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, 1933- September 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