Spring 2021
Will Trump Be Held Accountable for Inciting the Capitol Insurrection?
In the days following the January 6th insurrection in the U.S. Capitol, a growing chorus of politicians, activists, pundits, and ordinary citizens began to demand that President Trump be held accountable for his role in inciting the insurrection, which put members of Congress’ lives in danger and left five people dead. [1] However, since the U.S. House of Representatives impeached Trump but the Senate failed to convict him for his actions leading up to and on that day, it is up to the criminal and civil courts to hold Trump accountable. [2] On February 16th, the NAACP filed a civil lawsuit against Trump, arguing that Trump, along with the Proud Boys and other white supremacist groups, unlawfully prevented members of Congress from certifying the election results. [3] At the heart of the NAACP’s lawsuit is the Ku Klux Klan Act of 1871, which protects elected officials from being intimidated or prevented from fulfilling their official duties. [4] The biggest hurdle the NAACP faces in its lawsuit against Trump is presidential legal immunity, which broadly protects presidents from criminal prosecution or civil litigation for their actions taken while in office. [5] A closer examination of presidential legal immunity and its limits, however, reveals that Trump may very well be held accountable for his role in inciting the January 6th insurrection under the KKK Act.
Are Vaccine Mandates a Must?
This article explores the legality of vaccine mandates and advocates that travel-related businesses, such as airlines and cruises, should require vaccination of their customers. Starting with a brief overview of the development of the vaccine, the article then explains why businesses have the legal right to mandate vaccinations if they so choose. Although this is an option for all businesses, travel-related companies have the most relevant reason for doing so given their increased potential to impact both personal and public health. If these companies choose not to implement vaccine mandates, they open the door to both health crises and potential legal liabilities. Ultimately, as vaccine availability increases, it is important for businesses to start considering their policies around vaccination. Companies that rely on travel, in particular, should capitalize on their legal right to adopt vaccine mandates in order to create safer environments and preserve public health.
Rethinking the Legality of the Death Penalty on Sovereign Native American Nations
Native American Nations and the United States have fought over jurisdictional boundaries and respective sovereignty since the emergence of white settlers in America. Regarding legal jurisdiction, there are many contrasting laws enacted by the United States government that complicate the true sovereignty of Native governments. On August 26, 2020, the United States carried out the death penalty on Lezmond Mitchell, the only Native American on death row, reigniting this controversy. The Navajo Nation, of which Mitchell was a part, vehemently denied the federal government’s right to use the death penalty. This view is supported by federal law; according to the Death Penalty Act (18 U.S.C. § 3598), the tribe has the ultimate decision in whether the death penalty is enacted on a member of their tribe when the crime was committed against another Native American. Further, under the Federal Enclave Act (18 U.S.C. § 1152), Mitchell should not have been convicted of any crime by the United States, but rather his tribal government. Lastly, while Lezmond Mitchell was rightfully convicted of first-degree murder following the Major Crimes Act (18 U.S.C. § 1153), the United States does not have the jurisdiction to convict him of carjacking resulting in death, the crime for which he ultimately was sentenced to the death penalty, making the death penalty sentence unlawful.
Sex and the City
Countries and cultures throughout history have related themselves in various ways to sex work, an ancient occupation. Sex work is consensual, transactional sex as distinct from human trafficking. As a criminalized industry, sex work is currently a dangerous occupation, and, according to a meta-analysis of research projects related to sex work conducted by the ACLU, it becomes significantly safer when completely legalized as in New Zealand as of 2003. To better protect and support the overall flourishing of this population and the lives of the people and communities of which they are a part, it is imperative to legalize and esteem sex work.
On the Basis of Gender Identity? The Implications of Title IX’s Ambiguity on Transgender Rights in Soule v. Connecticut Association of Schools, Inc.
My article examines how the ambiguity of the term “sex” in Title IX makes it subject to vastly different interpretations based on the administration in power. The article focuses on the Soule v. Connecticut Association of Schools, Inc. case, where four cisgender athletes filed a complaint against the Connecticut Interscholastic Athletic Conference claiming its Transgender participation policy constitutes a violation of their Title IX right. The Trump administration’s Department of Education, charged with enforcing the statute, interpreted “sex” in Title IX as biological gender, siding with the plaintiffs and threatening to pull funding from schools. The Biden administration on the other hand interprets “sex” to mean gender identity and argued that excluding transgender female athletes from women’s athletics is a violation of their Title IX rights. Given the dangers posed by inconsistent enforcement of the law that the ambiguity in the statute causes, I believe Title IX requires amendment.
San Antonio Independent School District v. Rodriguez (1973) and Its Repercussions on Equality in Education
The American public education system has traditionally derived most of its funding from state and local tax dollars. Its school financing system has resulted in funding inequalities between different school districts: higher-poverty school districts tend to bring in less school funding through property taxes, yet these are the very school districts most likely in need of additional financial resources to support their students. Importantly, disparities in school funding will likely be exacerbated due to the COVID-19 pandemic. To better understand why funding inequalities in education have persisted despite many reform efforts, it is necessary to examine the role of the law in school financing, specifically the landmark case, San Antonio Independent School District v. Rodriguez (1973), and how its decision has posed challenges to school financing reform.
What Is Section 230 And Why Does It Matter?
Few topics currently pervading political circles are bigger than the question of free speech and how it should manifest on the Internet. Just as all roads long ago led to Rome, today all roads concerning Internet free speech lead to Section 230 -- a twenty-six-word stipulation added to the Communications Decency Act of 1996. In this article, I present an overview of Section 230, explain why it was passed, and describe how it has become one of the most universally detested pieces of legislation in political America. I also propose additional federal legislation that expands on the meaning of hate speech and disinformation as defined in 18 U.S. Code § 1038.
McFall v. Shimp and the Case for Bodily Autonomy
Six years after Roe v. Wade (1973), the landmark Supreme Court case that upheld a woman’s right to abortion based on her inherent right to privacy, the Common Pleas Court of Allegheny County, Pennsylvania, ruled in favor of the “sanctity of the individual” to uphold women’s right to choice. The case, McFall v. Shimp (1978), ruled that a person could not be legally compelled to participate in medical treatment to save another person's life. The holding of McFall v. Shimp extends beyond this narrow circumstance; Judge John P. Flaherty applied the ruling to the moral obligations of people and other living things, citing the duty of the court to protect the individual from being invaded and hurt by others. McFall v. Shimp employs the physical body's rights and duties, consistent with the discussion of reproductive rights during pregnancy—given the ongoing discourse on the legality of abortion, a critical examination of bodily integrity is necessary to distinguish moral conflicts from legal obligations. McFall v. Shimp set a legal precedent that an individual is not under compulsion to aid another person at their mental or physical expense, upholding the right to bodily autonomy found at the center of the debate on the legality of abortion.
Caste in Cisco: Understanding Caste in America
When there is a movement of people from one place to another, those people are very likely to bring their culture, way of life, language, and preconceived biases. Such is evident when observing the prevalence of caste-based discrimination among members of the Indian diaspora in America. In a lawsuit in which the state of California sued Cisco Systems claiming that an engineer, who is a Dalit Indian, was discriminated against at Cisco’s Silicon Valley headquarters on the basis of caste. This is the first time in United States history in which caste is at the center of a discrimination case. This case is a manifestation of the hierarchy of power created by the caste system, and its present-day implications. There are no federal or state laws in the USA that include caste as a protected category along the lines of race, sex, etc. This case highlights how detrimental caste-based discrimination is, as it infiltrated professional life, and also emphasizes just how the law intersects with other aspects of life, like religion, given that the case had many socio-religious implications.
Changing Fuels, Maintaining Disputes
With the increasing popularity of lithium-ion battery vehicles as a method of limiting direct greenhouse gas emissions, some of the negative implications of this booming industry are being overlooked. Most notable among them is the intensive mining required to yield the minerals and rare earth elements required to construct lithium-ion batteries. Hard rock extraction and brine pumping can be just as devastating on the local environment as their fossil fuel counterparts—fracking for natural gas and drilling for oil. As a result, the individuals most impacted by current and proposed lithium mining projects are fighting back through legal action. The peoples of the “Lithium Triangle” in South America had pleaded for their local courts to realize the collective indifference of mining companies to exploiting their communities. In Europe, organizations in Spain, Northern Ireland, and Finland are also trying to swing legal rulings against planned lithium projects. And even much closer to home, a new lawsuit in Nevada is challenging a proposed lithium mine—based on the grievances of ranchers set to be run-out. Regardless of the outcomes in these legal proceedings, one thing is for certain. Fuels may be in a transition, but the disputes just carry over.
Tiny Homes: Addressing Housing and Educational Opportunity Inequities in New Hampshire’s HB588
With the rise of unemployment amidst the economic recession created by the spike in COVID-19 cases in the United States, homelessness has become an increasingly pressing issue; from early 2018 to early 2019 alone, the national homeless population has grown by 15,000 people. Furthermore, the Census Bureau’s Household Pulse Survey found that twenty-three million Americans report a deficit in their food intake and 1 in 4 renters reported that they were behind on rent. However, despite the growing financial burden of the economic recession, its disproportionate influence on low-income and racial minority households, and the steady growth in systemic wage gaps, there is still significant controversy surrounding a proposed New Hampshire law that might help to mitigate housing inequities. HB588, a copy of the 2020 bill SB482 which died during the COVID-19 shutdown, would allow “tiny houses” — 100 to 400 square foot dwelling units — to reside next to regular homes in every New Hampshire county. A version of this bill was passed in 2016 but allowed counties to refuse the occupancy of tiny houses, but HB588 would make this allowance universal. I argue that HB588 should be passed because it enforces the constitutionally-guaranteed assertions under the Federal Fair Housing Act of 1968 and addresses the educational gap in different socioeconomic communities under the Equal Educational Opportunities Act of 1974.
Confessions of a Corporate Shill: Shareholder Primacy Must Prevail
A growing number of corporate executives, activists, and politicians would like for corporations to consider the impact of their decisions on the welfare of all of their stakeholders — rather than only their shareholders. Legal scholars have also begun to question the assumption that corporate officers have a fiduciary responsibility to maximize shareholder profits. However, precedent in the most important jurisdiction, the State of Delaware, forbids corporate executives from making decisions for reasons other than the betterment of shareholder welfare. Moreover, a shift away from shareholder primacy would cripple courts' oversight of corporations, give unprecedented power to corporate officers, and result in economic inefficiency.
Indigenous Rights in the U.S. and Hong Kong - A Comparative Analysis
Author Biography: Rachelle Lam recently completed her undergraduate Law degree at the University of Cambridge, with First Class Honors. She was also the Managing Editor of the Cambridge Law Review, and Senior Editor of the Cambridge Human Rights Law Journal.
Abstract: In 2019, the Hong Kong Court of First Instance ruled that Indigenous villagers do not enjoy the right to build on government land at concessionary premium, as this does not constitute a “traditional” right of the New Territories Indigenous inhabitants protected under Article 40 of the Basic Law. In the same year, the U.S. Supreme Court rendered several landmark decisions clarifying its methodology on the interpretation of Native American rights. This essay examines how the jurisprudence of the U.S. Supreme Court can provide an illuminating guide as to how the Hong Kong Court could approach statutory interpretation of Indigenous rights in the future.