnation of adams as an aristocrat and an actor for british interests to be factual. in the judge’s words, “you must prove both these points, or you prove nothing.”53 when callender’s attorney attempted to argue that the sedition act infringed upon the defendant’s first amendment rights, chase reportedly said that “it is not competent to the jury to decide on this point.”54 yet again, a guilty verdict for seditious libel was produced; callender received a nine-month prison sentence and 54 bird, supra note 10 at 308. 53 united states v. callender, supra note 50. 52 bird, supra note 10 at 306. 51 berns, supra note 12 at 121. 50 united states v. callender, 25 f. cas. 239 (c.c.d. va. 1800). 49 united states v. cooper, supra note 46. 131 brandeis university law journal 2024-2025, volume 12 a $200 fine. following the democratic-republican takeover of congress, chase would be unsuccessfully impeached in 1804 for showing bias during jury selection and courtroom procedure, even after his repeated instances of prejudiced conduct in seditious libel cases.55 vi. conclusion in total, thirty-nine individuals, all democratic-republicans, were criminally indicted for violating the sedition act between 1798 and 1800.56 these defendants included newspaper editors, members of congress, and other prominent democratic-republican figures. virtually all of these cases shared common features. the vast majority were presided over by federalist-appointed judges, often with political biases too severe to overlook. most of these judges rejected any arguments questioning the constitutionality of the law itself. many were also arguably tainted by xenophobic sentiments, be they against the irish, the french, or other groups. it is difficult to ignore the evidence that the sedition act was a legal instrument of the federalists, with the specific goal of using either a misinterpretation or an outright rejection of the first amendment to disenfranchise their political opponents. yet, the repugnance of the sedition act still succeeded as an exercise of what happens when the unalienable is alienated; that is, when an erroneous interpretation of constitutional rights is weaponized by a political faction as a legal tool. following the historic democratic-republican victory in the 1800 presidential and congressional elections, the federal government allowed the sedition act to expire.57 this raises the question: did the democratic-republican revolution in congress usher in the demise of the sedition act? or alternatively, did democratic-republican commitment to the 57 id. at 368. 56 id. at 385. 55 id. at 308-312. 132 brandeis university law journal 2024-2025, volume 12 first amendment in the face of federalist revisionism cause the meteoric rise of the former’s party? if the latter answer is the case, then surely a similar fall from political power would occur among any group that were to create a similar restriction of freedom of speech and press today. 133 brandeis university law journal 2024-2025, volume 12 a debate decided: civil liberties for guantanamo bay detainees lanie hymowitz1 as of january 2025, the infamous detention camp at the guantanamo bay naval base remains open and operational. this article provides a historical overview of how “gitmo” and its unique jurisdictional standing came to be. particular attention is paid to statutory and judicial developments following the 9/11 attacks during george w. bush’s presidency and the launching of the administration’s war on terror. these measures sanctioned the detention of individuals at guantanamo bay, with few opportunities to pursue legal recourse for the potentially extralegal circumstances of their imprisonment. introduction the legal tug-of-war between ensuring national security and the free exercise of civil liberties in the united states is as old as american jurisprudence itself. this debate reached a degree of unparalleled vigor in light of the september 11th attacks, when the promise of domestic safety seemed especially uncertain. in response to this uncertainty and fear, a military prison in guantanamo bay, cuba, opened for the purpose of detaining suspected terrorists. the prison would ultimately cause the three branches of the federal government to confront the quintessential american debate over national security and civil liberties time and again throughout the 2000s. the guantanamo bay detention camp was, and remains, an embodiment of the forceful stance the united states government takes to combat perceived international threats in the prolonged “war on terror.”2 it is the very 2 the “global war on terrorism” is an international military campaign by the united states against militant islamist groups, primarily from 2001 to 2021, with the u.s. withdrawal from afghanistan. this article will focus on 1 brandeis university, class of 2026. 134 brandeis university law journal 2024-2025, volume 12 foundations of the guantanamo bay naval base and subsequent military prison that engorge the executive branch with expansive powers over national security. the 1934 cuban-american relations treaty and the authorization for use of military force resolution blur the lines of both guantanamo’s sovereignty and the limitations on executive power respectively. the supreme court heard multiple cases concerning detainee rights during the administration of president george w. bush. though the supreme court generally ruled in favor of protected legal rights for guantanamo detainees, the response from congress tended to assert vigorous security measures, even if such actions countered the views of the supreme court. the disagreements between the executive and legislative branch against the judicial branch represents limited effectual justice for guantanamo detainees. post-9/11 america’s proclivity for fervent executive action devalued the civil liberties of detainees, which i argue allowed for abuses of justice. cuba-united states relations in the early 20th century the origins of guantanamo bay precede 9/11, dating back to the era of early american imperialism. following the spanish-american war in 1898, cuba was subject to american military occupation. under these colonial pressures, the cuban government incorporated the platt amendment into the cuban constitution in 1901.3 the platt amendment functioned as an exchange between the united states and cuba, with the united states affording cuba a greater degree of sovereignty in exchange for provisions that would permit continued american presence. section vii of platt mandated that the cuban government “sell or lease to the united states lands necessary for coaling or naval stations…to be agreed upon with the 3 jana k. lipman, guantanamo: a working-class history between empire & revolution, 23 (2008). the war on terror as it unfolded during the presidency of george w. bush (2001-2009). 135 brandeis university law journal 2024-2025, volume 12 president of the united states,” giving the united states president oversight over a portion of cuban territory, to be used at their discretion.4 this stipulation was fortified by a 1903 treaty, which was accompanied by a lease agreement between the two countries. article iii of the 1903 lease states that the, “united states recognizes the continuance of the ultimate sovereignty of the republic of cuba,” yet, “the united states shall exercise complete jurisdiction and control” over the naval base.5 the idea of what “ultimate sovereignty” means for cuba is unclear, as it seems to stand in direct contradiction to the united states exerting complete control over the same portion of land. the “legal invention” of ultimate sovereignty illustrates that actual cuban authority over guantanamo bay was weak in comparison to the robust power of the united states in the region.6 effectively, platt and the 1903 agreements fundamentally entangled the two states thenceforth. the platt amendment was repealed by president franklin delano roosevelt in 1934 as part of roosevelt’s “good neighbor” international policies, framed as a departure from colonialism in latin america.7 platt, as well as the 1903 treaty, were replaced with the cuban-american treaty of relations in 1934. while other provisions of platt were nullified, the new treaty fortified the guarantee of a naval base through a lease agreement which remains the governing language regarding the status of guantanamo bay.8 the treaty prohibited cuba from interfering with the base, stating “[s]o long as the united states of america shall not abandon the said naval station of guantanamo…the station shall continue to have the territorial area that it now has.”9 in effect, the treaty 9 cuban-american treaty of relations, 48 stat. 1682 (1934) § iii. 8 id. 7 president franklin d. roosevelt, first inaugural address (mar. 4, 1933), transcript available at the avalon project. 6 lipman, supra note 3 at 24. 5 agreement between the united states and cuba for the lease of lands for coaling and naval stations (1903) § iii. 4 platt amendment, 31 stat. 895 (1901) § vii; lipman, supra note 3 at 23. 136 brandeis university law journal 2024-2025, volume 12 gave the united states military the power to continue its activities in guantanamo bay, irrespective of the desires of the cuban government. while the united states ostensibly recognized cuba had “ultimate sovereignty” over guantanamo bay, it was evident that the united states could freely use the base for its own purposes. the cuban-american treaty of 1934 carved out a legal loophole for american presidents and the military. despite the letter of the law holding that cuba was leasing the land to the united states, america effectively owned guantanamo bay.10 as such, the united states could reasonably deny having sovereignty over the area while simultaneously carrying out any government operations deemed necessary. the lack of a formal “check” on american actions in the guantanamo bay naval base would thus ensnare the territory in what legal scholars have dubbed a “legal black hole.”11 cuba-united states relations in the early 20th century the legal foundation for using the base as a detention camp began with the authorization of use of military force of 2001 (aumf), a joint resolution passed by congress within a week of the september 11th attacks.12 the resolution conferred upon the president the authority 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” to ensure national security to the utmost degree.13 the broad language of the resolution, which vaguely defined “force,” gave president george w. bush and subsequent presidents an immeasurable arsenal of powers to thwart suspected terrorist threats. 13 authorization for use of military force, 115 stat. 224 (2001) § ii. 12 michael c. dorf, the detention and trial of enemy combatants: a drama in three branches, 122 pol. sci. q. 47 (2007). 11 amy kaplan, where is guantánamo?, 57 am. q. 831, 831–58 (2005). 10 lipman, supra note 3 at 28. 137 brandeis university law journal 2024-2025, volume 12 the aumf and the cuban-american treaty of relations of 1934 work in synchrony to diminish the boundary between the free exercise of civil liberties and the exertion of government authority. acting as the launching pad for authoritative government action to fight the war on terror, the aumf, is amplified by the 1934 treaty. as discussed earlier, the sovereignty of guantanamo bay outlined in the 1934 treaty allowed the united states to deny legal responsibility through a supposed lack of jurisdiction over the naval base. this prospect was made all the more perilous by an executive endowed with nearly unchecked wartime powers by the aumf.14 the robustness of executive power during the “war on terror” was further exacerbated by president bush’s military order, “detention, treatment and trial of certain non-citizens in the war against terrorism,” issued in november of 2001.15 president bush declared that if “there is reason to believe” a captured individual has acted with or aided a terrorist cause, the individual would be detained in a location selected by the secretary of defense and tried by a military commission.16 the order neglects to require a thorough review before an individual is detained, as grounds for detention can be based upon mere suspicion. moreover, the order begins by stating that the authority to make such an order is found in “the constitution and…the authorization for use of military force joint resolution.”17 this military order extended the aumf to apply to operations in guantanamo bay, as “necessary force” meant that government authorities (in their view) did not need to provide a solid rationale for an individual’s detention in the 17 id. 16 detention, treatment, and trial of certain non-citizens in the war against terrorism, 66 fed. reg. 57,833 (nov. 13, 2001). 15a military order, similar to an executive order, is a directive by the president of the united states that dictates actions of armed forces personnel. 14 lisa hajjar, guantánamo’s legacy, 19 ann. rev. l. & soc. sci. 58 (2023). 138 brandeis university law journal 2024-2025, volume 12 prison. thus, the government created an avenue to sweepingly deny the fifth amendment right of due process to detainees. the first prisoners detained at guantanamo bay arrived at the base in january 2002. these prisoners were described by general michael r. lenhert, the first commandant of the prison, as the “worst of the worst,” perhaps to justify the treatment that was to follow.18 the bush administration aimed to treat guantanamo bay as a “battle lab”; information would be extracted from these detainees that would inform the american government’s strategy in the war on terror.19 potential obstacles to the process of extracting information from prisoners–—such as prohibitions on torture–—were rebuffed by president bush in a confidential memo the following february. the memorandum, titled “humane treatment of taliban and al-qaeda detainees,” stated that, “none of the provisions of [the geneva conventions] apply to our conflict with al-qaeda.”20 the bush administration’s rationale was that the geneva conventions of 1949 applied to “high contracting parties,” or countries that agreed to geneva protocols. press secretary ari fleischer claimed that as an international organization that is not recognized as a governing authority, al-qaeda members, “are not covered by the geneva convention, and are not entitled to pow [prisoner of war] status.”21 per the third geneva convention, pow status affords an individual the right to be “treated humanely in all circumstances.”22 by this reasoning, even if a person’s 22 protected persons: prisoners of war and detainees, int’l comm. of the red cross, 21 statement by the press secretary on the geneva convention (feb. 7, 2003) (statement of ari fleischer). 20 memorandum from president george w. bush to the vice pres., sec. of state and def., att’y gen., chief of staff to the pres., dir. of central intelligence, ass’t to the pres. for nat. sec. aff’s, and chair of the joint chefs of staff, regarding the humane treatment of taliban and al-qaeda detainees, § 2(a) (feb. 7, 2002). 19 id. 18 hajjar, supra note 14 at 58. 139 brandeis university law journal 2024-2025, volume 12 detention in guantanamo bay proves gravely unjust, and therefore inhumane, a detainee was not protected by geneva and had little standing to challenge their detention. this assertion functions as a way for guantanamo bay detainees to have as little legal protection as possible. the fight for due process for guantanamo bay detainees the central infractions of this newly applied “law of war” concerned the right of detainees to question their detention, and to assert their rights of due process, rights that could feasibly be overridden based on the cuban-american treaty and the aumf. changes regarding the legal process of guantanamo bay would be primarily derived from a back-and-forth between the supreme court and congress. the first challenges to guantanamo would come before the supreme court in 2004 from hamdi v. rumsfeld and rasul v. bush, concerning the plaintiffs’ right to habeas corpus, the right to challenge their imprisonment.23 yaser hamdi, the plaintiff in hamdi v. rumsfeld, was an american citizen captured in afghanistan in 2001. due to his citizenship, hamdi had the explicit right to question his detention under the fifth amendment and thus, the question squarely before the supreme court was whether his detention violated his right to due process. the plurality decision authored by associate justice sandra day o’connor would hold that despite his status as an “enemy combatant,” the fifth amendment gave hamdi the right to be heard by a neutral decision-maker.24 the provisions of the aumf, and the subsequent military order that authorized the detention camp, had been the legal basis to deny procedural due process for detainees. although the plurality disagreed with this reasoning, 24 hamdi v. rumsfeld, 542 u.s. 507 (2004). 23 jonathan hafetz, habeas corpus after 9/11: confronting america’s new global detention system, 4 (2011). https://www.icrc.org/en/law-and-policy/protected-persons-prisoners-war-an d-detainees. 140 brandeis university law journal 2024-2025, volume 12 the opinion did not challenge the legality of the aumf; instead, it prescribed additional actions to be taken, with the aumf’s framework remaining in place. associate justice david souter, however, challenged the ethics of the aumf in a concurring opinion. souter claimed that “the world war ii internment was thus ordered under the same presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.”25 in making the damning comparison of the powers of the aumf to the military orders that called for the internment of japanese-americans during world war ii, souter shed light on the profound scope of presidential power under the resolution. so long as the aumf remains in place, as the plurality opinion asserted, egregious deprivations of civil liberties, akin to those that occurred during japanese internment, are enabled at guantanamo bay. while hamdi concerned constitutional interpretation, in rasul v. bush, guantanamo’s complex sovereignty and governing documents also played a key role. the case’s numerous plaintiffs held citizenship from england, australia, and kuwait, and filed federal suits stating that they were not granted a hearing or access to counsel before their detainment. the district court for the district of columbia, and the appellate court, held that the plaintiffs were effectively filing writs of habeas corpus.26 the district court drew upon the 1950 case johnson v. eisentrager for its reasoning, a case that concerned german war criminals held in an american-operated prison in germany. the majority in eisentrager held that, “nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the united states.”27 thus, the district court’s ruling was based on the assumption that guantanamo bay is “abroad” relative to the 27 johnson v. eisentrager, 339 u.s. 763 (1950). 26 rasul v. bush, 542 u.s. 466 (2004). 25 id., at 600 (souter, j., concurring in part, dissenting in part, and concurring in judgment). 141 brandeis university law journal 2024-2025, volume 12 united states, and therefore non-american citizens detained at guantanamo bay did not have a right to habeas corpus. as opposed to eisentrager, the supreme court’s majority opinion in rasul relied on braden v. 30th judicial circuit court of kentucky (1973). this case extended writs of habeas corpus to individuals, should their legal custodian be under the jurisdiction of the united states.28 the majority reasoned that because the department of defense was under united states jurisdiction, claims made by foreign nationals on their detention could be heard, though the court held that cuba still retained “ultimate sovereignty” over guantanamo.29 while the majority simply looked at laws in place surrounding guantanamo’s sovereignty, justice antonin scalia’s dissent demonstrated how ideas of sovereignty put forth in the cuban-american treaty of 1934 remained up for interpretation. justice scalia was a proponent of originalism, a legal philosophy concerned with understanding the original intention and text of law. scalia concluded that the 1934 treaty did not “render guantanamo bay the sovereign territory of the united states” and that guantanamo had “never before been thought to be within [american] jurisdiction.”30 despite the united states exercising significant control over the territory in the 2000s, on the basis of the cuban-american treaty, scalia adamantly denied american jurisdiction over cuba. scalia seemed to recognize the “legal black hole” the treaty created, suggesting the united states could avoid this predicament by creating a separate district court for guantanamo bay, as was done with the panama canal zone.31 the government’s avoidance of confronting the treaty’s loophole indicates that the treaty was perceived as a tool for enabling more aggressive 31 id. 30 id., at 502 (scalia, j., dissenting). 29 rasul v. bush, supra note 26. 28 braden v. 30th judicial circuit court of kentucky, 410 u.s. 484 (1973). 142 brandeis university law journal 2024-2025, volume 12 security measures by denying jurisdiction, and thus detainee rights. scalia’s reasoning would lend legal credence for congress to pass the detainee treatment act in 2005.32 the original text of the detainee treatment act (dta) stated that except in certain circumstances (left undefined), “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 department of defense at guantanamo bay.”33 the dta appeared to circumvent the rasul ruling, reflecting on the question of jurisdiction for guantanamo bay, which in part relied on the interpretation of the cuban-american treaty. as the passage of the aumf illuminated, increasing executive authority was viewed as a reliable countermeasure against terror in the 2000s. the dta’s passage illustrates how ambiguity over guantanamo’s sovereignty was leveraged to deny habeas corpus and strengthen executive power, even amid calls for individual rights, as seen in rasul. congressional and judicial disagreements over guantanamo continue the supreme court would hear two more high-profile cases, hamdan v. rumsfeld (2006) and boumediene v. bush (2008), both concerning the right to question one’s detention status at guantanamo bay. both cases further exemplified the battle between the supreme court and the executive and legislative branches, first demonstrated by rasul and the subsequent passage of the dta. a pattern emerged wherein congress would pass a law regarding the legal processes of guantanamo bay, the president would support and sign the bill into law, and the supreme court would partially reject the law. 33 detainee treatment act, pub. l. no. 109–148, §§ 1001–1006, 119 stat. 2680, 2739–44 (2005) (codified in scattered sections of 10, 28, & 42 u.s.c.). 32 hajjar, supra note 14 at 60. 143 brandeis university law journal 2024-2025, volume 12 this would then cause congress to respond with a different bill, thereby perpetuating a cycle in the name of national security. in hamdan, the supreme court reviewed the detainee treatment act and addressed the military commissions being used to try suspected terrorists.34 these commissions were first discussed in president bush’s military order in november of 2001 before being more concretely defined by military commission order no. 1 in march of 2002.35 these commissions differed from ordinary courts of law in the united states, as they permitted hearsay testimony and evidence obtained through coercion; all in the effort to gather higher volumes of evidence.36 salim ahmed hamdan’s legal team argued that his military commission violated both the uniform code of military justice, an american code, and the geneva conventions.37 hamdan split the court, with justice stevens’ majority opinion joined only by the liberal wing of the court, and only in part. the majority rejected the government’s argument that guantanamo bay existed outside of the scope of geneva, preventing further legal insulation of the territory. crucially, the majority also held that “neither the aumf nor the dta can be read to provide specific, overriding authorization for the commission convened to try hamdan.”38 in doing so, the majority defined a clear limit on the aumf, something that had not been done in their earlier decisions. while this limit applies to the trials of detainees, it did not include a limitation on the circumstances or grounds of a detainee’s detention. in this area, the aumf continued to provide room for exploitation. additionally, stevens’ opinion stated that the 38 id. 37 hamdan v. rumsfeld, supra note 34. 36 id. 35 ida l. bostian, one step forward, two steps back: hamdan v. rumsfeld and the military commissions act of 2006, 5 santa clara j. int’l l. 219 (2006). 34 hamdan v. rumsfeld, 548 u.s. 557 (2006). 144 brandeis university law journal 2024-2025, volume 12 aumf “acknowledge[s] a general presidential authority to convene military commissions,” acknowledging an inherent legitimacy to military commissions and leaving open the possibility for an altered form of these commissions to continue.39 with the publication of the hamdan decision, a familiar pattern reemerged; congress passed the military commissions act of 2006 (mca) as a circumvention of the supreme court’s stance.40 the mca both forbid any detainees subject to a military commission from “[invoking] the geneva conventions as a source of rights” and precluded legal actors in the united states from asserting 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.”41 the mca would be challenged in boumediene v. bush, the last notable guantanamo case adjudicated under the bush administration. boumediene had multiple “moving parts”; the constitutionality of the mca, as well as continued considerations of the application of the fifth amendment and the geneva conventions in military commissions.42 despite its many legal complexities, boumediene would ultimately boil down to a simple conclusion: the majority held that section 7 of the mca, which denied a court’s ability to hear a writ of habeas corpus, was an unconstitutional suspension. the majority unequivocally held that “petitioners have the constitutional privilege of habeas corpus.”43 boumediene addressed the two-pronged issue of sovereignty and criminal rights by upholding the right of habeas corpus in the face of encroachment by the executive branch, even while 43 id. 42 boumediene v. bush, 553 u.s. 723 (2008). 41 u.s. congress, house, military commissions act of 2006, h.r. 6166, 109th cong. (2006). 40 lisa hajjar, the counterterrorism war paradigm versus international humanitarian law: the legal contradictions and global consequences of the us ‘war on terror’, 44 law & soc. inquiry 935 (2019). 39 id. 145 brandeis university law journal 2024-2025, volume 12 acknowledging that guantanamo is “outside sovereign u.s. territory.”44 despite the boumediene holding, habeas corpus cases continued to face challenges. under the obama administration, “the dc circuit court overturned every [detainee] victory and instructed lower-court judges to accept the reliability and accuracy of government evidence.”45 the “debate” over national security measures was firmly decided, as it had been for years. from the passage of the aumf to the persistent obstacles against habeas corpus cases, the united states government views guantanamo bay prisoners as a mere tool for asserting executive and military power, rather than human beings entitled to basic legal rights. concluding thoughts the continued denial of detainee rights lies in the structural integrity of guantanamo. the aumf carved out broad warmaking powers to fight the war on terror, which the executive and legislative branch was unwilling to relinquish. the story of guantanamo bay is not necessarily unique, but an example of how the branches of government may interplay in a battle between civil liberties and national security. the september 11 attacks prompted the legislative and executive branches to create and execute measures to bolster national security, such as the aumf and the military orders authorizing guantanamo’s creation. the supreme court then “checked” the power of these branches and the powers they exercised, first through hamdi and up to boumediene. there is a clear separation of powers in the reactionary nature of congress to the decisions of the supreme court, but i argue that the tug-of-war surrounding guantanamo bay resulted in power that was divided unequally among the branches. the rulings of hamdi, rasul, hamdan, and boumediene all supported a bolstering of detainee rights to a certain extent, but in each instance, congress was able to usurp, at least in part, these 45 hajjar, supra note 14 at 65. 44 id. 146 brandeis university law journal 2024-2025, volume 12 decisions. the firm commitment to the interest of national security left detainees without justice. the lesson to be learned from the early years of guantanamo bay is that the mechanisms that enable injustice may not be discernible from a surface level viewing. the lack of civil rights for detainees was not just a matter of the presidential administration, as habeas petitions were consistently denied under a democratic president. the problems that must be addressed is that the framework of guantanamo itself must be reexamined in today’s context, but perhaps even more significant, is the imbalance of power that exists particularly with an engorged executive branch. 147 contents letter from the editor-in-chief the canary in the west virginia coal mine: how the major questions doctrine led to the demise of chevron i.​ roadmap ii.​ chevron as law iii.​ the fall of chevron iii.a the canary’s first warning iii.b the canary’s coughing fit iii.c the canary’s last gasps iii.c.1 federalist values iii.c.2 nondelegation values iv.​ the end of chevron ​iv.a the canary’s death iv.b the (a)textual justification iv.c the political instruction iv.d the canary dies v.​ conclusion second to one: walking in the shoes of a giant the time the man the government the statesman the legacy state responsibility for state sponsors of terror roadmap background state responsibility the mens rea element the actus reus element conclusion