Spring 2021
The Legal History of the United States and Its Attack Against Native Americans
Since May 2021, more than 1,308 unmarked graves have been found at four former Indian Residential Schools in Canada. [1] These discoveries have renewed significant interest in investigating and speaking out against the oppression of Native Americans. Indian Residential Schools particularly demonstrate that oppression against Native Americans has extended beyond mere assimilation efforts to include outright elimination tactics in pursuit of a contiguous settler state. Indian Residential Schools have recently become an impetus for exploring elimination tactics across numerous sectors, including the legislative branch of American government.
How Old is Too Old? Addressing Wellness in an Aging Federal Judiciary
The United States of America is the only Western democracy in the world that does not have a mandatory retirement age for its federal judges. This fact, coupled with a federal judiciary that is ever-aging, has resulted in growing concerns about how to ensure judicial wellness, particularly regarding cognitive functioning. One common response has been to establish a mandatory retirement age at the federal level. This article argues that instating a mandatory retirement age is an over-simplistic and inadequate solution to the complex issue of ensuring the well-being of an aging judiciary. Instead, a more effective strategy would be to draw on the wellness model of the Ninth U.S. Circuit Court of Appeals, which includes educating judges on wellness, administering regular cognitive exams, and normalizing discussion around aging.
An Electoral College Legal Workaround Not Requiring Constitutional Amendment
The National Popular Vote Interstate Compact (NPVIC) seeks to abolish the Electoral College without amending the Constitution. This contract ― in which states would award their electoral votes to the winner of the national popular vote in presidential elections ― would effectively nullify the Electoral College. Since there has been no judicial ruling on the matter, however, it is unclear whether the NPVIC is constitutional. This article argues that it is legal, on the following three grounds: 1) the strict text of the Constitution does not prohibit it, 2) the application of the Electoral College in modern America has already long contradicted the will of the Founders, and 3) this Compact reflects the will of voters.
Judicial Precedent and the Dismantling of the “No Movement Policy” in Nigeria
On March 13, 2018, Anambra State of Nigeria restored its citizens’ right to move—and it was revolutionary. Though seemingly a freedom that goes without saying, the right to move has been restricted by many state governments in Nigeria. For the sake of environmental sanitation, “no movement” policies have become commonplace in a country whose economy itself depends on its citizens’ ability to move freely. Specifically in Anambra State, citizens were forbidden from leaving their homes or conducting business on every last Saturday of the month during the sanitation period between the hours of 7 am and 10 am. This policy exempted essential workers—a group which constitutes a sizable minority of the Nigerian population. If citizens were found in violation of this order, they were subject to dehumanizing treatment by law enforcement personnel before being swiftly arrested, convicted, and fined by a special court.
Leading in Unchartered Territory:Why Some Courts Can Make Countermajoritarian Decisions Before Others
Using a comparative approach with four early-stage same-sex marriage cases at state-level supreme courts, including Baehr v. Lewin, Baker v. Nelson, Goodridge v. Department of Public Health and Hernandez v. Robles, this article argues that courts are more likely to rule in favor of minority rights when there is a stronger, more specific legal doctrine available to the judges. This comparative study finds strong evidence to suggest that more specific documents of legal authority allow judges to raise the standard of approval for marriage statutes and influence them to access precedent cases that were in favor of the plaintiffs. This finding offers a partial explanation as to why some courts are able to make countermajoritarian decisions in favor of minority rights.
Why Common Carrier Doesn’t Make Sense for the Internet - A Defense of Section 230
Section 230 is under attack from various political and judicial dimensions, one of which is the idea that internet platforms should be governed under the common carrier framework. Common carrier classification or similar “must carry” requirements such as those attached to a “public forum” designation are not inherently well suited for internet platforms based on their overly broad scope and unrestricted natures. Their adoption via legislation or judicial decision would be highly detrimental to the internet if applied and as such should be avoided.
Title IX: Resuscitating College Athletics During the COVID-19 Pandemic
During the coronavirus pandemic, an economic downturn and lockdown drastically affected American universities. Many colleges struggling to defray their expenses chose to demote sports teams from their varsity status, consequently cutting them off from their college’s funding. These spending cuts impacted many women’s athletic programs, some of which hired lawyers to defend their interests under Title IX law. In this article, I examine the role of Title IX in defending women’s sports in light of the coronavirus pandemic, and how Title IX has been used historically to expand and defend the opportunities for female athletes in the United States.
The Tulsa Race Massacre and the Substance of Law: Reconsidering Equitable Tolling/Estoppel in Cases of State Sponsored Civil Violence
In 2004, the 10th Circuit Court of Appeals affirmed an Oklahoma district court ruling that victims of the 1921 Tulsa Massacre were not eligible for equitable tolling of the statute of limitations and thus could not legally pursue restitution for damages incurred during the incident. In that case,Alexander et. al v. Oklahoma (2004), surviving victims’ petitions were denied by both District and Circuit Courts on the grounds that the “exceptional circumstances” which permitted equitable tolling of the statute of limitations had subsided. However, the vicious climate cultivated by Jim Crow wasn’t completely eliminated by the Civil Rights legislation of the 60s, and, further, ongoing harms may be in part enabled by our hesitance to recognize and rectify past injustices. As such, this essay argues for a reconsideration of the practical application for the law to permit reasonable exceptions to equitable tolling of the statute of limitations under extraordinary circumstances as exemplified in the Tulsa Race Riots of 1921 and subsequent circuit court case, Alexander et. al v. Oklahoma (2004).
Immune to International Law: Israel’s Settlements’ Long Ignored Illegality
This article explores the International laws that relate to Israeli settlements in order to evaluate the International Criminal Court’s decision to investigate allegations of Israeli war crimes against the Palestinian people. The statutes and laws used in this article are from the Hague Regulations of 1907, the Rome Statute of the International Criminal Court, and the Fourth Geneva Convention. This article argues that Israel’s flagrant and explicit violations of international law should no longer be ignored by the international community.
Black, Indigenous, and Green Mountains of Color:Vermont’s Vaccination Policy is Unconstitutional
Vermont has adopted a policy to preference its “BIPOC” community over others in its vaccination rollout. This discriminatory action violates the equal protection clause of the 14th amendment because it makes a racial classification that is not narrowly tailored to further a compelling governmental interest. Remedying general societal discrimination is not a compelling governmental interest in this context, and Vermont can address discrepancies in COVID-19 risk more directly by prioritizing those with the characteristics that the state lists as risk factors. Moreover, the Centers for Disease Control and Prevention’s initial vaccine prioritization scheme might be unconstitutional on the same grounds.
How Mahanoy School District v. B.L.Could Affect Students’ Freedom of Speech
With the emergence of online learning and the increased prevalence of social media, the line between school and home has become so distorted that it is virtually nonexistent. This line is especially relevant to Mahanoy School District vs. B.L. (2021), which has the potential to extend school jurisdiction over at-home speech. In this case, the Supreme Court will decide if the precedent set in Tinker v. Des Moines (1969), allowing schools to suppress disruptive speech, extends to speech made off campus. While school districts should have a certain level of regulation over off-campus speech that could potentially threaten the safety of students on campus, Mahanoy Area School District v. B.L. allows a level of regulation that goes too far beyond the amount of control schools should have over student’s off-campus speech, substantially threatening students’ First Amendment rights. The Supreme Court should define schools’ jurisdiction over off-campus speech to include speech that has the potential to substantially affect the school environment, but profanity, the relevant speech in this case, does not fit that definition.
Robert Collier v. Dallas County Hospital: What is Enough?
This article explores the reasons for the Fifth circuit’s failure to uphold Title VII of the Civil Rights Act of 1964. In Robert Collier’s workplace, he was exposed to a graffitied swastika and the n-word scratched into the employee elevator as well as being called “boy” by a nurse. Many have looked at this case and asked themselves whether one racial epithet enough to constitute a violation of Title VII. This article will explain why this instance was not constituted as “enough” under the United States Justice System, and follow that analysis with evidence as to why it is “enough.”
I Am a Democrat, but I Oppose Filibuster Reform
2021 is a year of change in America. Since the Democratic Party obtained control of the Senate in January, some Democrats have begun to champion filibuster reform. I am a Democrat, but I believe that the filibuster is an integral facet of the Senate's parliamentary procedure, even though it may slow the enactment of President Biden's agenda. The filibuster needs to be maintained because it forces compromise and moderation in American politics.
“You Have the Right to an Attorney”: Revisiting the Promise of Gideon vs. Wainwright
Over fifty years ago, the Supreme Court handed down a unanimous decision in Gideon vs. Wainwright which ruled that criminal defendants must be provided an attorney if they can not afford one themselves. Fifty years later, the United States faces a national crisis in upholding this promise. In this article, I argue that the current state of U.S. public defense violates the guarantees of both the ruling in Gideon vs. Wainwright and the Sixth Amendment. Ultimately, I find that this national crisis in public defense is representative of a much larger problem within the U.S. justice system: mass incarceration.
Third-Party Ballot Access: Examining the 2020 Presidential Election in Wisconsin
In this article, I use legal proceedings leading up to the 2020 Wisconsin General Election to discuss the merits of ballot access laws in the US. Citing failures such as discrepancies in home address listings and turning in a petition 14 seconds late, presidential candidates were denied access to the ballot in Wisconsin. I argue that the leveraging of ballot access laws as a political weapon runs counter to democracy, and should hold no place in fair, free elections. Today, ballot access laws across the US limit options available to voters and ensure a duopoly for the two major parties. Third parties must be prepared to defend their position on the ballot against litigation from major parties looking to eliminate competition.
The Unanswered Questions of Commonwealth v. Carter
Commonwealth v. Carter saw Michelle Carter get charged with involuntary manslaughter for causing the suicide of Conrad Roy. Carter had exchanged thousands of messages with Roy in which she helped him plan and then pressured him to complete his suicide. In the midst of his suicide attempt, Roy called Carter because he was experiencing doubt. She told him in no uncertain terms to complete his suicide which he did. The argument is about the lack of appropriate charges for cases like Carter’s and how Carter reveals the need for new legislation in the internet age where constant communication can give someone near-total control over another.
American Rescue Plan: A Safe Way to Reopen Schools and Support Students’ Wellbeing
Nearing a year of online learning throughout most of the nation, President Joe Biden promised to safely reopen schools within his first one hundred days in office. The American Rescue Plan, which President Biden recently signed into law, provides $130 billion to safely reopen schools. However, the law has been met with safety concerns by parents and teachers alike. Others believe that the plan is unconstitutional on the grounds that it infringes on the States’ authority to regulate public education. However, since online schooling has serious consequences for student achievement and wellbeing, the safe reopening of schools is the best way to support students. This article argues that the American Rescue Plan is constitutional because it merely provides the States guidance -- not a mandate. The American Rescue Plan is necessary to support the social, emotional, and intellectual wellbeing of students.
Public Health versus Personal Liberty: Politicization’s Role in the Constitutionality of Public Health Mandates
Even as vaccination campaigns roll out across the United States, there are ongoing disputes regarding public health mandates enacted by local, state, and federal governments. From inquiries about the reliability of the Centers for Disease Control to stay-at-home order lawsuits, challenges against public health mandates have been largely partisan in nature rather than in the interest of public health. The balance between public health and personal liberty in the U.S. has an extensive history, but recent court cases and the increased politicization of public health could potentially alter the legality of government-enacted public health measures and the use of scientific guidance in the court for decades.
Miller v. Alabama and the Problem of Implementation
Miller v. Alabama ruled that mandatory life without parole sentences for juveniles were unconstitutional. It also argued that such sentences should be restricted to those cases in which a crime reflects "irreparable corruption." However, because "irreparable corruption" was not defined and no criteria were provided to determine when such a crime has been committed these determinations have been left up to the discretion of judges and members of parole boards. Consequently, juvenile life without parole which was intended to be applied only as a punishment for crimes which reflect "irreparable corruption" is still being applied for lesser crimes in some areas of the U.S. The Supreme Court is currently deciding on Jones v. Mississippi which gives them the opportunity to remedy the issues with the Miller ruling and more concretely define what constitutes a crime that reflects "irreparable corruption" and what does not.
Marriage, Love and Loving:The Evolution of Interracial Marriage Laws Through the U.S. Supreme Court
U.S. Supreme Court jurisdiction around interracial marriage laws have shown a significant shift from Pace v. Alabama in 1882, where anti-miscegenation laws were unanimously approved by the Court, to Loving v. Virginia in 1967, where all such laws were deemed unconstitutional. This article argues that the history of interracial marriage jurisdiction is an example of how the decisions of the U.S. Supreme Court have largely been anchored by public opinion, contrary to the common perception of the judiciary as a body independent of the popular will. The U.S. Supreme Court shifted its interpretation of the Equal Protection Clause, and consequently its stance on anti-miscegenation laws, only after sweeping social and demographic changes had significantly pacified racial relations in America. This suggests that the judiciary is an unreliable defender of countermajoritarian rights, while also implying an empowering message that popular mobilization can change judicial outcomes.